Submission on the Criminal Law
(Sentencing) Amendment Bill [B15-2007]
Submission to the Portfolio Committee on Justice and Constitutional
Development, National Assembly, 15 June 2007
Introduction
The Criminal Law
(Sentencing) Amendment Bill (the Amendment Bill), 2007 introduces a number of
amendments to the Criminal Law Amendment Act 1997 in relation to minimum
sentencing provisions in South Africa.
Whilst minimum sentencing legislation was introduced in
Minimum sentencing
was initially introduced as a temporary measure pending further developments
that would improve the sentencing regime within our criminal courts. It was not
introduced with the intention that it would be a permanent feature within our
system. The Commission is concerned that this Bill will make minimum sentencing
a permanent feature in our law and that there has not been a thorough debate on
the issue.
The mandate of the South African Human Rights
Commission
The mandate of the
South African Human Rights Commission is set out in section 184 of the
Constitution and states as follows:
“Human Rights Commission
Functions
of Human Rights Commission
184. (1) The Human Rights Commission must-
(a) promote,
respect for human rights and a culture of human rights;
(b) promote the
protection , development and attainment of human rights; and
(c) monitor and
assess the observance of human rights in the Republic.”[1]
In terms of the
Commissions anticipated outcomes, as set out in the 2007 / 2008 Strategic Plan,
“(t)he SAHRC works towards affirming human dignity by facilitating access to
all human rights, with special emphasis on the right to equality, economic and
social rights and freedom from crime and violence”.
The Commission has
included in its latest Strategic Plan the outcome of freedom from crime and
violence in acknowledgment of the need to address more actively issues that
affect society and communities in this sphere. More specifically, in relation
to the Amendment Bill, the commission is concerned about the practical
long-term impacts such legislation may have upon the rights of those who are
incarcerated in terms thereof[2].
The Commission also questions the desirability of such legislation in terms of
whether it supports and promotes the concept of ‘restorative justice’, which
has been adopted by Correctional Services in this country.
The Criminal Law
(Sentencing) Amendment Bill, 2007
The
Commission will address the following aspects of the Bill in this submission:
§
The removal of the provision that allowed for minimum
sentencing to be extended every two years
§
The removal of the provision requiring a regional court to
refer an accused for sentencing in the high court and thereby extending the
jurisdiction of the regional courts to hand down life sentences
§
Identifying what does not constitute substantial and
compelling circumstances in relation to the offence of rape
§
Allowing the presiding officer to take into account during
sentencing the amount of time an accused has been incarcerated whilst awaiting
trial
§
Various amendments to the ages at which children convicted of
crimes will attract a minimum sentence
Minimum sentencing is leading to court congestion
It has been found
that minimum sentencing legislation has led to court congestion in that:
- The current legislation provides for a split procedure
whereby the accused must be referred by the regional court to the high
court for sentencing
- More accused are pleading ‘not guilty’ as there is
little space for plea bargaining. However, it must be pointed out that
plea bargaining in itself, if managed correctly, ought not to lead to
substantially lower sentences and disparities in sentencing generally.
- Because of the harshness of the sentences imposed this
has led to an increase in the number of appeals[3].
Thus, the practical
impact of mandatory sentencing is that it congests the criminal justice system.[4]
Minimum sentencing is
aggravating overcrowding in prisons
The previous
Inspecting Judge of Prisons, Hanes Fagan was an ardent campaigner against
minimum sentencing. He spoke frequently about how minimum sentencing will
exacerbate prison overcrowding in
The Commission is
consequently concerned with the impact that overcrowding has on the rights of
prisoners who are incarcerated in conditions that negatively impact on their
right to dignity.
There is a need for a fair
sentencing regime in South
Africa
Whilst
minimum sentencing is leading to a number of practical challenges for the
judicial and criminal justice system in
In light of the
above, the Commission would prefer for minimum sentencing to be done away with
and for there to be a serious debate about appropriate sentencing frameworks in
The South African Law
Reform Commission has done extensive work on sentencing frameworks. This works
lays a good basis for an in depth discussion and development of sentencing
frameworks in
The additional comments
contained herein therefore address the Bill in the event that Parliament
continues to proceed with minimum sentencing legislation.
The removal of the
provision requiring a regional court to refer an accused for sentencing in the
high court.
This provision in effect
extends the jurisdiction of the regional courts to hand down life sentences. It
further provides for an automatic right of appeal against such sentence. The
Bill also amends the National Prosecuting Authority Act, 1998 in order that
prosecution policy is amended to include directives indicating in which
instances prosecutions in respect of offences referred to in Schedule 2 of the
Criminal Law Amendment Act, 1997 must be instituted in a High Court of first
instance.
Whilst this provision is
aimed at putting to an end the current practice of referring an accused,
convicted of a crime that attracts a minimum sentence, to the high court for
sentencing, it has also raised a number of concerns, including:
§
Will the automatic right of appeal lead to greater case
backlogs in the high courts?
§
Do regional court magistrates have the necessary training and
experience to impose these sentences?
Regional courts are not
higher courts and therefore giving these courts the power to impose the highest
possible sentence is problematic for the commission. Higher courts have the
necessary inbuilt checks and balances in order to ensure that a life sentence
is handed down in the appropriate manner. These checks and balances do not
exist at the lower court levels,
The Commission is further
of the view, that giving regional courts the jurisdiction to hand down life
sentences with an automatic right of appeal to the High Court will lead to
increased court backlogs. It is even questionable as to what it is that the
proposed amendment will achieve as a substantial amount of cases that would
have come before the high court will still come before the high court by way of
appeal. In fact, this may even lead to more work for the judicial system in the
future.
Identifying what does not
constitute substantial and compelling circumstances in relation to the offence
of rape
The courts have
interpreted the term ‘substantial and compelling circumstances’ inconsistently
in an attempt to evade the imposition of minimum sentences. In rape cases this
has led to the perpetuation of stereotypical assumptions and outdated myths
about rape.[9]
There have been particular concerns in relation to the sentencing of the crime
of rape. In order to address these concerns, the Bill identifies grounds that
will not be considered as ‘substantial and compelling circumstances. These are:
- any previous
sexual history of the complaint;
- an accused person’s cultural or religious beliefs about
rape; or
- any relationship between the accused person and the
complainant prior to the offence being committed.[10]
Whilst this
amendment is welcomed in that it goes some way in ensuring that rape is treated
at the sentencing stage with the seriousness that it deserves, the Commission
is of the view that a broader debate on sentencing rape perpetrators is needed
in South Africa. Sentencing and rehabilitative options in prison should focus
on programmes that will ensure that men who have raped do not rape again when
they are reintegrated back into society. Courts also need to consider carefully
the role of the victims in sentencing and the impact, which the crime has had,
and be alive to the fact that the psychological and emotional impact on the
victim is not always visible[11].
The Commission is
of the view that sentences need to be crafted individually. At the same time,
there is a need for consistency within the judicial system and like cases need
to be treated in a like manner. However this consistency cannot be achieved
through the rigidity that minimum sentencing introduces into the system. For
this reason, the Commission supports the introduction of a sentencing framework
that would create discretion for the judiciary within a defined parameter.
What is
evident form the case law and sentencing remarks is that there is a need for
greater judicial training and education on the nature of crimes and, their
impact on victims and society.
Allowing the presiding
officer to take into account during sentencing the amount of time an accused
has been incarcerated whilst awaiting trial
The Amendment Bill
repeals section 51(4) of the Criminal Law Amendment Act 1997 and this in effect
now allows a presiding officer to take into account at the time of sentencing
the amount of time that an accused has already spent incarcerated as an
awaiting trial prisoner. Given the current congestion in our courts and delays
that are experienced in some cases, this provision is welcomed by the
Commission.
Various amendments to the
ages at which children convicted of crimes will attract a minimum sentence
The Constitution states
that: “(e)very child has the right – not
to be detained except as a measure of last resort” (Section 28(1)(g)). Minimum
sentencing is a first resort measure and is not a measure of last resort where
the accused was a child at the time that the offence was committed. It is
therefore in conflict with the rights of the child contained in the constitution
for minimum sentences to be handed down to persons who were children at the
time that the offence was committed. The Commission would thus argue that
minimum sentencing provisions ought not be applicable to children.
Conclusion
In 2000 the South
African Law Reform Commission (SALRC) was tasked to investigate and report on
the creation of a uniform sentencing framework.[12]
The SALRC in its Discussion Paper on the matter made three recommendations;
first to create an Independent Sentencing Council; second that sentencing
guidelines should be set and, finally; that these guidelines must be placed in
statutory format. The Commission would urge that more is done to ensure that we
develop appropriate sentencing frameworks that are in line with a restorative justice
framework.
Contact Person:
Judith Cohen
Head of Programme:
Parliamentary Liaison
South African Human
Rights Commission
Tel 021 426 2277
Fax 021 426 2875
E-mail
[email protected]