MEMORANDUM ON THE OBJECTS OF THE
CRIMINAL LAW (SENTENCING) AMENDMENT BILL, 2007
1. BACKGROUND
1.1
The Criminal Law Amendment Act, 1997
(Act No. 105 of 1997) (hereinafter referred to as the Act), which came into operation on 1 May 1998,
dealt with the abolition of the death penalty and created a legal regime of
discretionary minimum sentences in respect of certain serious offences. Sections 51 and 52 of the Act make provision
for the imposition of minimum sentences in respect of serious offences. These offences are categorised in terms of
their degree of seriousness and are listed in Parts I-IV of Schedule 2 to the
Act. In terms of section 51(3), a High
Court or regional court is given a discretionary power to impose such lesser
sentence, if that court is satisfied that substantial and compelling
circumstances exist, which justifies the imposition of a lesser sentence than
the prescribed minimum sentence.
1.2
The constitutional validity of both
sections 51 and 52 of the Act was tested in 2000 (State v Dzukuda)
and 2001 (State
v Dodo), respectively. These cases dealt with two major challenges
on two different grounds, namely an accused’s right to a fair trial and the
independence of the judiciary. The
2. OBJECTS
2.1 The
Bill aims to expedite the finalisation of serious criminal cases, to punish
offenders of certain serious offences appropriately and to avoid secondary
victimisation of complainants, which, inter alia,
occurs when vulnerable witnesses have to repeat their testimony in more than
one court.
2.2 The
provision requiring a regional court to refer an accused for sentencing to a
High Court is repealed. Regional courts
are granted jurisdiction to impose life sentences in cases where this is
prescribed. Provision is made for an
automatic right of appeal in cases where a person is sentenced by a regional
court to life imprisonment. The National
Director of Public Prosecutions is required to adopt policy directives that set
out which prosecutions must from the outset be instituted in the High Courts
and not in the regional courts.
2.3 When
a sentence must be imposed in respect of the offence of rape, none of the
following shall constitute substantial and compelling circumstances, justifying
the imposition of a lesser sentence, namely:
(a) The
complainant’sany previous
sexual history of the complainant;
(b) an apparent lack of physical injury to the complainant;
(bc) an accused person’s cultural or religious
beliefs about rape; or
(dc) any relationship between the accused
person and the complainant prior to the offence being committed.
2.4 The Act is not applicable to a person under the age of 16
years at the time of the commission of an offence referred to in sections 51(1)
or 51(2)(a) or (b). In terms of the Bill, the Act will also not
apply to a person who was under the age of 18 years at the time of the
commission of an offence referred to in section 51(2)(c).
2.45 A presiding officer,
may,
when imposing a sentence under the Act, under the new provisions, take into
account the time that an accused was incarcerated as an awaiting trial
prisoner.
2.56 The Bill allows for up to half of a
sentence imposed in terms of section 51(2)under section
51(2)(c) to be suspended, if the
accused person was 16 years of age or older, but under the age of 18 years, at
the time of the commission of
the offence in question.
2.67 The provision in terms of which sections 51
and 52 shall lapse after two years, is repealed.
2.7 The Bill amends
Part I and Part IV to Schedule 2 to the Act.
Part I is amended by the insertion of two further grounds under the
category dealing with murder. Murder where the victim was
killed in order to unlawfully remove any body part of the victim, or as a
result of such unlawful removal of a body part of the victim or where the
death of the victim resulted from or is directly related to, any offence
contemplated in section 1(a) to (e) of the Witchcraft Suppression Act, 1957
(Act No. 3 of 1957) is included in
Part I.
The Bill amends Part IV, by listing the
offences previously referred to by means of
cross-referencing to Schedule 1
to the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
2.8 The Prevention of Organised Crime Act, 1998
(Act 121 of 1998) is amended by the repeal of the
provisions in terms of which a regional
court may (in terms of that Act) commit an accused for
sentencing by a High Court.
3. DEPARTMENTS/BODIES/PERSONS CONSULTED
The
Bill was developed in response to problems identified with the practical
application of the Act by the Judiciary, the National Prosecuting Authority,
the Western Cape Consortium on Violence Against Women and other stakeholders
who made submissions to the Department.
4. IMPLICATIONS FOR PROVINCES
None.
5. ORGANISATIONAL
AND PERSONNEL IMPLICATIONS
None.
6. FINANCIAL
None.
7. COMMUNICATION
IMPLICATIONS
None.
8. PARLIAMENTARY PROCEDURE
8.1 The State Law Advisers and the Department
of Justice and Constitutional Development are of the opinion that this Bill
should be dealt with in terms of the procedure established by section 75 of the
Constitution of the Republic of South Africa, 1996, since it contains no
provision to which the procedure set out in section 74 or 76 of the
Constitution applies.
8.2 The State Law Advisers are of the
opinion that it is not necessary to refer this Bill to the National House of
Traditional Leaders in terms of section 18(1)(a)
of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of
2003), since it does not contain provisions pertaining to customary law or
customs of traditional communities.