Law Library Stacks

Back to Sentencing Guidelines

In South Africa, sentencing is considered the primary prerogative of trial courts and they enjoy wide discretion to determine the type and severity of a sentence on a case-by-case basis.  In doing so, they follow judge-made, broad sentencing principles known as the “triad of Zinn,” which require that, when making sentencing determinations, judges consider three things: the gravity of the offense, the circumstances of the offender, and public interest.

Two forms of control that limit the discretion of trial courts are available.  The first is the supervisory power of appellate courts, which can overturn sentences imposed by trial courts.  However, this power is not routinely exercised in view of the fact that sentencing is understood as a primary function of trial courts.  An appellate court will interfere with a sentence imposed by a trial court only if there is irregularity or misdirection, or if the sentence is disturbingly inappropriate.  The second is a statutory mandatory minimum sentencing regime applicable to certain serious offenses including murder, rape, drug dealing, firearms smuggling, and human trafficking for sexual purpose.  However, trial courts are permitted to depart from the prescribed minimum sentences whenever they find a “substantial or compelling circumstance” warranting a departure.

South Africa does not have a sentencing council.  The mandatory minimum sentencing regime was enacted based on recommendations made by a committee established by the Minister of Justice.  Following the conclusion of the work of the committee, the Minister of Justice appointed another committee to review the country’s sentencing regime.  This committee concluded its work in 2000 and its recommendations included the establishment of a Sentencing Council, which among other things would be tasked with developing and reviewing sentencing guidelines.  The South African Parliament has yet to take up the matter.

I.  Introduction

This report provides information on South Africa’s sentencing regime.  Most of the sentencing guidelines and principles currently in place in the country are judge made.  Therefore, Part II of the report briefly summarizes the country’s court structure in order to provide context regarding how these principles and guidelines are applied.  Part III focuses on a general description of the current sentencing principles and guidelines, both judge made and statutory, and the mandatory statutory sentencing regime for specific offenses including murder, rape, compelled rape, and trafficking in persons for sexual purposes.  The final part is dedicated to the existence and role of sentencing institutions. 

Back to Top

II.  Sources of Law and Court Structure

South Africa has what is known as an uncodified legal system consisting of various sources of law, including the Constitution, legislation (including statutory laws issued by national and provincial legislative bodies and subsidiary legislation), judicial precedent, customary law, common law (Roman-Dutch and English law), and international law.[1]

For the purposes of this report a brief explanation of judicial precedents as a source of law is warranted.  The doctrine of stare decisis (the principle of judicial precedents) requires that South African courts, in addition to other sources of law indicated above, follow previous court decisions issued on cases with “materially similar facts.”[2]  Specifically, a South African court is bound by its own previous rulings on similar cases and rulings issued by higher courts unless the facts of the case before it are materially different or the previous decisions are “manifestly incorrect.”[3] 

The hierarchy of courts is crucial in the application of the doctrine of judicial precedents.  The South African Constitution sets the hierarchy of courts with the Constitutional Court at the top.[4]  It is the highest court in all constitutional matters and on questions of whether a matter raises constitutional issues, and must certify any order of constitutional invalidity issued by the Supreme Court of Appeal or a High Court before the order can take effect.[5] 

Below the Constitutional Court in the hierarchy is the Supreme Court of Appeal.[6]  The Supreme Court of Appeal functions only as a court of appeal; it may decide any matter on appeal and it is the highest court in the country on all matters other than constitutional issues.[7]  Decisions of this Court are binding on all lower courts.[8]

Following the Supreme Court of Appeal are the high courts.[9]  These include the high courts of appeal (including the Competition Appeal Court and the Labor Appeal Court) and other specialist high courts established by statute (such as the Labor Court, Land Claims Court, and Divorce Court).[10]  The high courts are courts of first instance in matters beyond the jurisdiction of regional magistrates’ courts and, “[e]xcept where a minimum or maximum sentence is prescribed by law, their penal jurisdiction is unlimited and includes handing down a sentence of life imprisonment in certain specified cases.”[11]

At the bottom of the hierarchy are the district and regional magistrates’ courts.  The district courts have jurisdiction on all criminal matters except treason, murder, rape, and compelled rape, and may impose punishments of up to three years in prison and a fine of up to ZAR 60,000 (about US$5,647).[12]  The regional courts enjoy jurisdiction on all criminal matters except treason and may impose penalties of up to life imprisonment and fines of up to ZAR 300,000 (about US$28,238).[13] 

Back to Top

III.  Sentencing Guidelines

South Africa’s sentencing regime rests on a “fundamental premise that the trial judge [is] vested with the discretion to decide on a suitable sentence.”[14]  For instance the Criminal Procedure Law states that “a person liable to a sentence of imprisonment for life or for any period, may be sentenced to life imprisonment for any shorter period, and a person liable to a sentence of a fine of any amount may be sentenced to a fine of any lesser amount.”[15]  This is in large part necessitated by the need for individualizing sentences.[16]  However, there are two controls on this discretionary power: control exercised by the appellate courts, and mandatory minimum sentences enacted by the legislature for a limited number of serious offenses.[17] 

A.   General Sentencing Principles

In exercising their discretion during sentencing, trial courts are required to consider broad, judge-made guiding principles known as the “triad of Zinn,” named after the 1969 case of S v. Zinn.[18]  In Zinn, the Supreme Court, Appellate Division, held that in imposing a sentence, “[w]hat has to be considered is the triad consisting of the crime, the offender and the interests of society.”[19]  This gave rise to three general guides in the development of a sentence: the seriousness of the offense, the personal circumstances of the offender, and public interest.[20]  These factors must be considered equally and one should not be heavily relied upon over the others.[21] 

With regard to the first leg of the triad, the offense, there is a constitutional requirement that the punishment imposed, including when it is set by statute, must not be disproportionate to the offense.[22]  This is ascertained by looking at the applicable aggravating and extenuating circumstances.  A number of aggravating factors relating to the crime may be considered.  One such factor is the severity of the crime.[23]  What severity means, as would be the case with other factors, depends on the offense in question.  If the offense is one of drug possession, the aggravating factor may be the amount of the drugs involved.  In 1969, the High Court, Natal Provincial Division, reversed a punishment imposed by a lower court and increased the sentence, stating that the sentence of the lower court was “unreasonably light” given the amount of dagga (marijuana) involved.[24]  However, if the offense involves violence, the aggravating factors may be “the degree and extent of the violence used, the nature of any weapon, the brutality and cruelness of the attack, the nature and character of the victim, including whether the victim was unarmed, or helpless, and so on.”[25]  Other aggravating factors applicable to this leg of the triad may include the fact that the crime was planned or that the crime is difficult to solve because it may be difficult to apprehend the offender.[26]

There are a number of mitigating factors with regard to the first leg of the triad as well.  These include instances in which the offender was convicted on an attempt charge (as opposed to a charge under a completed offense), the offense was merely technical, the offender’s involvement in the commission of the offense was limited, and there is no direct intent on the part of the offender, as well as cases of entrapment in which the offender was induced to commit the offense.[27] 

The second element of the triad, considering the personal circumstance of the offender (also known as individualization), requires that the sentence fit the offender.  The sentence would be aggravated by a number of factors, including if the person is a repeat offender, [28] had a morally unacceptable motive such as greed, lacks remorse, committed the offense by abusing a position of trust, or is a professional criminal.[29]  In the category of mitigating factors, although the most effective one is diminished capacity, factors such as age (both young and old age) and the fact that it is the offender’s first offense may also result in a reduced sentence.[30]  Other factors that may extenuate a sentence include conditioning,[31] bad health, having dependents, gainful employment, intoxication, positive motive (for example, mercy killing), diminished intelligence, lack of planning, remorse, a guilty plea, and a belief in witchcraft and religion.[32]

The third leg of the triad requires that a sentence serve the public interest.  This incorporates the traditional purposes of punishment (deterrence, rehabilitation, protection, and retribution) into the sentencing considerations.[33]  However, it could also be interpreted more widely to include additional considerations, such as restitution or payment of compensation that can help reestablish peace and security to society.[34]  Public interest considerations can aggravate or mitigate a sentence.  For instance, aggravating factors may include that the offender is dangerous and a long period of incarceration will protect the community, or the offense is so prevalent that a greater-than-usual punishment is appropriate as a deterrent.[35]  The public interest may also result in an aggravated sentence if the victim was defenselessness (including children and adults with diminished capacity) or a law enforcement agent.[36]  However, public interest considerations may mitigate a sentence if the economic and social cost of a long incarceration is not beneficial to the community.[37]

In addition to the triad of Zinn, there are a number of additional guidelines, including principles governing the imposition of custodial sentences.  A general principle dictates that custodial sentences should not be imposed routinely, “especially if the objects of punishment can be met by another form of punishment, e.g. a fine with or without suspended imprisonment.”[38]  Others target certain classes of offenders; specifically, they require that alternatives to custodial sentences should be explored if the offender is young, old, or a first-time offender.[39]

The triad of Zinn has been the subject of much criticism.  It has been called “elementary, vague and unsophisticated.”[40]  In particular, the ambiguity of the triad has often led to a situation in which judges impose sentences instinctively and use the guidelines established by the triad to justify the sentences.[41]  In addition, the triad has also been criticized for failing to emphasize the role of victims.[42]  According to the Law Reform Commission, this, coupled with the failure of the legislature and others “to provide a clear and unambiguous framework for the exercise of sentencing discretion,” has created uncertainty and inconsistency in sentencing in the country.[43]

B.   Limits to Sentencing Discretion

1.  Judicial Controls

The sentencing powers of trial courts are not unfettered.  Although sentencing is generally understood to be a primary prerogative of trial courts, improperly imposed sentences can be reversed on appeal.[44]  The test for interference by an appellate court is clearly encapsulated in a 1975 decision of the Supreme Court, Appellate Division:

  • 1.  In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal―
  • a)   Should be guided by the principle that the punishment is “pre-eminently a matter for the discretion of the trial court”; and
  • b)  Should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been “judicially and properly exercised”.
  • 2.  The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.[45]

The Supreme Court, Appellate Division held in a 1989 case that the existence of a disparity in sentences does not necessarily warrant “interference,” and upheld the disparate sentences imposed on two offenders who participated in the commission of the same offense in similar circumstances.[46]  In a 1988 case, the Court noted that its authority to interfere with the sentence on appeal is limited unless the sentence in question is “vitiated by (1) irregularity, (2) misdirection, or is one to which no reasonable court could have come, in other words, one where there is a striking disparity between the sentence imposed and that which this Court considers appropriate.”[47]  In a 1989 case, the Court summarized the test for interfering with a trial court sentence in more detail as follows:

[t]he crucial question in an appeal against the imposition of the discretionary death sentence is whether the trial judge could reasonably have imposed the sentence which he did.  If the answer to this is in the affirmative, that is the end of the matter.  This question also forms the basis of the so called striking disparity test.  In this respect the test is applied when the Appellate Division, relying on what appears from the record of the case, can form a definite opinion as regards the sentence which it would have imposed in the first instance and where there is a striking disparity between such sentence and that which the trial judge imposed.  It would, however, be unrealistic not to acknowledge the fact that a specific period of imprisonment in a particular case cannot be determined according to any exact, objectively applicable, standard, and that there would frequently be an area of uncertainty wherein opinions regarding the suitable period of imprisonment may validly differ; in such a case, even if the Appellate Division was of the opinion that it would have imposed a considerably lighter sentence, it would nevertheless not interfere as the required conviction that the trial judge could not have reasonably have imposed the sentence which he did, was lacking.[48]   

2.  Statutory Controls

In 1998, South Africa enacted legislation prescribing minimum sentences for “certain serious offences.”[49]  These include murder; rape; compelled rape; trafficking in persons for sexual purposes; drug trafficking; smuggling of ammunition, firearms, explosives, and armaments; breaking and entering; and theft.[50]  The purpose of this law was to curb rising crime rates and reduce disparities in sentencing for these crimes.  This was articulated by the Supreme Court of Appeal in a 2001 case, in which the Court noted that the mandatory minimum sentences were a response to

[7] . . . an alarming burgeoning in the commission of crimes of the kind specified resulting in the government, the police, prosecutors and the courts constantly being exhorted to use their best efforts to stem the tide of criminality which threatened and continues to threaten to engulf society. . . . 

[8] . . . In short, the legislature aimed at ensuring a severe, standardised, and consistent response from courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response. . . .”[51]  

The development of statutory minimum sentences was the legislature’s response to a public outcry.  Following South Africa’s transition to democracy, there was wide public concern that courts failed to give serious offenders punishments commensurate to their crimes, and the end of the death penalty in 1995 created additional concerns regarding the punishment of the most serious offenses.[52]  In addition, there was a widely held view that lenient parole policy allowed early release of serious criminals.[53]  In 1996, the Minister of Justice and Constitutional Development sought to quell these concerns by establishing a project committee of the country’s Law Reform Commission to investigate all sentencing practices and the desirability of putting in place a mandatory minimum sentencing regime.[54]  

The Van de Heeven Committee, named after its chairwoman, Justice L. Van der Heeven, released its findings (Issue Paper 11) in March 1997.[55]  In it, the Committee proposed six possible options for reforming the sentencing regime:

  1. Presumptive sentencing guidelines, modeled after the Minnesota system.  The Commission proposed as one option enacting a statute mandating a sentencing commission to develop guidelines that would provide specific principles (for instance, the gravity of the offense and the offender’s criminal record) for determining presumptively correct sentences.[56]  Although courts would be permitted to depart from presumptively correct sentences whenever “special circumstances” were present, they would be required to record such circumstances and their sentences would be subject to appeal.[57]
  2. Voluntary sentencing guidelines.  Under this option, advisory sentencing guidelines would be adopted.[58]
  3. Adoption of legislative guidelines that assist in determining the choice and length of punishment.  Based on the Swedish model, this option called for the legislature to determine the nature of punishment and the penal value.[59] 
  4. Enactment of principles of sentencing, including guidelines that determine the imposition of a custodial sentence.  This option, which is based on proposals made by the Canadian Sentencing Commission, called for the development of sentencing principles mandating that the sentence a court imposes must be proportional to the degree of responsibility of the offender for the offense.[60]  It included a number of factors for the court to consider in determining a sentence: aggravating and mitigating circumstances, the need for consistency in sentencing, the need for avoidance of excessive sentences, the need for avoiding the imposition of custodial sentences merely for the purpose of rehabilitation, instance in which custodial sentences would be appropriate, and the weighing of the general aims of punishment.[61]   
  5. Enactment of presumptive sentencing guidelines to guide the imposition of custodial and noncustodial sentences.  This option called for the enactment of statutory ranges of predetermined sentences, allowing judges to depart from the adopted ranges in certain circumstances.[62]
  6. Enactment of mandatory minimum sentences combined with the discretion to depart from sentences under certain conditions.  This option called for the enactment of mandatory minimum sentences depending on different factors (including the offense and recidivism), with the authority for judges to depart from such prescribed sentences in special circumstances, in which case judges would be required to record the circumstances and provide written justification for departure.[63]

As noted above, the South African Parliament chose the sixth option and enacted legislation prescribing mandatory minimum sentences for certain offenses with the severity of the offense and the criminal history of the offender as key factors in determining a sentence (see Table, below). 

In addition to the mandatory minimum sentences, the mandatory minimum sentencing regime also restricts the ability of judges to suspend parts of custodial sentences they impose.  The Criminal Procedure Act provides that a court, after it convicts a person for a crime for which a prescribed minimum sentence is applicable, may suspend up to five years of the prescribed sentence on the basis of various conditions, including compensation, community service, submission to correctional supervision, good behavior, or any other condition that it deems fit.[64]  The mandatory sentencing regime prohibits the suspension of a mandatory minimum sentence.[65]

The legislation carves out some exceptions.  For example, the mandatory minimum sentences do not apply to offenders under the age of eighteen.[66]  Significantly, the legislation also permits courts to depart from the mandatory minimum sentences if they are “satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser [sentence].”[67] 

Parliament has not provided any guidance regarding the meaning and application of the phrase “substantial and compelling.”  This has led courts to develop different standards as to when it is appropriate to depart from the minimum sentences prescribed by statute.[68]  Some courts have taken the approach that the phrase leaves courts little, if any, discretion and that courts are by and large bound to impose the prescribed sentence(s) unless exceptional circumstances are present.[69]  According to this interpretation, mitigating factors would result in departure only if they are of an “unusual and exceptional kind that Parliament cannot be supposed to have had in contemplation when prescribing standard penalties for certain crimes.”[70]  However, in a 2001 case, the Supreme Court of Appeal offered a complete opposite interpretation of the phrase, stating,

The absence of any pertinent guidance from the legislature by way of definition or otherwise as to what circumstances should rank as substantial and compelling or what should not, does not make the task any easier.  That it has refrained from giving such guidance as was done in Minnesota from whence the concept of “substantial and compelling circumstances” was derived is significant.  It signals that it has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence.  In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so.  A departure must be justified by reference to circumstances which can be seen to be substantial and compelling as contrasted with circumstances of little significance or of debatable validity or which reflect a purely personal preference unlikely to be shared by many.[71]

The Court further noted that, in determining whether a departure from the prescribed sentences is warranted, courts should take into account all factors that they would normally consider when imposing a sentence, stating that it could “see no warrant for deducing that the legislature intended a court to exclude from consideration, ante omnia as it were, any or all of the many factors traditionally and rightly taken into account by courts when sentencing offenders.”[72] 

These two opposing interpretations of the phrase “substantial and compelling circumstances” is an illustration of how the mandatory minimum sentences prescribed in the 1997 legislation have failed to end disparities in sentencing, a key rationale for their enactment.[73]  In addition, the ambiguity of the phrase is said to have resulted in a situation in which judges “exercise their discretion to circumvent the mandatory sentence in a relatively high proportion of cases.”[74]

However, the inclusion of the phrase in the legislation has allowed mandatory minimum sentencing legislation to survive a constitutional challenge.  The constitutionality of the legislation was challenged in a 2001 case where it was argued that the mandatory minimum sentences it prescribed violated an accused’s constitutional right to public trial in an ordinary court because it deprived courts of the right to impose sentences they deemed fit and violated the principle of separation of powers.[75]  In addressing the matter, the Constitutional Court tied the separation of powers issue to an accused’s constitutional right “not to be . . . punished in a cruel, inhumane or degrading way.”[76]  The Court held that the legislation is constitutional because courts are free to depart from the mandatory minimum sentences the law prescribes whenever there are “substantial and compelling circumstances.”[77]

3.  Specific Statutory Guidelines

As noted above, the mandatory minimum sentencing regime is built around two key factors used to assign punishment: the gravity of the offense and the criminal history of the offender.  To determine the appropriate punishment or depart from the prescribed minimum sentences, courts rely on any of the applicable traditional mitigating and aggravating circumstances.  

Table: Summary of Statutory Sentencing Guidelines

Offense

Aggravating Elements

Effect of Criminal History

Punishment

Aggravated Murder

Circumstances in which the act was premeditated or was committed during the commission of or attempt to commit rape, compelled rape, or aggravated robbery; the victim was a law enforcement officer or a state witness; the victim was killed for his body parts or as the result of removal of his body parts; or the act was related to the practice of witchcraft or similar practices.[78]

Inapplicable.

Life in prison.[79]  (Note that anyone sentenced to life in prison is eligible for parole after serving twenty-five years of the sentence.[80])

Murder

In circumstances other than those stipulated above.

Penalty varies depending on whether it is the offender’s first, second, third, or subsequent offense.  

First-time offense is subject to at least fifteen years’ imprisonment, second conviction results in at least twenty years’ imprisonment, and third or subsequent conviction entails at least twenty-five years’ imprisonment.[81] 

Aggravated Rape

The victim was raped more than once by the offender, co-perpetrator, or accomplice; the victim was raped by more than one person as part of a conspiracy; the victim was raped by a person who has been convicted on two or more counts of rape or compelled rape, but has not been sentenced for those convictions yet; the victim was raped by a person who knows of his HIV/AIDS positive status;  the victim was a vulnerable person due to young age or diminished mental or physical condition; or the rape involved infliction of a grave bodily harm.[82]

Inapplicable.

Same as for aggravated murder.[83]

Rape

Involving circumstances other than those recited above.

Same as for murder. 

First offense punish-able by at least ten years in prison; second offense punishable by at least fifteen years in prison; third or subsequent offense punishable by at least twenty years’ imprisonment.[84]

Aggravated Compelled Rape[85]

The victim was raped repeatedly by one or more persons, by a person convicted of two or more offenses of rape or compelled rape who has not yet been sentenced, or by a person who knows that he is HIV/AIDS positive; the victim is vulnerable due to young age or diminished mental or physical capacity; or the act resulted in the infliction of grave bodily harm.[86]

Inapplicable.

Same as for aggravated rape and aggravated murder.[87] 

 

Compelled Rape

Under circumstances other than those stated above.

Same as for murder.  

Same as for rape.[88]

Trafficking in Persons for Sexual Purpose[89]

Under any circumstance.

Inapplicable.

Same as for aggra-vated rape, aggra-vated compelled rape, and aggravated murder.[90]

Smuggling of Ammunition, Firearms, Explosives, or Armaments[91]

Under any circumstance.

Same as for murder.

Same as for murder.[92]  

Dealing in Drugs[93]

If the value of the drugs involved is more than ZAR 50,000 (about US$4,752); the value of the drugs is more than ZAR 10,000 (about US$956) and the offense was committed by a person(s), syndicate, or any enterprise in the furtherance of a common purpose or a conspiracy; or the offender is a law enforcement officer.[94]

Same as for murder.

Same as for murder.[95]

Any Offense Relating to Exchange Control,

Extortion, Fraud, Forgery, Uttering, or Theft

Involving amounts of more than ZAR 500,000 (about US$47,821); involving amounts of more than ZAR 100,000 (about US$9,564) if the person, persons, syndicate or any enterprise acted in furtherance of a common purpose or a conspiracy; involving amounts of more than ZAR 10,000 (about US$956) if the offense was committed by a law enforcement officer; or any circumstance, regardless of the amount involved, if the offense was committed by a law enforcement officer acting as part of a group of persons, syndicate, or any enterprise acting in the execution or furtherance of a common purpose or conspiracy.[96]

 

 

 

 

 

Same as for murder.  

Same as for murder.[97]

Breaking and Entering with Intent to Commit a Crime

If the offender was armed with a firearm and intended to use it in the commission of a crime.[98]

Same as for murder.

First offense punishable by at least five years in prison; second offense punishable by at least seven years in prison; third or subsequent offense punishable by at least ten years’ imprisonment.[99]

C. Sentencing Institutions

South Africa does not appear to have a sentencing institution in place.  Following the conclusion of the work of the Van der Heeven Committee, the Minister of Justice appointed another project committee of the South African Law Commission in 1998.[100]  Chaired by Professor Dirk van Zyl Smith, this Committee (the Smith Committee) was mandated to continue the research initiated by the Van der Heeven Committee regarding sentencing reform.  It published its findings in a report titled Sentencing (A New Sentencing Framework),[101] which included a draft Sentencing Framework Bill, in December 2000.[102]  Among other things, the Smith Committee called for the establishment of a sentencing guidelines commission, which it referred to as the “Sentencing Council,” and included in its report legislative language defining the mandate and operations of the proposed Sentencing Council, to be enacted as part of the Sentencing Framework Bill.[103]  South Africa’s Parliament has yet to take up the Bill.

The Smith Committee recommended that, to ensure that the Sentencing Council is agile and affordable, its membership should be kept small with heavy representation of judicial officers who collectively have to make sentencing decisions.[104]  It recommended that the Minister of Justice appoint the following as members of the Sentencing Council:

  • Two judges of the Supreme Court of Appeal or the High Court
  • Two magistrates
  • The National Director of Public Prosecutions or his representative
  • A representative of the Department of Correctional Services
  • A sentencing expert, not employed by the state on a full time basis
  • The Director of the office of the Council[105]

It recommended that the members be appointed for an initial five-year term with the possibility of renewal.[106]  The Minister would have the power to remove any member of the Council for “misconduct, incapacity or incompetence.”[107]

The Smith Committee also outlined the functions of the Sentencing Council.  Its primary function would be to establish sentencing guidelines and to review existing guidelines.[108]  Although the Council could carry out this function on its own initiative, it would be required to do so at the request of the Minister of Justice, the Minister of Correctional Services, or Parliament.[109]  In addition to this primary function, the Council’s mandate would also include facilitating the establishment of a program of judicial education on sentencing.[110]

The Smith Committee made various additional recommendations regarding the Council, accompanied by legislative language, including with regard to the issue of how the Council would be supported, its procedure, and its reporting mechanisms.[111]

Back to Top

Hanibal Goitom
Foreign Law Specialist
April 2014


[1] Amanda Barratt & Pamela Snyman (updated by Redson Edward Kapindu), Update: Researching South African Law, Globalex (Mar. 2010), http://www.nyulawglobal.org/globalex/south_africa1.htm; Introduction to Law and Legal Skills in South Africa: Jurisprudence 124–25 (Tracy Humby et al. eds., 2012). 

[2] Duard Kleyn & Frans Viljoen, Beginners Guide for Law Students 58 (2010).

[3] Introduction to Law and Legal Skills in South Africa: Jurisprudence, supra note 1, at 198. 

[4] Id. at 194; S. Afr. Const., 1996, § 166, available on the South African government website, at http://www.gov.za/documents/constitution/1996/96cons8.htm#166

[5] S. Afr. Const., 1996, §§ 166 & 167.

[6] Id. §§ 166 & 168.

[7] Id. § 168; About, Supreme Court of Appeal of South Africa, http://www.justice.gov.za/sca/aboutsca.htm (last visited Apr. 3, 2014). 

[8] Supreme Court of Appeal of South Africa, supra note 7.

[9] S. Afr. Const., 1996, § 166.

[10] Introduction to Law and Legal Skills in South Africa: Jurisprudence, supra note 1, at 194; About Government: Judicial System, South Africa Government Online, http://www.gov.za/aboutgovt/ justice/courts.htm#02high (last visited Apr. 3, 2014).

[11] Introduction to Law and Legal Skills in South Africa: Jurisprudence, supra note 1, at 194; South Africa Government Online, supra note 10.

[12] Magistrates’ Courts Act 32 of 1944, §§ 89 & 92, version amended through 2010 available on the South Africa Department of Justice website, at http://www.justice.gov.za/legislation/acts/1944-032.pdf

[13] Id. §§ 89 & 92; Criminal Law Amendment Act 105 of 1997 § 51, 9 BSRSA (updated through 2012), version amended through 2008 available on the Department of Justice website, at http://www.justice.gov.za/legislation/acts/1997-105.pdf.

[14] S v. Pieters 1987 (3) SA 717.

[15] Criminal Procedure Act 51 of 1977, § 283, 9 BSRSA (updated through 2012), version amended through 2010 available on the Department of Justice website, at http://www.justice.gov.za/legislation/acts/1977-051.pdf

[16] A. ST. Q. Skeen, Sentencing, in 24 Laws of South Africa 405, 410 (2d ed. 2010).

[17] Stephan Terblanche, The Discretionary Effect of Mitigating and Aggravating Factors: A South African Case Study, in Mitigation and Aggravation at Sentencing 261 (Julian V. Roberts ed., 2011).

[18] S v. Zinn 1969 (2) SA 537, 540, discussed in Terblanche, supra note 17, at 261;

[19] Id. at 540.

[20] Terblanche, supra note 17, at 263.

[21] S v. Holder 1979 (2) SA 70, 71.

[22] Terblanche, supra note 17, at 263; Dodo v. S 2001 (3) SA 381, para. 37, available on the Southern African Legal Information Institute (SAFLII) website, at http://www.saflii.org/za/cases/ZACC/2001/16.pdf

[23] S.S. Terblanche, The Guide to Sentencing in South Africa 213 (1999).

[24] S v. Mabhongo 1969 (3) SA 388, 390.

[25] Terblanche, supra note 23, at 213. 

[26] Id. at 214.

[27] Id. at 220–22.

[28] Criminal Procedure Act § 271 (4).

[29] Terblanche, supra note 23, at 214–18.

[30] Id. at 222.

[31] In a 1991 case, the Supreme Court, Appellate Division, held that “modelling” or “desensitization,” in which a person who is exposed to “a daily diet of violence” becomes desensitized to violence in that “his sensibilities are blunted and he is more ready to abandon the restraints which he would otherwise have against the use of violence,” is a valid mitigating factor.  S v. Khandulu and Another 1991 (127/90) [1991] ZASCA 15 at 33, available at http://www.saflii.org/za/cases/ZASCA/1991/15.html.    

[32] Terblanche, supra note 23, at 226–35.

[33] Id. at 174.

[34] Id. at 176.

[35] Id. at 174.  Terblanche, supra note 17, at 264.

[36] Terblanche, supra note 23, at 218–19.

[37] Id. at 174–77.

[38] S v. Holder 1979 (2) SA at 71.

[39] South African Law Reform Commission, Sentencing: Mandatory Minimum Sentences (Issue Paper 11) 14 (Mar. 1997).

[40] Julia Sloth-Nielsen & Louise Ehlers, A Pyrrhic Victory? Mandatory and Minimum Sentences in South Africa 3 (ISS Paper 111, July 2005), available on the International Relations and Security Network (ISN) website, at http://mercury.ethz.ch/serviceengine/Files/ISN/98757/ipublicationdocument_singledocument
/4000ea3b-62c2-4ecc-b77d-fdbd4414e25d/en/PAPER111.pdf

[41] Terblanche, supra note 17, at 263.

[42] South African Law Reform Commission, supra note 39, at 20. 

[43] Id. at 21.

[44] Skeen, supra note 16, at 411.

[45] S v. Rabie 1975 (4) SA 855, 857; S v. Sadler [2000] 2 All SA 121 (A), available at http://www.saflii.org/za/cases/ ZASCA /2000/13.pdf

[46] S v. Max 1989 (1) SA 222, 223.

[47] S v. Petkar 1988 (3) SA 571, 574; see also S v. N 1988 (3) SA 450, 451; S v. Holder 1979 (2) SA at 71.

[48] S. v. Pieters 1989 (3) SA at 720; see also S v. M 1976 (3) 644, 645.

[49] Criminal Law Amendment Act 105 of 1997 § 51.  This is not the first time that South Africa has enacted a law imposing mandatory minimum sentences.  A number of previous laws imposed mandatory minimum sentences long before the 1997 Criminal Law Amendment Act was enacted, among them a 1952 law that imposed mandatory corporal punishment and a 1959 law that introduced mandatory custodial sentences for the prevention of crimes and rehabilitative training under certain circumstances.  South Africa Law Commission Report, Project 82, Sentencing (A New Sentencing Framework) 12 (Dec. 2000), http://www.justice.gov.za/salrc/reports/r_prj82_s entencing%20_2000dec.pdf.

[50] Criminal Law Amendment Act § 51.

[51] S v. Malgas (117/2000) [2001] ZASCA 30, paras. 7 & 8 (Mar. 19, 2001), available at http://www.saflii.org/za/ cases/ZASCA/ 2001/30.html.

[52] Sloth-Nielsen & Ehlers, supra note 40, at 1. 

[53] Id.

[54] Id.; Sandra M. Roth, Note, South African Mandatory Minimum Sentencing: Reform Required, 17(1) Minn. J. Int’l L. 155, 158 (2008), http://lawweb3.law.umn.edu/uploads/gV/8l/gV8lyrhMXKzaPTdE5enYZg/Roth-Final-Online-PDF-04.07.09.pdf.

[55] Roth, supra note 54, at 158; South African Law Reform Commission, supra note 39.

[56] South African Law Reform Commission, supra note 39, at 52.

[57] Id.

[58] Id. at 53.

[59] Id.

[60] Id.

[61] Id. at 53–54.

[62] Id. at 54.

[63] Id.

[64] Criminal Procedure Act § 297. 

[65] Criminal Law Amendment Act § 51; Judicial Matters Amendment Act § 26, 583 GG No. 37254 (Jan. 22, 2014), http://www.justice.gov.za/legislation/acts/2013-042.pdf.

[66] Judicial Matters Amendment Act§ 26,  Although the legislation excluded only offenders under the age of sixteen, in 2009 the Constitutional Court found the provision unconstitutional and ordered that it be read to exclude offenders under the age of eighteen.  Centre for Child Law v. Minister for Justice and Constitutional Development and Others 2009 (6) SA 632, available at http://www.saflii.org/za/cases/ZACC/2009/18.html

[67] Criminal Law Amendment Act § 51.

[68] Roth, supra note 54, at 167.

[69] Sloth-Nielsen & Ehlers, supra note 40, at 6. 

[70] S v. Mofokeng 1999 (1) SACR (W), cited in Roth, supra note 54, at 167–68.

[71] S v. Malgas (117/2000) [2001] ZASCA 30, para. 18, available at http://www.saflii.org/za/cases/ZASCA/ 2001/30.html (footnote in original omitted). 

[72] Id. para. 9.

[73] Roth, supra note 54, at 168.

[74] Canada Department of Justice, Research and Statistics Division, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models 22 (undated), http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/rr05_1 0.pdf (last visited Apr. 9, 2014).   

[75] Dodo v. S 2001 (3) SA 381, available at http://www.saflii.org/za/cases/ZACC/2001/16.pdf; Afr. Const., 1996, § 35(3)(c). 

[76] Dodo v. S, para. 12; S. Afr. Const., § 12(1)(e).

[77] Dodo v. S, para. 40; Roth, supra note 54, at 172.

[78] Criminal Law Amendment Act §51, sched. 2, pt. I.

[79] Criminal Law Amendment Act § 51.

[80] Correctional Services Act 111 of 1998, § 73, 28 BSRSA (updated through 2012), copy of original version available on the South African government website, at http://www.gov.za/documents/download.php?f=70646; A. Dissel & M. du Plessiss, Prisons, in 21 The Laws of South Africa 121, 171 (2d ed. 2010); Correctional Supervision and Parole Boards, Department of Correctional Services, http://www.dcs.gov.za/Services /CorrectionalSupervisionandParoleBoards.aspx (last visited Apr. 10, 2014). .

[81] Id. § 51.  

[82] Id. § 51, sched. 2, pt. I.

[83] Id. § 51; Correctional Services A of 1998 § 73; Dissel & du Plessiss, supra note 80, at 171.

[84] Criminal Law Amendment Act § 51, sched. 2, pt. III. 

[85] This is defined as an act in which a person (“A”) “unlawfully and intentionally compels a third person (‘C’), without the consent of C, to commit an act of sexual penetration with a complainant (‘B’), without the consent of B.”  Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, § 4, 8 BSRSA (updated through 2012), version updated through 2008 available on the Department of Justice website, at http://www.justice.gov.za/legislation/acts/2007-032.pdf.

[86] Criminal Law Amendment Act § 51, sched. 2, pt. I.

[87] Id. § 51; Correctional Services Act 111 of 1998, § 73; Dissel & du Plessiss, supra note 80, at 171.

[88] Criminal Law Amendment Act § 51, sched. 2, pt. III. 

[89] A person who traffics another without his/her consent commits the offense of trafficking in persons for sexual purpose.  Criminal Law (Sexual Offences and Related Matters) Amendment Act § 71.  A person also commits this offense if he “orders, commands, organizes, supervises, controls, or directs trafficking; . . . performs any act which is aimed at committing, causing, bringing about, encouraging, promoting, contributing towards or participating in trafficking; or incites, instigates, commands, aids, advises, recruits, encourages or procures any other person to commit, cause, bring about, promote, perform, contribute towards or participate in trafficking.”  Id.

[90] Criminal Law Amendment Act § 51; Correctional Services Act 111 of 1998, § 73; Dissel & du Plessiss, supra note 80, at 171.

[91] Criminal Law Amendment Act § 51, sched. 2, pt. II.

[92] Id. § 51.

[93] Dealing in drugs involves dealing in “any dangerous dependence producing substance or any undesirable dependence producing substance,” unless authorized by law to do so.  Id. § 51, sched. 2, pt. II; Drugs and Drug Trafficking Act 140 of 1992, §§ 5(b) & 13(f), version updated through 2002 available on the Department of Justice website, at http://www.justice.gov.za/legislation/acts/1992-140.pdf.  Dealing in drugs includes “performing any act in connection with transshipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or export of the drug.”  Drugs and Drug Trafficking Act § 1.  

[94] Criminal Law Amendment Act § 51, sched. 2, pt. II.

[95] Id. § 51.

[96] Id.

[97] Id.

[98] Id. § 51, sched. 2, pt. IV.

[99] Id. § 51.

[100] Sloth-Nielsen & Ehlers, supra note 40, at 14.

[101] South Africa Law Commission Report, supra note 49.

[102] Stephan Terblanche, A Sentencing Council in South Africa, in Penal Populism, Sentencing Councils and Sentencing Policy 191, 191–92 (Arie Freiberg & Karen Gelb eds., 2008).

[103] Id. at 191; South Africa Law Commission Report, supra note 49, at 46. 

[104] South Africa Law Commission Report, supra note 49, at 46. 

[105] Id. at 47.

[106] Id.

[107] Id.

[108] Id. at 48.

[109] Id.

[110] Id.

[111] Id. 49–50.

Back to Top

Last Updated: 08/08/2014