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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
4 September 2007
CRIMINAL LAW (SENTENCING)AMENDMENT BILL: DISCUSSION
Chairperson: Ms F Chohan (ANC)
Documents handed out:
Latest Draft Criminal Law (Sentencing) Amendment Bill
Witchcraft Suppression Act 3 of 1957
Audio recording of meeting
The latest version of the Bill was tabled, and the legal drafters from the Department of Justice took the Committee through changes in the wording. The long title and Schedule 2 had been amended at the express request of the Premier of the Limpopo Province, to incorporate reference to witchcraft or muti murders. Clause 1, amending Section 51(2)(c) used the word "must" to reflect the concerns of the Committee that overly severe sentencing should not be imposed on juvenile offenders. A similar amendment appeared in the revision of Section 51(3)(a). There were four options to be considered for the amendment of Section 51(3)(b), which had been redrafted in view of the difficulties found by the judgments in the Brandt and Blaauw matters. The principle behind sentencing of 16 to 18 year old offenders was explained. A new subsection provided that not more than half of a minimum sentence could be suspended if the accused was between 16 and 18. Some Members still had difficulties with the concept of finding substantial and compelling circumstances, and the exclusions listed. The question of parole was not within the jurisdiction of this Committee nor appropriately dealt with under this Bill. The changes to Schedule 2 were outlined, and now included reference to witchcraft and muti murders, as well as a tightening of the wording in respect of use of firearms in committing certain offences. The commencement of the Bill was given as the date of 31 December or an earlier date; this had been selected as it fell within the Court recess.
Members would vote on the adoption of the Bill later in the week.
The Chairperson announced that at the end of the session she would be moving over as Chairperson to the Public Enterprises Portfolio Committee, and Mr Yunus Carriem would become Chairperson of this Committee.
Criminal Law (Sentencing) Amendment Bill
The latest draft of the Bill was circulated. The Department of Justice pointed out the latest amendments as follows:
The Chairperson stated that at the express request of the Premier of the Limpopo Province reference to witchcraft / muti murders had now been incorporated in the Bill.
Dr Lirette Louw, Researcher, Department of Justice, stated that the first underlined section, referring to the Schedule 2, was the reference and incorporation of the witchcraft and muti murders plaguing Limpopo Province.
Clause 1: Amendment of Section 51(2)(c) of the Criminal Law Amendment Act
Dr Louw noted that the “must” replaced the word “may” in the paragraph under subsection (iii), to reflect the concerns of the Committee that not too severe sentencing should be imposed upon juvenile offenders by the Courts.
Amendment of Section 51(3)(a)
Dr Louw indicated that there had been a similar change under this sub-section, by substitution of the word "must" for "may".. Further the proviso had now been amended and ended with the words "not exceeding 30 years".
Amendment of Section 51(3)(b)
Dr Louw indicated that there were now four options in respect of this subsection.
The Chairperson reminded Members that in consequence of the sentencing imposed in the Brandt and Blaauw matters, the Committee had considered the position of offenders who fell near the upper limit of the juvenile category, between 16 and 18 years of age, and considered the principle of substantial and compelling circumstances, and the fact that the age of the offender might in itself be such a reason. The application of the principle of substantial and compelling circumstances had led to confusion among judicial officers.
The Chairperson stated that minimum sentences could be imposed when the perpetrators were between 16 and 18 years at the commission of the crimes but not when the perpetrators were younger than 16 years at the time of the commission of the crimes. For offenders between 16 and 18 there was a propensity that serious injuries would be inflicted. If the age of the perpetrator was taken into account, that would reduce the Judicial Officers' discretion. It was complicated by the Constitutional requirement that least possible term of imprisonment should be imposed, and that for juvenile offenders imprisonment should be the last resort. This gave rise to serious problems of sentencing. The intention was to try to avoid a continuation of what many considered inappropriate sentences imposed by the Courts. It was thought that addressing the “least possible time” would take care of a suitable sentence where the offender was between the ages of 16-18 years. A minimum sentence could not be suspended, but there was a new subsection contemplated where not more than half of a minimum sentence could be suspended if the accused was between 16 and 18.
Mr J Jeffery (ANC) asked whether this was a new concept.
The Chairperson stated that International Law was creating the concept of specific sentences for young persons, and that this approach was a way of differentiating the age grouping of 16-18 years.
Dr Louw replied that the options were set out on page 6 and the main provision on page 7 of the new draft.
Mr Jeffery (ANC) wished to know why this was done.
The Chairperson stated that a way to effectively impose minimum sentencing on a juvenile had to be found.
Dr Delport replied that he still had difficulty with the concept of substantial and compelling circumstances in respect of a prior relationship. He gave the example of a married couple, where the woman had always been the leading party in sexual activities, but who suddenly said no. If the husband were to continue with sex, the woman could lay a charge of marital rape. Dr Delport asked why the phrase was not simply being deleted; he felt that the current wording was a "back door" approach, and he feared that the phrase was going to be constitutionally challenged any way.
The Chairperson asked what if the person charged and convicted was found to be seriously inebriated.
Mr Jeffery stated that he had sympathy with the perpetrators under the age of 18 years, for he was of the opinion that such persons were not fully in control of themselves by virtue of their tender age. However, he was concerned about the way this clause was drafted for it seemed that up to half the sentence could be suspended. He believed this was not so much a guide to the Court as a blank cheque. He wondered why there could not be any suspension when the question of age of another offender not in this category was at issue.
The Chairperson added that she felt that these circumstances should be up to the legal representative of the accused to argue at the time of sentencing. She was concerned about the lack of uniformity and felt that the Committee should look at the bigger picture. It seemed to her that the Courts were reluctant to apply the minimum sentences and were motivated by the principle of the convicted person spending the least possible time in prison.
Mr Johan de Lange, Principal State Law Advisor, DOJ, added that suspension would apply to only half of the intended sentence, so that at least half must be served in prison. He illustrated his point by an example of a young girl who might be sexually, emotionally or physically abused over a long period of time, and who then "cracked" committed unpremeditated murder, attempted murder or assault. This could be a substantial and compelling reason not to impose the full prescribed minimum sentence.
Mr S Swart (ACDP) felt that the first consideration when determining substantial and compelling reasons was the youth of the offender.
The Chairperson then reminded the members of the Carol Lewis judgement. Here the perpetrator was 29 years old, but the Court found that the perpetrator’s "youth" was a substantial and compelling circumstance. She was of the opinion that where there were no valid reasons the minimum sentence should be applied as it was appropriate. However, with the age group of 16-18 years there must be consideration of any substantial and compelling reasons, which must include the possibility of rehabilitation and the age of the perpetrator. In this category suspended sentences were not meaningless and there was a very real appreciation that there was a punishment against the imposed sentence. She pointed out that this would not apply to perpetrators less than 16 years old because the judicial officer would have a total discretion.
Mr Swart raised to the question of parole.
The Chairperson responded that the question of parole lay within the powers of the Parole Boards. She added that the officials of the Department of Correctional Services received prisoners without details of their sentences and often did not know that a minimum sentence had been imposed. She felt that the question of minimum sentences applied to this Committee.
Mr Swart said that he had some difficulty with this issue.
The Chairperson replied that the Members would have a chance to vote the next day and she requested them to consider all aspects overnight in preparation for the vote.
Amendment of Schedule 2 to Act 105 of 1997
Dr Louw then referred to the changes for the Schedule 2, which had been amplified by new paragraphs (e) and (f) that applied to witchcraft or muti killings.
Dr Louw further indicated changes to Part IV of Schedule 2. The reference to "an offence" had been amplified by the retraction of references to other schedules, the listing of the crimes in this schedule, and the use of the words "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, but excluding an offence referred to in part I, II, or III of this schedule" and then the listing of the offences.
The Chairperson then asked whether this applied retrospectively.
Dr Louw replied that unless Parliament specifically intended, and made know this intention, that a law applied retrospectively the convention was that laws did not apply retrospectively.
The Chairperson then referred to the specific plea by the Premier of Limpopo to include witchcraft and muti murders in the legislation.
Mr de Lange noted that the amendment mentioned earlier was an attempt to incorporate this concern. It still did not apply retrospectively unless Parliament specially and specifically required this application. The drafters had intended to cover any loopholes, but had not otherwise tightened the legislation. There was an attempt to incorporate the concept of common purpose, which would apply if a whole village participated in a witchcraft or muti murder and there was no possibility of identifying individuals by reason of closing of ranks and refusal to testify by everyone in the village.
The intention in the remaining wording was to tighten the loose language, so that it was a technical amendment, rather than one of principle.
The Chairperson noted that an attempt to escape lawful custody, as in the past, did not necessarily need to involve a firearm.
Amendment of Section 21 of National Prosecuting Authority Act
Mr de Lange stated that in sub section (5) the reference to three months had been amplified to state that it should be three months from the date of commencement of the Criminal Law (Sentencing) Amendment Act.
Short Title and Commencement
Mr de Lange noted that the Short Title and Commencement clause of the Bill had also been tightened technically. The date of 31 December or an earlier date fixed by the President had been inserted. The date was selected because it fell within the Court's recess time, and the application of the Court rolls would be eased at this time.
The Chairperson repeated her request to all Members to consider the ramifications of the proposals overnight and be prepared to vote the following day.
The meeting was adjourned. .