DIRECTOR OF PUBLIC PROSECUTIONS: TRANSVAAL
"Justice in our society so that people all live in freedom and
security"
14 June 2007
Comments ad the Criminal Law (Sentencing) Amendment Bill [B15-2007]
1. I have in the past often commented on some of the negative effects and
implications of the provisions of the 'minimum sentences act' (the Criminal Law
Amendment Act, 105 of 1997). Given the terrible administrative burdens and
delays caused by the provisions compelling a referral for sentence to the High
Courts, I personally do not have any problem with the Regional Courts being
able to impose a sentence of life imprisonment. However, whilst accepting that
this is not a general increase in penal jurisdiction, it might be worthwhile
examining the reason for courts created in a hierarchical structure, with the
higher courts having more authority and power than the lower ones and able to
review or interfere with the processes/proceedings in/of the lower courts: the
Regional Courts have more powers, both with reference to penal and substantive
jurisdiction, than the District Courts whilst the High Courts have even more
powers, with also an increased jurisdiction at common law to review and
intervene. Factors such as increased experience, expertise and knowledge with
the most lying in the upper echelon need also be reckoned with. Blurring the
lines within a hierarchical structure, by legislating for equal/similar powers,
might have an eventual impact/effect that is not desired nor intended.
Unfortunately the writer does not have sufficient time to investigate this
rather philosophical issue any further. The recent unreported judgment by the
full bench of the Cape of Good Hope in S v Khalemu and 5 other cases, case
nr 070622 of 6 June 2007 might find application:
"The fact that the High Court has supervisory powers and able to intervene
in matters yet to be finalized is set out in Magistrate Stutterheim v Mashiya
2003 (2) SACR 106 (SCA) at paragraph [13] and [14] where the Court said:
"[13J That the higher Courts have supervisory power over the conduct of
proceedings in the magistrates' courts in both civil and criminal matters is
beyond doubt. This includes the power to intervene in unconcluded proceedings.
This Court confirmed more than four decades ago that the jurisdiction exists at
common law. It subsists under the Constitution, which creates a hierarchical
court structure that distinguishes between superior and inferior courts by
giving the former but not the latter jurisdiction to rule on the
constitutionality of legislation and presidential conduct as well as inherent
power. The Constitutional Court has emphasised the role of the higher Courts in
ensuring 'quality control' in the magistrates' courts, and the importance of
the High Court's judicial supervision of the lower courts in reviewing and
correcting mistakes. This entails, as Chaskalson CJ has observed, that the
higher Courts can 'supervise the manner in which' the lower courts discharge
their functions. His general formulation echoes the provisions of the Criminal
Procedure Act, which provides that in criminal proceedings subject to review in
the ordinary course the High Court may, amongst many ample powers, 'remit the
case to the magistrate's court with instructions to deal with any matter in
such manner as' it may think fit.
[14}……
12. Furthermore, the High Court's inherent power to intervene in matters in the
interest
of justice is also provided for in
section 173 oft he Constitution.. .."
In the light of this hierarchy, Regional Courts should perhaps not have the
power to also impose the ultimate sentence being a sentence of imprisonment for
life. There are also some other problems highlighted infra
2. The following appears to be somewhat problematic:
2.1 section 51(1):
(a) What would be a lesser sentence for a Regional Court?
(b) In the absence of explicit provision/authorisation, may not impose more
that its ordinary penal jurisdiction which is a maximum of 15 years'
imprisonment. For this reason a definite sentence of say 20 years' imprisonment
as the minimum sentence (rather than life) might be easier to deal with.
Alternatively, it will have to be stated explicitly that any such lesser
sentence may be in excess of the ordinary penal jurisdiction of the Regional
Court but may not exceed a certain prescribed maximum of, say, 20 years.
2.2 Section 51(3)(aA)(iii): What is meant with relationship,
especially if this is linked to one prior to the offence having been committed?
For a number of very good reasons, the relationship of father/stepfather should
not be or appear to be excluded.
2.3 Section 51(5)(a): A proviso should be added to the
clause prohibiting the suspension of sentences along the following
lines: 'unless a lesser sentence than the prescribed minimum is imposed
in which event not more than half the sentence so imposed ma } be suspended' It
is sometimes far better to have some part of a sentence hanging over a
convicted person's head and it might be especially appropriate in those cases
where substantial and compelling circumstances are found to exist. Since some
magistrates imposed wholly suspended sentences of 10 years and more in the time
when they were allowed to themselves decide on 'substantial and compelling
circumstances, a limit to the power to suspend is therefore also proposed.
2.4 Section 51(6): the distinction between categories of
offences allowing for different treatment of those under 16 and those under 18
is not understood. All children should benefit from all of the proviso's and a
compulsory life sentence, rather than a discretionary one, for a child offender
(under 18) might not hold constitutional muster.
The above comments were also discussed with co-deputies at the office, who are
generally in agreement therewith.
Retha Meintjes SC: Deputy Director of Public Prosecutions: Transvaal