CAPE BAR COUNCIL

 

 

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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

 

 

CRIMINAL LAW (SENTENCING) AMENDMENT BILL [B 15-2007]

 

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

Cape Bar Council

 

cc:        Adv JW Eksteen SC:  Chairman, GCB

            Ms E van den Heever: GCB  Fax No 011 336-8970

Adv A Louw: Convenor Laws and Administration Committee:  Fax No 012 303 7950