SUMMARY OF COMMENTS ON THE CRIMINAL LAW (SENTENCING) AMENDMENT BILL, 2007

Clause no.	Name of person or body	Comment
1	ARMSA	1. The jurisdiction to impose a sentence above the general jurisdiction of the regional courts (currently 15 years imprisonment) but less than life imprisonment is not explicitly conferred. In order to promote clarity ARMSA submits that such jurisdiction should be explicitly indicated, perhaps by means of a suitably worded proviso to section 51(1). 2. With regard to section 51(2), ARMSA submitted that a similar situation arises whereby it is not clear if a regional court has authority to impose a sentence above the current general jurisdiction of 15 years if a presiding officer wants to impose a lesser sentence than the prescribed minimum which is a higher sentence than the 15 year general jurisdiction (for a third offender in a Part III offence for instance). They submitted that a proviso should be considered in this regard. 3. With reference to the Drugs and Drugs Trafficking Act, 1992 and the Firearms Control Act, 2000, which provide for higher penalties than the general fifteen year jurisdiction of the regional courts, ARMSA submitted that the proviso in section 51(2) could be interpreted to limit the penal jurisdiction of the regional courts even where another statute confers increased jurisdiction on regional courts. They submitted that a second proviso to section 51(2) should clarify this situation. 4. ARMSA pointed out that a further problem may arise with the repeal of the sections that currently permit a referral in respect of an offence listed in Parts II, III and IV of Schedule 2 of the Act. They argue that there may be instances tried before a regional court which merits punishment in excess of that conferred by the Act and that if these sections are repealed then the accused would escape with an inappropriately lenient sentence. Therefore, ARMSA submitted that an increase in the general penal jurisdiction of the regional court should be considered. Alternatively, they submitted that consideration should be given to increasing the penal jurisdiction of the regional courts in respect of certain (common law) offences listed in Schedule 2 to the Act. An increase of the jurisdiction to 25 or 30 years will, they submitted, ensure that the regional court will be able to deal adequately with all the offences listed in all the parts of Schedule 2. ARMSA submitted in this regard that the current proviso in section 51(2) should be deleted and should be replaced by the following “When a regional court is imposing a sentence in respect of an offence listed in section 51(1) or section 51(2), regardless whether it is imposing a lesser sentence as envisaged in section 51(3) or not, the sentence may not exceed 30 years of imprisonment.”. 5. With regard to the suspension of a sentence in terms of section 51(5), ARMSA submitted that the legislature had to clarify whether in those instances where a lesser sentence is imposed (due to the existence of substantial and compelling circumstances) section 51 is applicable and the sentence can only be suspended in accordance with subsection (5) or whether section 51 is not applicable and a court is free to suspend the whole or a portion of such sentence. 6. ARMSA submitted that in order to avoid ambiguity and to promote uniformity (different divisions of the High Court may give different interpretations) the legislature should make clear its intention with regard to the application of section 276(3) of the Criminal Procedure Act, 1977 in instances where a lesser sentence is imposed after applying section 51(3) of the Act. 7. ARMSA submitted that the legislature should make clear its intention with regard to the application of section 73(6)(b)(v) of the Correctional Services Act, 1998 to cases where a lesser sentence was given in terms of section 51(3) of the Act. In other words, if a lesser sentence is given in terms of section 51(3) of the Act does it amount to “…imprisonment as contemplated in section 51 …” as stated in section 73(6)(b)(v). 8. ARMSA supports the substitution of section 51(6), (7), (8) and (9).
1	Basil King	1. It is submitted that section 51(3)(a) is hardly a necessary amendment, because following a finding of circumstances that justify the imposition of a lesser sentence, it is extremely unlikely that a court will impose anything other than a lesser sentence. However, by stipulating that the court must “impose such lesser sentence” the legislature appears to exclude the use of section 297(1)(a) of the Criminal Procedure Act, 1977 (the postponing of the passing of sentence) which is in itself not a sentence but an order and this it is submitted should be rectified at this opportunity. 2. It is submitted that subsection 3(aA) not be included in the Bill. In this regard it was argued that subsection (3)(aA) is almost in direct conflict with the remarks of the Supreme Court of Appeal (SCA) in Malgas 2001(1) SACR 469 at 472 and could it was submitted result in a constitutional challenge given that it appears to be an attempt by the legislature to prescribe what sentence must be imposed by stipulating what must be ignored. 3. It is submitted that section 51(5) should not be amended. It is submitted that proposed subsection (b) is unnecessary and complicates the sentencing process almost to the extent of defeating the aim of the minimum sentencing provisions regarding offences listed in Part IV. It is argued that by the inclusion of this provision, it would mean that, although the court finds no substantial and compelling circumstances warranting a lesser sentence, it can in any event find some circumstances justifying the suspension of up to half of the ‘prescribed’ sentence. 4. It is submitted that the proposed amendment to section 51(6) is totally unnecessary as it again brings in factors and ‘circumstances’ that might or might not be such which would, in the ordinary course of events, amount to ‘substantial and compelling circumstances’ warranting a lesser punishment anyway and which may lead to revising of the Brandt decision, due to the differentiation of ages in the proposal.
1	Tshwaranang Legal Advocacy Centre and others	1. It is submitted that the proposed substitution of the title of section 51 is confusing, since this wording potentially suggests that in future minimum sentences may be applied at the presiding officer’s discretion. If so, then this it was submitted that this dilutes the current approach to minimum sentences. It was further submitted in this regard that the proposed amendment of section (3)(a), whereby “may” which is discretionary is substituted for “must” which is peremptory, also seems at odds with the notion that these are discretionary minimum sentences. 2. It is submitted that the proposed additions to “substantial and compelling circumstances” for rape contained in subsection (3)(aA) do not go far enough in ensuring that courts do not rely on factors that undermine women’s rights to dignity and equality. At the same time it is submitted with regard to “any relationship between the accused person and the complainant prior to the rape” that a careful balance needs to be struck between punishing sexual violence committed by family members or intimate partners on the one hand, and respecting the victim’s wishes on the other – particularly when such perpetrators may escape punishment altogether if the complainant withdraws the charge. Therefore, they submitted that the entire approach to sentencing rapists must be reconsidered – including the mitigating factors taken into account in relation to the accused. 3. It is submitted that consideration should be given to adding an additional ground to subsection (3)(aA), namely, “Perceived lack of psychological impact upon the complainant”.
1	Redpath & O’Donovan	It is submitted that the regional courts’ jurisdiction should not increase, since this will lead to a rise in the number of long sentences, which in turn will lead to more frequent mass early releases from prison and the proportion of persons serving heavy sentences included in early releases will increase in line with the increasing proportion of all prisoners serving heavy sentences.
1	NPA	1. The NPA submitted that they do not foresee any constitutional problems with granting regional courts jurisdiction to impose life sentences. The NPA further submitted that the PC should also consider the following factors and alternatives before taking a final decision: 1.1 The proposed procedure would not necessary expedite the finalisation of serious criminal cases, since cases in the regional court are often postponed several times for long periods of time before being finalised, while the High Court has a continuous roll and normally postpones cases from day to day to finish it. 1.2 It is foreseen that to a large extent long terms of imprisonment will be imposed and that Judges President would be petitioned for leave to appeal and that all instances where imprisonment for life is imposed, appeals will be noted. The NPA submitted that cases which are now referred to the High Court for sentencing do not normally take longer to finalise than an appeal. 1.3 The Shinga judgment will have an impact on the roll of the High Court and the availability of judges to deal with appeals emanating from the proposed amendment. The NPA submitted that the PC should consider providing for automatic review (which is quicker and involves one judge sitting in chambers) instead of providing for an automatic right of appeal. 1.4 The NPA submitted that there exists an anomaly in as far as the regional court in finding substantial and compelling circumstances, which justifies the imposition of a lesser sentence than life imprisonment for Part I of Schedule 2 offences, can only impose a sentence of 15 years for a first time offender. It submitted that the problem can be solved by inserting a further provision similar to section 51(2) of the Act, in terms of which the regional court is given increased jurisdiction in respect of Part I offences. The NPA submitted that such proviso may also be inserted as a substantive provision in section 51. The following proviso is proposed: “Provided further than 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.”. 2. The NPA submitted that the objective of the Bill, to “expedite the finalisation of serious criminal cases” can also be achieved by giving the regional court magistrate jurisdiction to impose such lesser sentence himself or herself after having found that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than imprisonment for life. The NPA submitted that instead of giving the regional court jurisdiction to impose imprisonment for life, it should be considered to add the following proviso to section 52(1): “Provided that if, after having convicted an accused person of an offence referred to in Part I 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 may thereupon impose such lesser sentence.”. 4. The NPA submitted that they support the proposed amendment set out in section 51(3)(aA). 5. The NPA submitted that they support the proposed amendment set out in section 51(5). 6. With regard to section 51(6), the NPA submitted that the wording of the provision was confusing and that it was of the view that it should be amended to make it clear that it refers to an accused person. They proposed amending paragraph (a) to read as follows “This section does not apply in respect of [a] an accused person whom was under the age of - “. 7. The NPA submitted that it is of the view that section 3 of the Prevention of Organised Crime Act, 1998, should also be amended.
1	SAHRC	1. With regard to the removal of the referral process and the granting of jurisdiction to impose life sentences to regional courts, the SAHRC submitted that regional courts are not higher courts and therefore giving these courts the power to impose the highest possible sentence is problematic for the commission. The Commission submitted that the necessary inbuilt checks and balances to ensure that a life sentence is handed down in the appropriate manner do not exist at the lower court levels. The Commission further submitted that the granting of an automatic right of appeal will lead to increased court backlogs arguing that a substantial amount of cases that would have come before the high court will still come before the high court by way of appeal. 2. With regard to section 3(aA), the Commision submitted that although the amendment is welcomed it is of the view that a broader debate on sentencing rape perpetrators is needed. 3. The Commission welcomed the repeal of section 51(4). 4. With regard to section 51(6), the Commission submitted that minimum sentencing provisions ought not be applicable to children.
1	OSF-SA	1. The OSF-SA submitted that it remained unconvinced that increasing the sentencing jurisdiction of the regional courts is the appropriate route to take in remedying the problems identified with the referral process. In this regard, they submitted that since life imprisonment is the strongest mechanism that the courts have at their disposal a rigorous process should be followed in handing down this sentence and that it should be reserved for the most serious cases that would have warranted the death penalty. They further submitted that restricting its imposition to our highest courts and most senior members of the judiciary, will signal to the public to recognise life imprisonment as a serious and most weighty sanction. 2. The OSF-SA submitted that although they supported the abolition of the referral process they are of the view that regional court magistrates should not have the power to impose life sentences. They submitted that regional court magistrates should continue to sentence within their jurisdiction and that if the state seeks a life sentence then the case must be prosecuted in the High Court from the outset. If, however, the sentencing jurisdiction is increased the Foundation submitted that there should be an automatic right of appeal. 3. With regard to subsection 3(aA), the Foundation submitted that the proposed amendments limit the ambit of the exception to mandatory sentences on grounds of substantial and compelling circumstances. The Foundation submitted that this would open the door to a renewed challenge to the constitutionality of these provisions on the ground of disproportionality. The OSF did however submit that they did not disagree with the existing contents of the list, but did submit that it is limited. 4. With regard to subsection (6), the Foundation submitted that the Bill seeks to ensure that minimum sentences apply to children in certain circumstances and that applying a minimum sentence to any child, in terms of the Constitution and international instruments to which South Africa is a signatory, regardless of the crime or age of the child would be directly contradictory to these provisions as minimum sentences by its nature is a measure of first or only resort.
1	CSVR	CSVR submitted that they do not support the argument that the regional court should be empowered to impose the maximum possible sentence of life imprisonment on a person, believing that this should be the remit of the High Court.
1	Cape Bar Council	1. The Cape Bar Council submitted that the provisions of the Bill are generally supported, more particularly, those directed at promoting the more efficient and expeditious completion of criminal trials. The Council further submitted that it is concerned about the appropriateness and desirability of vesting life sentence jurisdiction in the regional courts, but submitted that it accepted that the basis for concern is largely offset by the proposed provisions permitting an automatic right of appeal. 2. With regard to section 51(3)(a), the Council submitted that it is opposed to the proposed amendment since 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. The Council submitted that there may be situations where the prescribed minimum sentence is coincidentally also considered to be the appropriate sentence even though there are compelling and substantial circumstances which would objectively justify a departure from the prescribed minimum sentence regime. The Council therefore submitted that the existing permissive “may” should remain and that it should not be replaced by a peremptory “must”.
1	Prof SS Terblanche	1. Prof Terblanche’s submission indicates that he is not in favour of giving regional courts the jurisdiction to impose life imprisonment. This submission is made based on the following reasons: (1) Tampering with the hierarchy in the sentence jurisdiction of the different levels of courts will inevitably create anomalies; (2) The truly pragmatic solution is not to argue that High Courts do not have the capacity to try and sentence all the offenders that are liable to be sentenced to life imprisonment , but would be for the legislature to create a system which will be within the capacity or expected capacity of the High Courts to implement; (3) In real terms, it would seem that potentially, life imprisonment is a much longer sentence than the current maximum that a regional court may impose; (4) If a second-tier trial court, such as the regional court, gets the authority to impose life sentence, it will inevitably sacrifice much of its symbolic value as the most sever and onerous sentence; (5) It is submitted that the regional courts are not sufficiently competent to be allowed to impose the most severe sentence that our criminal justice system permits; (6) In terms of section 73(5) of the Correctional Services Act, 1998, the parole of an offender sentenced to life imprisonment will have to be considered by the court imposing the sentence, it is submitted that it will be difficult enough for judges to deal with and that regional magistrates will not be able to deal with it at all. 2. It is submitted that the deletion of section 51(3)(a) [we assume that the reference should be to 51(3)(b)] means that children of 16 and 17 years old are fully included within the minimum sentences. It is submitted that this is a shocking amendment in light of section 28(2) of the Constitution and South Africa’s obligations under the Convention on the Rights of the Child. It is submitted that the legislation should simply not be applicable to any child offenders and that section 51(6) should be amended accordingly. 3. With regard to the automatic right of appeal, it was submitted that important practical questions have to be considered such as whether this process will not simply create another cause for backlogs in the High Courts. 4. With reference to section 51(3)(aA), Prof Terblanche submitted that in determining whether a lesser sentence than the prescribed is justified, based on S v Malgas, it is the cumulative effect of all the circumstances of a case, including mitigating and aggravating circumstances, that should be considered. Therefore, it is submitted that it would be better if the Bill read as follows: “(aA) When imposing a sentence in respect of the offence of rape the following shall not be considered when determining whether [constitute] substantial and compelling circumstances exist justifying the imposition of a lesser sentence: (i) The complainant’s [previous] relevant sexual history; (ii) an accused person’s cultural or religious beliefs about rape; or (iii) any close, personal relationship between the accused person and the complainant prior to the offence being committed”. 5. Further in reference to section 51(3)(aA), Prof Terblanche submitted that he does not support the first limitation, because when one considers that the sexual history of the complainant may be relevant to the merits of the case, based on considerations mentioned in section 227 of the Criminal Procedure Act, 1977, the likelihood of unfair sentences if this factor may never be taken into account is very high. 6. The second limitation is supported by Prof Terblanche. 7. With reference to the third limitation, Prof Terblanche submitted that the wording “any relationship” is too wide and should be narrowed to protect the interests that are likely at stake here, namely that of close or formerly close relationships. It is therefore, submitted that the wording of section 51(3)(aA) should be tightened and should be phrased acknowledging that single factors are not considered to be substantial and compelling circumstances. 8. It is submitted that there is no single valid reason from the perspective of sentencing principle for now changing the heading of section 51 as if these prescriptions permit more discretion than in the past. 9. It is submitted that if rape as contained in Part I of Schedule 2 is moved to Part II regional courts will have the power to try and sentence all charges of rape. This should it is submitted be sufficient punishment for the vast majority of convicted rapists and such a move will have the following advantages: (1) there is no need for a committal procedure and section 52 can still be deleted; (2) sentencing takes place in a court where the trial was conducted , which means there are no reductions, but without resorting to increasing the jurisdiction of regional courts; (3) life imprisonment can still be imposed for rape when appropriate (where prosecution takes place in the High Court); (4) it fits in with the logic of the prescribed sentences for murder, where aggravated forms are in Part I and the rest in Part II – for rape the equivalent it would mean the aggravated forms are in Part II and the rest (as it is currently) in Part III. This submission also supports retaining the amendment to section 21 of the National Prosecuting Authority Act, 1998, if a higher sentence in the High Court is required or foreseen. In this regard, the amendment of section 309 of the Criminal Procedure Act becomes unnecessary.
1	Practice committee of the Cape High Court	1. The Committee is opposed to the proposed extension of the jurisdiction of the regional court. Their submission is based on the fact that there are material differences between the High Court and the lower courts and nothing has happened to eliminate or decrease this disparity or to reduce “the risk of an error leading to injustice”. The Committee also submitted that life imprisonment remains the ultimate sentence in our law and in their view the currency of sentencing would be debased if sentences of life imprisonment were to be imposed by what is still described as “lower courts”. 2. In reference to subsection (3)(aA), the Practice Committee submitted that they are opposed to the suggested amendment of the present criteria. The Committee further submitted that in view of the interpretation given in S v Malgas the proposed amendment will offend against this process of interpretation should particular factors now be identified by the legislature and excluded in advance from enquiry. The Committee also submitted that there is a risk that once particular circumstances have been expressly excluded by the legislature, affected parties or interest groups may decide to complain about other individual factors leading to a series of knee-jerk legislative reactions to include or exclude facts or circumstances. 3. The Practice Committee welcomed the repeal of section 51(4) and the amendment of section 51(5).
1	Judge Bertelsmann	1. It is submitted that the abolition of the referral process is welcomed. 2. It is, however, further submitted that the proposed increase in the jurisdiction of the regional court is worrisome, since history has shown that every increase in the penal jurisdiction of the lower judiciary has resulted in all courts in the increase of the sentences imposed. 3. It is further submitted that the current clogging of the High Court rolls by section 52 referrals will be replaced by a significantly more severe bottleneck of appeals that will be launched as a matter of course against the imposition of life sentences in the regional court. 4. It is submitted that subsection (3)(aA) will further restrict the discretion of the Judiciary. 5. Finally, it is submitted that apart from welcoming the abolition of the referral process and the reintroduction of the ability to take time spent in custody while awaiting trial into account in imposing sentence, the rest of the proposals must be rejected.
1	CSPRI	It is submitted that the Bill will have a significant impact on the size of the prison population by effectively increasing the sentence jurisdiction of the regional courts.
1	Child Justice Alliance	1. It is submitted that section 51(6)(a) is unconstitutional and violates South Africa’s international obligations. This assertion is made relying on judicial interpretation of sections 28(1)(g) and section 28(2) of the bill of rights as well as the interpretations made in the context of child justice applicable to South Africa’s regional and international obligations. It is therefore submitted that no minimum sentences should be applicable to persons under 18 years of age.
1	Southern African Catholic Bishop’s Conference	1. They welcomed the amendment to section 51(4). 2. In reference to section 51(6) read with the repeal of section 51(3)(b), it is submitted that it makes it more likely that prescribed sentences, including life imprisonment will be imposed on youthful offenders as young as 16. It is submitted that the younger the offender the greater should the discretion of a court be to determine a sentence that is appropriate to the circumstances of the offender and in this regard the advantage of section 51(3)(b) as it currently stands is that it leaves the matter far more to the discretion of the court.
2	ARMSA	ARMSA supports the repeal of these sections.
2	Basil King	1. It is submitted that without a referral being at all possible, some offenders may still receive inadequate punishment. It is therefore submitted that since the Bill contains certain provisions amending the Criminal Procedure Act, 1977 it also further amends section 114 or 116 (which relates to referral from District Courts) or inserts new provisions in Chapters 17 and 18 to cater for a referral from a regional court to a High Court, not only to provide machinery for any such case but also in the promotion of independence, that is that the judiciary makes the final decision as to the proper punishment and not the prosecution service. Or is it submitted that the Bill should contain a provision allowing a regional court to commit the accused for sentence by a High Court in circumstances similar to the original section 52(1), if the regional court is of the opinion that the offence concerned warrants punishment in excess of its jurisdiction.
3	ARMSA	ARMSA supports the repeal of sections 53(1), (2) and (2A).
3	Basil King	1. It is submitted that it is not clear why clause 3 only causes a deletion of subsections (1), (2) and (2A). Subsections (3) and (5), it was further submitted, will play no meaningful role in view of the new transitional process set out in clause 6 of the Bill and should thus also be repealed. 2. Clause 6 should effect an amendment to the Act so that the transitional provision is not left standing in some other Act. Section 53, it was submitted, should rather reflect the transitional process. 3. It is submitted that the words “and 52” should be deleted from section 53(4).
3	SAHRC	The Commission does not support the removal of the provision that allowed for minimum sentencing to be extended every two years. The Commission submitted in this regard that it would prefer for minimum sentencing to be done away with and for there to be a serious debate about appropriate sentencing frameworks in South Africa.
3	OSF-SA	The OSF-SA does not support the repeal of sections 53(1) and (2). They submitted that Parliament is hereby essentially entrenching minimum sentencing in our law as a permanent feature and that they supported the development of a comprehensive and coherent sentencing framework that deals with sentencing across all crime categories and at all levels.
3	CSVR	CSVR submitted that section 53(1)(2) and (2A) should be retained, or a fixed period for the retention of this legislation should be stipulated, whilst a review of the current system and a redrafting of a new and comprehensive framework is undertaken.
3	Prof SS Terblanche	Prof Terblanche submitted that making the legislation permanent will readily result in a reassessment of the situation and the legislation might well not survive another constitutional challenge. It is submitted that section 53(1) and (2) should remain in place.
3	CSPRI	It is submitted that the deletion of section 53 is premature and that further dialogue is required on a sentencing reform programme.
3	Southern African Catholic Bishop’s Conference	It is submitted that removing section 53(1) from the effective oversight of Parliament is a retrograde step and an admission of defeat in the fight against crime.
4	ARMSA	ARMSA supports clause 4.
4	Basil King	1. It is submitted that further textual amendments be effected at this stage, particularly to what was section 309(1)(a)(iii) [now to be 309(1)(a)(i)(cc)] namely by rectifying the ‘rather ridiculous’ situation that currently exists regarding the use of the words “any form of imprisonment contemplated in section 276(1)”. The problem, it was submitted, with this phrase is that an accused person under the age of 21 years, who is sent to a reform school by a district or regional court, has to apply for leave to appeal as imprisonment contemplated in section 276(1) excludes a referral to a reform school made in terms of section 290(1)(d) – although the matter is subject to automatic review. 2. It is further submitted that a sentence of life imprisonment should be automatically reviewable by a judge of the provincial or local division having jurisdiction and that an appropriate amendment in this regard should be made to section 302 of the Criminal Procedure Act, 1977.
4	CSVR	CSVR submitted that while doing away with the split procedure of referring cases to the High Court for sentencing may reduce the number of backlogs at the High Court, the proposed automatic right of appeal will introduce problems of its own. They submitted that in order to fully utilise the appeal procedures the accused person should have access to legal assistance, which is not always available and that the number of appeal generated by this process will further exacerbate the backlog of appeals before the High Courts.
4	Child Justice Alliance	It is submitted that although the CJA welcomed the amendments made to the ages of children in this amendment, they requested that it should be amended further to provide all children with an automatic right of appeal.
4	Southern African Catholic Bishop’s Conference	It is submitted that delays and backlogs will continue even if provision is made for an automatic right of appeal against life sentences, since the regional courts will take more time to finalise such cases with due diligence and thoroughness and the fact that there will be an increase in the appeal roll in the High Court.
5	ARMSA	ARMSA supports clause 5.
5	Basil King	It is submitted that whilst the directive may be clear in its terms, the possibility of a serious case ‘slipping through’ merely because the investigation is not complete or adequate or covers aspects that may be necessary for a determination of forum may result in an offender escaping ‘proper’ justice. It is therefore submitted that although such directives may be necessary, the only ‘safe’ solution is to make provision for a referral, in appropriate cases, from a regional court to a High Court for sentence purposes.
5	NPA	1. The NPA posed a question as to what criteria could be used to determine which of the relevant cases must still be tried in the High Court if the regional court has jurisdiction to impose life sentences notwithstanding the seriousness or complexity of a case. The NPA further submitted in this regard that to direct that the seriousness or complexity of the case are factors 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. Similarly, the NPA submitted that to direct that “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”. 2. The NPA submitted that if the PC approves the principle to grant a regional court jurisdiction to impose life imprisonment, the NPA would undertake 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. The NPA submitted that they did not support this amendment and stated that the NPA is of the view that it is not desirable to include this provision in the Act. The NPA further submitted that should the Committee approve this amendment then it is recommended that the first line of subsection (3) be amended to read as follows “The policy directives or amendments thereto must include …”. This will make clear the distinction made in the Constitution between “policy directives” and “prosecution policy”.
6	ARMSA	ARMSA submitted that these mere referrals could take months to finalise since these cases will have to be placed on the rolls of the High Courts in order for them to be referred back and therefore they submitted that in order to speed up the finalisation of these cases in the transitional phase, the legislation must allow the regional court to maintain jurisdiction over those cases referred to the High Court which have not yet been heard by it. The Regional Court can then simply proceed with the matter as soon as possible without the delay of referral. ARMSA proposed the following section to be substituted for clause 6: “If a regional court has, prior to the commencement of the Act, committed an accused for sentence by a High Court under the Criminal Law Amendment Act, 1997, and – (a) The case has not been allocated a court date in the High Court prior to the date of the commencing of this Act, then the regional court will have jurisdiction to impose sentence as prescribed in this Act as if the accused was never committed for sentence by a High Court. (b) The case has been allocated a court date, prior to the date of the commencing of this Act then the High Court must on the allocated or any earliest possible date refer the matter back to the Regional Court for sentencing. (c) The High Court has heard the matter prior to the date of the commencing of this Act, or it was on the court roll on a date prior to it, then the High Court must dispose of the matter as if the Act had not been passed.”.
6	NPA	The NPA submitted that the transitional provision should be deleted. Instead they recommended a practical arrangement whereby cases already in the High Court should be finalised by the High Court and cases in the regional court should be adjourned (instead of referred to the High Court for sentencing) to be resumed after the law came into effect.
6	Basil King	It is submitted that a word other than “heard” be employed in the text. The High Courts have already had to debate whether a judge is or is not ‘seized’ with a matter after referral and a query has been raised by a judge, and a similar situation could again arise in this regard as to when a matter is or has been ‘heard’.
Schedule 2	ARMSA	1. ARMSA submitted that in order to enhance case flow management in respect of Schedule 2 offences, a section should be included in the Bill which obliges the prosecution to provide a summary of facts and a list of state witnesses to the clerk of the court and the defence representatives before the matter is finally placed for trial in the regional court in the case of trials for offences listed in Parts I, II and III of Schedule 2. (This is done in the High Court in terms of section 144(3)(a) of the Criminal Procedure Act, 1977). 2. ARMSA submitted that the current reference in Part II of Schedule 2 of the Act to the possession of a semi-automatic firearm should exclude a semi-automatic pistol, since the various divisions of the High Court have interpreted section 51(2) of the Act in such a way that it is now virtually impossible to impose the minimum sentence for such an offence. 3. ARMSA submitted that rape (other than that described in Part I of Schedule 2) should be moved from Part III to Part II of the Schedule in order to address the seemingly inordinate disparity between rapes as described in Part I which carries a sentence of life imprisonment and all other rapes which carries a minimum sentence of only ten years, while there may be extremely serious cases of rape which warrant a severe sentence but does not fall within Part I.