Criminal Law (Sentencing) Amendment Bill: public hearings

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
31 July 2007
CRIMINAL LAW (SENTENCING) AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Ms F Chohan Khota (ANC)

Documents handed out:
Criminal Law (Sentencing) Amendment Bill [B15-2007]
Southern African Catholic Bishops' Conference submission
Open Society Foundation for South Africa submission
Stan de Smidt submission
Tshwaranang Legal Advocacy Centre and others: submission
Cape Bar Council comment
Child Justice Alliance submission
Centre for the Study of Violence and Reconciliation submission
UNISA Department of Criminal and Procedural Law: Prof S Terblanche
South African Human Rights Commission submission
Association of Regional Magistrates submission
Hlakanaphila Analytics presentation
Hlakanaphila Analytics submission
B J King submission
Director of Public Prosecutions: Transvaal submission
National Prosecuting Authority (NPA) submission

Audio recording of the meeting [Part1] [Part 2]

SUMMARY
The Committee commenced public hearings on the Criminal Law (Sentencing) Amendment Bill. The Open Society Foundation indicated that it welcomed the principles of the Bill but still had certain problems with the way in which it was presented. Its own studies appeared to indicate that there was no proof that the minimum sentencing had led to a decrease in crime, and that the minimum sentencing, although not impacting upon prison overcrowding at present, would do so in the near future. It believed that there was insufficient reason to increase the jurisdiction of magistrates and that alternatives could be found to the problem of split procedures. Questions by Members were directed to the link between minimum sentences and prison overcrowding, the new proposals on parole, whether there was still confusion about the application of the "substantial and compelling circumstances" principle, and the need to further clarify this submission.

The Tshwaranang Legal Advocacy Centre supported the principle that minimum sentences were necessary for rape in particular but it did not consider the current Act or the Amendment Bill provided an adequate framework. The Centre would like to see more holistic legislation. It suggested that the use of the words "co-perpetrators" and "accomplices" needed to be clarified. There were other issues where there seemed to be confusion or inconsistency in sentencing. The legislation as drafted might be sending out some unintended messages, including distinctions between "ordinary" and "serious" rape, which tended to ignore the principle that rape was always a most serious crime. The assessment by the Courts of whether there had been psychological damage was inappropriate and issues such as employment being taken into account when assessing sentences were not relevant. Although it supported that prior relationships and previous sexual history should not be included as "substantial and compelling circumstances", in practice many victims in relationships with the accused were reluctant to assist the prosecution. Results from further studies by the Centre would shortly be available. The Committee asked for clarity on the research and discussed the proposal that the complainant's views on sentencing should be sought. 

The Association of Regional Magistrates had made a number of written submissions, but confined its oral submissions to addressing competence of magistrates. It pointed out that regional magistrates already had jurisdiction to impose sentences of up to 30 years in some cases, and would be competent to impose the sentences envisaged by the Amendment Bill. Although cases had been overturned on review, many were difficult cases involving cautionary rules, which were currently considered by a single judge. The fact of automatic appeal, and the consideration by two judges, was sufficient balance. Magistrates had been and would be trained further. The abolition of the split system would be beneficial to all. The Association was concerned about disparities in the legislation around sentencing and suggested that these should be dealt with by discussions on a Sentencing Framework. It was suggested that presiding officers should be proactive in obtaining victim impact statements. The Committee discussed the training and experience of magistrates, the possibility of reviews of certain less experienced magistrates, and the preferable option of examining prosecutions more closely to check where these should be instituted. It sought clarity on the proposal to increase the sentencing jurisdiction also for offences under Part II.

The Centre for the Study of Violence and Reconciliation was opposed in principle to the legislation and did not feel that the regional court should be empowered to impose the maximum possible sentence of life imprisonment, as this should more properly remain the domain of the High Court. The oral submissions concentrated on the points that minimum sentences had not been shown to be a deterrent, and that they were contributing to the problems of prison overcrowding, which the State could not afford. A holistic approach to punishment and rehabilitation was required. The Committee questioned whether these submissions were based on empirical evidence, and questioned that they were based on the unknown element of crime prevalence. The Committee suggested that a link should be established between overcrowding, minimum sentences and resources, and pointed out that a holistic approach did not necessarily mean lesser crime.

Hlakanaphila Analytics presented the results of their case studies on the impact of the minimum sentencing legislation. They believed that there was a need for greater consistency and pointed to a number of discrepancies. It cautioned that there was a trend not to impose imprisonment for certain types of offences and this might be sending out the unintended message that the crimes were not severe. The Committee questioned whether there was empirical proof whether minimum sentencing brought out more diverse sentences as opposed to the old legislation.

The National Prosecuting Authority commented on some of the previous submissions and noted that the abolition of the minimum sentencing legislation did not automatically suggest that there would be a better system.  NPA did not foresee any constitutional problems but was concerned t that the procedure might create a greater burden on the courts. It suggested the possibility of review rather than automatic appeals if the jurisdiction of regional courts was increased, and suggested clarity for the wording relating to perceived anomalies in respect of maximum "lesser sentences". Suggestions were made on referral cases, the "plus five" and "plus ten" provisions in the sentencing, and the need to amend the Prevention of Organised Crime Act dealing with racketeering. Section 51(6) should be amended to deal with a technical point. The NPA did not support the requirement for policy directives, and preferred that the intention of the legislature be set out more clearly. It further proposed that cases that would attract life imprisonment should only be handled with magistrates that had experience, as the cases were often particularly complex. The Committee raised questions around juveniles, compelling circumstances and their constitutionality, and the cases where the relationship between the parties made the complainant reluctant to assist the prosecution.

The Child Justice Alliance feared that the suggestion that minimum sentences could be imposed on children below 18 would lead to constitutional challenge and was contrary to the constitution and the Convention on the Rights of the Child. The Committee questioned the Alliance's interpretation of the Brandt  judgment, and clarified that minimum sentencing would be used only where there was effectively no other alternative. The Committee questioned the position in other countries.

MINUTES
Committee Business
The Chairperson noted that the briefing for the Constitutional Thirteenth Amendment Bill would be discussed in conjunction with the Select Committee and it would be necessary to schedule it so that it could be finalised this year.

The Chairperson noted that the deadline for public comments on the Criminal Law (Sentencing) Amendment Bill had been given so that the Committee would be able to assess how to handle the public hearings. It was distressing that some submissions were still being received after the deadline. In future the Committee would not consider documents received after the deadline. She appealed to organisations to send confirmation of their attendance through the correct channels.

Criminal Law (Sentencing) Amendment Bill Public Hearings
Open Society Foundation (OSF) submission
Ms Louise Ehlers, Senior Project Officer of Open Society Foundation's Criminal Justice Initiative, reported that the OSF  believed that sound sentencing practice was fundamental to ensuring that the constitutional rights of both accused and victim were upheld. There was an urgent need to overhaul the sentencing policy. This could be achieved through a coherent framework, and the excellent work already done by institutions such as the South African Law Reform Commission (SALRC) was to be commended.

OSF was concerned that there was no conclusive evidence that the minimum sentencing had had an impact upon the levels of serious and violent crime, that there was no improved consistency in sentencing, and that the minimum sentencing would in future impact upon overcrowding.

OSF commented that the minimum sentencing legislation was intended to be temporary. By repealing the provisions, in terms of which Sections 51 and 52 were to be renewed or reconsidered, amounted to entrenching the minimum sentencing. It urged that there must be increased and new research leading to a comprehensive overhaul of the sentencing policy and legislation. Wider consultation on this Bill should take place.

OSF acknowledged the procedural problems currently experienced by the courts and the NPA as a result of the split procedure, which was illustrated in the research being undertaken by OSF. However, it was not convinced that increasing the sentencing jurisdiction for regional courts was the appropriate route to take. Life sentences should be imposed only for the most serious offences and by the most senior courts. OSF presented some statistics on the convictions reviewed and set aside by the High Court. It suggested that there was a need for discussion around these issues.

OSF submitted that their research had shown that minimum sentencing would definitely have an impact on prison overcrowding . It was important for the Committee to engage with the current amendments being drafted by the Department of Correctional Services, and in particular the parole provisions.

The limitation of the use of the "substantial and compelling circumstances" clause was another matter needing discussion, and clarification was required on all the offence categories, as well as discussion with judicial officers on the possibilities that could be considered. OSF did not disagree with those circumstances now on the list but noted that it was a very limited list. It feared that the grounds that could not now be taken into account might result in disproportionately severe sentences.

OSF believed that the fact that minimum sentences could be applied to children would be contrary to the Constitution and Convention on the Rights of the Child.

The OSF summarised that there was a need to balance the rights of victims and accused persons. It believed that there was a need for severe sentencing for certain offences, but that a structured approach was needed. It did not oppose the Bill but stressed that there was a need for further discussion, based on the research done.

Discussion
The Chairperson asked the OSF to supplement its submission by referring in writing to the correctional service provisions.

 Dr T Delport (DA) commended OSF on its approach and said that the question of overcrowding in his view had nothing to do with minimum sentencing, and there was a need for other solutions. He questioned the impact on and perceptions of the public if minimum sentences were abolished.

Ms Ehlers agreed that there was a range of drivers on prison overcrowding and this was one of the reasons why OSF had researched the issue. At the moment minimum sentencing was not impacting on prison overcrowding, but statistics showed that it would shortly do so, and that the impact would be serious.

The Chairperson said that this was not empirical but anecdotal evidence. If minimum sentences were to be abolished, this did not mean that no severe sentences would be imposed. The prison overcrowding was more dependent upon the crime levels, and she noted that if severe offences such as murder and rape were prevalent, then the sentences would obviously be longer for more prisoners. The cause of people spending time in prison was the fact that they had committed crimes, not the minimum sentencing legislation.

Ms Ehlers agreed, and noted that this was why she had suggested that it would be useful to examine the parole provisions. There were some problems with the provisions, although they were useful. OSF thought there was a whole range of sentencing legislation that must be looked at. The impact on and perceptions of the public were important, which was why OSF was not asking the Committee to abolish minimum sentencing without some alternative.

Mr S Swart (ACDP) noted that there had been some confusion in the past among judicial officers relating to the application of substantial and compelling circumstances. However, the Malgas judgment set out the step- by step procedures, and he wondered what the findings of OSF about the application of the test subsequent to this judgment had been.

Ms Ehlers agreed that there was certainly confusion prior to Malgas but even after the dicta in this judgment there was still apparently room for differing interpretations. She stressed that OSF did not disagree with the clauses, but wanted to bring to the attention of the Committee its view that there was a danger of constitutional challenge. It believed that the issue of substantial and compelling circumstances should be extended also to other offences, and not limited to sexual offences.

The Chairperson asked for confirmation that OSF was not in disagreement with the principle but that this might involve a constitutional challenge.

Ms Ehlers confirmed that this was correct. She thought a decision needed to be taken on whether the substantial and compelling circumstances should not be applied across the board. Few would disagree with the principle in relation to sexual offences matters, but others might be more of an issue.

Mr J Jeffery (ANC) suggested that the wording of the submission was perhaps contradictory, and could be clarified. The concerns on limiting the categories of substantial and compelling circumstances were not clear.
The Chairperson suggested that this point also be clarified in the re-written submission.

Mr J Jeffery (ANC) asked if there were any statistics available to back up the assertion that minimum sentences led to overcrowding.

Ms Ehlers said that the findings were that they would impact in future. However, she added that OSF had noted that the abolition of the split procedure for sentencing should in fact alleviate the situation for awaiting trial prisoners. OSF had found the split procedure problematic, and the delays and secondary victimisation, especially of children, had been a problem. It was pleased that this was being addressed in principle.

Imam G Solomons (ANC) thought there were perhaps conflation of the roles of different departments. Sentencing was the domain of the Department of Justice. Overcrowding was to be dealt with by the Department of Correctional Services (DCS). Uniform sentencing policy was another matter that should not be confused.

Ms Ehlers said OSF took the view that the Departments of Correctional Services and Justice were intrinsically linked. DCS had no control over who it took into the prisons. The final decision on parole, in terms of the new amendments, would rest with the Minister of Correctional Services, and this would have a direct impact on the length of time that prisoners were in prison.

Imam Solomons commented that the OSF had not spoken on how precisely the legislation should then be formulated.

Ms Ehlers noted that OSF was concerned that when magistrates' jurisdiction was increased, there was usually a trend towards imposing more severe sentencing.

The Chairperson noted that one of the problems was the perception of the public on regional courts' quality and competence. She pointed out that already the Regional Courts were dealing with serious crimes and passing long sentences, of up to 30 years, which could in fact be longer than a "life" sentence. It seemed to make little sense therefore to argue that it was inappropriate for regional courts to have increased jurisdiction. The Committee would be engaging on this issue, which had been raised by various bodies.

Ms Ehlers noted that the OSF had commissioned a third piece of research to look at some of the problems that had been identified with the proposed Sentencing Framework.

Tshwaranang Legal Advocacy Centre (TLAC) Submission
Ms Lisa Vetten, Senior Researcher, TLAC, stated that the Centre was making the submissions on behalf of a number of Non Governmental Organisations (NGO) concerned with gender violence. It noted that the minimum sentences had had the effect of generally increasing the length of sentences imposed for rape, which confirmed the principle that rape was a most serious crime deserving of severe penalties, but although it supported the principle that minimum sentences were necessary, for rape in particular, it did not consider the current Act or the Amendment Bill provided an adequate framework.

Ms Vetten suggested that there were a number of drafting issues, especially on substantial and compelling circumstances.  New sexual offences legislation would introduce new crimes, and TLAC would like to see more holistic legislation. She also suggested that the Committee needed to look at the issue of how hate crimes could be dealt with.

Section 51's use of the words "co-perpetrators" and "accomplices" needed to be clarified. An accomplice could be sentenced to more than ten years if he did not take part in the act of rape himself. She suggested that perhaps only the words "perpetrator" could be used.

Another point of confusion arose if a person had been convicted of two or more crimes of rape, but not yet sentenced, and she suggested that the wording in this instance needed to be re-considered. She further pointed out that a life imprisonment sentence was proposed if a person was raped more than once in the same event, yet there was a need to re-think why this situation differed from a number of rapes being committed by a person over a period of time, and whether there was consistency in the approach.

The Chairperson noted that the Committee, when considering the issue, was seized with a distinction between a "worst case" and "lesser" scenarios. The reference to "two or more" rapes would capture serial and gang rapes, and the Committee believed this would pass constitutional muster. She conceded that this had been a difficult exercise. The discussions had turned also on whether more serious offences should be met with more serious sentences. That had been a political decision, and it would be difficult to revise those issues now. Forthcoming discussions on a sentencing framework should address some of the disparities highlighted.

Ms Vetten thought that the legislation might be sending out some unintended messages. She suggested that a person convicted of rape three times demonstrated incorrigibility and inability to be rehabilitated, and there was a need to have that person removed from society. Another unintended consequence was the distinction being made by some regional courts between "ordinary" and "serious" rape. There had been a number of apparently callous sentiments in the judgments to the effect that if a person was not badly physically harmed, then this was not such a serious offence. The gap of fifteen years between the two minimum sentences did not seem to recognise that any rape was extremely serious. This was a matter that should be addressed by discussions on a sentencing framework policy.

In relation to the substantial and compelling circumstances, a problematic issues was the lack of recognition of the psychological harm to the complainant. The victims' ability to become a survivor should not be taken into account for lessening the sentence. Magistrates were not necessarily qualified to look at the psychological impact on the victims, and this should not be used as a circumstance. In addition, Ms Vetten felt that loss of employment, or the fact that a person was employed, should not be a mitigating factor in sentencing, as was done in the Nkomo  judgment.

TLAC supported the fact that prior relationships and previous sexual history should not have an impact upon whether the minimum sentence should be imposed. It had found that children and women in relationships would often prefer to withdraw charges than have the perpetrator convicted to a long sentence.

There was a suggestion that some of the aggravating factors - such as possible exposure to HIV, or infliction of grievous bodily harm during the rape - should not be treated as separate offences in their own right. If this were so, then the presiding officers would have to take into account that multiple crimes committed together would affect the sentencing.

The Chairperson noted that "substantial and compelling" were specifically and purposely used. She asked whether the problem was that these was simply not addressed properly by the prosecutor, rather than not being taken into account by the presiding officers of their own accord. She asked if there had been any research on what was happening in court at the time of prosecution.

Ms Vetten said that data would be available from TLAC in September, based on 2000 rape cases, and TLAC would be happy to make a further presentation at the time to the Committee. The results were correlated from reported decisions, and she said that there was an indication that many matters were not being properly reported on. The sample seemed to indicate that 50% of rape charges were resulting in 10 years imprisonment and there were only 2 life sentences. Minimum sentencing was not being properly adhered to. She agreed that some might be the fault of the prosecution. The Nkomo decision had raised further concerns.

The Chairperson noted that it was impossible to have a list of circumstances that could not be taken into account in deciding upon substantial and compelling circumstances. Many of the commentators had felt that there would be a serious constitutional challenge. She suggested that the solution might lie in better training of prosecutors.

Discussion
Mr Jeffery noted that the Bill provided for lessening of the matters which could be taken into account as substantial and compelling circumstances justifying imposition of a lesser sentence. He asked if there were further circumstances that TLAC suggested should be added or taken away.

Ms Vetten noted that the perceived lack of psychological impact should not be taken into account.

Mr Jeffery noted the comment that TLAC would have liked the opportunity to discuss the legislation.

Ms Vetten noted that the holding of public hearings had taken care of this concern.

Ms M Meruti (ANC) noted that page 5 of the submission suggested that the prescribed sentences had tended to increase. She asked if this research was conducted throughout South Africa and how this conclusion was reached.

Ms Vetten replied that there were two studies undertaken: one by the South African Law Reform Commission, and one by OSF. 

Mr Swart noted that the tension in the exclusion of the prior relationship as one of the substantial and compelling circumstances had been noted by TLAC. What could be the solution to resolve that tension?

Ms Vetten suggested that a possibility was to consult with the complainant and obtain her or his views. In the case of a child, such consultation should be in the absence of the parent or guardian. In addition, she suggested that plea bargaining should not undermine the minimum sentencing. She cited a case in Springs where apparently the complainant was not consulted, and a  R7 000 rand fine was plea bargained, for the rape of a foster child. This clearly undermined the spirit of what the Committee was trying to do.

Mr Swart asked if TLAC believed that the prior relationship issues should be permitted to be argued as a substantial and compelling circumstance.

The Chairperson noted that if there had been a rape, the fact of the relationship should not be mitigating at all. Perhaps the lesser sentencing arose because judicial officers were sensitive to the needs of the victim, but unfortunately there was a perception that such a crime was committed "in the family" was less serious. The Committee's intention was precisely the opposite, particularly where the children were involved. She did not believe that the victim's views should be sought. Neither the psychological impact on the victim nor the potential loss of breadwinner were relevant. The legislature must convey the message that a rape was serious, and she believed that the TLAC suggestions would have the effect of watering down the seriousness. The Committee was seeking a degree of consistency.

Ms Vetten said that the principles behind existence of a prior relationship were correct, but further submissions could address the number of withdrawals that resulted from victims' unwillingness to proceed. 

Mr Swart said that unwillingness on the part of the complainant to proceed with the trial and testimony was already a major concern.

Imam Solomons noted that there was perception that the legislation was prescriptive. He asked for comment on whether clause 3A should be worded as "may" or "must".

Ms Vetten thought that if it was a discretionary minimum sentence, then the wording should be "may"

The Chairperson disagreed; if substantial and compelling circumstances were found, the judicial officer should depart from the minimum sentence.

Mr Delport asked whether "rape is always rape", or whether there were lesser instances. He cited the example of a wife who, after many years of brutal treatment, murdered her husband, which was treated as a mitigating circumstance.

Ms Vetten understood that there were a number of competent verdicts for murder, but in her view rape was always rape.

Association of Regional Magistrates of South Africa (ARMSA) submission
The Chairperson noted that there were a number of submissions made in writing, and asked the Association to focus on issues on competence, quality of judgments and increase in jurisdiction.

Mr Adriaan Bekker, President: ARMSA, noted that regional magistrates already had the jurisdiction to impose sentences of imprisonment of 30 years in terms of Section 51(2), as read with the Schedules, with additional sentencing for repeat offenders, and this had pertained since 1998. He was convinced that magistrates would be competent to impose the sentences under the Amendment Bill. They had been dealing with these kinds of cases for a number of years. Although it was true that about 12% of convictions had been overturned when referred to the High Court, it must be borne in mind that the types of cases were difficult, they often involved a child who was a single witness, there was seldom DNA evidence, and there were two cautionary rules applicable that must be satisfied. A single judge reviewing the conviction may not share the magistrate's views and would therefore set aside the conviction. These cases were very difficult to evaluate, and some may have been mistakenly overturned.

Since 2002 magistrates had been trained on sexual offences cases, also looking at the social context, and a series of workshops had already been held on the Sexual Offences Bill. Training was also needed on sentencing, when life sentencing was appropriate, and the position in regard to lesser offences. The new system did allow for checks and balances. Two judges would be hearing the appeals in future, which would provide additional balances in the process.

Mr Robert Henney, Regional Court President: Western Cape, noted that the question was also about access to justice. The split system had required that trials again be instituted in the High Court if it appeared that the offence would justify a higher sentence. The Regional Court, on the other hand, was able to take justice to the people more easily, particularly in rural areas, and this system was seen to work.

Mr Bekker raised the question of minimum sentences and rape. A proposal in the original document was that the sentences for so called "ordinary" rape should be increased. Certain offences were included in the Sexual Offences Bill. He noted that the disparity between sentences for offences under Parts I and III was quite large. Murder, rape and robbery cases could have been referred to the High Court in the past. If the referral procedure was to be removed, then perhaps the same principles should apply to all cases.

The Chairperson asked for clarification of the range of sentencing under Part III.

Mr Bekker noted that this was currently ten, fifteen, and twenty years imprisonment for the first, second and third offences committed by an offender. However, there were certain inconsistencies. If a complainant was raped while still under 16, life imprisonment would be imposed, whereas if she was raped a day after her sixteenth birthday, the sentence would be ten years.

The Chairperson agreed that these would be noted, but these would be better addressed during the new Sentencing Framework.

Mr Bekker added that the impact on the victim was important, and victim impact statements should be worked on. Perhaps judicial officers should take a lead in looking at ensuring that there were proper victim impact statements, at least for Part I offences, and that these should be before the Court before sentencing.

The Chairperson said that nothing currently stopped the presiding officers from asking for these statements. If this were to be included in the legislation then it had an impact on the counselling and the costs. If the prosecutors were rather to produce these as a matter of course then this would carry significance and weight with the court.

The Chairperson asked ARMSA to speak to the perceptions about the experience and qualifications of magistrates.

Mr Bekker noted that at entry level a regional court magistrate should have seven years experience in the legal field, and have an LLB degree. The Magistrate's Commission was looking at guidelines for appointment. In principle, it agreed with the proposal that a person appointed should immediately be capable of doing the job.

The Chairperson asked what the attitude would be if magistrates with limited experience in the district courts were subject to a review, and if this might not be a viable option. If there was a perception that it was not good to increase the jurisdiction of regional magistrates, a mechanism whereby a person could only hand down life sentences if he had been a regional magistrate for five years might work.

Mr Bekker said that this might be problematic, as there was no referral system in place stating that certain magistrates should only handle certain matters. The current terms of appointment would require magistrates to deal with all cases. Once the guidelines were in place, and conditions had been clarified to ensure that the correct people were appointed he thought that this might help.

Mr Henney said that the High Courts were assisted by experienced prosecutors, members of the Bar and assessors. The imposing of life imprisonment by a single person was problematic. If there was a system where only experienced members could sit in certain matters, there could be a problem with availability. He agreed that the answer to the perceptions lay either in the correct evaluations, or in not increasing the jurisdiction. However, he pointed out that the automatic appeal procedure was a safeguard.

The Chairperson noted that the extension of sentencing jurisdiction to the regional court was aimed at reducing the split procedure and reducing secondary trauma to complainants. She suggested that as a matter of policy, all the most serious offences contained in Part I matters should be prosecuted in the High Court. Where it was not apparent, upfront, that the matter was of this nature, then it should be prosecuted in the Regional Court, which should be competent to deal with the entire procedures. In fact there was no attempt to level the hierarchy. The automatic appeal process was the safety valve. The Bill would result in many of the matters currently being prosecuted at the Regional Court being moved for prosecution, from the beginning of the case, to the High Court. She understood that Part I offences were generally given for trial to the High Court irrespective of whether there were substantial and compelling circumstances that could permit the presiding officer to deviate from the minimum sentence. Once the position had been rectified, then these issues would be dealt with, and lesser sentences could be preferred if there was a finding of substantial and compelling circumstances.

The Chairperson asked for clarity on the statement that different divisions of the High Court may have different interpretations of Section 276.

Mr Bekker replied that there were different views on whether a finding of substantial and compelling circumstances would allow a judicial officer to impose any other sentence, or whether he must still impose a term of imprisonment.

The Chairperson thought that any lesser sentences would be defined now in the legislation.

The Chairperson noted that the Committee was being asked to clarify the intentions on parole.

Mr Bekker said that this comment had been included in the submission before the proposed amendments to the Correctional Services legislation, and it was not important at the moment.

The Chairperson asked for clarity on the suggested alternative of increasing the jurisdiction generally in respect of certain common law offences.

Mr Bekker noted that this would be all offences in Part II - including murder and robbery, where the sentence was up to 25 years for repeat offenders. If the referral procedure was to be done away with, then it might be appropriate also to deal with the Part II offences, which were referred in terms of Section 22A and B, rather than referring these matters back to the High Court.

The Chairperson asked what would happen if a magistrate believed, in a case other than a minimum sentence matter, that the sentence he was able to impose was insufficient.

Mr Henney replied that currently a magistrate had no choice, even if he believed there were substantial and compelling circumstances that would justify a heavier penalty. He cited the example that, notwithstanding that an accused might have been in possession of thousands of abalone, the magistrate was confined to imposing a two year prison sentence or a fine.

The Chairperson suggested that perhaps such matters should be prosecuted in the High Court, although she conceded that in many cases the seriousness would not necessarily be evident prior to trial.

Mr Henney added that rape of an elderly  person fell under Part III, and once again the magistrates would be limited to the 10 or 15 year term of imprisonment, despite the fact that the circumstances might be shocking and justify a heavier penalty.

The Chairperson reiterated that the High Court could of course impose more than 15 years, and this was a pointer that matters perhaps could be effectively dealt with by examining more carefully where matters should be prosecuted. She was worried that the request to increase jurisdiction for Part II offences also would effectively be an increase in the jurisdiction of the regional courts.

Afternoon session:
Centre for the Study of Violence and Reconciliation (CSVR) Submissions
Ms Amanda Dissel, Programme Manager, CSVR, stressed that any sentencing framework should be equitable, effective and practical. This would in turn translate into cost effectiveness.

On the impact on crime she noted that when the legislation on minimum sentencing was introduced it was aimed at serious crimes such as murder and rape. Over the decade there had been a decrease of about 4% in the number of reported crimes, even though the reasons were still unclear. However, last year CSVR had seen an increase in contact crimes such as arson and aggravated robbery and the possession of illegal firearms. This seemed to suggest that the minimum sentencing had had no direct impact on serious crimes. 

Overcrowding in prisons, coupled with inhumane treatment and lack of recreational time had long been a concern in South Africa, particularly with the levels of prison population varying over the provinces. This compromised the ability of the Department of Correctional Services to carry out its mandate. The decline in the prison population was artificial as it this was only achieved through the release of about 30 000 prisoners by the Cabinet. Of interest was the fact that there had been an increase of inmates with sentences of ten years and more. Another problem that impacted on the prison population was parole as the legislation stated that a person must serve four fifths of the stipulated years before being eligible for parole. In order to deal with this the Minister had had to make ad hoc releases which undermined the jurisdiction of the courts. Moreover, she said that there were enormous cost implications for the state due to the incarcerations.

Discussion
The Chairperson noted that the idea of presenting a submission was for the interested parties to highlight areas of importance. The Committee would examine those issues raised orally. She indicated that the submission had hinged on the lack of the deterrence factor and the overcrowding in prisons. Although CSVR argued that minimum sentencing did not have any deterrent factor there was no evidence to the contrary. As a result the submission was not based on empirical evidence. She noted further that the Open Society Foundation informed the Committee that minimum sentencing was not necessarily contributing to the overcrowding now, although it was projected to make some impact into the future. Thus she enquired on what evidence CSVR asserted emphatically that  minimum sentencing led to overcrowding.

Ms Dissel replied that this was based on the Oasis research done in the past five years, after  implementation of the minimum sentencing legislation and the increase in the magistrates' jurisdiction. If one took into consideration the seven years since the inception of the legislation, there was no visible impact yet, but the Oasis research projected an increase in the future.

The Chairperson again remarked that the projections were not empirical and they depended on a number of factors, one of which was the extent to which serious crime was going to be reduced in the country and this was something that could not be assessed.

Ms Dissel agreed that this could not be projected, but the projections themselves had to take in a number of factors.

The Chairperson asked if CSVR was positive that this was the direct result of the minimum sentencing.

Ms Dissel replied that obviously there had to be more detailed analysis.

The Chairperson remarked that even if they did repeal the sentence this did not mean that serious crimes were not going to have harsh sentences, as the sentences themselves depended on the type of crime. Their projections were based on some standard that they were imposing.

Ms Dissel replied that the trend analysis was according to specifics, but that the trends themselves were analysed and based on empirical research.

The Chairperson questioned how such predictions could be made against the large unknown factor of crime reduction. 

Ms Dissel replied that one had to predict the future with the current crime trends as well as other factors and what she wanted to stress was that it was not crime that determined the prison rate but the sentence.

Dr Delport asked whether CSVR was considering the overcrowding in terms of existing capacity, or simply against the high number of prisoners.

Dr Delport remarked that some studies showed that even the death sentence did not have a deterrent effect and he asked then how the people perceived the attempt by parliament to curb crime and guard against people taking law into their own hands.

Imam Solomon commented that in most submissions the points of deterrent effect and overcrowding were made, but he failed to understand their connection to the minimum sentencing legislation.

Ms Dissel replied that the issues of overcrowding and sentencing could not be entirely separated because, as she had tried to point out, a sentencing framework needed to be holistic and cost effective. The problem with the existing framework was that there were large numbers of people being sent to prison, the system could not cope, and this led to release of prisoners on an ad hoc basis.

The Chairperson asked for clarity, pointing out that even if there was a holistic framework, this would not necessarily translate to lesser crime. The idea behind the sentencing system was to establish uniformity.

Ms Dissel replied that a holistic approach might not translate to lesser crime, but the issue was that serious consideration needed to be given to the principle.

The Chairperson stated that if anyone attacking the minimum sentencing system on the basis of capacity must establish the linkage.  The intention of the legislation was not only deterrence, but also matters such as  the removal of criminals from society, for its protection, and consistency. If capacity issues were problematic, then the question was what more was needed in capacity and resources.

Ms Dissel begged to disagree and replied that the state had to look holistically at how much they could afford by sending people to prison for different crimes. 

The Chairperson asked if she would agree that Part I crimes were the most serious crimes. If so, then she must agree that  the more serious the offence, the higher the penalty must be. The criminal justice system did not work on calculations of how much the State required in terms of resources, and then sentence people accordingly.

Ms Dissel replied that this was the particular reason they were arguing for a more holistic approach.

The Chairperson said that it was not going to necessarily mean lower sentences.

Ms Dissel replied that it might or might not result in lower sentences. She remained of the opinion that it should be looked at. She further felt that the proposed amendment on parole seemed to be an unworkable system.

The Chairperson noted that the Committee would also look at the other points raised in the written presentation.

Hlakanaphila Analytics (HA) Submission
Ms Jean Redpath and Michael O'Donovan, Directors, Hlakanaphila Analytics, told the Committee that their submission was based on the three points picked up from their previous research over nine months on the impact of minimum sentencing. The details of the research were widely available. However in summary the first point shown on a docket analysis was that despite the introduction of the minimum sentence legislation, inconsistency in sentencing was still rampant, with even the same courts producing diverse judgments. The data showed incarceration by race, and indicated that the colored race faced more incarcerations than Asians, which could not be explained by the prosecution or by the levels of crime. As a result they submitted that there was no reason for making the legislation permanent as it was clearly not working.

Further research showed that in the provinces, people serving 15-plus years of imprisonment  were three times per 100 000 citizens more in the Free State than in Mpumalanga. This was an indication that the courts in the respective provinces were clearly operating different levels. In the Western Cape the population serving 15-plus years was only a third of the figures in Limpopo.  This seemed to support the proposition that there was a wide range of sentencing across provinces and the need to have a comprehensive solution.

The minimum sentence legislation would contribute to overcrowding, as people would be incarcerated for longer periods of time. There was an increase in the number of people serving longer sentences. There was an increase in the crimes which would attract longer sentences and  judicial officers would feel compelled to follow the legislation. 

Mr O’Donovan highlighted the fact that legislation essentially sent out signals of what was considered acceptable or unacceptable behavior. The minimum sentence legislation was unequivocal in stressing that crimes such as rape and murders were not tolerated. There was a need to broaden the scope to include other crimes that were not presently covered by the minimum sentencing legislation. The data was showing that the number of prosecutions of lesser crimes was declining and even when prosecuted there was little inclination to incarcerate the offenders. He warned that the legislature and the judiciary must ensure that they did not send out the message that committing lesser crimes was a free ride.

Discussion
The Chairperson asked for empirical evidence for the proposition that lesser crimes were not being prosecuted. and she also asked if it was necessarily incorrect  to fine lesser crime offenders instead of incarcerating them.

Mr O’Donovan replied that the current situation reflected a mixed system, where on the one hand there was clear legislation, and on the other hand there was a drive to introduce alternative sentencing despite a lack of necessary infrastructure to deal with alternative sentencing. As a result a population of offenders ended up not being diverted and not in prison, so the big question was where they were. 

The Chairperson pointed out that the graphs accounted for the lesser crime offenders and the drop seemed on the face not very significant

Mr O’Donovan replied that their number had dropped significantly.

The Chairperson asked if the idea that lesser offenders be fined as opposed to incarcerated was incorrect. 

Mr O’Donovan replied that the inevitable result was that people serving longer terms were increasing, and their number of appeals was also steadily increasing, thereby aiding in the burdening of the judicial system.

The Chairperson asked for an elaboration, and asked if Hlakanaphila was arguing for the incarceration of up to five years, rather than a fine for a person who, for example,was involved in a brawl at a shebeen.

Mr O’Donovan replied that they definitely were not arguing for that view point but that the legislation had to be informed not only by its impact but also by what would happen to the other offenders.

The Chairperson pointed out that mandatory sentencing legislation has always been focused on particular types of crime. Even though they were arguing from a moralistic point of view, they should realise that this was the trend internationally as well.

Ms Redpath noted that it was interesting to note that most murders attracting a 15 years sentence in fact arose from shebeen brawls. Before the minimum sentence legislation the courts had one uniform sentence for all shebeen incidents. With the passing of the minimum sentencing legislation there was no longer uniformity, but various sentences had resulted. A new comprehensive approach that would take on other issues such as prison capacities was needed.

The Chairperson remarked that one of the various factors they obviously had factored in was the prison increases. She asked if they had also factored the increases in capacity of the police and the prosecuting authority.

Ms Redpath replied that HA had noticed that the number of dockets being sent out to the prosecuting authority from the police was around 500 000 a year ,and steadily increasing, but the prosecution was on average only able to prosecute around 230 000 dockets per year.  This proved that the prosecuting authority had a finite capacity, which was steadily decreasing as people appealed in an effort to deflect the minimum sentence.

The Chairperson stated that discussions on overcrowding had raised the issue of aggravating and compelling circumstances. She asked if this was one of the reasons that might explain the trends in their graphs.

Ms Redpath replied that they did not have sufficient reasons to explain the trends. Nevertheless, aggravating circumstances was a possible reason, and another plausible explanation was that the courts in the different provinces operated differently. It was clear was that the trends showed a serious problem.

Mr O’Donovan speculated that maybe the courts in the Free State were less inclined to deviate from the legislature than the courts in other provinces. Either way, they were of the opinion that convictions should not depend on race nor on the province in which they were imposed.

The Chairperson stated that without the legislation there would have been more severe contradictions.

Ms Redpath replied that on the contrary what they had discovered was that with the implementation of the legislation the same crime with the same set of circumstances would in fact attract different sentences. They attributed this to lack of uniformity amongst judicial officers. The only sentences that had been applied consistently applied to rape crimes.

The Chairperson commented that before accepting this testimony of the trends the Committee would need empirical evidence and if HA did have the respective data they should submit it. The Committee agreed that there was a need for consistency.

National Prosecuting Authority (NPA) Submission
Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, NPA, commented on the previous submissions. He stated that although the submissions correctly reflected an impact on the sentencing system the NPA did not think that doing away with minimum sentences would mean that the old system would function perfectly. Moreover, NPA wanted to point out some logistical problems that might arise in the course of the presentation. NPA had mentioned that it did not foresee any constitutional problems with the amendment. It was, however, concerned with the fact that the procedure might create a bigger burden on the courts. In addition there were logistical problems such as compulsory appeals and the effect on the rolls of the Regional Courts.

On page three of the submission, paragraph (b) contained the issue of the possible review rather than compulsory appeals for life sentences. NPA was of the opinion that instead of compulsory appeals there should be automatic reviews, which still ensured the right to appeal. Paragraph (d) highlighted some of the problems NPA could foresee in respect of the life sentence. Paragraph (e) contained a suggestion that there be clarity on the anomaly that was seen to exist in respect of maximum "lesser sentences" once substantial an compelling circumstances were found, and the NPA tabled that a provision be inserted similar to Section 51(2) of the Act in terms of which the Regional Court was given increased jurisdiction in respect of Part I offences. Paragraph (f) dealt with the statistics on referral cases and NPA did not think that the current proposal dealt effectively with these types of matter. It was proposing that the "plus 5" provision be amended to "plus ten" and that "plus ten" be raised, but this was still under discussion.

NPA highlighted the provision in the Prevention of Organised Crime Act dealing with racketeering, as this was tied to the fact that the regional courts did not currently have a mandate to impose life imprisonment under this Act. It moved for an extension of life imprisonment to the regional courts also pertaining to issues of racketeering.

Proposals were made for a technical amendment to the proposed Section 51(6) to clarify that a person meant "an accused person".

NPA also addressed clause 5, requiring the national director to adopt policy directives. NPA did not support this amendment.  It would be of help if the legislature would spell out its intention and not leave this to the discretion of the NPA. There should be a clear distinction between prosecution policy and policy directives.. . He stressed that the NPA was concerned with secondary victimisation and trauma to the victim. It further proposed that cases that would attract life imprisonment should only be handled with magistrates that had experience, as the cases were often particularly complex.

Discussion
The Chair agreed with the suggestion on life sentences, and said that this was currently under discussion. The Committee was looking into the issue of having all cases that were. on the face of it, liable to attract life imprisonment being referred to the high court in the first instance. The problem they had with the suggestion that cases of life imprisonment be given to magistrates with more experience was that in some cases the possibility of a life sentence only become apparent due the course of the trial. The split system of having to move such cases then to the High Court had and would create problems. What was needed was a new approach to the policy.  The question of reviews rather than automatic appeals was indeed something the committee would look into.

The Chairperson then asked the NPA to speak on the aspect of juveniles and the minimum sentence.

Mr Hofmeyr replied that this had not been dealt with in detail but a presentation would be made to the committee.

Mr Swart asked for views on the issue of compelling circumstances and their constitutionality.

Mr Hofmeyr replied that NPA had not yet done deep research on the matter. Their current view was that it should not be too much of a problem.

Mr Swart asked the opinion of the NPA on the suggestion that the crime of rape be moved from Part 2 to Part 3.

Mr Hofmeyr replied that NPA was only now aware of this proposal, but was of the opinion that it was a sensible move.

Mr Swart asked his view on cases where there was a relationship between the parties, and the complainant had a clear wish to withdraw the case.

Mr Hofmeyr replied that this was clearly a difficult issue and NPA had prosecutors whose cases had collapsed because the witnesses later refused to give evidence, even in some of the most controversial cases. This was a matter requiring further consideration.

Mr Rodney De Kock, Director of Public Prosecutions,Western Cape, added that this was very difficult from a practical point of view, as cases brought should proceed in any event. 

Mr Mokotedi Mpshe, Deputy Director, NPA, added that prosecutors were discouraged from taking up such kinds of cases and only would continue with prosecution if it served the best interest of society. Normally they handled the cases the same way they handled domestic violence cases whereby the prosecutor was unable to withdraw without the consent of a senior member of the Authority. However, this was not a direct stipulation and such cases were few.

Child Justice Alliance (CJA) Submissions
Professor Julia Sloth-Nielsen, Child Justice Alliance, clarified that the Child Justice Alliance was a conglomerate of concerned individuals of the child justice system. She was heartened by the fact that the Committee had raised the issue of juveniles. The decision in the Brandt matter was endorsed by five judges of the Appeal Court, which clearly showed that where minimum sentencing was concerned  a child below 18 should be given the shortest sentence possible and this should still be dependent on the individual case and the particular circumstances.

She continued to say that there was no legal impediment to imposing a life sentence or a severe imprisonment term to a person below 18 years old, in suitable circumstances, but this was most likely to be appealed. Constitutionally such a decision will fall foul of section 28, which had received greater attention in recent years, especially in the arena of sentencing. In addition the application of a minimum sentence to a person of 16 or 17 was constitutionally difficult. Moreover, there was international support for not imposing such sentences on juveniles, and the Convention on the Rights of a Child, to which South Africa was bound, and from which most of their jurisprudence was drawn, would apply. The committee should be alerted to general comment which strongly believed that life sentences for anyone below 18 should be abolished. Lastly, she wanted to alert the committee to the draft sentencing law clause 4 that dealt with appeal procedures. Although CJA welcomed the move to raise the ages, they believed that any limitations of the rights to appeal would be a direct violation of South Africa’s international obligations. 

Discussion
Prof Sloth-Nielsen asked when the Child Justice Bill was going to come before parliament.

The Chairperson replied that the Committee had not yet finalized research.

The Chairperson asked if CJA agreed that the Brandt judgment left the door open for minimum sentences to apply to children.

Prof Sloth-Nielsen replied that it disagreed.

The Chairperson suggested that perhaps she should examine it again, as the dicta in this judgment might have great implications on minimum sentencing.

The Chairperson remarked that the constitutional difficulty she envisaged centered on the issue of meting out a minimum sentence to a juvenile first offender.

Prof Sloth-Nielsen replied that Section 28(g) stated that incarceration should be the last resort and when used should be for the shortest period of time.

The Chair asked if both provisions were contained in the Convention on the Rights of the Child. 

Prof Sloth-Nielsen replied that indeed they came from Article 37 of the Convention and her presentation focused on cases where there was likely to be incarceration.

The Chairperson asked if age did not automatically become a compelling circumstance that would lead to deviation

Prof Sloth-Nielsen replied that it was not be assumed that juvenile age was compelling evidence as children of that age were covered in the legislation.

The Chairperson asked if she agreed that the proper interpretation of the Constitution should facilitate such issues.

Prof Sloth-Nielsen replied that she was of the opinion that the children under 18 should be totally excluded from the ambit of the legislation. Allowances should be made for those isolated cases where the court might want to impose a heavy sentence.

The Chairperson then asked if there was not the possibility that the shortest possible period might be a life sentence.

Prof Sloth-Nielsen replied that the Brandt decision did suggest such a possibility but she was firmly convinced that the Committee must understand that  such a verdict would be a violation of the child justice system that must seek to reform and reintegrate the child back into society.

The Chairperson understood that some countries had mandatory sentences for juveniles and enquired which countries these were.

Prof Sloth-Nielsen replied that there were few countries that had mandatory sentences for juveniles, and that where these did exist there was a very different regime. Australia had a mandatory sentence of 14 days and the child committee there was still critical of such sentences. According to research South Africa was one of the few countries that had life sentences for children under 18.

The meeting was adjourned.