During the operation of the discretionary minimum sentences legislation, the constitutional validity of both sections 51 and 52 of the Act was tested, in 2000 and 2001, respectively.[1]  The Constitutional Court in both instances dismissed the constitutional challenges against these provisions and upheld the constitutional validity of the Act.


State v Dzukuda


In S v Dzukuda, the Constitutional Court had to deal with an application from the High Court for confirmation of a declaration of constitutional invalidity of section 52 of the Act.  The High Court had based its decision on four aspects of section 52 that it alleged infringed the accused’s right to a fair trial in terms of section 35 of the Constitution, namely the fragmentation of the trial caused by the referral procedure in section 52; the nature of the sentence that could be imposed and the sentencing discretion within such fragmented trial; the adverse consequences for the accused of the procedures detailed in section 52(3); and the institutional delay inherent in section 52.  The Constitutional Court held that “it had not been established, either for the reasons furnished in the High Court judgment, or for any other reason, whether taken individually or collectively that the provisions of section 52 of the Act limited an accused’s right to a fair trial under section 35(3) of the Constitution.  It followed that the order made by the High Court ought not to be confirmed”.[2] 


State v Dodo


In S v Dodo, the Constitutional Court had to deal with an application from the High Court for confirmation of a declaration of constitutional invalidity of section 51(1) of the Act.  The High Court declared the section in question to be constitutionally invalid, because it was inconsistent with section 35(3)(c) of the Constitution[3] and was also inconsistent with the separation of powers required by the Constitution.  The Constitutional Court in interpreting the words “substantial and compelling circumstances” in section 51(3) of the Act endorsed the step-by-step sentencing procedure set out in S v Malgas 2001 (1) SACR 469 (SCA).[4]  The Court held in this regard that this interpretation of the SCA “steers an appropriate path, which the Legislature doubtless intended, respecting the Legislature’s decision to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by section 51 and at the same time promoting “the spirit, purport and objects of the Bill of Rights”.[5]  In dealing with issue of the separation of powers and the court’s role in sentencing, the Court held that “there are many examples of other open and democratic societies which permit the legislature to limit the judiciary’s power to impose punishments … the United States of America and Canada are striking instances”.[6]  The Court then concluded as follows, in this regard:  

“[33]      On this part of the case I accordingly conclude as follows:

33.1      While our Constitution recognises a separation of powers between the different branches of the state and a system of appropriate checks and balances on the exercise of the respective functions and powers of these branches, such separation does not confer on the courts the sole authority to determine the nature and severity of sentences to be imposed on convicted persons.

33.2      Both the legislature and the executive have a legitimate interest, role and duty, in regard to the imposition and subsequent administration of penal sentences.

33.3      The concomitant authority of the other branches in the field of sentencing must not, however, infringe the authority of the courts in this regard.

33.4      It is neither possible nor, in any event, desirable to attempt a comprehensive delineation of the legitimate authority of the courts in this regard.

33.5      For purposes of this case it is sufficient to hold that the legislature is not empowered to compel any court to pass a sentence which is inconsistent with the Constitution”.


The Constitutional Court held that section 51(1) does not compel the court to act inconsistently with the Constitution and the Court accordingly held that the declaration of invalidity could not be confirmed. 


Brandt v The State (SCA)


High Courts have given conflicting decisions regarding the application of the minimum sentences legislation to offenders under 18 years of age.  In an attempt to resolve these conflicting interpretations the Supreme Court of Appeal, in Jan Hendrik Brandt v The State case number 513/03, held as follows:

“To summarise:

(a)  The legislative scheme entails that the fact that an offender is under 18 although over 16 at the time of the offence automatically confers a discretion on the sentencing court which is without more free to depart from the prescribed minimum sentence.[7]  

(b)  In consequence the sentencing court is generally free to apply the usual sentencing criteria in deciding on an appropriate sentence.

(c)  The offender under 18 though over 16 does not have to establish the existence of substantial and compelling circumstances because s51(3)(a) finds no application to him or her.

(d)  By contrast with the class of offender under 16, however, the statutory scheme requires that the sentencing court should take into account the fact that the legislature has ordinarily ordained the prescribed sentences for the offences in question.  This operates as a weighting factor in the sentencing process.

(e)  It follows on this approach that where the provisions of s51(2) apply the regional court retains its competence to finalise the matter contrary to the conclusion in Makwetsja”.[8]




In conclusion, the sentencing principles and procedures under both sections 51 and 52 were therefore held to be constitutional by the Constitutional Court, in both the mentioned judgments.  Therefore, the constitutionality of all aspects of the legislation providing for discretionary minimum sentences has been upheld by our highest courts, on all occasions when it has been challenged.






[1] S v Dzukuda and Others 2000 (4) SA 1078 (CC) and S v Dodo 2001 (1) SACR 594 (CC).

[2] Par J at 1083 and A at 1084.

[3] The High Court reasoned that if it were not bound by the provisions of s 51(1) of the Act it would have imposed a sentence other than life imprisonment; on its construction of the phrase ‘substantial and compelling circumstances’ the discretion to depart from the imposition of mandatory life sentence arose when such sentence would occasion a shocking injustice, would be grossly disproportionate to the crime committed or startlingly inappropriate or the Court formed the view that such sentence was offensive to its sense of justice or when such sentence was disturbingly inappropriate; if it were bound by the provisions it would be obliged to impose a sentence of life imprisonment, the circumstances relating to the murder count on which the applicant had been convicted not being ‘substantial and compelling’ so as to warrant the imposition of a lesser punishment.

[4] At par 11.   The Constitutional Court relied upon and endorsed the following approach followed in the Malgas judgment (at paragraph 25):

A. 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).

B. Courts are required to approach the imposition of sentence conscious that the legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances. 

C. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E. The legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process. 

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (''substantial and compelling'') and must be such to cumulatively justify a departure from the standardised response that the legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence. 

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the legislature has provided”.

[5] As above.

[6] At par 27.

[7] At par 11 the SCA held as follows:  “It may decide in the exercise of its sentencing discretion to impose the minimum sentence prescribed by s51(2) for an offence of the kind specified in Schedule 2.  That a discretion to impose the minimum sentence does indeed exist is clear from the use of the words ‘decides’ and ‘decision’ in s51(3)(b).  The sentencing court is called upon in the exercise of its discretion to make a decision as to whether or not to impose the minimum sentence prescribed by the Act”.

[8] In Direkteur van Openbare Vervolgings, Transvaal v Makwetsja 2004 (2) SACR 1 (T) it was held that “Die streekhof moet alle gevalle waarin ‘n skuldigbevinding aan ‘n misdryf soos in Deel I van Bylae 2 tot die Wet vermeld uitgespreek word vir vonnis na die Hooggeregshof verwys:  ook die gevalle waar die beskuldigde ten tye van die pleging van die misdryf tussen 16 en 18 jaar oud was” at par 49.