MEMORANDUM ON THE OBJECTS OF THE CRIMINAL LAW (SENTENCING) AMENDMENT BILL, 2007
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.
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
2.1 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2.2 The provision requiring a regional court to refer an accused for sentencing to a High Court is repealed.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:
sexual history of the complainant;
b) an accused person’s cultural or religious
beliefs about rape; or
c) 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) .
5 A presiding officer ,
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
6 The Bill allows for up to half of a
sentence imposed under section
51(2)(c) to be suspended.
7 The provision in terms of which sections 51
and 52 shall lapse after two years, is repealed.
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
5. ORGANISATIONAL AND PERSONNEL IMPLICATIONS
7. COMMUNICATION IMPLICATIONS
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.