GROUND FLOOR Tel: 021 424 2777
15 June 2007
The Committee Secretary
Portfolio Committee
Department of Justice and Constitutional Affairs
Attention: Ms P
Sibisi
Fax: 021 403 3660
e-mail: [email protected]
Dear Madam
The parliamentary
sub-committee of the General Council of the Bar of South Africa has considered
the Criminal Law (Sentencing) Amendment Bill [B 15 -2007].
The provisions
proposed in terms of the Bill are generally supported; more particularly, those
directed at promoting the more efficient and expeditious completion of criminal
trials, including sentencing - thereby avoiding the unsatisfactory and unjust
delays that currently attend too many matters referred from the lower courts to
the High Court for minimum sentencing purposes.
The Bar is
concerned about the appropriateness and desirability of vesting life sentence
jurisdiction in the Regional Courts, but accepts that the basis for concern is
largely offset by the proposed provisions permitting an automatic right of
appeal to the High Court in such cases.
The Bar Council is
opposed to the proposed amendment in terms of clause 1(3)(a) of the Bill. The effect of obliging the court to impose a
sentence less than the prescribed minimum when there are compelling and substantial
circumstances justifying a departure from the prescribed minimum is considered
to be an unwarranted interference in the court’s discretionary power to
determine an appropriate sentence. It
appears to have been overlooked by the draftsman that situations do arise in
which the prescribed minimum sentence is coincidentally also considered by the
court to be the appropriate sentence even in the context of the finding that
there are compelling and substantial reasons which would objectively in general
justify a departure from the prescribed minimum sentence regime. The proposal in the clause in question
overlooks the fact that the sentence in question is a prescribed minimum
sentence and that situations will arise where a heavier sentence might
generally be considered appropriate but that the influence of compelling and
substantial reasons within the meaning of the Act might warrant reducing that
heavier appropriate sentence to one that happens to be equal to the prescribed
minimum. The Bar is therefore of the opinion
that the existing permissive ‘may’
should remain and that it should not be replaced by a peremptory ‘must’.
Yours faithfully
ASHLEY BINNS-WARD SC
Chairperson
cc: Adv JW
Eksteen SC: Chairman, GCB
Adv A Louw: Convenor Laws and
Administration Committee: Fax No 012 303
7950