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ASSOCIATION OF REGIONAL MAGISTRATES OF VERENIGING VAN STREEKLANDDROSTE VAN SUIDELIKE AFRIKA |
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EXECUTIVE MANAGEMENT COMMITTEE AC BEKKER (PRESIDENT)
LH CLAASSEN (SECRETARY) GN TRAVERS (TREASURER) |
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COMMENTARY ON THE CRIMINAL LAW
(SENTENCING) AMENDMENT BILL, 2007
INTRODUCTION
The
Association of Regional Magistrates of Southern Africa (ARMSA) represents just
over 90% of all regional magistrates in this country. We support the objects of
this Bill fully and are committed to ensure that this Bill, if it is put into
operation, shall be properly and responsibly applied. We are also committed to
providing training and guidance to our members pertaining to the appropriate
use of the new sentencing powers extended to us in the Bill. ARMSA is already
busy with training on the new Sexual Offences Bill, made possible by the
generous support of the Department of Justice. Substantial resource guides and
overviews on the Sexual Offences Bill have been drafted, discussed and
distributed amongst regional magistrates.
We hope to do the same with the Criminal Law (Sentencing) Amendment Bill
as soon as possible.
There
is no doubt that this Bill, if it becomes law, will expedite the finalization
of serious criminal cases as listed in Part 1 of Schedule 2 to Act 105 of 1997.
Currently these cases are delayed for substantial periods of time due to the
fact that they must be referred to the High Courts for sentencing. By
conferring the Regional Courts with jurisdiction to impose imprisonment for life
as envisaged in the Bill, these delays as well as secondary victimization of
complainants in sexual offences cases will be avoided. The number of
awaiting-trial prisoners will also be substantially reduced. We believe that
any fears that the implementation of this Bill will lead to a sharp increase in
the percentage of convicted persons serving life imprisonment are unfounded and
speculative. In any event those convicted, according to the Bill, will have an
automatic right of appeal should life imprisonment be imposed. These cases will
simply be dealt with much sooner than in the past. Regional magistrates are
already dealing with these cases on a regular basis and deliver verdicts in
these cases accordingly. They are now in addition expected to impose an
appropriate sentence. With respect, the regional magistrates are often far more
experienced in dealing with these cases than Judges and there is therefore
every reason to believe that they can also impose sentence appropriately.
Since
the introduction of the legislation regarding minimum sentences in the late
nineties, the vast majority of regional magistrates have applied it wisely and
appropriately. We believe that the same will apply should life imprisonment
jurisdiction be granted to us. We have already referred to our commitment to
and the need for further training and sensitization in relation to the
newly-envisaged jurisdiction in order to enhance proper adjudication of these
matters.
We
are confident that this Bill, if put into operation, will only enhance speedy
access to justice and will be applied appropriately by the Regional Courts.
COMMENTS ON THE CONTENTS OF THE BILL
The
purpose of these comments is to highlight certain anticipated problem areas and
perhaps suggest some improvements.
AD CLAUSE 1: SUBSTITUTION OF SECTION 51(1)
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Discretionary minimum sentences
for certain serious offences 51. (1) Notwithstanding any other law, but
subject to subsections (3) and (6), a regional court or a High Court
shall sentence a person it has convicted of an offence referred to in
Part I of Schedule 2 to imprisonment for life. |
·
The
proposed clause clearly confers jurisdiction upon a regional court to impose
life imprisonment (the prescribed
sentence) for the specified offences.
·
The authority / jurisdiction to impose a sentence above the
general jurisdiction of the regional courts (currently 15 years imprisonment) but less than
life imprisonment is not explicitly conferred.
·
In order to promote
clarity it is submitted that such jurisdiction should be explicitly indicated,
perhaps by means of a suitably worded proviso
to section 51(1).
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AD CLAUSE 1: SUBSTITUTION OF SECTION 51(2) 51(2) Notwithstanding any other law but subject to subsections
(3) and (6), a regional court or a High Court shall sentence a person
who has been convicted of an offence referred to in— (a) Part II of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a
period not less than 15 years; (ii) a second offender
of any such offence, to imprisonment for a period not less than 20 years; and
(iii) a third or
subsequent offender of any such offence, to imprisonment for a period not
less than 25 years; (b) Part III of Schedule 2, in the case
of— (i) a first offender, to imprisonment for a period
not less than 10 years; (ii) a second offender
of any such offence, to imprisonment for a period not less than 15 years; and (iii) a third or
subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and (c) Part IV of Schedule 2, in the case of— (i) a first offender, to imprisonment for a
period not less than 5 years; (ii) a second offender
of any such offence, to imprisonment for a period not less than 7 years; and (iii) a third or subsequent offender of any such offence,
to imprisonment for a period not less than 10 years: Provided
that the maximum term of imprisonment that a regional court may impose
in terms of this subsection shall not be more than five years longer than the
minimum term of imprisonment that it may impose in terms of this
subsection. |
·
The
substance of section 51(2) is unchanged. However the same problem arises here
as that which arises with the proposed extension of life imprisonment jurisdiction
to the Regional Court: if the presiding officer decides to impose a lesser
sentence than the minimum prescribed in the instance of a second or third
offender of a Part II offence or for a third offender in a Part III offence,
there is no indication in Section 51(2) whether he or she has authority to
impose a sentence above his current general jurisdiction of 15 years.
·
We respectfully submit that
consideration should be given to adding a suitably worded proviso to Section
51(2).
·
An anomaly arises in regard to certain statutory offences
referred to in Part II of Schedule 2, for instance under the Drugs and Drugs
Trafficking Act, (Act 140 of 1992)[1],
the Firearms Control Act, 2000 (Act 60 of 2000)[2]
which provide maximum penalties higher than the general fifteen year
jurisdiction of the regional courts and confer jurisdiction to impose these
increased penalties on the magistrates’ courts.
·
For
instance a regional court can impose up to 25 (twenty-five) years
imprisonment for possession of a machine gun (automatic rifle) in
contravention of section 4(a) of Act 60 of 2000 under section 121 read with
Schedule 4 of the same Act.
·
The
proviso to Section 51(2) can be interpreted to limit the penal jurisdiction of
the regional courts even where another statute confers increased penal
jurisdiction on the regional courts (that is jurisdiction in excess of its
jurisdiction under 92(1) (a) of Act 32 of 1944.
·
This is unlikely to have been the
intention of the legislature. We submit that this (apparent) anomaly should be
clarified possibly by adding a second proviso to Section 51 (2)
·
A
further problem may arise with the repeal of sections 52(1)(a)(ii) or (b)(ii)
and 52A(1)(a)(ii) or (b)(ii) of the current Act. The sections currently permit a referral in
respect of an offence listed in Parts II, III or IV of Schedule 2 to the Act
where “the court is of the opinion that the offence concerned merits punishment
in excess of the jurisdiction of a regional court in terms of section 51(2)”.
·
There
may be instances tried before a regional court where such offences
(particularly murder and rape in circumstances other than those referred to in
Part I and III respectively and robbery with aggravating circumstances) may
merit punishment in excess of that conferred by the Act. If the aforementioned sections are repealed
the accused would escape with an inappropriately lenient sentence.
·
Seen in the light of the
above-mentioned problems, it is our humble submission that an increase in the
general penal jurisdiction of the Regional Courts should perhaps be considered.
·
Alternatively, consideration should
be given to increasing the penal jurisdiction of the regional courts in respect
of certain (common law) offences listed in Schedule 2 to the Act.
·
We submit that consideration should
be given to increasing the jurisdiction to 25 or 30 years. Such an increase will
ensure that the Regional Courts will be able to deal adequately with all the
offences listed in all the parts of Schedule 2.
AD CLAUSE 1: SUBSTITUTION OF SECTION 51(3)
- The
exclusion of certain circumstances as possible substantial and compelling
circumstances justifying the imposition of a lesser sentence in Section
51(3)(aA) will most probably be criticized as being an attempt to further interfere
with the presiding officer’s discretion at the sentencing stage. Some of
our members expressed such sentiments while others were satisfied with the
wording of the proposed section.
AD CLAUSE 1: SUBSTITUTION OF SECTION 51(5)
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(5) (a) Subject
to paragraph (b), the operation of a sentence imposed in terms of
this section shall not be suspended as contemplated in section 297(4) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977). (b) If a
sentence is imposed in terms of subsection (2)(c), not more than half
of that sentence may be suspended as contemplated in section 297(4) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977). |
·
The proposed amendment is supported.
·
There
are differing opinions as to whether the operation of a sentence of
imprisonment imposed for an offence listed in Schedule 2 can be suspended in
terms of section 297(4) of the Criminal Procedure Act, 1977 (Act 51 of 1977)[3]
where the court “is satisfied that substantial and compelling circumstances
exist that justify the imposition of a lesser sentence” and imposes a lesser
sentence.
·
One
view holds that such a sentence is nevertheless still a sentence in terms of
this section (i.e., section 51) and the court may not suspend the operation of
the sentence imposed.
·
The
other view holds that in such a case the court no longer imposes a sentence in
terms of section 51 and is free to suspend the whole or a portion of such a
sentence.
·
We submit that this ambiguity should
be clarified so that the intention of the legislature is clearly stated.
MINIMUM SENTENCES AND THE IMPOSITION
OF A SENTENCE IN TERMS OF SECTION 276(1)(h) OR (i) OF ACT 51 OF 1977
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276
(3) Notwithstanding anything to the contrary in any law
contained, other than the Criminal Law Amendment Act, 1997 (Act 105 of
1997), the provisions of subsection (1) shall not be construed as
prohibiting the court- (a) from imposing
imprisonment together with correctional supervision; or (b)
from imposing the punishment referred to in subsection (1) (h) or (i) in
respect of any offence, whether under the common law or a statutory
provision, irrespective of whether the law in question provides for such or
any other punishment: Provided that any punishment contemplated in this
paragraph may not be imposed in any case where the court is obliged to impose
a sentence contemplated in section 51 (1) or (2), read with section 52, of
the Criminal Law Amendment Act, 1997. |
·
A further problem arises with regard to the interpretation of
section 297(3) of Act 51 of 1977 which provides for the imposition of
correctional supervision[4] and
“imprisonment from which such a person may be placed under correctional
supervision in the discretion of the Commissioner or a parole board”[5] as
punishments.
·
Obviously
where a court imposes a prescribed minimum sentence, particularly in respect of
an offence listed in Parts I and II of Schedule 2 to Act 105 of 1997, the court cannot impose a sentence in terms
of section 276(1)(h) or (i) of Act 51 of 1977.
·
The
difficulty arises where the court imposes a lesser sentence after applying
section 51(3) of Act 105 of 1997.
·
In order to avoid
any ambiguity and to promote uniformity (different divisions of the High Court
may give different interpretations) the legislature should make clear its
intention.
MINIMUM SENTENCES AND
THE PRESCRIBED MINIMUM NON PAROLE PERIODS SPECIFIED IN TERMS OF SECTION
73(6)(b)(v) of Act 111 of 1998
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73 Length and form of sentences (1) Subject to the
provisions of this Act- (a) a sentenced
prisoner remains in prison for the full period of sentence; and (b) a prisoner
sentenced to life imprisonment remains in prison for the rest of his or her
life. (4) In accordance with the provisions of this
Chapter a prisoner may be placed under correctional supervision or on day
parole or on parole before the expiration of his or her term of imprisonment.
(6) (a)
Subject to the provisions of paragraph (b), a prisoner serving a determinate
sentence may not be placed on parole until such prisoner has served either
the stipulated non-parole period, or if no non-parole period was stipulated,
half of the sentence, but parole must be considered whenever a prisoner has
served 25 years of a sentence or cumulative sentences. (b) A person who has been sentenced to- (iv) life imprisonment, may not be placed on
parole until he or she has served at least 25 years of the sentence but a
prisoner on reaching the age of 65 years may be placed on parole if he or she
has served at least 15 years of such sentence; (v)
imprisonment contemplated in section 51 or 52 of the Criminal Law
Amendment Act, 1997 (Act 105 of 1997), may not be placed on parole unless
he or she has served at least four fifths of the term of imprisonment imposed
or 25 years, whichever is the shorter, but the court, when imposing
imprisonment, may order that the prisoner be considered for placement on
parole after he or she has served two thirds of such term. |
·
A further problem arises in regard to the interpretation of
section 73(6)(b)(v) of the Correctional Services Act, 1998 (Act 111 of 1998)
which regulates the “length and form of sentences” including non-parole period.
·
The issue is whether the imposition of a lesser
sentence in terms of section 51(3) of Act 105 of 1997 is “….imprisonment
contemplated in section 51….of the Criminal Law Amendment Act, 1997 (Act 105 of
1997)”.
·
If the answer is in the affirmative then the provisions of
section 73(6)(b)(v) of Act 111 of 1998 apply to such a sentence and the higher
non-parole periods apply; if not then the provisions of section 73(6)(a) of Act
111 of 1997 read with section 276B of Act 51 of 19776[6]
will apply.
·
The legislature
should make its intention in this regard clear.
AD CLAUSE 1: SUBSTITUTION OF SECTION 51(6)
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(6) This section does
not apply in respect of a person who was under the age of: (a) 16 years at the time
of the commission of an offence contemplated in subsection (1) or (2)(a)
or (b); or (b) 18 years at the
time of the commission of an offence contemplated in subsection (2)(c). |
·
The substituted sub-section (6)
clearly indicates the intention of the legislature. This clause is supported.
AD CLAUSE 1: AMENDMENTS TO SECTION 51(7), (8) AND (9)
These amendments are supported.
AD CLAUSE 2: REPEAL OF SECTIONS 52,
52A AND 52B
·
The proposed repeal of above-mentioned sections is supported.
AD CLAUSE 3: REPEAL OF SECTIONS
53(1), (2) AND (2A)
·
This clause is supported.
AD CLAUSE 4, 5 AND 6
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4. Section 309 of the
Criminal Procedure Act, 1977, is amended by the substitution in subsection
(1) for paragraph (a) of the following paragraph: "(a) Any person convicted of any offence by any
lower court (including a person discharged after conviction) may, subject to
leave to appeal being granted in terms of section 309B or 309C, appeal
against such conviction and against any resultant sentence or order to the
High Court having jurisdiction: Provided that:- (i) if that person was, at the time of the
commission of the offence: (aa)
below the age of 16 years; or (bb) at least 16
years of age but below the age of 18 years and was not assisted
by a legal representative at the time
of conviction in a regional court; and
(cc) was sentenced to any
form of imprisonment as contemplated in section 276 (1) that was not wholly
suspended; or (ii) if that person was
sentenced to life imprisonment by a regional court under section 51(1) of the
Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), he or she may note such an appeal without having to apply for
leave in terms of section 309B:
Provided further that the provisions of section 302(1)(b) shall
apply in respect of a person who duly notes an appeal against a conviction,
sentence or order as contemplated in section 302(1)(a).". Amendment of section 21
of Act 32 of 1998 5. Section 21 of the
National Prosecuting Authority Act, 1998, is amended by the addition of the
following subsections: "(3) The prosecution policy or amendments to such
policy must include directives indicating in which instances prosecutions in
respect of offences referred to in Schedule 2 to the Criminal Law Amendment
Act, 1997 (Act No. 105 of 1997), must
be instituted in a High Court as a court of first instance. (4) The
policy directives contemplated in subsection (3) must be issued within three
months of the date of the commencement of the Criminal Law (Sentencing)
Amendment Act, 2007."
TRANSITIONAL PROVISION 6. If a regional court
has, prior to the commencement of this Act, committed an accused for sentence
by a High Court under the Criminal Law Amendment Act, 1997 (Act No. 105 of
1997), and – (a) the High Court has
not heard the matter, then the High Court must refer the matter back to the
regional court for sentencing in terms of the Criminal Law Amendment Act,
1997 (Act No. 105 of 1997); or (b) the High Court has
heard the matter, then the High Court must dispose of the matter as if this
Act has not been passed. |
·
Clause 4 and 5 are supported.
·
We welcome the fact that the cases must be referred back to
us as envisaged in clause 6. However we fear undue delays if the High Courts
must refer those cases back which they have not yet heard. The only way this
can be done is to place the cases on their rolls in order for them to be
referred back. These mere referrals can take months to finalize.
·
We humbly submit that in order to speed up the finalization
of these cases in the transitional phase, the proposed legislation must allow
the Regional court to maintain jurisdiction over those cases referred to the
High Court which have not been heard by it.
The Regional court can then simply proceed with the matter as soon as
possible without the delay of a referral.
POSSIBLE TOOLS TO ENHANCE CASE FLOW
MANAGEMENT IN RESPECT OF OFFENCES LISTED IN SCHEDULE 2
Summary
of Substantial Facts and List of Witnesses
·
To
successfully hear trials on a continuous basis the court when placing the
matter for trial needs to have access to certain information so that it can
determine as accurately as possible how long the matter is likely to proceed.
·
In particular the court needs to know how many witnesses the
respective parties (State and defence) are likely to call and the nature of the evidence to be tendered,
particularly by the prosecution, for instance whether it is the evidence of a
DNA expert or medical doctor or of the complainant.
·
In High Court trials this information is obtained from the
summary of substantial facts and the list of state witnesses that has to be
furnished with the indictment (see 144(3)(a) of Criminal Procedure Act,
1977)[7].
·
In the case of a High Court trial the accused first appears
in the magistrate’s court and only once the matter is “trial ready” is the
accused committed for trial in the High Court.
·
In some areas in the Republic an accused makes his first
appearance in the regional court and the matter is later placed for trial in
the same court.
- We propose that possible
consideration should be given to including a section in the Act which
obliges the prosecution to likewise provide a summary of substantial facts
and a list of state witnesses to the clerk of the court and the defence representatives
before the matter is finally placed for trial in the Regional Court in the
case of trials for offences listed in Parts I, II and III of Schedule 2 to
the Act.
·
This will enable the presiding regional magistrate to
properly determine the estimated duration of the trial.
ISSUES PERTAINING TO THE OFFENCES LISTED IN
PARTS I, II AND III OF SCHEDULE 2
Although the Bill does not contain any
references to the above-mentioned offences, we deem it necessary to bring the
following to your attention for possible consideration.
Possession of a semi-automatic
pistol
- Possession
of a semi-automatic pistol is listed in Part II of Schedule 2 (semi
automatic firearm) and carries a 15-year minimum sentence.
·
The Firearms Control Act of 2000 provides a maximum penalty
of 15 years imprisonment or a fine in the case of possession of any firearm (other
than a “prohibited firearm”) without
the requisite license.
- The
various divisions of the High Court of South Africa have interpreted
section 51(2) of the Act (in relation to unlawful possession of a
semi-automatic pistol) in such a way that it is now virtually
impossible to impose the minimum sentence for such an offence. This is not so where the offence is
possession of a fully-automatic firearm.
·
The current
reference in Part II of Schedule 2 to possession of a semi-automatic firearm
should exclude a semi-automatic pistol.
Rape of a female person older than
16 years
- Rape other than that described
in Part I of Schedule 2 is listed in Part III of Schedule 2 and carries a
minimum sentence of ten years imprisonment.
·
There
seems to be an inordinate disparity between rapes as described in Part I of the
Schedule carrying a sentence of life imprisonment and all other rapes carrying a
minimum sentence of only ten years imprisonment.
·
Sometimes
a rape can be extremely serious and warrant a severe sentence but does not fall
within the ambit of the rape specified in Part I of Schedule 2.
·
We
propose that rape (other than that described in Part I of Schedule 2) be
moved from Part III to Part II of the Schedule.
____________________
PRESIDENT: ARMSA
A.C. BEKKER
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CHAIR: JUDICIAL INDEPENDENCE
G.N. TRAVERS