NATIONAL PROSECUTING AUTHORITY'S COMMENT ON CRIMINAL LAW (SENTENCING) AMENDMENT BILL, 2007
The
National Prosecuting Authority (NPA) would like to thank the Portfolio
Committee on Justice and Constitutional Affairs (Portfolio Committee) for
affording it the opportunity to comment on the above Bill.
According
to the Memorandum on the Objects of the Bill, certain practical problems
experienced with the application of sections 51 and 52 of the Criminal Law
Amendment Act, 1997 (the Act), have been identified, and one of the objects of
the Bill is to address these practical problems. Consequently, the Bill aims
to—
(a) expedite the finalisation of certain
serious criminal cases;
(b) punish offenders of such cases
appropriately; and
(c) avoid secondary
victimisation of complainants, which, inter
alia, occurs when vulnerable witnesses have to repeat their testimony in
more than one court.
To achieve the above objectives, the Bill—
·
grants regional courts jurisdiction to impose a sentence of
imprisonment for life in cases where it is prescribed;
·
repeals the provision requiring a regional court to refer an accused
for sentencing to a high court;
·
provides an automatic right of appeal in cases where a person is
sentenced by a regional court to imprisonment for life;
·
requires the National Director of Public Prosecutions (National
Director) to adopt policy directives that set out which prosecutions must from
the outset be instituted in the High Court and not in the regional court;
·
identifies circumstances that should not "constitute substantial
and compelling circumstances justifying the imposition of a lesser
sentence" in respect of the offence of rape.
The
NPA has discussed the proposed amendments with all the Directors of Public
Prosecutions and wishes to submit the following comments to the Portfolio
Committee for its consideration:
1. Clause 1: Proposed section 51(1):
Granting Regional Courts jurisdiction to impose a sentence of imprisonment for
life in cases where it is prescribed
For
the reasons mentioned by the Constitutional Court in State v Dzkuka and State v
Dodo, the NPA does not foresee any constitutional problems with this
amendment. However, for the reasons mentioned hereunder, the NPA is of the view
that the Portfolio Committee should also consider the following factors and
alternatives before taking a final decision on the proposed amendment:
(a) If
these cases are now to be heard in the Regional Court, it would have a
substantial effect on the rolls of the Regional Courts. Whilst the High Court
normally postpones a criminal case from day to day to finish it, the Regional
Court does not normally do this, which, in many cases, results in part heard
cases being postponed several times for long periods of time before it is
finalised. Therefore, the proposed procedure would not necessarily expedite the
finalisation of these serious criminal cases.
(b) As
far as the rape cases referred to in Part 1 of Schedule 2 are concerned and
which are tried in the Regional Court and sentenced in the High Court, it is
submitted that sentencing by the Regional Court may alleviate the workload of
the High Court in those instances where the Regional Court does not impose
imprisonment for life sentences and leave to appeal is not granted. It is,
however, foreseen that to a large extent long term imprisonment will be imposed
and that Judges President would be petitioned for leave to appeal. It is also
foreseen that in all instances where imprisonment for life is imposed, appeals
will be noted. The cases which are now referred to the High Court for
sentencing, normally does not take longer to finalise than an appeal.
(c) The
Constitutional Court recently found the provisions in section 309(3A) of the
Criminal Procedure Act, 1977 (CPA), to be unconstitutional in requiring an
appeal to be disposed of in chambers. It also found section 309C(4) of the CPA,
in so far as it provides that it is, in certain circumstances, unnecessary to
provide the record of proceedings in the lower court for purposes of a petition
for leave to appeal, to be unconstitutional. It further held that more than one
judge should reconsider the record to determine whether leave to appeal should
be granted.[1] This
judgement will definitely have an impact on the roll of the High Court and the
availability of judges to deal with appeals emanating from the proposed
amendment.
(d) The
Regional Court has jurisdiction in respect of any of the listed serious
offences. Currently, the only prescribed dividing factor between those cases to
be tried in the High Court and those cases to be tried in the Regional Court is
the difference in the penal jurisdiction of the respective courts. Therefore,
the primary directive (or factor) to determine the appropriate forum, is to
ascertain whether the seriousness and complexity of the offence and the
interest of the community and the administration of justice, "merit
punishment in excess of the jurisdiction of the regional court",
namely, imprisonment for life. By taking away the difference in the penal
jurisdiction, factors such as the seriousness and complexity of the case are
not crucial dividing factors any more, since the Regional Court in any case has
the jurisdiction to try such cases notwithstanding the seriousness or
complexity thereof. Therefore, the question arises as to what criteria could be
used to determine which of the relevant cases must still be tried in the High
Court? For example, to direct that—
·
the seriousness
or complexity of the case are factors (for example the rape of a person under
10 years), would be inconsistent with the paramount principle contained in the
Bill, namely, to provide the Regional Court with the same penal jurisdiction as
the High Court;
·
"high
profile" or "controversial"
cases must be tried in the High Court, would be inconsistent with the
constitutional right that "everyone is equal before the law".
If the Portfolio Committee approves the principle to grant a regional
court jurisdiction to impose a sentence of imprisonment for life, the NPA
undertakes to issue policy directives to ensure that cases are tried in the
High Court as court of first instance where the facts are such that it would in
the opinion of the prosecuting authority warrant the imposition of imprisonment
for life.[2]
(e) In
respect of those offences prescribed in Part 1 of Schedule 2, the amendment
will provide the Regional Court with the jurisdiction to impose the most severe
punishment, namely, imprisonment for life. In practice, such a sentence may
effectively result in imprisonment for, for example, 50 years. However, in
applying section 51(3) of the Act, read with the amendment repealing section
52, the Regional Court may (after having found "substantial and compelling
circumstances") only impose a maximum "lesser sentence" of 15
years imprisonment. In other words, for an offence which is more serious than
those offences mentioned in section 51(2)(a)(i) and (ii) and 52(2)(b)(iii) of
the Act and even if the accused is a third offender, the Regional Court may
only impose a sentence of 15 years imprisonment, but for a lesser offence
prescribed in the abovementioned provisions, the Regional Court may impose
sentences of up to 20 years and 25 years, respectively. To cater for this
anomaly, the NPA proposes the insertion of a provision similar to section 51(2)
of the Act, in terms of which the Regional Court is given increased
jurisdiction in respect of Part 1 offences.
(f) According
to the office of the Director of Public Prosecutions in Cape Town, its Division
of the High Court finalised an average of 70 section 52-referral cases for the
last two years. Of these 70 cases per year, only 7 accused persons were
sentenced to imprisonment for life.[3]
During the trial, the Regional Court may already have heard evidence that
"substantial and compelling
circumstances exist which justify the imposition of a lesser sentence
prescribed" in section 51(1). However, the Regional Magistrate is
compelled to refer the matter to the High Court for sentence. It is suggested
that the objective of the Bill, to "expedite the finalisation of
certain serious criminal cases" can also be achieved by
giving the Regional Court Magistrate jurisdiction to impose such lesser
sentence him- or herself.
In
view of the above, it is suggested that, Portfolio Committee should, instead of
the amendment providing the Regional Court with the jurisdiction to impose
imprisonment for life, consider adding the following proviso to section 52(1) of the Act:
"Provided
that if, after having convicted an accused person of an offence referred to in
Part 1 of Schedule 2, the regional court is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser
sentence than the sentence prescribed in section 51(1), it shall enter those
circumstances on the record of the proceedings and must thereupon impose such
lesser sentence.".
Furthermore,
to cater for the anomaly referred to in paragraph (e) above, it is proposed
that a further proviso or substantial provision (similar to section 51(2)) be
inserted. The following proviso is proposed:
"Provided
further that in respect of such lesser sentence, the regional court shall in
the case of—
(aa) a
first offender, have jurisdiction to impose imprisonment for a period not
exceeding 20 years;
(bb) a
second offender, have jurisdiction to impose imprisonment for a period not
exceeding 25 years;
(cc) a
third or subsequent offender, have jurisdiction to impose imprisonment for a
period not exceeding 30 years.".
In
view of the fact that section 51 of the Act specifically deals with sentencing,
the Committee may also consider inserting the above provisos as substantive
provisions in that section.
In
the final instance the NPA is of the view that section 3
of Prevention of Organised Crime, 1998 (Act No.121 of 1998) (POCA), should also
be amended. Section 3(2) of POCA provides for the extension of the Regional
Court's jurisdiction up to 30 years imprisonment, but not imprisonment
for life. In terms of the said provision, such cases should be referred
to the High Court for sentencing. However, since the above Bill provides the
Regional Court with jurisdiction of imprisonment for life, the referral
procedure in section 3(2) of POCA should be amended. Furthermore, clause 2 of
the Bill repeals section 52 of the Criminal Law Amendment Act, 1997. Therefore,
section 3(3) of POCA should be repealed.
2. Clause 1: Proposed section
51(3)(aA): Identifying circumstances that should not constitute substantial and
compelling circumstances justifying the imposition of a lesser sentence in
respect of the offence of rape
The NPA supports
this amendment.
3. Clause 1: Proposed section 51(5):
The imposition of suspended sentences
The NPA supports
this amendment.
4. Clause 1: Proposed section 51(6):
Sentencing of juveniles
The NPA
supports this amendment. However, the NPA is of the view that the provision
should be amended to make it clear that it refers to an accused person. It is proposed that the words preceding paragraph
(a) be amended as follows:
"This
section does not apply in respect of [a] an accused person who was under
the age of—".
5. Clauses
2, 3, 4 and 5: Consequential amendments
The
amendments in clauses 2, 3, 4 and 5 clauses are consequential to the
abovementioned amendments and the NPA does not have any comment.
6. Clause 5: Requiring the National
Director to adopt policy directives that set out which prosecutions must from
the outset be instituted in the High Court and not in the regional court
The NPA does not
support this amendment. In terms of section 179(5)(b) of the Constitution and
section 21(1)(b) of the NPA Act, the National Director has a constitutional
duty to prescribe and issue policy directives which must be observed in the
prosecution process. This provision is mandatory and once the proposed legislation
is approved, the National Director is compelled to issue such new policy
directives. The NPA is of the view that it is not desirable to include this
provision in the Act. If the principle amendments are approved as proposed in
the Bill, the NPA undertakes that the National Director will issue the required
policy directives.
If the Portfolio
Committee decides to approve this amendment notwithstanding the NPA's
viewpoint, it is recommended that the first line of the proposed subsection (3)
(in line 4) be amended. The proposed subsection (3) refers to "prosecution policy", whereas
subsection (4) refers to the "policy
directives contemplated in subsection (3)". The abovementioned
provisions of the Constitution and the NPA Act clearly distinguish between a
"prosecution policy" and
"policy directives". These
expressions cannot be used in the same breath. This difference should also be
reflected in the amendment. Therefore, it is proposed that the first line of
subsection (3) (in line 4 of the Bill), should read as follows:
"The
policy directives or amendments thereto must include….".
Members
of the NPA will attend the Portfolio Committee's deliberations on 31 July 2007.
Kind
regards
____________________
Dr MS Ramaite
Acting National Director
of Public Prosecutions