1          Brief overview of the Criminal Law Amendment Act, 1997

1.1        The Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) (hereafter 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.  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 substantial and compelling circumstances exist which justify the imposition of such lesser sentence.  This legal regime, therefore, does not create mandatory minimum sentences.  The final discretion relating to the sentencing of the offender still rests with the presiding officer concerned.  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 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   The Act provides in section 51(4) that the imposition of a sentence under section 51 shall be calculated from the date the sentence is passed.  Furthermore, in order to counter the early release of serious offenders sentenced under the Act, it was at the time decided to stipulate in section 51(5) that the operation of a discretionary minimum sentence imposed under section 51 could not be suspended.


1.5  Section 53(1) of the Act 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, experienced in practice with the application of sections 51 and 52 have been identified, based on inputs by the Judiciary, the National Prosecuting Authority and other stakeholders.  This has informed the drafting of this Bill, which aims to address these practical problems in question, whilst retaining the principles underlying the Act.


2          Brief overview of the Bill, 2007

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 three further amendments proposed in the Bill.  Firstly, since a regional court under section 51(1) will be able to sentence a person to life imprisonment, there is no longer a need for such a 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.  Secondly, 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.)   Thirdly, due to the repeal of sections 52, 52A and 52B (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 adopt 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 substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the prescribed sentence in subsections 51(1) and (2), then 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:

·         Any previous sexual history of 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 act which constituted the offence in question, the court could impose such discretionary minimum sentence, but had to enter its reasons for its decision on the record of the proceedings.  However, the interpretation of section 51(3)(b) has become confused (if not redundant for all intents and purposes), since the interpretation given to this provision by the Supreme Court of Appeal in the Brandt judgment.  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 with regard to persons sentenced for serious offences under section 51(1) and (2)(a) and (b), but provides that up to half the sentence imposed under section 51(2)(c) may be suspended as contemplated in section 297(4) of the CPA. 


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 of the Act.  However, the operation of the Act will inevitably come to an end, if and when, an alternative and comprehensive sentencing framework for South Africa has been developed and implemented. 

2.7  Transitional provision

The Bill provides that if a regional court has, prior to the commencement of the Criminal Law (Sentencing) Amendment Act, 2007, committed an accused for sentence by a High Court under the Criminal Law Amendment Act, 1997 and the High Court has not heard the matter, then the High Court must refer the matter back to the regional court for sentencing in terms of the Criminal Law Amendment Act, 1997.  Or, if the High Court has heard the matter, then the High Court must dispose of the matter as if the Criminal Law (Sentencing) Amendment Act, 2007, has not been passed.