BRIEFING NOTE: CRIMINAL LAW (SENTENCING) AMENDMENT BILL, [B 15B 2007]

1 Brief overview of the Criminal Law Amendment Act, 1997 (the principal Act)

1.1 The principal Act, which came into operation on 1 May 1998, deals with the abolition of the death penalty and also created a legal regime of discretionary minimum sentences for certain serious offences. This latter part of the Act has colloquially, become known as the "Minimum Sentences Act".

1.2 Discretionary minimum sentences are only provided for in respect of a limited number of serious and defined offences. In each case the presiding judicial officer has a discretion to impose a lesser sentence than the prescribed minimum sentence if he or she is satisfied that there are substantial and compelling circumstances justifying the imposition of such lesser sentence. This legal regime, therefore, does not create mandatory minimum sentences. The Constitutional Court has characterised it thus: "section 51 has limited but not eliminated the courts' discretion in imposing sentence in respect of offences referred to in Part I of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2)".

1.3 Section 52(1) of the Act presently provides that where a regional court has convicted an accused of an offence referred to in Part I - IV of Schedule 2 and the court is of the opinion that the offence concerned merits punishment in excess of the jurisdiction of a regional court, then the court must stop the proceedings and commit the accused for sentence by a High Court having jurisdiction. Over the years a complicated referral procedure has been developed to facilitate this two-stage process of conviction and sentencing.

1.4 In terms of section 51 (4) a minimum sentence imposed under section 51 begins to run from the date that the sentence is passed. In addition, section 51 (5) provides that such a minimum sentence may not be suspended.

1.5 Section 53(1) provides that sections 51 and 52 shall cease to have effect after the expiry of two years from the commencement of the Act, unless their operation is extended by the President by proclamation in the Gazette in terms of section 53(2), with the concurrence of Parliament, for two years at a time. This was a compromise arrived at during the Parliamentary processing of the Bill. In terms of this provision, the operation of the discretionary minimum sentence legislation has again been extended for a period of two years with effect from 1 May 2007, in order to allow Parliament time to consider and pass the Criminal Law (Sentencing) Amendment Bill, 2007 (hereafter referred to as the Bill). (See Government Gazette No. 29831 of 25 April 2007, Proclamation No.R.10)

1.6 The constitutional validity of both sections 51 and 52 of the Act was tested in 2000 and 2001, respectively. The Constitutional Court in both instances dismissed the constitutional challenges against these provisions and upheld the constitutional validity of the Act.

1.7 Despite the fact that the legislation has been found to be constitutionally sound, certain practical problems, real or perceived, relating to the application of sections 51 and 52 have been identified, based on inputs by the Judiciary, the National Prosecuting Authority and other stakeholders. The Bill aims to address these practical problems in question, whilst retaining the principles underlying the Act.

2 Brief overview of the Bill

2.1 Repeal of the referral process and consequential amendments

Section 51(1) is amended to provide a regional court with jurisdiction to convict and sentence a person found guilty of an offence referred to in Part I of Schedule 2, to imprisonment for life. This amendment does not stand on its own and should be read within the context of four further amendments. Firstly, a proviso has been added to section 51 (3)(a) to provide that if a regional court imposes a lesser sentence in respect of an offence referred to in Part I of Schedule 2, it shall have jurisdiction to impose imprisonment for a period not exceeding 30 years. This amendment is necessary since provision must be made for increased jurisdiction for a regional court in the event of such a court finding that there are substantial and compelling circumstances justifying the imposition of a lesser sentence than life imprisonment, but still exceeding the current limit of 15 years imprisonment that a regional court may impose. Secondly, since a regional court under section 51 (1) would be able to sentence a person to life imprisonment, there is no longer a need for the regional court to commit the accused for sentencing to a High Court having jurisdiction. In other words, the referral process becomes redundant. In order to address this issue, and due to the numerous problems experienced in practice as a result of the referral processes under sections 52, 52A and 52B, it was decided not only to do away with the committal of an accused for sentence by a High Court after conviction in a regional court, but to repeal sections 52, 52A and 52B and thereby the referral process in its entirety. Thirdly, in empowering a regional court to sentence a person under section 51(1) to life imprisonment, it has also become necessary to amend section 309 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (CPA), in order to provide for an automatic right of appeal in cases where a person is sentenced by a regional court to life imprisonment. (At the same time, the ages listed for children in instances where an automatic right of appeal would be available are being adjusted to give greater protection to children under the age of 18 years.) Fourthly, due to the repeal of the referral process, it was further decided to also amend section 21 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998), in order to provide that the National Director of Public Prosecutions (NDPP) must amend its prosecuting policy and issue policy directives that set out which prosecutions (with reference to particular types of cases or involving specific individuals) must, as a matter of prosecuting policy, from the outset be instituted in the High Courts and not in the regional courts.

2.2 Certain grounds excluded from substantial and compelling circumstances in rape cases

Section 51 (3)(a) provides that if a court is satisfied that there are substantial and compelling circumstances justifying the imposition of a lesser sentence, it must enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence. Based on an analysis of case law dealing with the imposition of lesser sentences in rape cases, and in the light of submissions received by women's interest groups, it is clear that the circumstances held by the courts as constituting "substantial and compelling" reasons for imposing such lesser sentences are, in some instances, objectionable. In order to address this situation, it was decided to insert a proviso in section 51(3)(a) to provide that, 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:

· The complainant's previous sexual history;

· An apparent lack of physical injury to the complainant;

· An accused person's cultural or religious beliefs about rape; or

· Any relationship between the accused person and the complainant prior to the offence being committed.

2.3 Repeal of section 51(3)(b)

Under section 51 (3)(b), should a court have decided to impose a minimum sentence upon a child who was 16 years or older, but under the age of 18 years, at the time of the commission of the offence, the court had to enter its reasons for its decision to impose the minimum sentence on the record of the proceedings. In other words, the court had to set out why it did not find substantial and compelling reasons to impose a lesser sentence. However, the interpretation of section 51 (3)(b) has become confused (if not redundant for all intents and purposes), as a result of the interpretation given to this provision by the Supreme Court of Appeal in the Brandt judgment, namely that a court has an unfettered discretion as to the imposition of minimum sentences on minors. Section 51 (3)(b) is consequently repealed.

2.4 Calculation of sentence

Section 51 (4) of the Act is repealed in order to allow a presiding officer, when imposing a sentence under the Act, to take into account the time that an accused was incarcerated as an awaiting trial prisoner.

2.5 Suspension of sentence

Currently, the operation of a discretionary minimum sentence imposed under section 51 may not be suspended. The Bill retains this provision, but introduces a new subsection 5(b) which provides that if a minimum sentence is imposed upon a child who 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, then up to half that sentence may be suspended. It is believed that by making provision for the suspension of a minimum sentence where a child between the ages of 16 and 18 years is involved, expression is given to the Constitutional duty to impose the shortest appropriate period of detention upon a child (section 28(1)(g) of the Constitution).

2.6 Extension of the operation of the Act

In the light of the extensive technical amendments proposed by the Bill and the fact that the principles underlying the Act have been found by the Constitutional Court to be constitutionally sound, provision is made for the repeal of the "sunset clause" in section 53. However, the Act will eventually be superseded by the development and implementation of a new alternative and comprehensive sentencing framework for South Africa.

2.7 Transitional provision

The Bill provides that if a regional court has, prior to the date of the commencement of the new provisions (contained in the Bill), committed an accused for sentence by a High Court, the High Court must dispose of the matter as if the Bill had not been passed. But

if a regional court has not, prior to the date of commencement of the new provisions, committed an accused for sentence by a High Court, then the regional court must dispose of the matter in terms of the new provisions.

2.8 Amendment of Schedule 2 to the Act

Clause 5 effects two amendments to Schedule 2 to the Act:

a) Part I is amended by the insertion of two further grounds under the category

dealing with murder, in order to provide that imprisonment for life will also be mandatory in instances where, firstly, 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, and, secondly, 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 3 of 1957). This amendment is viewed as necessary in the light of the prevalence of ritual killings or so-called multi-killings.

b) The second amendment entails the substitution of Part IV of the Schedule. This Part presently applies to offences listed in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977)(CPA), if the accused had with him or her at the time a firearm, which was intended for use as such in the commission of such offence. However, not all the offences listed in Schedule 1 of the CPA could be committed with a firearm and therefore, in an effort to ensure greater legal certainty, the amendment proposes that the offences which could be committed with a firearm be listed in Part IV itself.

2.9 Amendment of the Prevention of Organised Crime Act (POCA)

As pointed out earlier, the Bill repeals the referral process in the Act. This referral process was however also incorporated by reference into POCA and as a result it is necessary to align POCA with the new provisions.

2.10 Commencement date

The short title to the Bill proposes that it should come into operation on 31 December 2007. A specific date was stipulated in order to create legal certainty for stakeholders who need to prepare in advance for the implementation of the new regime.