RESOURCE GUIDE - The Assosiation of Regional Magistrates of ...

DEPARTMENT OF JUSTICE & CONSTITUTIONAL DEVELOPMENT 

CRIMINAL JUSTICE STRENGTHENING PROGRAM (CJSP) 

TRAINING CONFERENCE ON SENTENCING 

CHALLENGES IN THE REGIONAL COURT 

BIRCHWOOD EXECUTIVE HOTEL 

15 – 17 NOVEMBER 2007 

RESOURCE GUIDE

A. RELEVANT LEGISLATION 

INDEX 

CONFERENCE LITERATURE AND OTHER RELEVANT 

READING MATERIAL 

1. Criminal Law Sentencing Amendment Bill 8 

2. Prevention of Witch Crafting Act (Act 3 of 1957) 16 

3. Prevention of Organized Crime Act.(Section 3 of Act 121 of 1998) 19 

4. Part 1, II, III and IV of Schedule 2 Act 105 of 1997 20 

5. Section 276B, Act 51 of 1977. 24 

6. Amendment to Part 1, II and III of Schedule 2 as a result of the Sexual Offences 

Bill. 

7. Section 73 of Act 111 of 1998 28 

B. IMPORTANT DECISIONS 

8. S v Howells 1999 (1) SACR 675(C) 32 

9. S v Malgas 2001(1) SACR 469(SCA) 42 

10. S v Abrahams 2002(1) SACR 116(SCA) 82 

11. S v Mahomotsa 2002(2) SACR 435 (SCA) 108 

12. S v Swart 2004(2) SACR 370 (SCA) 133 

13. S v Mvamvu 2005(1) SACR 54(SCA) 150 

14. Director Public Prosecutions, Kwazulu Natal v P 2006(1) SACR 243 (SCA) 165 

15. S v B 2006(1) SACR 311(SCA) 190 

16. S v Sikhipha 2006(2) SACR 439 SCA) 209 

17. S v Snoti 2007(1) SACR 660(E) 220 

18. S v M 2007 (2) SACR 60(WLD) 225 

19. Sv Nkomo 2007(2) SACR 198(SCA) 262 

20. Mabuza v The State 2007 SCA 110 (RSA) 275 

21. M v The State CCT 53/06 293 

22. S V Mlandeli Dayimani CC12/2007 366 

23. Rammoko v Director of Public Prosecutions 2003(1) SACR 200(SCA) 381 

24. Buzani Dodo V The State CC1/2001 396 

C. CONFERENCE PRESENTATIONS & READING MATERIAL 

25. RECOGNISING THE VICTIM IN THE SENTENCING PHASE: THE USE OF VICTIM IMPACT 

26. 

STATEMENTS IN COURT – K. MULLER & A VAN DER MERWE 

The Numbering of Days - Sentencing and Prison Population Growth 452 

TRAINING CONFERENCE ON SENTENCING CHALLENGES IN THE REGIONAL COURT 2 

25 

436

- Chris Giffard, & Lukas Muntingh 

27. CRIME DOES NOT CAUSE PUNISHMENT - The impact of sentencing policy on 

levels of crime – Michael Torny 

28. The Criminal Law Sentencing Amendment Act - The Impact and Consequences 

for the Regional Court – JAKKIE WESSELS 

29. Psychological Programmes in correctional facilities, declaration of Dangerous 

Offenders, Section 286A Act 51 of 1977 - Dr. Lorinda B Bergh 

30. The impact of minimum sentencing in South Africa – J Redpath 

31. Victim Impact Statements - Prof. Susan Kreston. 

D. REFERENCES TO CASE LAW PERTAINING TO MINIMUM SENTENCES 

& INTERPRETATION AND APPLICATION OF COMPELLING AND 

GENERAL 

SUBSTANTIVE CIRCUMSTANCES (1998-2007)* 

32. S v Malgas 2001(1) SACR 469(SCA) 

RAPE 

33. S v Mofokeng, 1999(1) SACR 502(W) 

34. S v Zitha and another 1999(2) SACR 404(W) 

35. S v Segole and another 1999(2) SACR 115 (W) 

36. S v Shongwe 1999(2) SACR 220(O) 

37. S v Jansen 1999(2) SACR 368(C) 

38. S v Swartz and another 1999(2) SACR 380(C) 

39. S v Dithotze 1999(2) SACR 314(W) 

40. S v Blaauw 1999(2) SACR 295(W) 

41. S v Van Wyk 2000(1) SACR 45(C) 

42. S v Boer en andere 2000(2) SACR 114(NC) 

43. S v Gqamona 2001(2) SACR 28(C) 

44. S v Blaauw 2001(2) SACR 255(C) 

45. S v Abrahams 2002(1) SACR 116(SCA) 

46. S v Mahomotsa 2002(2) SACR 435 (SCA) 

47. S v Swart 2004(2) SACR 370 (SCA) (Under the influence of alcohol) 

48. S v G 2004(2) SACR 296(W) 

49. S v Ncheche 2005(2) SACR 386(W) 

50. S v Sikhipha 2006(2) SACR 439 (SCA) 

51. S v Jabani 2006(2) SACR 171(NC) 

52. S v Snoti 2007(1) SACR 660(E) 


462 

470 

474 

481 

485

53. S v M 2007 (2) SACR 60 (WLD) 

54. S v Nkomo 2007(2) SACR 198 (SCA) 

55. Mabuza v The State 2007 SCA 110 (RSA) 

56. S v Cornick 2007(2) SACR 115(SCA) 

RAPE: RELATIONSHIP BETWEEN PARTIES 

57. S v Mvamvu 2005 (1) SACR 54 (SCA) 

58. S v Moipolai 2005 (1) SACR 580 (B) 

MURDER 

59. S v MacDonald 2000(2) SACR 492 (N) 

60. S v Beukes 2000(2) SACR 412 (T) 

61. S v Makhali 2000(2) SACR 417 (T) 

62. S v Qwati 2001(1) SAR 378 (NC) 

63. S v Majola 2001(1) SACR 337 (N) 

64. S v Malgas 2001(1) SACR 469 (SCA) 

65. S v Kgafela 2001(1) SACR 207 (B) 

66. S v Sidyno 2001(2) SACR 613 (T) 

67. S v Thebus and another 2002(2) SACR 566 (SCA) 

68. S v Vuma 2003 (1) SACR 597 (W) 

69. S v Tshisa 2003 (1) SACR 171 (C) 

70. S v Malan en n ander 2004(1) SACR 264(TPD) 

71. S v Vermeulen 2004(2) SACR 174 (SCA) 

72. S v Obisi 2005(2) SACR 350(W) 

73. S v Roslee 2006(1) SACR 537 (SCA) (See also for burden of proof) 

74. S v Makatu 2006(2) SACR 582 (SCA) 

75. Sv Karolia 2006(2) SACR 75(SCA) 

76. Sv Makhase 2007(1) SACR 369(N) 

77. Pakane v The State (2007) SCA 134(RSA) 

78. Dissel v The State (2007) SCA 125 (RSA) 

MURDER: BY ABUSED WOMEN 

79. S v Ferreira and another 2004(2) SACR 454(SCA) 

80. S v Engelbrecht 2005(2) SACR 163 (W) 

JUVENILE OFFENDERS 

81. S v N 2000(1) SACR 209(W) 

82. S v Boer en ander 2000(2) SACR 114 (NC) 

TRAINING CONFERENCE ON SENTENCING CHALLENGES IN THE REGIONAL COURT 4

83. S v Nkosi 2002(1) SACR 135(W) 

84. S v Meiring 2004(2) SACR 205(C) 

85. S v Gagu 2006(1) SACR 547 (SCA) 

86. S v B (Brand) 2006(1) SACR 311 (SCA) 

87. Director of Public Prosecutions, Kwazulu Natal v P 2006(1) SACR 243 (SCA) 

ROBBERY 

88. S v Silaule en andere 1999(2) SACR 102 (SCA) 

89. S v Montgomery 2000(2) SACR 318 (N) 

90. S v Mambo 2006(2) SACR 563 (SCA) 

91. S v Ndlovu 2007(1) SACR 535 (SCA) 

INDECENT ASSAULT 

92. S v Fatyi 2001(1) SACR 485 (SCA) 

93. S v Qwati 2001(1) SACR 378 (NC) 

94. Direkteur Openbare Vervolging [Transvaal] v Tshabalala 2006(2) SACR 381(T). 

DEALING IN DRUGS 

95. Sv Homareda 1999(2) SACR 319(W) 

96. S v Khangwayo; S v Mihlali 1999(2) SACR 651 (O) 

97. S v Jimenez 2002(2) SACR 190(W) 

CORRUPTION 

98. R v Sole 2004(2) SACR 696 (Lesotho) 

99. S v Shaik and others 2007(1) SACR 247 (SCA) 

ACCESSORY AFTER THE FACT 

100. S v Mokasi and others 2002(2) SACR 609 (T) 

FRAUD 

101. S v Price and another 2003(2) SACR 551 (SCA) 

102. S v Harker 2004(2) SACR 63 (C) 

103. S v Vorster 2007(2) SACR 283 (E) 

ATTEMPTED MURDER 

104. S v Schrich 2004(1) SACR 360(C) 

C. CASE LAW PERTAINING TO OTHER RELEVANT 

SENTENCING FACTORS 

RIGHTS OF CHILDREN AND SENTENCE 

105. S v Howells 1999(1) SACR 675 (C) 


106. S v Myburgh 2007(1) SACR 11 (W) 

107. M v The State: CCT 53/06 

ILL HEALTH 

108. S v Mabutho 2005(1) SACR 485(W) 

109. S v Magida 2005(2) SACR 591 (SCA) (Aids) 

AWAITING TRIAL AND OVERCROWDING 

110. S v Vilakazi 2000(1) SACR 140(W) 

111. S v Brophey 2007(2) SACR 56(W) 

NON-PAROLE PERIOD 

112. S v Botha 2006 (2) SACR 110 (SCA) 

113. S v Williams; S v Papier 2006(2) SACR 101 (C) 

114. Pakane v The State (2007) SCA 134 (RSA) 

BELIEF IN WITCH CRAFT 

115. S v Malaza 1990(1) SACR 357(A) 

116. S v Alam 2006(2) SACR 613(CkHC) 

ANOTHER TRAINING EVENT HOSTED BY 

THE ASSOCIATION OF REGIONAL MAGISTRATES OF SOUTHERN AFRICA 

RESOURCE GUIDE COMPILED BY ADRIAAN BEKKER & LOUIS CLAASSEN 

TERMS & CONDITIONS OF USE: 

www.armsa.org.za 

© COPYRIGHT ARMSA DIGITAL PRESS 1995 -2007 

COPYRIGHT IN ALL INFORMATION, IMAGES, AND OTHER MATERIAL CONTAINED IN THIS DOCUMENT 

WHICH IS NOT ATTRIBUTED TO A THIRD PARTY, IS HELD BY ARMSA. 

WHERE ANY MATERIAL ORIGINATION FROM THIS DOCUMENT IS USED, DISCUSSED OR MULTIPLIED THE 

NAMES OF THE AUTHORS OR PHOTOGRAPHERS MUST BE QUOTED. 

* FOR A COMPLETE ELECTRONIC RESOURCE GUIDE CONTAINING ALL THE RELEVANT CASE LAW MENTIONED 

ABOVE SEE THE LIBRARY SECTION ON THE ARMSA WEB – WWW.ARMSA.ORG.ZA 




RELEVANT LEGISLATION 


REPUBLIC OF SOUTH AFRICA 

CRIMINAL LAW (SENTENCING) 

AMENDMENT BILL 

(As amended by the Portfolio Committee on Justice and Constitutional Development 

(National Assembly)) 

(The English text is the offıcial text of the Bill) 

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT) 

[B 15B—2007] ISBN 978-1-920240-??-? 

No. of copies printed .................................... 1 800 


GENERAL EXPLANATORY NOTE: 

[ ] Words in bold type in square brackets indicate omissions from 

existing enactments. 

Words underlined with a solid line indicate insertions in 

existing enactments. 

BILL 

To amend the Criminal Law Amendment Act, 1997, so as to further regulate the 

imposition of discretionary minimum sentences for certain serious offences; to give 

a regional court jurisdiction to convict and sentence a person found guilty of an 

offence referred to in Part I of Schedule 2 to imprisonment for life; to provide that 

certain circumstances shall not constitute substantial and compelling circumstances 

justifying the imposition of a lesser sentence when a sentence must be 

imposed in respect of the offence of rape; to repeal all sections dealing with the 

committal of an accused for the purposes of sentencing by a High Court after 

conviction in a regional court of an offence referred to in Schedule 2; to amend 

Schedule 2 in order to further regulate the offences in respect of which 

discretionary minimum sentences are prescribed; to amend the Criminal Procedure 

Act, 1977, so as to provide for an automatic right of appeal if a person is 

sentenced to life imprisonment by a regional court; to amend the National 

Prosecuting Authority Act, 1998, so as to provide for policy directives indicating in 

which instances prosecutions in respect of offences referred to in Schedule 2 to the 

Criminal Law Amendment Act, 1997, must be instituted in the High Court as a 

court of first instance; to amend the Prevention of Organised Crime Act, 1998, so 

as to effect a consequential amendment; and to provide for matters connected 

therewith. 

BE IT ENACTED by the Parliament of the Republic of South Africa, as 

follows:— 

Substitution of section 51 of Act 105 of 1997, as amended by section 33 of Act 62 of 

2000 and section 36 of Act 12 of 2004 

1. The following section is hereby substituted for section 51 of the Criminal Law 

Amendment Act, 1997: 

‘‘[Minimum] Discretionary minimum sentences for certain serious 

offences 

51. (1) Notwithstanding any other law, but subject to subsections (3) and 

(6), a regional court or a High Court shall sentence a person[— 

(a) if] it has convicted [a person] of an offence referred to in Part I of 

Schedule 2[; or 


5 

10

3 

(b) if the matter has been referred to it under section 52(1) for 

sentence after the person concerned has been convicted of an 

offence referred to in Part I of Schedule 2, 

sentence the person] to imprisonment for life. 

(2) Notwithstanding any other law but subject to subsections (3) and (6), 

a regional court or a High Court[, including a High Court to which a 

matter has been referred under section 52(1) for sentence,] shall [in 

respect of] sentence a person who has been convicted of an offence referred 

to in— 

(a) Part II of Schedule 2, [sentence the person,] in the case of— 

(i) a first offender, to imprisonment for a period not less than 15 

years; 

(ii) a second offender of any such offence, to imprisonment for a 

period not less than 20 years; and 

(iii) a third or subsequent offender of any such offence, to 

imprisonment for a period not less than 25 years; 

(b) Part III of Schedule 2, [sentence the person,] in the case of— 


years; 




imprisonment for a period not less than 20 years; and 

(c) Part IV of Schedule 2, [sentence the person,] in the case of— 


years; 




imprisonment for a period not less than 10 years: 

Provided that the maximum [sentence] term of imprisonment that a 

regional court may impose in terms of this subsection shall not [be more 

than five years longer than] exceed the minimum [sentence] term of 

imprisonment that it [may] must impose in terms of this subsection by more 

than five years. 

(3) (a) If any court referred to in subsection (1) or (2) is satisfied that 

substantial and compelling circumstances exist which justify the imposition 

of a lesser sentence than the sentence prescribed in those subsections, it 

shall enter those circumstances on the record of the proceedings and [may] 

must thereupon impose such lesser sentence: Provided that if a regional 

court imposes such a lesser sentence in respect of an offence referred to Part 

1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment 

for a period not exceeding 30 years. 

(aA) When imposing a sentence in respect of the offence of rape the 

following shall not constitute substantial and compelling circumstances 

justifying the imposition of a lesser sentence: 

(i) The complainant’s previous sexual history; 

(ii) an apparent lack of physical injury to the complainant; 

(iii) an accused person’s cultural or religious beliefs about rape; or 

(iv) any relationship between the accused person and the complainant 

prior to the offence being committed. 

[(b) If any court referred to in subsection (1) or (2) decides to impose 

a sentence prescribed in those subsections upon a child who was 16 

years of age or older, but under the age of 18 years, at the time of the 

commission of the act which constituted the offence in question, it shall 

enter the reasons for its decision on the record of the proceedings. 

(4) Any sentence contemplated in this section shall be calculated 

from the date of sentence.] 

(5) (a) [The] Subject to paragraph (b), the operation of a minimum 

sentence imposed in terms of this section shall not be suspended as 

contemplated in section 297(4) of the Criminal Procedure Act, 1977 (Act 

No. 51 of 1977). 


5 

10 

15 

20 

25 

30 

35 

40 

45 

50 

55 

60

(b) Not more than half of a minimum sentence imposed in terms of 

subsection (2) may be suspended as contemplated in section 297(4) of the 

Criminal Procedure Act, 1977, if the accused person was 16 years of age or 

older, but under the age of 18 years, at the time of the commission of the 

offence in question. 

(6) [The provisions of this] This section [shall] does not [be applicable] 

apply in respect of [a child] an accused person who was under the age of 16 

years at the time of the commission of [the act which constituted the 

offence in question] an offence contemplated in subsection (1) or (2). 

(7) If in the application of this section the age of [a child] an accused 

person is placed in issue, the onus shall be on the State to prove the age of 

[the child] that person beyond reasonable doubt. 

(8) For the purposes of this section and Schedule 2, ‘law enforcement 

officer’ includes— 

(a) a member of the National Intelligence Agency or the South African 

Secret Service [established under] referred to in section 3 of the 

Intelligence Services Act, [1994 (Act No. 38 of 1994)] 2002 (Act No. 

65 of 2002); and 

(b) a correctional official of the Department of Correctional Services or a 

person authorised under the Correctional Services Act, 1998 (Act No. 

111 of 1998). 

(9) The amounts mentioned in respect of the offences referred to in 

[PART] Part II of Schedule 2 to the Act, may be adjusted by the Minister 

from time to time by notice in the Gazette.’’. 

Repeal of sections 52, 52A and 52B of Act 105 of 1997 

2. Sections 52, 52A and 52B of the Criminal Law Amendment Act, 1997, are hereby 

repealed. 

Amendment of section 53 of Act 105 of 1997, as substituted by section 36 of Act 62 

of 2000 and amended by section 16 of Act 42 of 2001 

3. Section 53 of the Criminal Law Amendment Act, 1997, is hereby amended— 

(a) by the deletion of subsections (1) and (2); and 

(b) by the deletion of subsection (2A). 

Insertion of section 53A in Act 105 of 1997 

4. The following section is inserted in the Criminal Law Amendment Act, 1997: 

‘‘Transitional provision 

53A. If a regional court has, prior to the date of the commencement 

of the Criminal Law (Sentencing) Amendment Act, 2007— 

(a) committed an accused for sentence by a High Court under this Act, the 

High Court must dispose of the matter as if the Criminal Law 

(Sentencing) Amendment Act, 2007, had not been passed; or 

(b) not committed an accused for sentence by a High Court under this Act, 

then the regional court must dispose of the matter in terms of this Act, 

as amended by the Criminal Law (Sentencing) Amendment Act, 

2007.’’. 

Amendment of Schedule 2 to Act 105 of 1997, as amended by section 37 of Act 62 

of 2000 and section 27(1) of Act 33 of 2004 

5. Schedule 2 to the Criminal Law Amendment Act, 1997, is amended— 

4 

(a) by the addition in Part I after paragraph (d) of the paragraphs setting out the 

categories of ‘‘murder’’, of the following paragraphs: 

‘‘(e) the victim was killed in order to unlawfully remove any body part of 

the victim, or as a result of such unlawful removal of a body part of 

the victim; 


5 

10 

15 

20 

25 

30 

35 

40 

45 

50

(f) the death of the victim resulted from, or is directly related to, any 

offence contemplated in section 1(a) to (e) of the Witchcraft 

Suppression Act, 1957 (Act No. 3 of 1957).’’; and 

(b) by the substitution for Part IV of the following Part: 

‘‘PART IV 

Any [offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 

(Act 51 of 1977) other than an offence referred to in Part I, II or III of this 

Schedule] of the following offences, if the accused had with him or her at the time 

a firearm, which was intended for use as such, in the commission of such offence: 

Treason; 

Sedition; 

Public violence; 

Robbery, other than a robbery referred to in Part I or II of this Schedule; 

Kidnapping; 

An offence involving an assault, when a dangerous wound is inflicted with a 

firearm, other than an offence referred to in Part I, II or III this Schedule; 

Breaking or entering any premises, whether under the common law or a statutory 

provision, with intent to commit an offence; 

Escaping from lawful custody.’’. 

Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105 

of 1982, section 8 of Act 107 of 1990, section 51 of Act 129 of 1993, section 13 of Act 

75 of 1995, section 2 of Act 33 of 1997, section 2 of Act 76 of 1997, section 38 of Act 

105 of 1997 and section 2 of Act 42 of 2003 

6. Section 309 of the Criminal Procedure Act, 1977, is hereby amended by the 

substitution in subsection (1) for paragraph (a) of the following paragraph: 

‘‘(a) Any person convicted of any offence by any lower court (including a person 

discharged after conviction) may, subject to leave to appeal being granted in terms 

of section 309B or 309C, appeal against such conviction and against any resultant 

sentence or order to the High Court having jurisdiction: Provided that— 

(i) if that person was, at the time of the commission of the offence— 

[(i)](aa) below the age of [14] 16 years; or 

[(ii)](bb) at least [14] 16 years of age but below the age of [16] 18 years and 

was not assisted by a legal representative at the time of conviction 

in a regional court; and 

[(iii)](cc) [was] sentenced to any form of imprisonment as contemplated in 

section 276 (1) that was not wholly suspended; or 

(ii) if that person was sentenced to imprisonment for life by a regional court under 

section 51(1) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 

1997), 

he or she may note such an appeal without having to apply for leave in terms of 

section 309B: Provided further that the provisions of section 302(1)(b) shall apply 

in respect of a person who duly notes an appeal against a conviction, sentence or 

order as contemplated in section 302(1)(a); and’’. 

Amendment of section 21 of Act 32 of 1998 

7. Section 21 of the National Prosecuting Authority Act, 1998, is hereby amended by 

the addition of the following subsections: 

‘‘(3) The prosecution policy must determine the circumstances under which 

prosecutions shall be instituted in the High Court as a court of first instance in 

respect of offences referred to in Schedule 2 to the Criminal Law Amendment Act, 

1997 (Act No. 105 of 1997). 

(4) The National Director must issue policy directives pursuant to the policy 

contemplated in subsection (3), regarding the institution of prosecutions in respect 

of offences referred to in Schedule 2 to the Criminal Law Amendment Act, 1997. 

(5) The prosecution policy and the policy directives contemplated in subsections 

(3) and (4) above, must be issued within three months of the date of the 

commencement of the Criminal Law (Sentencing) Amendment Act, 2007.’’. 

5 


5 

10 

15 

20 

25 

30 

35 

40 

45 

50 

55

Amendment of section 3 of Act 121 of 1998 

8. Section 3 of the Prevention of Organised Crime Act, 1998, is amended— 

(a) by the deletion of subsection (2)(ii); and 

(b) by the deletion of subsection (3). 

Short title and commencement 

9. This Act is called the Criminal Law (Sentencing) Amendment Act, 2007, and 

comes into operation on 31 December 2007 or an earlier date fixed by the President by 

proclamation in the Gazette. 

6 


5

MEMORANDUM ON THE OBJECTS OF THE CRIMINAL LAW 

(SENTENCING) AMENDMENT BILL, 2007 

1. BACKGROUND 

1.1 The Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) (hereinafter 

referred to as the Act), which came into operation on 1 May 1998, dealt with the 

abolition of the death penalty and created a legal regime of discretionary minimum 

sentences in respect of certain serious offences. Sections 51 and 52 of the Act make 

provision for the imposition of minimum sentences in respect of serious offences. These 

offences are categorised in terms of their degree of seriousness and are listed in Parts 

I-IV of Schedule 2 to the Act. In terms of section 51(3), a High Court or regional court 

is given a discretionary power to impose a lesser sentence, if that court is satisfied that 

substantial and compelling circumstances exist which justify the imposition of a lesser 

sentence than the prescribed minimum sentence. 

1.2 The constitutional validity of both sections 51 and 52 of the Act was tested in 2000 

(State v Dzukuda) and 2001 (State v Dodo), respectively. These cases dealt with two 

major challenges on two different grounds, namely an accused’s right to a fair trial and 

the independence of the judiciary. The Constitutional Court rejected both these 

challenges. The Constitutional Court in Dzukuda held that ‘‘it had not been established, 

either for the reasons furnished in the High Court judgment, or for any other reason, 

whether taken individually or collectively that the provisions of section 52 of the Act 

limited an accused’s right to a fair trial under section 35(3) of the Constitution’’. The 

Constitutional Court in Dodo, in interpreting the words ‘‘substantial and compelling 

circumstances’’ in section 51(3) of the Act endorsed the step-by-step sentencing 

procedure set out in S v Malgas (2001). The Court held in this regard that the 

interpretation of the Supreme Court of Appeal ‘‘steers an appropriate path, which the 

Legislature doubtless intended, respecting the Legislature’s decision to ensure that 

consistently heavier sentences are imposed in relation to the serious crimes covered by 

section 51 and at the same time promoting ‘the spirit’, purport and objects of the Bill of 

Rights’’. In dealing with the issue of the separation of powers and the court’s role in 

sentencing, the Court concluded as follows: ‘‘While our Constitution recognises a 

separation of powers between the different branches of the state and a system of 

appropriate checks and balances on the exercise of the respective functions and powers 

of these branches, such separation does not confer on the courts the sole authority to 

determine the nature and severity of sentences to be imposed on convicted persons. Both 

the legislature and the executive have a legitimate interest, role and duty, in regard to the 

imposition and subsequent administration of penal sentences’’. The Constitutional 

Court in both instances dismissed the constitutional challenges against these provisions 

and upheld the constitutional validity of the Act. Despite the fact that the legislation has 

been found to be constitutionally sound, certain practical problems experienced with the 

application of sections 51 and 52 have been identified, based on inputs by the Judiciary, 

the National Prosecuting Authority and other stakeholders. The Bill aims to address 

these practical problems, whilst retaining the principles underlying the Act. 

2. OBJECTS 

2.1 The Bill aims to expedite the finalisation of serious criminal cases, to punish 

offenders of certain serious offences appropriately and to avoid secondary victimisation 

of complainants, which, inter alia, occurs when vulnerable witnesses have to repeat 

their testimony in more than one court. 

2.2 The provision requiring a regional court to refer an accused for sentencing to a 

High Court is repealed. Regional courts are granted jurisdiction to impose life sentences 

in cases where this is prescribed. Provision is made for an automatic right of appeal in 

cases where a person is sentenced by a regional court to life imprisonment. The National 

Director of Public Prosecutions is required to adopt policy directives that set out which 

prosecutions must from the outset be instituted in the High Courts and not in the regional 

courts. 

2.3 When a sentence must be imposed in respect of the offence of rape, none of the 

following shall constitute substantial and compelling circumstances, justifying the 

imposition of a lesser sentence, namely: 

(a) any previous sexual history of the complainant; 

(b) an apparent lack of physical injury to the complainant; 

7 


(c) an accused person’s cultural or religious beliefs about rape; or 

(d) any relationship between the accused person and the complainant prior to the 

offence being committed. 

2.4 A presiding officer may, when imposing a sentence under the Act, under the new 

provisions, take into account the time that an accused was incarcerated as an awaiting 

trial prisoner. 

2.5 The Bill allows for up to half of a sentence imposed under section 51(2) to be 

suspended, if the accused person was 16 years of age or older, but under the age of 18 

years, at the time of the commission of the offence in question. 

2.6 The provision in terms of which sections 51 and 52 shall lapse after two years is 

repealed. 

2.7 The Bill amends Part I and Part IV to Schedule 2 to the Act. Part I is amended by 

the insertion of two further grounds under the category dealing with murder. Murder 

where the victim was killed in order to unlawfully remove any body part of the victim, 

or as a result of such unlawful removal of a body part of the victim or where the death 

of the victim resulted from or is directly related to, any offence contemplated in section 

1(a) to (e) of the Witchcraft Suppression Act, 1957 (Act No. 3 of 1957) is included in 

Part I. In Part IV, certain offences which were previously incorporated by reference to 

Schedule I to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), are now listed in 

that Part itself. 

2.8 The Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998) is amended 

by the repeal of the provisions in terms of which a regional court may (in terms of that 

Act) commit an accused for sentencing by a High Court. 

3. DEPARTMENTS/BODIES/PERSONS CONSULTED 

The Bill was developed in response to problems identified with the practical 

application of the Act by the Judiciary, the National Prosecuting Authority, the Western 

Cape Consortium on Violence Against Women and other stakeholders who made 

submissions to the Department. 

4. IMPLICATIONS FOR PROVINCES 

None. 

5. ORGANISATIONAL AND PERSONNEL IMPLICATIONS 

None. 

6. FINANCIAL IMPLICATIONS FOR STATE 

None. 

7. COMMUNICATION IMPLICATIONS 

None. 

8. PARLIAMENTARY PROCEDURE 

8.1 The State Law Advisers and the Department of Justice and Constitutional 

Development are of the opinion that this Bill must be dealt with in terms of the 

procedure established by section 75 of the Constitution of the Republic of South Africa, 

1996, since it contains no provision to which the procedure set out in section 74 or 76 of 

the Constitution applies. 

8.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill 

to the National House of Traditional Leaders in terms of section 18(1)(a) of the 

Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), 

since it does not contain provisions pertaining to customary law or customs of traditional 

communities. 

Printed by Creda Communications 

8 

ISBN 978-1-920240-??-? 


Copyright Juta & Company Limited 

WITCHCRAFT SUPPRESSION ACT 3 OF 1957 

[ASSENTED TO 19 FEBRUARY 1957] [DATE OF COMMENCEMENT: 22 FEBRUARY 1957] 

(English text signed by the Governor-General) 

as amended by 

Witchcraft Suppression Amendment Act 50 of 1970 

Abolition of Corporal Punishment Act 33 of 1997 

ACT 

To provide for the suppression of the practice of witchcraft and similar practices. 

1 Offences relating to the practice of witchcraft and similar practices 

Any person who- 

(a) imputes to any other person the causing, by supernatural means, of any disease in 

or injury or damage to any person or thing, or who names or indicates any other 

person as a wizard; 

(b) in circumstances indicating that he professes or pretends to use any supernatural 

power, witchcraft, sorcery, enchantment or conjuration, imputes the cause of 

death of, injury or grief to, disease in, damage to or disappearance of any person 

or thing to any other person; 

(c) employs or solicits any witchdoctor, witch-finder or any other person to name or 

indicate any person as a wizard; 

(d) professes a knowledge of witchcraft, or the use of charms, and advises any person 

how to bewitch, injure or damage any person or thing, or supplies any person with 

any pretended means of witchcraft; 

(e) on the advice of any witchdoctor, witch-finder or other person or on the ground of 

any pretended knowledge of witchcraft, uses or causes to be put into operation 

any means or process which, in accordance with such advice or his own belief, is 

calculated to injure or damage any person or thing; 

(f) for gain pretends to exercise or use any supernatural power, witchcraft, sorcery, 

enchantment or conjuration, or undertakes to tell fortunes, or pretends from his 

skill in or knowledge of any occult science to discover where and in what manner 

anything supposed to have been stolen or lost may be found, 

shall be guilty of an offence and liable on conviction- 


(i) in the case of an offence referred to in paragraph (a) or (b) in consequence of 

which the person in respect of whom such offence was committed, has been 

killed, or where the accused has been proved to be by habit or repute a 

witchdoctor or witch-finder, to imprisonment for a period not exceeding 20 years; 


[Para. (i) substituted by s. 2 of Act 33 of 1997.] 

(ii) in the case of any other offence referred to in the said paragraphs, to a fine or 

imprisonment for a period not exceeding ten years; 

[Para. (ii) substituted by s. 2 of Act 33 of 1997.] 

(iii) in the case of an offence referred to in paragraph (c), (d) or (e), to a fine not 

exceeding five hundred rand or to imprisonment for a period not exceeding five 

years, or to both such fine and such imprisonment; 

(iv) in the case of an offence referred to in paragraph (f), to a fine not exceeding two 

hundred rand or to imprisonment for a period not exceeding two years. 

2 Presumption 

[S. 1 substituted by s. 1 of Act 50 of 1970.] 

Where any person in respect of whom an offence referred to in paragraph (a) or (b) of 

section 1 was committed, is killed, it shall be presumed, until the contrary is proved, that such 

person was killed in consequence of the commission of such offence. 

3 Repeal of laws 

[S. 2 substituted by s. 2 of Act 50 of 1970.] 

The laws mentioned in the Schedule to this Act are hereby repealed to the extent set out in 

the fourth column of that Schedule. 

4 Short title 

This Act shall be called the Witchcraft Suppression Act, 1957. 

PROVINCE OR 

TERRITORY 

Cape of Good 

Hope 

NO AND YEAR OF 

LAW 

Schedule 

LAWS REPEALED 

Act 24 of 1886 The Black Territories' Penal 

code 

TITLE OR EXTENT OF REPEAL 

Chapter XI 


" Act 2 of 1895 The Witchcraft Suppression Act, 

1895 


The whole 

Natal Law 19 of 1891 Natal Code of Black Law Section one hundred and 

twenty-nine of the Schedule as 

substituted by Union 

Proclamation 168 of 1932 

Transvaal Ordinance 26 of 

1904 

Zululand Proclamation 11 of 

1887 

The Crimes Ordinance, 1904 Sections twenty-nine to 

thirty-four inclusive 

Laws and Regulations for the 

Government of Zululand 

Regulations nine and ten 

WITCHCRAFT SUPPRESSION AMENDMENT ACT 50 OF 1970 

[ASSENTED TO 11 SEPTEMBER 1970] [DATE OF COMMENCEMENT: 18 SEPTEMBER 1970] 

(English text signed by the State President) 

ACT 

To amend the Witchcraft Suppression Act, 1957, so as to make it an offence for a person 

who pretends to exercise supernatural powers, to impute the cause of certain occurrences 

to another person; and to provide for incidental matters. 

1 and 2 Substitute respectively sections 1 and 2 of the Witchcraft Suppression Act 3 of 1957. 

3 Short title 

This Act shall be called the Witchcraft Suppression Amendment Act, 1970. 


3 Penalties 

CHAPTER 2 

OFFENCES RELATING TO RACKETEERING ACTIVITIES (ss 2-3) 

(1) Any person convicted of an offence referred to in section 2 (1) shall be liable to a fine 

not exceeding R1 000 million, or to imprisonment for a period up to imprisonment for life. 

(2) Notwithstanding any other law dealing with the penal jurisdiction of the regional court, 

if a regional court, after it has convicted an accused of an offence referred to in section 2 (1) 

following on- 

(a) a plea of guilty; or 

(b) a plea of not guilty, 

but before sentence, is of the opinion that the offence in respect of which the accused has been 

convicted merits punishment- 

(i) in excess of the penal jurisdiction of the regional court but not exceeding a fine of 

R1 00 million or a period of 30 years imprisonment, the regional court shall have 

jurisdiction to impose such penalty even though that penalty exceeds the penal 

jurisdiction of that court; or 

(ii) exceeding a fine of R1 00 million or a period of 30 years imprisonment or merits 

imprisonment for life, the regional court shall stop the proceedings and commit 

the accused for sentence by a High Court having jurisdiction. 

(3) If a regional court has committed an accused for sentence by a High Court in terms of 

subsection (2) the provisions of section 52 of the Criminal Law Amendment Act, 1997 (Act 105 

of 1997), notwithstanding the provisions of section 53, shall apply with the necessary changes 

regarding the referral by the regional court to the High Court. 



Murder, when- 

Rape- 


Schedule 2 

(Section 51) 

[Schedule 2 amended by s. 37 of Act 62 of 2000.] 

PART I 

[Part I amended by s. 27 (1) of Act 33 of 2004.] 

(a) it was planned or premeditated; 

(b) the victim was- 

(i) a law enforcement officer performing his or her functions as such, whether 

on duty or not; or 

(ii) a person who has given or was likely to give material evidence with 

reference to any offence referred to in Schedule 1 to the Criminal Procedure 

Act, 1977 (Act 51 of 1977), at criminal proceedings in any court; 

(c) the death of the victim was caused by the accused in committing or attempting to 

commit or after having committed or attempted to commit one of the following 

offences: 

(i) Rape; or 

(ii) robbery with aggravating circumstances as defined in section 1 of the 

Criminal Procedure Act, 1977 (Act 51 of 1977); or 

(d) the offence was committed by a person, group of persons or syndicate acting in 

the execution or furtherance of a common purpose or conspiracy. 

(a) when committed- 

(i) in circumstances where the victim was raped more than once whether by the 

accused or by any co-perpetrator or accomplice; 

(ii) by more than one person, where such persons acted in the execution or 

furtherance of a common purpose or conspiracy; 

(iii) by a person who has been convicted of two or more offences of rape, but 

has not yet been sentenced in respect of such convictions; or 


(iv) by a person, knowing that he has the acquired immune deficiency syndrome 

or the human immunodeficiency virus; 

(b) where the victim- 

(i) is a girl under the age of 16 years; 

(ii) is a physically disabled woman who, due to her physical disability, is 

rendered particularly vulnerable; or 

(iii) is a mentally ill woman as contemplated in section 1 of the Mental Health 

Act, 1973 (Act 18 of 1973); or 

(c) involving the infliction of grievous bodily harm. 

Any offence referred to in section 2, 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the 

aforementioned sections) of the Protection of Constitutional Democracy against Terrorist and 

Related Activities Act, 2004, when it is proved that the offence has- 

(a) endangered the life or caused serious bodily injury to or the death of, any person, 

or any number or group of persons; 

(b) caused serious risk to the health or safety of the public or any segment of the 

public; or 

(c) created a serious public emergency situation or a general insurrection 


PART II 

[Part II amended by s. 36 (1) of Act 12 of 2004 and by s. 27 (1) of Act 33 of 2004.] 

Murder in circumstances other than those referred to in Part I. 

Robbery- 

(a) when there are aggravating circumstances; or 

(b) involving the taking of a motor vehicle. 

Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 1992 (Act 

140 of 1992), if it is proved that- 

(a) the value of the dependence-producing substance in question is more than R50 

000,00; 

(b) the value of the dependence-producing substance in question is more than R10 

000,00 and that the offence was committed by a person, group of persons, 


syndicate or any enterprise acting in the execution or furtherance of a common 

purpose or conspiracy; or 

(c) the offence was committed by any law enforcement officer. 

Any offence relating to- 

(a) the dealing in or smuggling of ammunition, firearms, explosives or armament; or 

(b) the possession of an automatic or semi-automatic firearm, explosives or 

armament. 

Any offence relating to exchange control, extortion, fraud, forgery, uttering, theft, or an 

offence in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned 

offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004- 

(a) involving amounts of more than R500 000,00; 

(b) involving amounts of more than R100 000,00, if it is proved that the offence was 

committed by a person, group of persons, syndicate or any enterprise acting in the 

execution or furtherance of a common purpose or conspiracy; or 

(c) if it is proved that the offence was committed by any law enforcement officer- 

(i) involving amounts of more than R10 000,00; or 

(ii) as a member of a group of persons, syndicate or any enterprise acting in the 

execution or furtherance of a common purpose or conspiracy. 

Any offence referred to in section- 

(a) 2, 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the aforementioned sections) of 

the Protection of Constitutional Democracy against Terrorist and Related 

Activities Act, 2004, in circumstances other than those referred to in Part I; or 

(b) 4 or 13. 


PART III 

Rape in circumstances other than those referred to in Part I. 

Indecent assault on a child under the age of 16 years, involving the infliction of bodily harm. 

Assault with intent to do grievous bodily harm on a child under the age of 16 years. 

Any offence in contravention of section 36 of the Arms and Ammunition Act, 1969 (Act 75 

of 1969), on account of being in possession of more than 1000 rounds of ammunition intended 


for firing in an arm contemplated in section 39 (2) (a) (i) of that Act. 


PART IV 

Any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), 

other than an offence referred to in Part I, II or III of this Schedule, if the accused had with him 

or her at the time a firearm, which was intended for use as such, in the commission of such 

offence. 


276B Fixing of non-parole-period 

(1) (a) If a court sentences a person convicted of an offence to imprisonment for a period of 

two years or longer, the court may as part of the sentence, fix a period during which the person 

shall not be placed on parole. 

(b) Such period shall be referred to as the non-parole-period, and may not exceed two thirds 

of the term of imprisonment imposed or 25 years, whichever is the shorter. 

(2) If a person who is convicted of two or more offences is sentenced to imprisonment and 

the court directs that the sentences of imprisonment shall run concurrently, the court shall, 

subject to subsection (1) (b), fix the non-parole-period in respect of the effective period of 

imprisonment. 


[S. 276B inserted by s. 22 of Act 87 of 1997.] 


Amendment to Part 1, II and III of Schedule 2 as a result 

of the Sexual Offences Bill. 




73 Length and form of sentences 

(1) Subject to the provisions of this Act- 

(a) a sentenced prisoner remains in prison for the full period of sentence; and 

(b) a prisoner sentenced to life imprisonment remains in prison for the rest of his or 

her life. 

(2) Any sick prisoner whose sentence has expired but whose release is certified by the 

medical officer to be likely to result in his or her death or impairment of his or her health or to be 

a source of infection to others, may be temporarily detained until his or her release is authorised 

by the medical officer. 

(3) A sentenced prisoner must be released from prison and from any form of community 

corrections imposed in lieu of part of a sentence of imprisonment when the term of imprisonment 

imposed has expired. 

(4) In accordance with the provisions of this Chapter a prisoner may be placed under 

correctional supervision or on day parole or on parole before the expiration of his or her term of 

imprisonment. 

(5) (a) Subject to the conditions of community corrections set by such Board or court- 

(i) a prisoner must be placed under correctional supervision or on day parole or on 

parole on a date determined by the Correctional Supervision and Parole Board; or 

(ii) in the case of a prisoner sentenced to life imprisonment on day parole or on parole 

on a date to be determined by the court. 

(b) Such placement is subject to the prisoner accepting the conditions for placement. 

(6) (a) Subject to the provisions of paragraph (b), a prisoner serving a determinate sentence 

may not be placed on parole until such prisoner has served either the stipulated non-parole 

period, or if no non-parole period was stipulated, half of the sentence, but parole must be 

considered whenever a prisoner has served 25 years of a sentence or cumulative sentences. 


[Para. (a) substituted by s. 27 (a) of Act 32 of 2001.] 

(b) A person who has been sentenced to- 

(i) periodical imprisonment, must be detained periodically in a prison as prescribed 

by regulation; 

(ii) imprisonment for corrective training, may be detained in a prison for a period of 

two years and may not be placed on parole until he or she has served at least 12 


months; 

(iii) imprisonment for the prevention of crime, may be detained in a prison for a 

period of five years and may not be placed on parole until he or she has served at 

least two years and six months; 

(iv) life imprisonment, may not be placed on parole until he or she has served at least 

25 years of the sentence but a prisoner on reaching the age of 65 years may be 

placed on parole if he or she has served at least 15 years of such sentence; 

(v) imprisonment contemplated in section 51 or 52 of the Criminal Law Amendment 

Act, 1997 (Act 105 of 1997), may not be placed on parole unless he or she has 

served at least four fifths of the term of imprisonment imposed or 25 years, 

whichever is the shorter, but the court, when imposing imprisonment, may order 

that the prisoner be considered for placement on parole after he or she has served 

two thirds of such term. 


[Sub-para. (v) substituted by s. 27 (b) of Act 32 of 2001.] 

(c) A person who has been declared an habitual criminal may be detained in a prison for a 

period of 15 years and may not be placed on parole until after a period of at least seven years. 

(7) (a) A person sentenced to imprisonment under section 276 (1) (i) of the Criminal 

Procedure Act, must serve at least one sixth of his or her sentence before being considered for 

placement under correctional supervision, unless the court has directed otherwise, but if more 

than one sentence has been imposed under section 276 (1) (i) of the said Act, the person may not 

be placed under correctional supervision for a period exceeding five years. 

(b) If a person has been sentenced to imprisonment under section 276 (1) (i) of the Criminal 

Procedure Act, and to imprisonment for a period not exceeding five years as an alternative to a 

fine the person must serve at least one sixth of the effective sentences before being considered 

for placement under correctional supervision, unless the court has directed otherwise. 

(c) If a person has been sentenced to imprisonment for- 

(i) a definite period under section 276 (1) (b) of the Criminal Procedure Act; 

(ii) imprisonment under section 276 (1) (i) of the said Act; 

(iii) a period not exceeding five years as an alternative to a fine, 

the person shall serve at least a quarter of the effective sentences imposed or the non-parole 

period, if any, whichever is the longer before being considered for placement under correctional 

supervision, unless the court has directed otherwise. 


(d) A person sentenced to imprisonment for a definite period in terms of section 276 (1) (b) 

of the said Act may not be placed under correctional supervision unless such sentence has been 

converted into correctional supervision in accordance with section 276A (3) of the said Act. 


[Date of commencement of s. 73: 1 October 2004.] 




IMPORTANT DECISIONS 


S v HOWELLS 1999 (1) SACR 675 (C) 

Citation 1999 (1) SACR 675 (C) 

Court Cape Provincial Division 

Judge Lategan J, Van Heerden AJ 

Heard March 5, 1999 

Judgment March 5, 1999 

Counsel F Murray for the appellant 

J Theron for the State 

Annotations Link to Case Annotations 

Flynote : Sleutelwoorde 

Copyright JUTA & Company Limited 

1999 (1) SACR p675 

Sentence - Factors affecting imposition of - Accused's minor children-'Best interests of the child 

principle' given international legal significance by ratification by South Africa of United Nations 

Convention on Rights of the Child. 

Fraud - Sentence - Imprisonment - Appellant convicted of having defrauded employer of R100 000 

over a period of two years - Appellant divorced mother of three minor children - Court on appeal 

considering interests of minor children but holding that magistrate had not misdirected herself in 

sentencing appellant to period of imprisonment. 

Sentence - Imprisonment - Imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of 

1977 - Period of - Maximum period to be determined by including therein any suspended 

imprisonment - Irregular to impose periods of both unsuspended and suspended imprisonment on 

accused in terms of s 276(1)(i) which in aggregate exceed five years. 

Headnote : Kopnota 

The appellant had been convicted in a regional court of fraud committed over a period of two 

years. It appeared that the appellant had defrauded her employer of the sum of approximately 

R100 000 by misrepresenting delivery notes. The appellant was divorced and had three minor 

children. From a report of a correctional official handed to the trial Court it appeared that the 

appellant had used the money mainly for gambling. The correctional official concluded that in 

the light of the seriousness of the offence consideration should be given to imposing 

correctional supervision in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977. The 

court sentenced the appellant to four years' imprisonment in terms of s 276(1)(i). 

On appeal, the Court held that the 'best interests of the child principle', which formed part of our 

common law as developed by the Courts, had been given international legal significance by the 

ratification by South Africa of the United Nations Convention on the Rights of the Child (1989), 

article 3(1) of which provided that 'in all actions concerning children, whether undertaken by 

public or private social welfare institutions, courts of law, administrative authorities or legislative 


odies, the best interests of the child shall be a primary consideration'. 

The Court held further that on the facts placed before it it appeared that there was a real risk 

that should the appellant be imprisoned the children would have to be taken into care: this was 

obviously highly regrettable and made the Court reluctant to condemn appellant to 

imprisonment. It was not satisfied that the magistrate had misdirected herself in considering that 

because of the nature and magnitude of the appellant's offence the interests of society 

outweighed the interests of the appellant and her children: the sentence imposed by the 

magistrate was necessary to serve the interests of society and the element of deterrence 

needed to curb the increasing incidents of white collar crime. The Court was nonetheless aware 

of the need to protect the interests of the appellant's minor children and included in its order 

provisions designed to achieve this end as best possible. 

VAN HEERDEN AJ 


1999 (1) SACR p676 

The Court however held that the magistrate had erred in imposing a sentence greater than five 

years: s 276A(2) of the Act read together with s 276(1)(i) made it clear that the maximum period 

of imprisonment to which an accused could be sentenced was five years and such maximum 

period of imprisonment was to be determined by including therein any suspended imprisonment 

imposed. 

The Court dismissed the appeal and amended the sentence imposed by the magistrate by 

reducing the period of suspended imprisonment from two years to one year. The Court 

requested the Registrar to approach the Department of Welfare and Population Development to 

investigate the circumstances of the appellant's minor children and to take all appropriate steps 

to ensure that the children were properly cared for in all respects during the appellant's period 

of imprisonment; that the children remain in contact with the appellant during her period of 

imprisonment and see her on a frequent and regular basis; and everything reasonably possible 

was done to ensure the reunification of the appellant with her children on the appellant's release 

from prison. 

Case Information 

Appeal from a sentence imposed in a regional magistrate's court. 

F Murray for the appellant. 

J Theron for the State. 

Judgment 

Van Heerden AJ: The appellant was convicted in the regional court of fraud committed over 

the period May 1994 to July 1996. She was sentenced to four years' imprisonment in terms of s 

276(1)(i) of the Criminal Procedure Act 51 of 1977 ('the Act'), plus a further two years' 

imprisonment suspended for a period of five years on certain conditions. She appeals against 

her sentence. 


The appellant pleaded guilty at the trial and a written statement was handed in on her behalf in 

terms of s 112(2) of the Act. In this statement, the appellant described in some detail how the 

fraud was committed. I quote the following from the plea statement handed into court as exh 'A': 

'1. I understand the charge against me. 

2. I plead guilty to the charge of fraud on the facts and circumstances as set out below. 

3. I was appointed as a clerk with the company Ampaglass (Pty) Ltd. 

4. Amongst other things, it was my duty to process orders placed by customers and to receive the monies 

paid by them. 

5. While processing delivery notes, I intentionally completed certain documents incorrectly. It was done in a 

manner that the books of the company reflected a lesser amount than was actually paid by the customer. I 

then pocketed the difference. 

6. In acting in aforesaid manner, I was able to steal an amount of ñ R100 000. It is not possible to determine 

the exact amount. This was done over a period of approximately two years. 

7. The monies were utilised to pay off debts which was (sic) in arrear and also to supplement my income in 

order to cover our monthly expenditures. 

8. I know what I did was wrong. I also knew it during the time I committed the crime. I nevertheless proceeded 

with my fraudulent behaviour in the hope that I will (sic) not be caught.' 



1999 (1) SACR p677 

After the appellant was properly found guilty in the court a quo, the State called two witnesses, 

namely Mr Martin Austin Baylis (a director of Ampaglass, based at its Goodwood office where 

the appellant was employed) and Mr Roy Wilson (the financial director of Ampaglass, based at 

its head office in Johannesburg). The magistrate then requested the compilation of a report by a 

correctional official, in terms of s 276A of the Act and postponed the hearing in order to enable 

such report to be compiled. 

At the resumed hearing, two further witnesses gave evidence for the State. The first was Mr 

Gary Philip Howells, the divorced husband of the appellant. The second witness was Ms Cheryl 

Samuels, a social worker in the employ of the Department of Correctional Services. She handed 

in and confirmed the report compiled by her in terms of s 276A(1)(a) of the Act (exh 'B'). In this 

report, Ms Samuels identified certain circumstances which could be regarded as favourable for 

a sentence of correctional supervision in terms of s 276(1)(h) of the Act, including appellant's 

work circumstances, possible support structures and the fact that appellant could in this way be 

ordered to pay compensation to the victim of her fraud. Despite these circumstances, Ms 

Samuels ended her report as follows: 

'Indien die erns van hierdie misdryf egter in ag geneem word, veral die feit dat geld hoofsaaklik vir dobbelary 

aangewend is, kan oorweging ook geskenk word aan korrektiewe toesig (art 276(1)(i), Wet 51/1977).' 

At the hearing of the appeal against sentence on 12 February 1999, appellant's counsel, Mr 

Murray, applied for and was granted leave to place two affidavits on record, one deposed to by 

appellant herself and the other by Mr Arthur Henry Wood, a warrant-officer (First Class) in the 


South African Navy and the head of the division of the Navy in which appellant's divorced 

husband is employed. 

Relevant facts to be gathered from the record and the documents to which I have referred may 

be summarised as follows. The appellant is 36 years of age and has three minor children, twin 

boys of six years of age and another son aged nine years. She was employed by Ampaglass 

(Pty) Limited from October 1990 until her dismissal in July 1996. She was very good at her 

work (described by Mr Baylis as 'extremely efficient') and her employer trusted her totally. Her 

duties included dealing with customers, handling cash monies and writing out delivery notes. It 

was by the manipulation of these delivery notes that she managed to steal approximately R100 

000 from her employer over a period of about two years, until her fraud was discovered by her 

employer in the middle of 1996. This discovery led to her dismissal from Ampaglass in July 

1996. Appellant was divorced from her husband, Mr Gary Philip Howells, on 1 April 1997. 

According to the evidence of Mr Howells, the marriage 'had fallen apart and when I heard the 

truth about what she had got up to, I just could not trust her anymore'. It was after his discovery 

of the appellant's fraud that Mr Howells instituted divorce proceedings against her. Appellant 

was awarded custody of the three minor children of the marriage and it would appear that Mr 

Howells has exercised fairly liberal access (including staying access) to the children since the 

divorce. It also 



1999 (1) SACR p678 

appears that Mr Howells pays maintenance to the appellant for the three minor children in the 

total sum of R900 per month. 

Mr Howells admitted in the court a quo that he is an alcoholic and that, during the course of his 

marriage to the appellant, he used to become aggressive while under the influence of alcohol 

and physically abused his wife. He also admitted that, in December 1996, while under the 

influence of alcohol, he had given his eldest son 'a hiding', which incident had resulted in the 

appellant approaching the police with a complaint of assault on the said child. Mr Howells had 

voluntarily admitted himself to Libertas Hospital for a period of three weeks for treatment for his 

drinking problem, which period of treatment had come to an end approximately one month prior 

to the resumed hearing in the court a quo on 12 February 1998. In his evidence at the resumed 

hearing, Mr Howells was adamant that his drinking problem had been 'sorted out', that he was 

no longer drinking and that he was determined to 'stay dry'. It would, however, appear from the 

abovementioned affidavits deposed to by the appellant and by Mr Arthur Henry Wood that Mr 

Howells has certainly not managed to 'stay dry'; on the contrary, his drinking problem seems to 

have got considerably worse. On one occasion in March 1998, while the three minor children 

were staying with Mr Howells in his residence at the Wingfield Military Base, he was so drunk 

that he was unable to care for the children and Mr Wood had to make arrangements for the 

children to spend the night in the care of other people. Furthermore, after several incidents of 

being absent without leave from his duties as a naval chef, Mr Wood had to relieve him of such 

duties on 11 December 1998 because he was under the influence of alcohol. The following 

Monday Mr Howells did not report for duty and a warrant for his arrest was issued. He was 

arrested on 2 December 1998 and placed in the military detention barracks pending his 


appearance before a court martial on various charges, all relating to either his drinking problem 

or his absence from duty without leave on various occasions. 

Although the appellant and her husband may well have had certain financial difficulties during 

the two-year period over which the fraud was committed, it does not seem that they were in dire 

financial straits. It would also appear that appellant herself contributed to the financial problems 

by gambling on a fairly regular basis, apparently as a way of escaping from her marital problems 

and the unpleasant situation in her home. 

At the time of imposition of sentence by the court a quo, the appellant was employed full time 

by Personnel Supply Services and had been working on a contract basis at Reader's Digest in 

Cape Town for over one year. Although her earnings and the maintenance received from her 

ex-husband were apparently sufficient to enable her to care for herself and her three children, 

she was not in a financial position to repay any of the money defrauded from her employer. 

According to the report prepared by Ms Samuels in terms of s 276A(1)(a) of the Act, appellant 

made no suggestions regarding repayment of this money. 

Various grounds of appeal were noted and pursued in argument. 

Mr Murray, who appeared for the appellant, argued that the regional magistrate had to a certain 

extent relied on the evidence and recommen- 



1999 (1) SACR p679 

dation of Ms Samuels in imposing sentence; that the report prepared by Ms Samuels was 

unsatisfactory in that, by her own admission, certain aspects thereof had not been properly 

checked (despite her affidavit to the effect that her report 'op gekontroleerde feite berus'); that 

Ms Samuels was a bad witness in several respects, inter alia, in that she appeared to place 

undue emphasis in both her report and her evidence on appellant's failure to make suggestions 

in respect of paying compensation to the complainant, regarding this as indicative of a lack of 

remorse on the part of appellant; and that the regional magistrate had therefore erred in 

following Ms Samuels' recommendation as to sentence. 

Mr Murray further argued that a sentence in terms of s 276(1)(i) of the Act was not the most 

appropriate sentence in the circumstances of this case. In this regard, he contended that 

appellant was a productive person who could make a positive contribution in her work 

environment to the interests of the community as a whole. Moreover, appellant had already 

suffered to a considerable degree as a consequence of her criminal activity and would suffer 

further if, as appeared likely, her employer were to institute civil proceedings against her to 

recover compensation. Although appellant clearly was most to blame for the crime committed, 

her fraud had to some extent been rendered possible by her employer's inadequate control 

systems at the time. Appellant had also co-operated fully with her employer in the investigation 

following the discovery of her fraud and had pleaded guilty at the trial. 

Finally, Mr Murray emphasised the interests of appellant's minor children and the fact that it 

appeared from the record and from the affidavits handed in at the hearing of the appeal that the 


appellant's ex-husband is not a suitable person to care for the children because of his 

alcoholism and the difficulties to which this has given rise. The maternal grandparents, although 

prepared to assist with the care of the children, both work on a full-time basis and live in 

Gansbaai where there are no English-medium schools (the children's mother-tongue is English). 

Imprisonment of the appellant would therefore be clearly detrimental to the interests of the three 

minor children. 

It is trite law that the determination of sentence is pre-eminently a matter for the discretion of the 

trial court. In the exercise of this function the trial court has a wide discretion both in deciding 

which factors should influence the court in determining an appropriate sentence, and in 

determining the weight to be attached to each factor taken into account (S v Kibido 1998 (2) 

SACR 213 (SCA) at 216g-h). A Court of appeal may only interfere with the sentence imposed 

by the trial court if the presiding officer has committed a material misdirection and/or has acted 

in a manner not befitting a judicial officer (S v B 1996 (2) SACR 543 (C) at 550j-551a, referring 

to Kriegler Hiemstra: Suid - Afrikaanse Strafproses 5th ed at 802). It would appear that a Court 

of appeal may legitimately conclude that the trial court has exercised its discretion in an 

improper or unreasonable manner when the appeal Court is satisfied: (a) that as a result of a 

material misdirection, the trial court has not exercised its discretion at all, or has exercised it in 

an unreasonable or improper manner; and/or (b) that the trial court could not reasonably have 

imposed the sentence which it did impose (S v Brand 1998 (1) SACR 296 (C) at 



1999 (1) SACR p680 

303c-e, referring to S v Pillay 1977 (4) SA 531 (A) at 535E - F and S v Pieters 1987 (3) SA 717 

(A) at 734E). 

As regards the first ground referred to above, a failure by the trial court to take certain factors 

into account in determining an appropriate sentence, or an improper determination of the 

relative weight to be attached to such factors, does indeed constitute a misdirection, but 'only 

when the dictates of justice carry clear conviction that an error has been committed in this 

regard' (per Olivier JA in S v Kibido (supra) at 216h-i). As regards the second ground referred to 

above, the question whether the trial court could reasonably have imposed the sentence 

concerned must be assessed by determining whether there is a striking difference between the 

length and/or nature of the sentence imposed by the trial court, and the sentence which the 

Court of appeal, sitting as a court of first instance, would have imposed. (S v Brand (supra) at 

303g-h.) What must be considered in determining an appropriate sentence is 'the triad 

consisting of the crime, the offender and the interests of society' (per Rumpff J (as he then was) 

in S v Zinn 1969 (2) SA 537 (A) at 540G, repeatedly cited with approval in subsequent cases). 

As pointed out by Friedman J in S v Banda and Others 1991 (2) SA 352 (B) at 355A - C: 

'The elements of the trial contain an equilibrium and a tension. A court should, when determining sentence, strive 

to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one 

element is not unduly accentuated at the expense of and to the exclusion of the others. This is not merely a 

formula, nor a judicial incantation, the mere stating whereof satisfies the requirements. What is necessary is that 

the court shall consider, and try to balance evenly, the nature and circumstances of the offence, the 

characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare 


and concern.' 

I agree with Mr Murray that the report prepared by Ms Samuels in terms of s 276A(1)(a) of the 

Act was not satisfactory in all respects. In particular, Ms Samuels does indeed appear to have 

based her expressed doubts as to true remorse on the part of the appellant chiefly, if not 

exclusively, on the inability and perceived unwillingness of the appellant to repay the money 

stolen from her employer. The heavy emphasis placed by Ms Samuels on the aspect of 

compensation also appears from her evidence. I do not, however, agree that the regional 

magistrate attached undue weight to the report and the evidence of Ms Samuels in imposing 

sentence on the appellant. It appears from the record and from the magistrate's judgment on 

sentence that she did carefully consider the various sentencing options in the light of the 

circumstances of this case and that her decision to impose a sentence in terms of s 276(1)(i) of 

the Act, rather than in terms of s 276(1)(h) as requested by Mr Murray, was arrived at in an 

objective and independent manner. 

I am also not convinced that the magistrate acted unreasonably or improperly in concluding 

that the seriousness of the crime and the interests of society warranted the sentence ultimately 

imposed. The crime committed by the appellant was a very serious one, involving the betrayal 

of a position of trust by means of a systematic and calculated course of conduct continuing 

over a period of more than two years. The appellant is, moreover, not a first offender, having 

been previously convicted of 



1999 (1) SACR p681 

fraud in November 1989. The fact that, in view of the sentence imposed, this previous 

conviction related to a less serious offence was properly taken into consideration by the 

magistrate. 

In a number of recent cases, Courts have taken judicial notice of the disturbing increase in the 

incidence of the type of white-collar crime committed by the appellant, namely fraud and theft 

committed by people in positions of trust, and have taken this into account in imposing sentence 

(see, for example, S v Blank 1995 (1) SACR 62 (A) at 79d-e, S v Brand (supra) at 306f-g, S v 

Erasmus 1998 (2) SACR 466 (SE) at 472c-d. See also S v Prinsloo 1998 (2) SACR 669 (W) at 

672b-e, where Leveson J expressed the view that 

'theft from an employer must be heavily penalised. The employer is entitled to expect unswerving honesty from 

the employee in return for the wages he pays and the benefits he gives him. . . . (T)he employer is in a particularly 

vulnerable position in relation to employees who choose to deal dishonestly with the employer's assets. I consider 

it the duty of the courts whenever this sort of misdemeanour is detected to send out the message that such 

conduct will be severely punished.' 

The increase in fraud and theft committed by persons in a fiduciary position and the need to 

deter both the appellant and others from committing similar acts in future were factors adverted 

to by the magistrate in her judgment on sentence. I do not, however, consider that the 

magistrate attached undue weight to these considerations. 

The appellant's personal circumstances and, in particular, the interests and needs of her minor 


children would undoubtedly best be served by a sentence of correctional supervision in terms of 

s 276(1)(h) of the Act. I have anxiously considered the effect on the minor children of the 

sentence imposed by the magistrate, bearing in mind the constitutional injunction that 'a child's 

best interests are of paramount importance in every matter concerning the child', as also the 

constitutionally entrenched right of every child 'to family care or parental care, or to appropriate 

alternative care when removed from the family environment' (s 28(2) and s 28(1)(b) of the 

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)). The 'best interests of the 

child principle', which forms part of our common law as developed by the Courts, is given 

international legal significance by the ratification by South Africa, on 16 June 1995, of the United 

Nations Convention on the Rights of the Child (1989), art 3(1) of which provides that '(i)n all 

actions concerning children, whether undertaken by public or private social welfare institutions, 

courts of law, administrative authorities or legislative bodies, the best interests of the child shall 

be a primary consideration'. See further in this regard Julia Sloth - Nielsen 'Ratification of the 

United Nations Convention on the Rights of the Child: Some Implications for South African Law' 

(1995) 11 SAJHR 401 at 408-9. 

The impact of these constitutional and international legal provisions on the determination of 

appropriate sentences for convicted offenders, particularly in cases where the offender is the 

primary caregiver of minor children, has not yet been grappled with by our courts in any detail. 

The 'best interests of the child' principle has, however, played an important role in other areas of 

the criminal justice system, such as the 1994 



1999 (1) SACR p682 

decision of the President to grant a special remission of sentence to certain categories of 

prisoners including 'all mothers in prison on 10 May 1994, with minor children under the age of 

12 years'. The relevant Presidential Act was considered by the Constitutional Court in President 

of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) and upheld by a 

majority of the Court as being in accordance with the provisions of the interim Constitution 

(Constitution of the Republic of South Africa, 1993 (Act 200 of 1993)). Reference may also be 

made to the very recent decision of Cloete J in S v Kika 1998 (2) SACR 428 (W) where the 

learned Judge referred to the provisions of s 28(1)(b) of the final Constitution in holding that '(a) 

judicial officer who imposes a sentence of imprisonment on an accused who is the custodian of 

a minor child must make appropriate enquiries with a view to issuing an order as contemplated 

in s 11(1) of the Child Care Act 74 of 1983' (at 430d-e). In that case, the sentence imposed by 

the magistrate (on an accused convicted of assault with intent to commit grievous bodily harm) 

was set aside on review and the matter referred back to the magistrate for the purposes of 

sentence. If the sentence imposed would result in the imprisonment of the accused, the 

magistrate was directed 'to conduct an enquiry with a view to determining whether an order in 

terms of s 11 of the Child Care Act should be made or otherwise to satisfy himself that proper 

provision is made for the welfare of the children of the accused' (at 431h-i). 

On the facts placed before this Court, it would appear that there is a real risk that, should the 

appellant be imprisoned, her children will have to be taken into care. This is obviously highly 

regrettable and makes this Court reluctant to condemn appellant to imprisonment. But it is 


undoubtedly true that 'detection, apprehension and punishment in the way of imprisonment are 

prospects which a person embarking on this sort of crime must always foresee' (S v Prinsloo 

(supra) at 672i). 

In casu the magistrate considered that, because of the nature and magnitude of appellant's 

offence, the interests of society outweighed the interests of the appellant and her children. I am 

not satisfied that the magistrate misdirected herself in any way in this regard. The sentence 

imposed by the magistrate was in my view necessary to serve the interests of society and the 

element of deterrence needed to curb the increasing incidence of white-collar crime in this 

country (see in this regard S v Erasmus (supra at 473a-b) and S v Sinden 1995 (2) SACR 704 

(A) at 709b-c). This Court is nevertheless keenly aware of the need to protect the interests of 

the appellant's minor children and will in its order include provisions designed to achieve this 

end as best possible. 

In one respect, however, the sentence imposed by the magistrate is irregular and will have to 

be amended by this Court, as conceded by Mr Theron, counsel for the State in this appeal. As 

indicated above, the magistrate sentenced the appellant to four years' imprisonment in terms of 

s 276(1)(i) of the Act, plus a further two years' imprisonment suspended for a period of five 

years on certain conditions. Section 276A(2) of the Act, read together with s 276(1)(i), makes it 

clear that the maximum period of imprisonment to which an accused may be sentenced in 

terms of the later section is five years. In S v Slabbert 1998 (1) SACR 646 (SCA), 



1999 (1) SACR p683 

the Supreme Court of Appeal held (correctly, it is submitted) that such maximum period of 

imprisonment is to be determined by including therein any suspended imprisonment imposed 

and that it is irregular to impose periods of both unsuspended and suspended imprisonment on 

the accused, when acting in terms of the said sections, which in aggregate exceed five years. 

For the above reasons, I recommend that the following order be made: 

The appeal against the sentence is dismissed. 

The sentence imposed by the regional magistrate is amended by reducing the period of 

suspended imprisonment from two years to one year. The rest of the sentence imposed by the 

regional magistrate (including the conditions of suspension) is confirmed. 

The Registrar of this Court is requested immediately to approach the Department of Welfare 

and Population Development with the following request: 

3.1 That the Department of Welfare and Population Development investigate the 

circumstances of appellant's three minor children without delay and take all 

appropriate steps to ensure that 

3.1.1 the children are properly cared for in all respects during the appellant's period of 

imprisonment; 


3.1.2 the children remain in contact with the appellant during her period of imprisonment 

and see her on a frequent and regular basis, insofar as prison regulations permit; 

and 

3.1.3 everything reasonably possible is done to ensure the reunification of the appellant 

with her children on appellant's release from prison and the promotion of the 

interests of the family unit thereafter. 

Lategan J concurred. 



In the matter between 

THE SUPREME COURT OF APPEAL 

OF SOUTH AFRICA 

REPORTABLE 

Case No: 117/2000 

HENNA MALGAS Appellant 

and 

THE STATE Respondent 

CORAM: HARMS, MARAIS, CAMERON JJA CHETTY et MTHIYANE 

AJJA 

DATE HEARD: 16 February 2001 

DATE DELIVERED: 19 March 2001 

Minimum sentences for certain serious offences - murder - life imprisonment - s 51(3)(a) 

Act 51 of 1977 - substantial and compelling circumstances justifying lesser sentence - 

interpretation of provision. 

JUDGMENT 

MARAIS JA 


MARAIS JA: [1] Judicial hostility to legislative prescriptions which strip 

courts of their sentencing discretion is hardly surprising. Given the infinite variety 

of circumstances which attend the commission of crimes, who are better placed 

than the courts, which experience daily the complexities of imposing sentences 

which are as just as human fallibility can make them, to understand the arbitrariness 

and potential unjustness of such edicts? Sentencing has rightly been described as 

“a lonely and onerous task” 1 . For those who must shoulder that responsibility in 

society’s name, to have to impose a statutorily decreed sentence which is 

manifestly unjust in the particular circumstances of the case is a monstrous thing. 

[2] That said, there is a significant distinction between, on the one hand, a 

legislative provision which does in truth deprive a court of any sentencing discretion 

at all, or so attenuates it that its existence is illusory, and, on the other, one which 

1 J Hogarth, Sentencing as a Human Process (1971) U. of Toronto 

P., p.5. (Cited in Stockdale and Devlin on Sentencing, 1987, p 8). 


2

fetters only partially the exercise of the discretion and leaves it otherwise largely 

intact. Ritualistic incantations of the doctrine of the separation of powers to justify 

resistance to any form of legislative intervention in this regard seem to me to lack 

plausibility. Subject of course to constraints going to substance imposed by the 

Constitution, Parliament is obviously empowered to create new offences and 

abolish old ones (whether they were statutorily created or originated in the common 

law) and to provide for the penalties courts may impose. It may, and does, limit 

the sentencing powers of courts in a variety of ways. The types of sentence which 

may be imposed may be laid down, for example, those listed in s 276 of the 

Criminal Procedure Act 51 of 1977. A maximum penalty of one kind or another 

may be specified. Even in those countries where the doctrine of the separation of 

powers is an article of faith, legislatures have been doing such things for generations 

without protest from the judiciary or the citizenry. No court exercising criminal 

jurisdiction in South Africa could convincingly claim to be the sole constitutional 


3

epository of power to do such things. Indeed, the courts have no inherent power 

to do any such thing. They cannot create new crimes. Nor can they invent a new 

kind of penalty such as, for example, physical detention under lock and key at 

some place other than a prison. 

[3] What is rightly regarded as an unjustifiable intrusion by the legislature 

upon the legitimate domain of the courts, is legislation which is so prescriptive in 

its terms that it leaves a court effectively with no sentencing discretion whatsoever 

and obliges it to pass a specific sentence which, judged by all normal and well- 

established sentencing criteria, could be manifestly unjust in the circumstances of 

a particular case. Such a sentencing provision can accurately be described as a 

mandatory provision in the pejorative sense intended by opponents of legislative 

incursions into this area. 2 A provision which leaves the courts free to exercise a 

substantial measure of judicial discretion is not, in my opinion, properly described 

2 S v Toms; S v Bruce 1990 (2) SA 802 (A) at 806H - 807D. 


4

as a mandatory provision in that sense. As I see it, this case is concerned with 

such a provision. 

[4] Sections 51 and 53 of the Criminal Law Amendment Act 105 of 1997 

provide: 

“51. Minimum sentences for certain serious offences. - (1) 

Notwithstanding any other law but subject to subsections (3) and (6), a High Court 

shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, 

sentence the person to imprisonment for life. 

(2) Notwithstanding any other law but subject to subsections (3) and (6), 

a regional court or a High Court shall - 

(a) if it has convicted a person of an offence referred to in Part II of 

Schedule 2, sentence the person in the case of - 


years; 




imprisonment for a period not less than 25 years; 

(b) if it has convicted a person of an offence referred to in Part III of 

Schedule 2, sentence the person, in the case of - 


years; 




5


imprisonment for a period not less than 20 years; and 

(c) if it has convicted a person of an offence referred to in Part IV of 

Schedule 2, sentence the person, in the case of - 


years; 




imprisonment for a period not less than 10 years: 

Provided that the maximum sentence that a regional court may impose in 

terms of this subsection shall not be more than five years longer than the 

minimum sentence that it may impose in terms of this subsection; 

(3)(a) If any court referred to in subsection (1) or (2) is satisfied that 

substantial and compelling circumstances exist which justify the 

imposition of a lesser sentence than the sentence prescribed in those 

subsections, it shall enter those circumstances on the record of the 

proceedings and may thereupon impose such lesser sentence. 

(b) If any court referred to in subsection (1) or (2) decides to impose a 

sentence prescribed in those subsections upon a child who was 16 

years of age or older; but under the age of 18 years, at the time of the 

commission of the act which constituted the offence in question, it 

shall enter the reasons for its decision on the record of the 

proceedings. 

(4) Any sentence contemplated in this section shall be calculated from the 

date of sentence. 

(5) The operation of a sentence imposed in terms of this section shall not 

be suspended as contemplated in section 297(4) of the Criminal Procedure Act, 

1977 (Act 51 of 1977). 

(6) The provisions of this section shall not be applicable in respect of a 


6

child who was under the age of 16 years at the time of the commission of the act 

which constituted the offence in question. 

(7) If in the application of this section the age of a child is placed in issue, 

the onus shall be on the State to prove the age of the child beyond reasonable 

doubt. 

(8) (Omitted because immaterial.)” 

“53. Saving. - (1) Sections 51 and 52 shall, subject to subsections (2) 

and (3), cease to have effect after the expiry of two years from the commencement 

of this Act. 

(2) The period referred to in subsection (1) may be extended by the 

President, with the concurrence of Parliament, by proclamation in the Gazette for 

one year at a time. 

(3) Any appeal against - 

(a) a conviction of an offence referred to in Schedule 2 of this Act and a 

resultant sentence imposed in terms of section 51; or 

(b) a sentence imposed in terms of section 51, shall be continued and 

concluded as if section 51 had at all relevant times been in operation.” 

[5] Schedule 2 is as follows: 

“PART I 

Murder, when - 


(b) the victim was - 

(i) a law enforcement officer performing his or her functions as such, 

whether on duty or not; or 


7

(ii) a person who has given or was likely to give material evidence with 

reference to any offence referred to in Schedule 1 to the Criminal 

Procedure Act, 1977 (Act 51 of 1977), at criminal proceedings in any 

court; 

(c) the death of the victim was caused by the accused in committing or 

attempting to commit or after having committed or attempted to commit one 

of the following offences: 

(i) Rape; or 

(ii) robbery with aggravating circumstances; or 

(d) the offence was committed by a person, group of persons or syndicate 

acting in the execution or furtherance of a common purpose or conspiracy. 

Rape - 

(a) when committed - 

(i) in circumstances where the victim was raped more than once whether 

by the accused or by any co-perpetrator or accomplice; 

(ii) by more than one person, where such persons acted in the execution 

of furtherance or a common purpose or conspiracy; 

(iii) by a person who has been convicted of two or more offences of rape, 

but has not yet been sentenced in respect of such convictions; or 

(iv) by a person, knowing that he has the acquired immune deficiency 

syndrome or the human immunodeficiency virus; 

(b) where the victim - 


(ii) is a physically disabled woman who, due to her physical disability, is 

rendered particularly vulnerable; or 

(iii) is a mentally ill woman as contemplated in section 1 of the Mental 


8

Health Act, 1973 (Act 18 of 1973); or 

(c) involving the infliction of grievous bodily harm. 

PART II 

Murder in circumstances other than those referred to in Part 1. 

Robbery - 

(a) when there are aggravating circumstances; or 

(b) involving the taking of a motor vehicle. 

Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 

1993 (Act 140 of 1992). If it is proved that - 

(a) the value of the dependence producing substance in question is more than 

R50 000,00; 

(b) the value of the dependence-producing substance in question is more than 

R10 000,00 and that the offence was committed by a person, group of 

persons, syndicate or any enterprise acting in the execution of furtherance of 

a common purpose or conspiracy; or 

(c) the offence was committed by any law enforcement officer. 

Any offence relating to - 

(a) the dealing in or smuggling of ammunition, firearms, explosives or armament; 

or 

(b) the possession of an automatic or semi-automatic firearm, explosives or 

armament. 

Any offence relating to exchange control, corruption, extortion, fraud, forgery, 

uttering or theft - 

(a) involving amounts of more than R500 000,00 


9

(b) involving amounts of more than R100 000,00, if it is proved that the offence 

was committed by a person, group of persons, syndicate or any enterprise 

acting in the execution or furtherance of a common purpose or conspiracy; 

or 

(c) if it is proved that the offence was committed by any law enforcement officer 

- 

PART III 

(i) involving amounts of more than R10 000,00; or 

(ii) as a member of a group of persons, syndicate or any enterprise acting 

in the execution or furtherance of a common purpose or conspiracy. 

Rape in circumstances other than those referred to in Part I. 

Indecent assault on a child under the age of 16 years, involving the infliction of 

bodily harm. 

Assault with intent to do grievous bodily harm on a child under the age of 16 years. 

Any offence in contravention of section 36 of the Arms and Ammunition Act, 1969 

(Act 75 of 1969), on account of being in possession of more than 1000 rounds of 

ammunition intended for firing in an arm contemplated in section 39 (2)(a)(i) of that 

Act. 

PART IV 

Any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 

of 1977), other than an offence referred to in Part I, II. or III of this Schedule, if the 

accused had with him or her at the time a firearm, which was intended for use as 

such, in the commission of such offence.” 


10

[6] There have been a number of decisions 3 in which the High Courts have 

considered the import of the injunction to impose imprisonment for life upon a 

person convicted of an offence referred to in Part 1 of Schedule 2 (or imprisonment 

for other specified periods for offences listed in other parts of Schedule 2) unless 

satisfied that substantial and compelling circumstances exist which justify the 

imposition of a lesser sentence. The interpretations placed upon the provisions 

have been discordant and that necessitates this Court considering the question 

afresh in deciding the outcome of the appeal against sentence in this matter. In 

3 S v Mofokeng and Another 1999 (1) SACR 502 (W); S v Segole and 

Another 1999 (2) SACR 115 (W); S v Zitha and Others 1999 (2) 

SACR 404 (W); S v Jansen 1999 (2) SACR 368 (C); S v Swartz and 

Another 1999 (2) SACR 380 (C); S v Blaauw 1999 (2) SACR 295 

(W); S v Shongwe 1999 (2) SACR 220 (O); S v Dithotze 1999 (2) 

SACR 314 (W); S v Homareda 1999 (2) SACR 319 (W); S v Van 

Wyk 2000 (1) SACR 45 (C); S v N 2000 (1) SACR 209 (W); S v Boer 

en Andere 2000 (2) SACR 114 (NC); S v Kanjwayo; S v Mihlali 

1999 (2) SACR 651 (O); S v Montgomery 2000 (2) SACR 318 (N). 

Unreported cases: S v Mthembu and Another, 365/98 WLD (Leveson 

J) 22.10.1998; S v Madondo, cc 22/99 NPD (Squires J) 30.3.1999; 

S v Ngubane, cc 31/99 NPD (Squires J) 30.3.1999; S v Cimani, cc 

11/99 ECD (Jones J) 28.4.1999; S v Oliphant, cc 27/99 SECLD 

(Erasmus J); S v Van Rooyen en Andere, cc 18/00 SECLD (Kroon J) 

7.6.2000. 


11

doing so, I have found much of great help in those judgments for which I am 

grateful. Valuable as they are, a dissection and discussion of each of them would 

result in an indigestible judgment. Instead, I shall approach the problem as if the 

matter was res nova but with the advantage of the insights which the reading of 

those judgments has given. 

[7] First, some preliminary observations. The provisions are to be read in the 

light of the values enshrined in the Constitution and, unless it does not prove 

possible to do so, interpreted in a manner which respects those values. 4 Due 

weight must be given to the fact that these provisions were not intended to be 

permanent fixtures on the legislative scene and were to lapse after two years unless 

extended annually. (They were put into operation on 1 May 1998 and were 

extended for 12 months with effect from 1 May 2000.) That shows that when 

4 S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) at 1100I 

- 1102B. 


12

conceived they were intended to be relatively short-term responses to a situation 

which it was hoped would not persist indefinitely. That situation was and remains 

notorious: an alarming burgeoning in the commission of crimes of the kind specified 

resulting in the government, the police, prosecutors and the courts constantly being 

exhorted to use their best efforts to stem the tide of criminality which threatened 

and continues to threaten to engulf society. It was of course open to the High 

Courts even prior to the enactment of the amending legislation to impose life 

imprisonment in the free exercise of their discretion. The very fact that this 

amending legislation has been enacted indicates that parliament was not content with 

that and that it was no longer to be “business as usual” when sentencing for the 

commission of the specified crimes. 

[8] In what respects was it no longer to be business as usual? First, a court 

was not to be given a clean slate on which to inscribe whatever sentence it thought 

fit. Instead, it was required to approach that question conscious of the fact that the 


13

legislature has ordained life imprisonment or the particular prescribed period of 

imprisonment as the sentence which should ordinarily be imposed for the 

commission of the listed crimes in the specified circumstances. In short, the 

legislature aimed at ensuring a severe, standardised, and consistent response from 

the courts to the commission of such crimes unless there were, and could be seen 

to be, truly convincing reasons for a different response. When considering 

sentence the emphasis was to be shifted to the objective gravity of the type of crime 

and the public’s need for effective sanctions against it. But that did not mean that 

all other considerations were to be ignored. The residual discretion to decline to 

pass the sentence which the commission of such an offence would ordinarily attract 

plainly was given to the courts in recognition of the easily foreseeable injustices 

which could result from obliging them to pass the specified sentences come what 

may. 

[9] Secondly, a court was required to spell out and enter on the record the 


14

circumstances which it considered justified a refusal to impose the specified 

sentence. As was observed in Flannery v Halifax Estate Agencies Ltd 5 by the 

Court of Appeal, “a requirement to give reasons concentrates the mind, if it is 

fulfilled the resulting decision is much more likely to be soundly based --- than if it 

is not”. Moreover, those circumstances had to be substantial and compelling. 

Whatever nuances of meaning may lurk in those words, their central thrust seems 

obvious. The specified sentences were not to be departed from lightly and for 

flimsy reasons which could not withstand scrutiny. Speculative hypotheses 

favourable to the offender, maudlin sympathy, aversion to imprisoning first 

offenders, personal doubts as to the efficacy of the policy implicit in the amending 

legislation, and like considerations were equally obviously not intended to qualify 

as substantial and compelling circumstances. Nor were marginal differences in the 

personal circumstances or degrees of participation of co-offenders which, but for 

5 [2000] 1 WLR 377 at 381H 


15

the provisions, might have justified differentiating between them. But for the rest 

I can see no warrant for deducing that the legislature intended a court to exclude 

from consideration, ante omnia as it were, any or all of the many factors 

traditionally and rightly taken into account by courts when sentencing offenders. 

The use of the epithets “substantial” and “compelling” cannot be interpreted as 

excluding even from consideration any of those factors. They are neither notionally 

nor linguistically appropriate to achieve that. What they are apt to convey, is that 

the ultimate cumulative impact of those circumstances must be such as to justify 

a departure. It is axiomatic in the normal process of sentencing that, while each of 

a number of mitigating factors when viewed in isolation may have little persuasive 

force, their combined impact may be considerable. Parliament cannot have been 

ignorant of that. There is no indication in the language it has employed that it 

intended the enquiry into the possible existence of substantial and compelling 

circumstances justifying a departure, to proceed in a radically different way, namely, 


16

y eliminating at the very threshold of the enquiry one or more factors traditionally 

and rightly taken into consideration when assessing sentence. None of those 

factors have been singled out either expressly or impliedly for exclusion from 

consideration. 

[10] To the extent therefore that there are dicta in the previously decided 

cases that suggest that there are such factors which fall to be eliminated entirely 

either at the outset of the enquiry or at any subsequent stage (eg age or the absence 

of previous convictions), I consider them to be erroneous. Equally erroneous, so 

it seems to me, are dicta which suggest that for circumstances to qualify as 

substantial and compelling they must be “exceptional” in the sense of seldom 

encountered or rare. The frequency or infrequency of the existence of a set of 

circumstances is logically irrelevant to the question of whether or not they are 

substantial and compelling. 

[11] Some of the courts which have had to deal with the problem have 


17

esorted to the processes of thought employed and the concepts developed by the 

courts in considering appeals against sentence. In my view such an approach is 

problematical and likely to lead to error in giving effect to the intention of the 

legislature. 

[12] The mental process in which courts engage when considering questions 

of sentence depends upon the task at hand. Subject of course to any limitations 

imposed by legislation or binding judicial precedent, a trial court will consider the 

particular circumstances of the case in the light of the well-known triad of factors 

relevant to sentence and impose what it considers to be a just and appropriate 

sentence. A court exercising appellate jurisdiction cannot, in the absence of 

material misdirection by the trial court, approach the question of sentence as if it 

were the trial court and then substitute the sentence arrived at by it simply because 

it prefers it. To do so would be to usurp the sentencing discretion of the trial court. 

Where material misdirection by the trial court vitiates its exercise of that discretion, 


18

an appellate court is of course entitled to consider the question of sentence afresh. 

In doing so, it assesses sentence as if it were a court of first instance and the 

sentence imposed by the trial court has no relevance. As it is said, an appellate 

court is at large. However, even in the absence of material misdirection, an 

appellate court may yet be justified in interfering with the sentence imposed by the 

trial court. It may do so when the disparity between the sentence of the trial court 

and the sentence which the appellate court would have imposed had it been the trial 

court is so marked that it can properly be described as “shocking”, “startling” or 

“disturbingly inappropriate”. It must be emphasised that in the latter situation the 

appellate court is not at large in the sense in which it is at large in the former. In the 

latter situation it may not substitute the sentence which it thinks appropriate merely 

because it does not accord with the sentence imposed by the trial court or because 

it prefers it to that sentence. It may do so only where the difference is so 

substantial that it attracts epithets of the kind I have mentioned. No such limitation 


19

exists in the former situation. 

[13] Some of the courts which have wrestled with the problems which 

sections s 51 raises have sought to draw parallels between the latter process and the 

approach to be followed when applying its provisions. With respect, I consider the 

attempt to be misguided. The tests for interference with sentences on appeal were 

evolved in order to avoid subverting basic principles that are fundamental in our law 

of criminal procedure, namely, that the imposition of sentence is the prerogative of 

the trial court for good reason and that it is not for appellate courts to interfere with 

that exercise of discretion unless it is convincingly shown that it has not been 

properly exercised. The epithets (“shocking”, “startling”, “disturbingly 

inappropriate” and the like) that have been employed to drive that point home 

should not simply be appropriated indiscriminately for use in a situation which is 

very different. 

[14] When applying the provisions of s 51 a trial court is not in appellate 


20

mode. It is not confronted by a prior exercise of judicial discretion attuned to the 

particular circumstances of the case and which is prima facie to be respected. 

Instead, it is faced with a generalised statutory injunction to impose a particular 

sentence which injunction rests, not upon all the circumstances of the case 

including the personal circumstances of the offender, but simply upon whether or 

not the crime falls within the specific categories spelt out in Schedule 2. 

Concomitantly, there is a provision which vests the sentencing court with the 

power, indeed the obligation, to consider whether the particular circumstances of 

the case require a different sentence to be imposed. And a different sentence must 

be imposed if the court is satisfied that substantial and compelling circumstances 

exist which “justify” (my emphasis) it. In considering that question the trial court 

is doing so for the first time. There has been no prior consideration of the 

particular circumstances of the case by either the legislature or another court. There 

is thus no justification for arbitrarily importing into the exercise a test which was 


21

evolved in a very different context and which was designed to serve a very different 

purpose. 

[15] I consider the dicta in the cases which advocate such an approach to the 

application of s 51 to be conducive to error. In my view, they constrict 

unjustifiably the power given to a trial court by s 51 (3) to conclude that a lesser 

sentence is justified. Any limitations upon that power must be derived from a 

proper interpretation of the provisions of the Act and not from the assumption a 

priori that only a process akin to that which a court follows when in appellate mode 

is intended. 

[16] It is of course so that satisfaction of the test which that process 

postulates would also justify the conclusion that a departure from the prescribed 

sentence is justified. The problem is that it by no means follows that simply 

because that test is not satisfied, a departure is ipso facto unjustified. In other 

words, while satisfaction of that test is certainly a sufficient justification for 


22

departure, satisfaction of it is not necessary to justify departure. The use of the test 

tends to obscure that. Hence its potential to lead one into error. 

[17] On the other hand, it seems clear that those who have decried the 

suggestion that the exercise required involves no more than assessing what, but for 

the legislation, would have been an appropriate sentence and, if that should be 

anything less than the prescribed sentence, regarding that as sufficient justification 

for departure, are right. As they have pointed out, that approach would obviously 

represent a return to what I have called “business as usual” and no effect 

whatsoever would be given to the intention of the legislature. 

[18] Here lies the rub. Somewhere between these two extremes the intention 

of the legislature is located and must be found. The absence of any pertinent 

guidance from the legislature by way of definition or otherwise as to what 

circumstances should rank as substantial and compelling or what should not, does 

not make the task any easier. That it has refrained from giving such guidance as 


23

was done in Minnesota from whence the concept of “substantial and compelling 

circumstances” was derived 6 is significant. It signals that it has deliberately and 

advisedly left it to the courts to decide in the final analysis whether the 

circumstances of any particular case call for a departure from the prescribed 

sentence. In doing so, they are required to regard the prescribed sentences as being 

generally appropriate for crimes of the kind specified and enjoined not to depart 

from them unless they are satisfied that there is weighty justification for doing so. 

A departure must be justified by reference to circumstances which can be seen to 

be substantial and compelling as contrasted with circumstances of little significance 

or of debatable validity or which reflect a purely personal preference unlikely to be 

shared by many. 

[19] There has been some uncertainty as to whether the words “substantial 

and compelling” are to be examined separately or conjointly in attempting to arrive 

6 Van Zyl Smit, 1999 (15) SAJHR 270 at 271-273. 


24

at Parliament’s intention and in applying them to the particular circumstances of a 

case. In my opinion it is a barren exercise to subject each to intense scrutiny on its 

own devoid of the influence of its neighbour. The legislature refrained from using 

the word “or” in favour of the word “and” and has thus provided a composite 

description of the circumstances which can justify a departure from the prescribed 

sentences. What Parliament requires is that the circumstances should meet the test 

of the composite description. 

[20] It would be an impossible task to attempt to catalogue exhaustively either 

those circumstances or combinations of circumstances which could rank as 

substantial and compelling or those which could not. The best one can do is to 

acknowledge that one is obliged to keep in the forefront of one’s mind that the 

specified sentence has been prescribed by law as the sentence which must be 

regarded as ordinarily appropriate and that personal distaste for such legislative 

generalisation cannot justify an indulgent approach to the characterisation of 


25

circumstances as substantial and compelling. When justifying a departure a court 

is to guard against lapses, conscious or unconscious, into sophistry or spurious 

rationalisations or the drawing of distinctions so subtle that they can hardly be seen 

to exist. 

[21] It would be foolish of course, to refuse to acknowledge that there is an 

abiding reality which cannot be wished away, namely, an understandable tendency 

for a court to use, even if only as a starting point, past sentencing patterns as a 

provisional standard for comparison when deciding whether a prescribed sentence 

should be regarded as unjust. To attempt to deny a court the right to have any 

regard whatsoever to past sentencing patterns when deciding whether a prescribed 

sentence is in the circumstances of a particular case manifestly unjust is tantamount 

to expecting someone who has not been allowed to see the colour blue to 

appreciate and gauge the extent to which the colour dark blue differs from it. As 

long as it is appreciated that the mere existence of some discrepancy between them 


26

cannot be the sole criterion and that something more than that is needed to justify 

departure, no great harm will be done. 

[22] What that something more must be it is not possible to express in 

precise, accurate and all-embracing language. The greater the sense of unease a 

court feels about the imposition of a prescribed sentence, the greater its anxiety will 

be that it may be perpetrating an injustice. Once a court reaches the point where 

unease has hardened into a conviction that an injustice will be done, that can only 

be because it is satisfied that the circumstances of the particular case render the 

prescribed sentence unjust or, as some might prefer to put it, disproportionate to 

the crime, the criminal and the legitimate needs of society. If that is the result of a 

consideration of the circumstances the court is entitled to characterise them as 

substantial and compelling and such as to justify the imposition of a lesser sentence. 

[23] While speaking of injustice, it is necessary to add that the imposition of 

the prescribed sentence need not amount to a shocking injustice (“‘n skokkende 


27

onreg” as it has been put in some of the cases in the High Court) before a departure 

is justified. That it would be an injustice is enough. One does not calibrate 

injustices in a court of law and take note only of those which are shocking. 

[24] It has been suggested that the kind of circumstances which might qualify 

as substantial and compelling are those which reduce the moral guilt of the offender 

(analogously to the circumstances considered in earlier times to be capable of 

constituting “extenuating circumstances” in crimes which attracted the sentence of 

death). That will no doubt often be so but it would not be right to suppose that it 

is only factors diminishing moral guilt which may rank as substantial and compelling 

circumstances. 

[25] What stands out quite clearly is that the courts are a good deal freer to 

depart from the prescribed sentences than has been supposed in some of the 

previously decided cases and that it is they who are to judge whether or not the 

circumstances of any particular case are such as to justify a departure. However, 


28

in doing so, they are to respect, and not merely pay lip service to, the legislature’s 

view that the prescribed periods of imprisonment are to be taken to be ordinarily 

appropriate when crimes of the specified kind are committed. In summary - 

A Section 51 has limited but not eliminated the courts’ discretion in imposing 

sentence in respect of offences referred to in Part 1 of Schedule 2 (or 

imprisonment for other specified periods for offences listed in other parts of 

Schedule 2). 

B Courts are required to approach the imposition of sentence conscious that 

the legislature has ordained life imprisonment (or the particular prescribed 

period of imprisonment) as the sentence that should ordinarily and in the 

absence of weighty justification be imposed for the listed crimes in the 

specified circumstances. 

C Unless there are, and can be seen to be, truly convincing reasons for a 

different response, the crimes in question are therefore required to elicit a 

severe, standardised and consistent response from the courts. 

D The specified sentences are not to be departed from lightly and for flimsy 

reasons. Speculative hypotheses favourable to the offender, undue 

sympathy, aversion to imprisoning first offenders, personal doubts as to the 

efficacy of the policy underlying the legislation, and marginal differences in 

personal circumstances or degrees of participation between co-offenders are 

to be excluded. 

E The legislature has however deliberately left it to the courts to decide whether 

the circumstances of any particular case call for a departure from the 

prescribed sentence. While the emphasis has shifted to the objective gravity 


29

of the type of crime and the need for effective sanctions against it, this does 

not mean that all other considerations are to be ignored. 

F All factors (other than those set out in D above) traditionally taken into 

account in sentencing (whether or not they diminish moral guilt) thus 

continue to play a role; none is excluded at the outset from consideration in 

the sentencing process. 

G The ultimate impact of all the circumstances relevant to sentencing must be 

measured against the composite yardstick (“substantial and compelling”) and 

must be such as cumulatively justify a departure from the standardised 

response that the legislature has ordained. 

H In applying the statutory provisions, it is inappropriately constricting to use 

the concepts developed in dealing with appeals against sentence as the sole 

criterion. 

I If the sentencing court on consideration of the circumstances of the 

particular case is satisfied that they render the prescribed sentence unjust in 

that it would be disproportionate to the crime, the criminal and the needs of 

society, so that an injustice would be done by imposing that sentence, it is 

entitled to impose a lesser sentence. 

J In so doing, account must be taken of the fact that crime of that particular 

kind has been singled out for severe punishment and that the sentence to be 

imposed in lieu of the prescribed sentence should be assessed paying due 

regard to the bench mark which the legislature has provided. 

[26] I turn to the merits of the present appeal against sentence. Appellant, a 

22 year old woman, was convicted by Liebenberg J in the South Eastern Cape 


30

Local Division of the High Court of murder and sentenced to imprisonment for life. 

Leave to appeal to this Court against her sentence was granted by the court a quo. 

At the instigation of his wife, appellant shot the deceased in the head while he lay 

asleep at his home. The circumstances which led up to that were these. Appellant 

had been living for about a month in the deceased’s house together with him, his 

wife Carol and their children. Precisely what the nature of appellant’s relationship 

with the deceased was is unclear. However, she testified that the night before the 

deceased was shot he had struck her because he believed that she had been sexually 

involved with another man. The relationship between the deceased and his wife was 

stormy and many quarrels had taken place. The deceased’s wife had allegedly been 

unfaithful to him with various other men. On the night that appellant was struck by 

the deceased Carol told her that she intended to shoot the deceased. Carol had 

been upset by the incident. 

[27] On the day of the shooting a quarrel between the deceased and Carol 


31

took place. Later the deceased told appellant that he loved her. She replied that she 

wished to have nothing to do with him. He produced a firearm and locked himself 

in the bathroom where he fired a shot causing Carol and appellant to think he had 

committed suicide. When told by appellant that she and Carol were going to “drink 

pills” he emerged from the bathroom unscathed. Friends of the deceased arrived 

and whisky was consumed until approximately 1.30 am when the friends left. 

Thereafter appellant, Carol and the deceased all lay upon the same bed. The 

deceased fell asleep and Carol roused him and gave him two pills to drink. The 

deceased fell asleep again and snored so loudly that appellant went to lie down in 

another room. 

[28] Shortly after 3.00 am Carol woke appellant and handed her a pair of 

gloves, a jersey and a firearm which she had loaded and cocked. Appellant was 

told to don the gloves so that her fingerprints would not appear on the firearm and 

also to prevent any traces of gunpowder from being deposited upon her hands. 


32

She was told to wear the jersey so that any gunpowder marks and traces of blood 

would not be deposited upon her night attire. Carol told her to repair to their 

bedroom and to shoot the deceased. She referred to her life with the deceased as 

“‘n hond se lewe”. Appellant knelt alongside the deceased and levelled the firearm 

at his head. She could not bring herself to fire the shot and stood up again. After 

further persuasion by Carol she knelt alongside the bed again and once again trained 

the weapon upon the deceased. Again she could not bring herself to fire the shot. 

When she rose to her feet Carol told her that she had to shoot the deceased or she 

would burn the house down with petrol. She also said that if appellant shot the 

deceased she, Carol, and Carol’s children would thereafter be able to lead “‘n baie 

lekker lewe”. Carol also reminded her that the deceased had struck her the previous 

evening and that that should serve as an incentive to her to shoot him. The 

appellant once again knelt alongside the deceased and pointed the firearm at his 

head. Carol said that she would indicate when the shot should be fired. When 


33

Carol said to her “Henna nou!” she fired a shot and the deceased was struck in the 

head. He died soon thereafter. 

[29] With the co-operation of appellant Carol thereafter attempted to pass off 

what had occurred as an act of suicide committed by the deceased. Some time 

thereafter appellant confessed first to a friend and thereafter to a member of the 

South African Police who was also a friend that she had shot the deceased. That 

led to her arrest and trial. 

[30] Liebenberg J gave anxious consideration to the question of sentence and 

concluded that the circumstances of the case could not be regarded as substantial 

and compelling in their mitigatory effect and therefore such as to justify the 

imposition of a lesser sentence than imprisonment for life. He reached that 

conclusion with regret and said that if it had not been for the fact that a sentence of 

life imprisonment was prescribed by the relevant statute, he would not have 

considered sentencing appellant to imprisonment for life. He referred to the lack 


34

of unanimity in the provincial divisions of the High Court as to the correct 

interpretation of the legislation and regarded himself as bound by the 

approach indicated by Stegmann J in S v Mofokeng which approach had been 

approved by Jones J in an unreported decision in the Eastern Cape Division. He 

indicated that he was, in any event, in agreement with that approach. One of the 

findings made by Stegmann J in Mofokeng’s case was that “for substantial and 

compelling reasons to be found, the facts of the particular case must present some 

circumstance that is so exceptional in its nature and that so obviously exposes the 

injustice of the statutory prescribed sentence in the particular case, that it can rightly 

be described as ‘compelling’ the conclusion that the imposition of a lesser sentence 

than that prescribed by Parliament is justified”. 

[31] As I have indicated earlier in this judgment the requirement that the 

circumstances be “exceptional” does not appear from the legislation and, in so far 

as Liebenberg J approached the question of sentence from that perspective, he 


35

erred. In all other respects Liebenberg J approached the question of sentence in a 

manner consistent with the approach set forth in this judgment. He made reference 

to the very serious nature of the crime. He pointed to the element of premeditation 

present and the defenselessness of the deceased. He considered that the motive for 

the killing was greed. There were apparently some life insurance policies from 

which Carol would benefit and the appellant stood to gain from the “lekker lewe” 

of which Carol had spoken. He adverted to the prevalence of crimes of violence 

in the country and the community’s interest in having the courts deal severely with 

offenders. 

[32] As against those considerations he took into account the absence of any 

previous convictions, and accepted evidence that Carol was a domineering 

personality. He accepted too that Carol had been the instigator and that she had 

brought influence to bear upon the appellant but did not consider it to have been a 

weighty factor when measured against the appellant’s deed. The learned Judge 


36

egarded appellant’s remorse induced voluntary admission of her guilt to her friends 

as possibly the strongest point in appellant’s favour but then tended to minimise its 

importance by observing that subsequent remorse was not something exceptional. 

Having balanced all these considerations he concluded that they did not amount to 

substantial and compelling circumstances within the meaning of the legislation. 

[33] It is not possible to say to what extent the learned Judge’s evaluation of 

the circumstances of the case as not being substantial and compelling was 

influenced by his adoption of the proposition that they would have to be classifiable 

as exceptional before they would qualify as substantial and compelling 

circumstances. That it must have played some role seems clear for he found it 

necessary to state expressly that he approved of Stegmann J’s view that the 

circumstances would have to be exceptional. Given that misdirection this Court is 

at large to reconsider the matter afresh and it is unnecessary to decide whether or 


37

not it would have been free to do so absent such misdirection. 7 

[34] The circumstances in which the crime was committed are undoubtedly 

such as to render it necessary to impose a sentence of imprisonment for life unless 

substantial and compelling circumstances justify a lesser sentence. The shooting 

was premeditated and planned. The fact that the planning and premeditation 

occurred not long before the deed was accomplished cannot alter that. It was also 

carried out in the execution of a common purpose to kill the deceased. Giving all 

due weight to the enormity of the crime and the public interest in an appropriately 

severe punishment being imposed for it, I consider that the personal circumstances 

of the accused (her relative youth, her clean record and her vulnerability to Carol’s 

influence by reason of her status as a resident in the latter’s home at the latter’s 

pleasure) and the fact that she was dragooned into the commission of the offence 

by a domineering personality are strongly mitigating factors. As a fact she gained 

nothing from the commission of the crime. Her remorse cannot be doubted and her 


7 Cf S v Homareda 1999 (2) SACR 319 (W) at 326c-d. 

38

spontaneous confession which brought to light the commission of a crime which 

would otherwise have gone undetected is deserving of recognition in a tangible 

sense. She is young enough to make rehabilitation of her a real prospect even after 

a long period of imprisonment. These circumstances, cumulatively regarded, satisfy 

me that a sentence of life imprisonment would be unjust. They qualify therefore as 

substantial and compelling circumstances within the meaning of the provision. 

None the less, it remains a particularly heinous crime of the kind which the 

legislature has singled out for severe punishment and the sentence to be imposed 

in lieu of life imprisonment should be assessed paying due regard to the bench mark 

which the legislature has provided. In my judgment, imprisonment for twenty-five 

(25) years is appropriate. 

[35] The appeal succeeds. The sentence of life imprisonment is set aside and 

there is substituted for it a sentence of imprisonment for twenty-five (25) years. In 

so far as it may be necessary to do so, the sentence so imposed is antedated to 


39

3 November 1999 being the date upon which the sentence of life imprisonment was 

imposed. 

HARMS JA) 

CAMERON JA) 

CHETTY AJA) 

MTHIYANE AJA) CONCUR 

R M MARAIS 

JUDGE OF APPEAL 


40

In the matter between: 

IN THE SUPREME COURT OF APPEAL 


THE STATE Appellant 

and 

BERNARD ABRAHAMS Respondent 

REPORTABLE 

CASE NO: 88/2000 

BEFORE: Nienaber, Cameron and Mthiyane JJA 

HEARD: 5 November 2001 

DELIVERED: Friday 23 November 2001 

Appropriate sentence for the rape by a father of his fourteen year-old 

daughter — application of ‘substantial and compelling 

circumstances’ criterion under Act 105 of 1997 

______________________________________________________ 

___ 

JUDGMENT 


2 

______________________________________________________ 

___ 

CAMERON JA: 

1. The State appeals against a sentence of seven years’ 

imprisonment imposed on the respondent (‘the accused’) for the rape 

of his daughter. The accused who was represented by counsel stood 

trial in the regional court at Cape Town. Despite his plea of not guilty he 

was convicted as charged. The rape occurred three weeks after the 

minimum sentence provisions of the Criminal Law Amendment Act 105 

of 1997 (‘the Act’) came into force on 1 May 1998. Since the victim was 

a girl under the age of 16 years, the sentencing provisions of that Act 

applied, and the accused was committed for sentence in the High 

Court. 1 Foxcroft J confirmed the accused’s conviction. 2 Evidence was 

led and submissions made both in mitigation and aggravation of 

sentence. Foxcroft J concluded that ‘substantial and compelling 

circumstances’ as contemplated by the Act 3 were present. The 

prescribed minimum sentence of life imprisonment for the rape of a girl 

under 16 years 4 was therefore not applicable. Instead he imposed a 

1 Section 52(1) of the Act. The trial in the regional court was concluded in November 1998. 

2 Section 52(2). The High Court proceedings took place in September 1999. 

3 Section 51(3)(a). 

4 Section 51(1). 


3 

sentence of seven years’ imprisonment. The State sought to appeal 

against this sentence as too light. The judge refused, but this Court on 

petition granted, leave to appeal. 

2. After the appeal was lodged the Rape Crisis Cape Town 

Trust applied to be admitted to the proceedings as an amicus curiae 

under the rules of this Court. These permit ‘any person interested in 

any matter before the Court’ 5 to be granted such status. The Acting 

Chief Justice granted the Trust leave to submit written argument on the 

sentence, and we are indebted to it for its assistance in doing so. 

3. The accused was convicted on the evidence of his 

daughter, Doreen, her mother (his wife) and of the district surgeon for 

Cape Town. Doreen testified about the events of a Friday afternoon in 

May 1998. She was fourteen at the time, the family’s youngest child, 

and in grade nine at school. On that afternoon, she said, her father 

returned home after drinking at a nearby shebeen, and went to sleep in 

her room. On awakening he found her cleaning the kitchen. He started 

meddling with her. She pushed him away, saying ‘Daddy, hou op met 

my, wat probeer Daddy met my te doen?’ He persisted, pushing her 

5 Rule 16(1). 


4 

against the sink. Unable to run away, since her father had locked the 

verandah gate, she pleaded once more: ‘Daddy, hou net op asseblief.’ 

When he did not relent, she seized the knife she was washing, thinking 

she could somehow defend herself with it. But the accused struck it 

from her hand. It fell to the ground. She picked it up, but he pulled her 

to her room and flung her to the floor. He tried to pull down her school 

tracksuit pants. She began to cry and scream, but he would not desist: 

‘En nadat hy so aangegaan het met my en toe, toe begin ek te huil en te skree en hy wil nie my 

af, hy sê ja hy kan eerste seks hê met my en dan ... [...] en dan kan ek ‘n man vat, ‘n 

“boyfriend” ..., dan kan ek maar maak met die “boyfriend” wat ek wil, so het hy bedoel.’ 

4. At this point during the attack Doreen’s friend, Esmerelda, 

came to the gate and called for her to come and play with their friends. 

The accused was then lying on top of Doreen on her bed. He lifted 

himself slightly and shouted to Esmerelda that he was resting and that 

Doreen was busy with her school work. In fact, he was trying to pull 

down her tracksuit pants. He had already pulled his own trousers down. 

Doreen, who still had the knife in her hand, resisted. But he hit the knife 

from her hand. She held onto her pants. She begged him: ‘Daddy, los 

my en hou op so aangaan met my.’ But with his weight on top of her 

she became numb with fear and fright. He jerked her pants and 

underclothes down and proceeded to have intercourse with her. She 


5 

was unable to get away or to cry for help because he was holding her 

hands and gagging her mouth with his hand. 

5. After he had ejaculated inside her she lay crying on the bed. 

He fetched his face-cloth and told her rudely, ‘Dê, vat dit, vee vir jou af.’ 

The bed he wiped himself. Doreen went to run a bath to wash herself. 

She called a little boy who frequented their home to come and sit 

outside close to the locked gate. Her father then entered the bathroom. 

He told her not to tell her mother. He promised to give her anything she 

wanted ‘want ek was nou klaar by jou en nou kan jy maar maak soos jy 

wil’. When she emerged from the bathroom he took money and left for 

the shebeen. On her mother’s return Doreen told her what had 

happened. Her mother called the police. Doreen was taken to the 

hospital and examined. Though she had no marks or injuries she 

testified that her whole body was painful because this had been her first 

time. 

6. The accused’s wife confirmed her daughter’s report on her 

arrival home, and corroborated her evidence in other material details, 

not only about the family’s circumstances and relationships but about 

the damp patch that was still present on Doreen’s bed. The district 


6 

surgeon testified that when she examined Doreen on the Friday 

evening, the girl reacted with pain. From the tearing of the hymen and 

the abrasion of the perineum it was evident that she had ‘just lost her 

virginity’. There were no other injuries. The doctor’s report, admitted at 

the trial, recorded that the perineal injury was indicative of forced sexual 

assault. Her evidence was not challenged. 

7. The accused’s defence as presented during the cross- 

examination of Doreen and her mother and in his own evidence has 

some bearing on the question of sentence. He blamed his arraignment 

on Doreen, her mother and her older brother, the former two for falsely 

accusing him, the latter as perpetrating the sexual assault upon Doreen. 

The accused’s account was that while sleeping in Doreen’s room on the 

afternoon in question he had a wet dream. When he awoke he had his 

penis in his hand, having ejaculated onto the bed. While wiping the bed 

with his handkerchief, he noticed Doreen standing in the doorway 

watching him. He told her to come and sit next to him because he did 

not want her to tell her mother what had happened. She refused. He 

got up and took her by the hand, explaining that his wet dream had 

soiled her bed. He promised to give her something for her silence. 

She asked how much. He offered R10,00. She demanded more. 


7 

Despite his entreaties she announced that she would tell what had 

happened. In pleading with her he put his hands on her shoulder and 

pressed her back onto her bed. He told her that he loved her. While 

trying to kiss her his cheek grazed hers. He again begged her not tell 

her mother, and gave her R10,00. He went to fetch a face-cloth, but 

when he tried to wipe the bed she grabbed the cloth from him and did 

so herself. Since she had sat in his sperm, she said that she would 

wash herself. It was he who asked the little boy to sit close by. As for 

the rape allegations, his wife and his daughter had conspired to 

fabricate them. Indeed, when on an earlier occasion he disciplined 

Doreen with a hiding, she threatened to send him to jail. Doreen’s loss 

of her virginity he explained on the basis that his son had confessed 

some time before to molesting her. 

8. This evidence, apart from coming across as palpably 

figmented, was illogical and inconsequential, since it failed to account 

for the medical evidence that Doreen had ‘just’ lost her virginity, at a 

time when it was not suggested that her brother or indeed any other 

man had been anywhere near her. It was clear that the sibling abuse the 

accused sought to invoke related to a long-past incident of innocent and 

relatively uninvasive exploration by the brother upon Doreen — an 


8 

instance (as the accused’s wife put it) of children playing ‘housey- 

housey’, to which the brother confessed years later after a religious 

conversion. The accused’s cynical attempt to invoke this family history 

to deflect the charge against him shows the extent of his callousness. 

The magistrate found Doreen to be a credible and honest witness and 

her mother a ‘notably consistent and responsible’ person who gave 

honest and reliable evidence. He accepted their testimony and rejected 

that of the accused as completely unconvincing and obviously 

fabricated. 

9. Before Foxcroft J, nearly a year after his conviction in the 

regional court, the accused remained unrepentant. His counsel did not 

contend that he had been wrongly convicted and the judge confirmed 

the conviction. Thereafter a social worker testified to the effect of the 

rape upon Doreen and her mother was called again, for the same 

purpose. The social worker’s uncontested evidence was that Doreen 

herself could not be called because a second testimony, nearly a year 

after her first, would have damaging effects. The accused for his part 

was adamant in expressing no remorse: ‘Ek kan nie sê dat ek jammer 

voel, want soos ek hierso staan, weet ek dat ek onskuldig is, dat ek nie 


9 

die ding met haar gedoen het nie, maar soos die Hof my skuldig gevind 

het, weet ek [dat] ek niks daaraan [kan] doen nie.’ 

10. In passing sentence the judge rightly found that alcohol had 

not played a significant role: indeed, the accused himself in evidence 

disavowed its effect. While the accused’s age — 53 at the time of the 

rape and 54 at the date of sentence — was not an excuse, the fact that 

he had reached that age without any previous convictions was ‘of great 

importance’. As far as the offence itself was concerned, the judge did 

not consider it to be ‘one of the worst cases of rape’. While rape of 

one’s daughter was naturally a very reprehensible matter, in this 

instance ‘fortunately the damage was not as great as in many cases’: 

‘Daar is wel getuienis in hierdie saak dat hierdie jong dogter haar konsentrasie verloor het; dat 

sy ‘n bietjie opstandig geraak het, maar ek weet nie of dit so buitensporig is nie, en ‘n mens 

weet dat seuns en dogters van daardie ouderdom daardie soort tekens toon. Ek weet nie, want 

daar was nie volledige psigiatriese getuienis voor my oor presies wat die gevolge van hierdie 

daar was nie ...’ 

11. Foxcroft J rejected the State’s submission that this was 

almost ‘a textbook case’ for the imposition of imprisonment for life. He 

invoked S v B, 6 a judgment before the Act’s minimum sentencing 

provisions came into force, in which he had concurred. There a father 

over a six-year period had sexual intercourse with his teenage 

6 1996 (2) SACR 543 (C). 


10 

daughters against their will and was convicted of rape. The magistrate’s 

eleven-year sentence was set aside and replaced with eight years’ 

imprisonment of which two were suspended. Van Reenen J stated: 

‘Die misdryf waaraan die beskuldigde skuldig bevind is is slegs tot sy eie dogters beperk en 

daar was selfs nie eens 'n suggestie van seksueel afkeurenswaardige gedrag buite die 

familieverband nie. Omdat al die beskuldigde se dogters alreeds hulle ouerhuis verlaat het is die 

kanse op 'n herhaling van die misdrywe waaraan die beskuldigde skuldig bevind is bykans 

nie-bestaande. Dit synde die posisie skyn daar nie enige dwingende rede te wees om die 

publiek teen die beskuldigde te beskerm of hom van die pleging van soortgelyke misdade af te 

skrik nie.’ 7 

12. In the light of the accused’s age and clean record and the 

fact that the deterrent element and protection of the public were of 

minimal concern, the judge concluded that substantial and compelling 

circumstances justifying a departure from life imprisonment as 

prescribed were present, and he imposed a sentence of imprisonment 

for seven years. 

13. Foxcroft J’s approach in taking into account all these factors, 

and considering whether they justified deviation from the prescribed 

sentence, was subsequently vindicated in S v Malgas, 8 where this Court 

held that the Act did not prohibit weighing all considerations traditionally 

relevant to sentence. 9 Nor was the legislation so prescriptive that it 

7 1996 (2) SACR 543 (C) 555b. 

8 2001 (2) SA 1222 (SCA), 2001 (1) SACR 469. 

9 Paras 9-10. 


11 

permitted a sentencing court effectively no discretion at all. Instead, the 

statutory framework left the courts free to continue to exercise a 

substantial measure of judicial discretion in imposing sentence, 10 

though the prescribed sentences required a severe, standardised and 

consistent response from the courts unless there were, and could be 

seen to be, ‘truly convincing reasons for a different response’. 11 In S v 

Dodo 12 the Constitutional Court in rejecting a Bill of Rights challenge to 

the Act’s sentencing provisions confirmed as ‘undoubtedly correct’ the 

operational construction of the statute enunciated in Malgas. 

14. The result is that Foxcroft J’s general approach to the duties 

the legislation cast upon him in sentencing the accused was by no 

means misconceived. The question the State’s appeal raises, however, 

is whether the manner in which he applied that approach was so 

misguided as to warrant intervention on appeal. The State contended 

that the judge had misdirected himself and that he had erred in finding 

that substantial and compelling circumstances were present. The 

amicus, while emphasising that under the Constitution and in terms of 

10 Para 3. 

11 Paras 8 and 25C, per Marais JA. 

12 2001 (3) SA 382 (CC), paras 11 and 40 (Ackermann J). 


12 

international law the courts have a duty ‘to act more stringently against 

offenders who commit crimes that invade the equality, dignity and 

freedom’ of women and children, especially rape, did not explicitly 

contend that circumstances justifying a sentence less than life 

imprisonment were absent. Counsel for the accused submitted that 

while another court might well feel inclined to impose a higher sentence, 

Foxcroft J’s exercise of discretion was not impeachable. 

15. The circumstances entitling a court of appeal to intervene in 

a sentence a trial judge has passed were recapitulated by Marais JA in 

Malgas: 

‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the 

trial court, approach the question of sentence as if it were the trial court and then substitute the 

sentence arrived at by it simply because it prefers it. To do so would be to usurp the 

sentencing discretion of the trial court. ... However, even in the absence of material 

misdirection, an appellate court may yet be justified in interfering with the sentence imposed by 

the trial court. It may do so when the disparity between the sentence of the trial court and the 

sentence which the appellate court would have imposed had it been the trial court is so marked 

that it can properly be described as “shocking”, “startling”, or “disturbingly inappropriate”.’ 13 

The question therefore is whether the manner in which Foxcroft J 

weighed the factors relevant to determining sentence was materially 

misdirected or, if not, whether the sentence he imposed was in any 

event so shockingly inadequate as to give rise to the inference that he 

failed to exercise his discretion properly. In my view the first leg of the 

13 2001 (2) SA 1222 (SCA) para 12. 


13 

test for intervention is satisfied, and it is unnecessary to consider the 

second. The record suggests that the learned judge erred in three 

respects in his approach to sentence, and the conclusion is 

inescapable that he materially misdirected himself in imposing the 

sentence of seven years. He omitted to consider one important 

aggravating factor that emerged from the evidence, gave insufficient 

weight to another, and finally failed to specify adequately what his 

invocation of S v B 14 entailed, while erroneously conceiving that the 

sentence there applied provided a benchmark for the present case. I 

deal with these in turn. 

16. As indicated earlier, a feature of the complainant’s evidence, 

corroborated by that of her mother, was the accused’s sexual jealousy 

and possessiveness of his daughter. It was obvious from Doreen’s 

evidence that the accused was determined to be the first person to 

have sexual intercourse with her. Once during the attack, and again 

immediately after it, he intimated that he wanted to be the first to have 

sex with her. Each time he added that once he had accomplished this 

she was free to do as she wished with others. This attitude seems to 

have sprung from his jealousy of her other potential young male friends, 

14 1996 (2) SACR 543 (C). 


14 

which he frequently and unreasonably expressed. Both the complainant 

and her mother testified that the accused prevented Doreen from 

having boyfriends. When she went to church with her friends, and the 

accused had been drinking, he would ask her mother, ‘Waar is die 

teef?’, and on her return home beat her. His possessive jealousy also 

found expression in inappropriate physical touching of Doreen (though 

neither mother nor daughter anticipated that this would culminate in 

rape). What is clear is that the accused was determined to precede 

other young males in any possible carnal access to his daughter. Her 

evidence to that effect was not specifically challenged under cross- 

examination. 

17. This attitude reflects an approach to women, and to 

daughters in particular, as objects or chattels, not merely to be used at 

will, but once the first entitlement has been exercised, to be discarded 

for further similar use by others. Of all the grievous violations of the 

family bond the case manifests, this is the most complex, since a 

parent, including a father, is indeed in a position of authority and 

command over a daughter. But it is a position to be exercised with 

reverence, in a daughter’s best interests, and for her flowering as a 

human being. For a father to abuse that position to obtain forced sexual 


15 

access to his daughter’s body constitutes a deflowering in the most 

grievous and brutal sense. That is what occurred here, and it 

constituted an egregious and aggravating feature of the accused’s 

attack upon his daughter. The judgment on sentence accords it no 

mention. The sentencing judge in my view thus misdirected himself in 

failing to take into account a most material aspect of the crime. 

18. Second, there are the after-effects of the attack upon 

Doreen. Doreen’s mother testified during the regional court trial that 

after the rape Doreen was reluctant to enter her own room and insisted 

on sleeping with her. She complained that if she slept alone she woke 

in fright, sitting straight up. Before the incident, Doreen was a ‘normale 

kind gewees ... skoolkind en ‘n kerkkind’. But the rape had changed not 

only her but the whole household: ‘Ons is niemand meer dieselfde in 

die huis nie.’ With Doreen in particular it was sometimes no longer 

possible to communicate. Whereas there had been intimacy between 

mother and daughter, now Doreen rejected her mother and repelled 

physical contact. 

19. In the High Court the accused’s wife testified that since the 

rape her daughter’s schoolwork had deteriorated. As parent she 


16 

received regular messages and letters from the school principal 

complaining of rebelliousness and disobedience. The regional court 

trial had prevented Doreen from sitting her examinations the previous 

year; when re-sitting in January, she failed. This was the first time she 

had failed her examinations (though her teachers promoted her to grade 

ten on her past performance). At home she snubbed her mother and 

brother. She had cast aside all the dolls with which she formerly played. 

She had withdrawn from the neighbourhood children and no longer 

played with them in the street: ‘Sy het sommer kom grootword net in ‘n 

paar maande tyd.’ 

20. The State also called a social worker, who prepared a report 

in September 1999 after interviewing family members. Her findings, 

upon which she elaborated in her evidence, were that Doreen could not 

work through the rape. She was still having nightmares and had 

developed a phobia about her home. She was unable to concentrate 

for long. Her family members now found her ill-tempered, aggressive 

and rebellious, and she had withdrawn from them. She resisted 

discussion of the event. The social worker concurred with the school 

psychologist’s assessment that Doreen needed long-term 

psychotherapy. 


21. None of this was seriously challenged. The judge’s apparent 

equation of the complainant’s conduct with other teenagers’ similar 

behaviour did not justly state its import. It is true that no psychiatric 

evidence was led, but in the circumstances of the case — particularly 

the absence of challenge to the mother’s and the social worker’s 

evidence — none was required. An appropriate assessment entails the 

unsurprising and indeed obvious conclusion that Doreen had been 

deeply and injuriously affected by the rape. This was an aggravating 

factor. In failing to accord it greater weight the judge misdirected 

himself. 

22. Third, there is the learned judge’s allusion to S v B, 15 where, 

he said, the accused’s conduct ‘was confined to his own daughters and 

there was not even a suggestion of sexually reprehensible conduct 

outside the family context.’ This, the judge said, ‘was a similar case’. It 

appears to have been found in S v B that the accused’s conduct 

displayed a very specific familially-confined pathology that, with the 

passing into adulthood of his victims years later and their departure from 

home, showed no sign of being repeated, at home or elsewhere. If the 

15 1996 (2) SACR 543 (C). 


17

18 

judge intended to express this proposition, a fuller exposition may have 

averted much misunderstanding. Unfortunately the proposition would 

not have been apposite to the present case, since at the time of the trial 

Doreen (unlike the daughters in S v B) was still an adolescent in her 

parental home and likely to remain so for a number of years (her 

unmarried older brother of 23 still lived at home). To the extent, 

therefore, that the judge may have considered S v B (explained as 

above) applicable to the present case, it seems to me that he further 

misdirected himself. 

23. The suggestion that rape within a family is less 

reprehensible than rape outside it is of course untenable and I am 

satisfied that Foxcroft J’s comments, though incautiously expressed, 

did not intend to convey anything to this effect. 

(a) First and obviously, a family member is also a member of the 

wider public and equally obviously as deserving as the rest of the 

public of protection against rapists, including those within the 

home. Indeed, where a rapist’s victim is within his family, she 

constitutes the part of the public closest to, and therefore most 

evidently at risk of, the rapist. 


19 

(b) Second, rape within the family has its own peculiarly reprehensible 

features, none of which subordinate it in the scale of abhorrence 

to other rapes. The present case illustrates them with acute force. 

The rapist may think the home offers him a safe haven for his 

crime, with an accessible victim, over whom he may feel (as the 

accused did) he can exercise a proprietary entitlement. Though 

not the case here, a family victim may moreover for reasons of 

loyalty or necessity feel she must conceal the crime. A woman or 

young girl may further internalise the guilt or blame associated with 

the crime, with lingeringly injurious effects. 16 This is particularly so 

when the victim is the rapist’s own daughter, and the more so 

when the daughter is of tender years. 

(c) Third and lastly, the fact that family rape generally also involves 

incest (I exclude foster and step-parents, and rapists further 

removed in family lineage from their victims) grievously 

complicates its damaging effects. At common law incest is still a 

crime. 17 Deep social and religious inhibitions surround it and 

stigma attends it. What is grievous about incestuous rape is that it 

16 See Anne V Mayne and Ann Levett ‘The Traumas of Rape — Some Considerations’ (1977) 1 SACJ 

163 165f and Unit for Gender Research in Law, Unisa Women and the Law in South Africa — 

Empowerment through Enlightenment (1998) p 117. 

17 See JRL Milton South African Criminal Law and Procedure Vol II Common Law Crimes 3 ed (1996) ch 

12 people 234-247. 


20 

exploits and perverts the very bonds of love and trust that the 

family relation is meant to nurture. The present case illustrates 

this. It is clear that Doreen loved her father. In fact, in denying 

under cross-examination that she was lying, she explained: ‘Ek is 

nog steeds lief vir my pa en vir ‘n feit kan my pa weet dat ek sal 

nie so iets opmaak nie’. That the rape should have driven her to 

raise a knife to him in her own defence must clearly have entailed 

agonising conflicts. His love for her, on the other hand, included 

its corrupted expression in sexual possessiveness and 

inappropriate physical advances, culminating in the rape. When 

cross-examined about their interaction, she stated: ‘Ek en my pa 

het ‘n goeie verhouding gehad, want hy was baie geheg aan my, 

en ek kon nie eintlik dink dat my pa dit aan my sou kon doen nie, 

want hy is baie lief vir my en hy het nie toegelaat dat ek met 

jongetjie vriende, ... hy was te veel oor my, maar [...] is hy die een 

wat eintlik vir my wou gehad het.’ ‘Love’ thus expressed becomes 

the negation of love, and the violation of the trust that should 

sustain it extreme. Its effects may linger for longer than with an 

extra-familial rape. 

These features clearly required particular attention in regard to 

deterrence and retribution in the sentencing process. 


24. The judge’s allusion to S v B entailed a further misdirection. 

The judge described that as ‘a much worse case of rape’. There it will 

be recalled a sentence of eight years was imposed. The judge appears 

to have inferred that a lighter sentence was therefore justified in the 

present case. In refusing leave to appeal the judge considered that the 

only debatable question was whether the Act requires a court, once it 

has found that substantial and compelling circumstances exist, ‘to 

impose a heavier sentence than it would normally impose’. This the 

judge concluded was ‘incorrect’. It is therefore clear that the judge 

considered that, having found substantial and compelling 

circumstances, he was at liberty to impose a sentence consonant with 

those applied before the Act came into force — hence the sentence 

one year lighter than that in S v B. 

25. This approach was incorrect. The prescribed sentences the 

Act contains play a dual role in the sentencing process. Where factors 

of substance do not compel the conclusion that the application of the 

prescribed sentence would be unjust, that sentence must be imposed. 

However, even where such factors are present, the sentences the Act 

prescribes create a legislative standard that weighs upon the exercise 


21

22 

of the sentencing court’s discretion. This entails sentences for the 

scheduled crimes that are consistently heavier than before. 

26. This was made clear in Malgas. Even when substantial and 

compelling circumstances are found to exist, the fact that the 

Legislature has set a high prescribed sentence as ‘ordinarily 

appropriate’ is a consideration that the courts are ‘to respect, and not 

merely pay lip service to’. 18 When sentence is ultimately imposed, due 

regard must therefore be paid to what the Legislature has set as the 

‘bench mark’. 19 The Constitutional Court has held that the approach 

enunciated in Malgas steers an appropriate path — 

‘which the Legislature doubtless intended, respecting the Legislature’s decision to ensure that 

consistently higher sentences are imposed in relation to the serious crimes covered by s 51 and 

at the same time promoting ‘the spirit, purport and objects of the Bill of Rights’‘. 20 

27. The judge’s approach to the application of the statute was 

therefore misdirected. In consequence, this Court faces the duty of 

itself imposing sentence on the accused. (It is unnecessary to decide 

whether the seven-year sentence the judge imposed would in the 

circumstances of this case in any event have been inadequate even 

18 2001 (2) SA 1222 (SCA) para 25 (introduction). 

19 2001 (2) SA 1222 (SCA) para 25J. 

20 2001 (3) SA 382 (CC) para 11. 


23 

before the Act came into force.) As indicated earlier, the general 

manner in which the judge determined whether substantial and 

compelling circumstances existed was correct. He took into account all 

factors traditionally relevant to sentencing. These included the 

accused’s personal circumstances, the nature of the crime and the 

circumstances attending its commission. In my view, the judge 

correctly concluded that factors of substance compelled the conclusion 

that a sentence other than life imprisonment is appropriate. The 

accused’s age is not in itself a mitigating factor; 21 that he reached his 

middle years without a criminal conviction certainly is. 22 The fact that the 

accused’s daughter, apart from the ultimate intrusion and violation that 

are the essence of rape, was not physically injured, is also of 

importance. 

28. A further factor emerges from the record. It is clear from 

the evidence of both Doreen and her mother that the accused’s 

downward spiral started with the death, by suicide, of the family’s 

younger son at the end of 1996. Doreen volunteered during cross- 

examination that her parents had had a good relationship until he started 

21 S v Nkambule 1993 (1) SACR 136 (A) 144i, per Harms JA. 

22 S v Fatyi 2001 (1) SACR 485 (SCA) para 6, applying Malgas. 


24 

drinking again. It became clear from her mother’s evidence in the 

regional court that a turning point in the accused’s conduct occurred 

after her young son’s suicide. In the regional court the accused did not 

himself allude to the tragedy, but explained during his evidence in the 

High Court that the family’s seventeen year-old son had shot himself at 

the end of 1996, with serious consequences for his work and 

concentration. Given its corroboration in the evidence of both the 

complainant and her mother, the State did not dispute this in cross- 

examination. The conclusion is therefore warranted that the accused’s 

son’s suicide less than two years before the rape adversely influenced 

his conduct within the family and led to a diminution in the judgment he 

brought to bear as a father. 

29. This in no way excuses the accused’s conduct. But it does 

weigh further toward the conclusion that a sentence of life imprisonment 

would be unjust. In addition, I agree with Foxcroft J that this is not one 

of the worst cases of rape. This is not to say that rape can ever be 

condoned. But some rapes are worse than others, and the life 

sentence ordained by the Legislature should be reserved for cases 

devoid of substantial factors compelling the conclusion that such a 


25 

sentence is inappropriate and unjust. As Davis J stated in S v Swartz 

and another: 23 

‘As controversial a proposition as this is bound to be, as not all murders carry the same moral 

blameworthiness, so, too, not all rapes deserve equal punishment. That is in no way to 

diminish the horror of rape; it is however to say that there is a difference even in the heart of 

darkness.’ 

30. The amicus rightly pointed out that our Constitution, as well 

as international treaty obligations, require the government and the courts 

to take special steps to protect the public in general and women in 

particular against violent crime. The Constitutional Court has given 

these obligations emphasis in recent decisions (S v Baloyi (Minister of 

Justice and another intervening) 24 and Carmichele v Minister of 

Safety and Security), 25 and in the sentencing process in they must be 

accorded appropriate weight. But Ackermann J has also sounded a 

timely reminder to sentencing courts: 

‘To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the 

present case, without inquiring into the proportionality between the offence and the period of 

imprisonment, is to ignore, if not deny, that which lies at the very heart of human dignity. 

Human beings are not commodities to which a price can be attached; they are creatures with 

inherent and infinite worth; they ought to be treated as ends in themselves, never merely as a 

means to an end. Where the length of a sentence, which has been imposed because of its 

general deterrent effect upon others, bears no relation to the gravity of the offence ..., the 

offender is being used essentially as a means to another end and the offender’s dignity 

assailed. So too where the reformative effect of the punishment is predominant, and the 

offender sentenced to lengthy imprisonment, principally because he cannot be reformed in the 

shorter period, but the length of imprisonment bears no relationship to what the committed 

offence merits. Even in the absence of such features, mere disproportionality between the 

23 1999 (2) SACR 380 (C) 386b-c. 

24 2000 (2) SA 425 (CC) para 13. 

25 2001 (4) SA 938 (CC) paras 30, 45, 57 and 62. 


26 

offence and the period of imprisonment would also tend to treat the offender as a means to an 

end, thereby denying the offender’s humanity.’ 26 

31. Weighing all the circumstances of this case, giving due 

weight to the legislative benchmark the Act creates, and taking into 

account in particular that at the time he was sentenced in September 

1998 the accused had already been in prison for sixteen months, it 

seems to me that a sentence of twelve years’ imprisonment would be 

appropriate. 

1. The appeal succeeds. 

2. The sentence imposed on the accused is set aside. 

3. In its place, the accused is sentenced to twelve years’ 

imprisonment, antedated in terms of s 282 of the Criminal 

Procedure Act, 51 of 1977 to 20 September 1999. 

NIENABER JA) 

MTHIYANE JA) CONCUR 

26 S v Dodo 2001 (3) SA 382 (CC) para 38. 

E CAMERON 







Reportable 

Case number: 85/2001 


and 

BOESMAN MAHOMOTSA Respondent 

CORAM: MARAIS, CAMERON and MPATI JJA 

HEARD: 4 MARCH 2002 

DELIVERED: 31 MAY 2002 

Summary: Rape – Act 105 of 1997 – sentences – circumstances justifying sentences less 

than life imprisonment 

___________________________________________________________________ 

JUDGMENT 

___________________________________________________________________ 


MPATI JA: 

[1] The respondent was arraigned before the regional court sitting at Puthaditjhaba 

on two counts of rape. He was undefended. Despite his pleas of not guilty he was 

convicted as charged. I shall, for convenience, refer to the respondent as “the 

accused”. The offences were committed on 7 June 1998 and 11 August 1998 

respectively, after the Criminal Law Amendment Act 105 of 1997 (the Act), which 

provides for minimum sentences for certain specified offences, came into effect on 1 

May 1998. In convicting the accused the regional magistrate found as a fact that he 

(the accused) had had non-consensual sex with each of the two complainants more than 

once. In terms of s 51(1) of the Act the mandatory sentence in such circumstances is 

imprisonment for life, unless “substantial and compelling circumstances” exist that 

justify the imposition of a lesser sentence (s 51(3)(a)). 

[2] After the accused and the State prosecutor had addressed the regional magistrate 


2

3 

on sentence (the accused’s address was very brief as would be expected from an 

undefended and unsophisticated accused) the magistrate came to the conclusion “dat 

hier nie omstandighede is wat die Hof noop om ‘n ander vonnis op te lê as wat 

voorgeskryf word in Artikel 52(1) nie”. The accused was accordingly committed for 

sentence in the High Court (Orange Free State Provincial Division). Having heard the 

evidence of a probation officer and argument on behalf of the accused, who was now 

legally represented, and the State, Kotze J concluded that “substantial and compelling 

circumstances” were present. He therefore sentenced the appellant to 6 years’ 

imprisonment on the first and 10 years’ imprisonment on the second count and ordered 

that the sentence imposed on count one run concurrently with the sentence on count 

two. 

[3] Approximately two months after sentencing and on 2 September 1999 (the 

sentences were imposed on 30 June 1999) the State filed a notice of application for 


4 

leave to appeal to this Court against the sentences imposed by the court a quo. 

Condonation of the late filing of that notice was also sought. The applications were 

argued before Kotze J on 26 November 1999. Regrettably the learned judge died 

before he could make his ruling, but leave was subsequently granted by Malherbe JP. 

[4] The regional magistrate’s factual findings were not challenged. The facts upon 

which the accused was convicted were the following. At approximately five in the 

afternoon of 7 June 1998 the complainant in the first count was walking home from 

church when she met the accused who was heading in the opposite direction. He 

grabbed her and pulled her to his parental home which was nearby. The complainant 

resisted, cried and shouted for help but no one came to her rescue. The accused 

threatened her with what appeared to her to be a firearm. She was shocked and feared 

that she might be injured. The accused succeeded in forcing her to his room where he 

ordered her to lie down on a bed and to take off her clothes. When she refused to do so 


5 

he removed her skirt and panties. He thereafter forcefully had full sexual intercourse 

with her without her consent. Later, the accused left his room and when he returned he 

again had sexual intercourse with her without her consent. At one stage he slapped her 

and kicked her. He again left her in the room. On these occasions he locked the door 

from outside with a padlock. When he returned at night he washed himself, forced her 

to sleep in his room and had sexual intercourse with her without her consent for the 

third time. The next morning, a Monday, he once again had sexual intercourse with 

her against her will. 

[5] During the early evening on the Monday she saw one Magweng Jack Mohlape 

(Magweng) through a window. She called out to him for help. She asked him to send 

one Sylvia to tell her parents that she was being held captive by the accused. When 

Magweng went to knock on the door of the accused’s room he told him in no uncertain 

terms that “jy steek nie jou neus in my sake nie”. Magweng then proceeded to the 


6 

complainant’s home where he made a report to her parents. According to the 

complainant when Magweng left the accused’s room the accused assaulted and 

insulted her. After Magweng had made the report to the complainant’s parents, he 

accompanied them so as to show them where the accused lived. Upon their arrival at 

the accused’s room the accused was still insulting the complainant, who was crying. 

When they knocked on his door the accused, in an aggressive mood, appeared with a 

firearm (or what appeared to be one) in his hand. A scuffle broke out between him and 

the complainant’s father. The complainant seized the opportunity and ran out of the 

room. 

[6] On 11 August 1998 and during the school break at approximately eleven o’clock 

in the morning the complainant in the second count was on her way home, 

accompanied by another girl, when the accused, who was unknown to her, grabbed her. 

He requested her to accompany her. When she refused to do so he drew a knife and 


7 

threatened her with it. He accused her of spreading rumours about him. He pulled her 

to his parental home where he ordered her to sit on a bed in his room, whereafter he 

removed her panties, pinned her down onto the bed and had sexual intercourse with her 

without her consent. Having satisfied his lust he stood up and swept the floor of the 

room, whereafter he again had non-consensual sex with her, making rude remarks 

about her private parts. She managed to run out of the room when the accused’s 

friends arrived some time later. 

[7] In the charge sheets both complainants were alleged to be 15 years old at the 

time of their ordeals. At the trial both testified that they were 15 years old. The 

regional magistrate accepted their ages as alleged by them. Kotze J found that the 

magistrate had erred in this regard since the ages of the complainants “was glad nie 

behoorlik bewys nie”. He held that both the prosecutor and magistrate had never given 

attention to the issue. 


8 

[8] This finding by the court a quo was not challenged before us. It is, however, of 

no significance in this case for purposes of ascertaining whether the crimes or any one 

of them falls within the ambit of Part 1 of Schedule 2 to the Act, i.e. whether it is an 

offence or offences for which a sentence of imprisonment for life should be imposed in 

the absence of substantial and compelling circumstances (s 51(1) of the Act). Both 

complainants were raped more than once. Those are circumstances which, in respect 

of each count, require the imposition of the prescribed minimum sentence of life 

imprisonment unless substantial and compelling circumstances are present to justify 

the imposition of a lesser sentence. 

[9] Kotze J accepted, rightly so in my view, that the magistrate correctly committed 

the accused for sentencing in the High Court. He concluded, however, that substantial 

and compelling circumstances were present. He preceded his examination into the 

existence or otherwise of substantial and compelling circumstances by referring to a 


9 

judgment of Stegmann J in S v Mofokeng and Another 1999 (1) SACR 502 (W), which 

Kotze J approved as being correct, and where Stegmann J said (at 523 C-D) that “for 

substantial and compelling circumstances to be found, the facts of the particular case 

must present some circumstance that is so exceptional in its nature, and that so 

obviously exposes the injustice of the statutorily prescribed sentence in the particular 

case, that it can rightly be described as ‘compelling’ the conclusion that the imposition 

of a lesser sentence than that prescribed by Parliament is justified”. 

[10] In S v Malgas 2001 (2) SA 1222 (SCA); 2002 (1) SACR 469, this Court 

disavowed the suggestion that for circumstances to qualify as substantial and 

compelling they must be “exceptional”. Such requirement does not appear from the 

legislation (paras 10, 30 and 31). In as much as Kotze J accepted and followed the test 

enunciated in Mofokeng’s case, he erred materially. But in enquiring whether or not 

substantial and compelling circumstances were present Kotze J considered the 


10 

mitigating and aggravating features in the case. These were, according to the learned 

judge, that the accused was relatively young and had already spent eight months in 

prison at the time of sentencing; that the complainants sustained no physical injuries 

and had suffered no psychological damage as a result of the rapes, and that they had 

not lost their virginity from the rapes as they had already been sexually active, one of 

them having had sexual intercourse two days before she was raped by the accused. 

The aggravating features were that the accused had a relevant previous conviction of 

having had sexual intercourse, in 1994, with a girl of less than 16 years of age and for 

which he was sentenced to five strokes with a light cane; that he committed the second 

offence while he was awaiting trial on the first count – he had been released in the 

custody of his grandmother – and that he had lied about his age in court (he had said 

that he was 17 years old while he was in fact 23) in order to secure a light sentence. 

[11] The learned judge meant, no doubt, that no serious or lasting physical injuries 


11 

had been sustained and that no evidence as to the extent and likely duration of 

psychological damage was placed before the court. If, on the other hand, he meant to 

find that no physical injury or psychological damage whatsoever was done, he erred. 

While it may theoretically be possible that a victim of rape committed in the 

circumstances and manner I have described may not suffer any psychological damage 

other than that experienced while the attack is taking place and in its immediate 

aftermath, it is in the highest degree unlikely. Where as here, the complainants were 

young girls, it is quite unrealistic to suppose that there will be no psychological harm. 

To quantify its likely duration and degree of intensity is of course not possible in the 

absence of appropriate evidence, but that does not mean that one should approach the 

question of sentence on the footing that there was no psychological harm. 

[12] In deciding whether substantial and compelling circumstances within the 

meaning of that expression in the Act existed, the learned judge said: 


12 

“Ek bevind dat die volgende omstandighede in hierdie geval as ‘n 

‘wesenlike en dringende omstandigheid’, soos bedoel in Artikel 51 

(3)(a), aangeteken moet word. Alhoewel daar hier met elke 

klaagster meer as een keer gemeenskap gehou is, was dit die 

gevolg van die viriliteit van ‘n jongman wat nog op skool is wat 

met ander skoliere teen hulle sin gemeenskap gevoer het en, let 

wel, skoliere wat reeds tevore seksueel aktief was. Die bedoeling 

van die Wetgewer wat in hierdie Wet langs snaakse paaie loop kon 

na my mening nooit ooit gewees het dat so ‘n skolier lewenslange 

gevangenisstraf opgelê word nie, en dit selfs nie waar dit blyk dat 

die beskuldigde die klaagsters met wapens of iets wat soos wapens 

lyk na sy woning geneem het nie.” 

Hence, in the exercise of his discretion, the learned judge imposed the sentences which 

he did. 

[13] Counsel were agreed that the court a quo misdirected itself in finding that the 

accused’s repeated non-consensual sex with each of the complainants was “die gevolg 

van die viriliteit van ‘n jongman wat nog op skool is wat met ander skoliere teen hulle 

sin gemeenskap gevoer het en … skoliere wat reeds tevore seksueel aktief was”, 

constituted substantial and compelling circumstances. I endorse their submissions. A 


13 

man’s virility, irrespective of his age, can never be a mitigating factor when he chooses 

to satisfy his lust by sexually violating a woman against her will. As counsel for the 

State correctly pointed out, were virility to play a role in sentencing in rape cases it 

would imply the grotesque result that the moral blameworthiness of an accused person 

convicted of rape would be assessed according to the strength of his libido. In my 

view the court a quo committed a material misdirection in this regard. It follows that 

this Court has itself to consider sentence afresh. 

[14] The present being a case where the complainants were each raped more than 

once, the prescribed period of imprisonment for life is the sentence which should 

ordinarily be imposed. It should not be departed from lightly and for flimsy reasons 

which cannot withstand scrutiny (S v Malgas, supra, paras 8-10; S v Dodo 2001 (3) 

SA 382 (CC) paras 11 and 40). However, in considering the question, a court is not 

prohibited by the Act from weighing all the usual considerations traditionally relevant 


to sentence. 

[15] What Kotze J regarded as mitigating factors have been mentioned above (para 

10). They require qualification as I have said in para 11. Moreover, I do not consider 

the fact that the complainant in count one had had sexual intercourse two days before 

she was raped by the accused is a factor to be taken into account in favour of the 

accused. That I consider to be an irrelevant fact. The fact that the accused had lied 

about his age was taken as an aggravating factor – but I think that it was neutralised by 

the fact that before sentence, and of his own volition, he gave his correct age, 23 years. 

According to the report of the probation officer, Ms Matubatuba, who was called by 

the State, the accused was born out of wedlock and was raised by his maternal 

grandmother in the village where the offences were committed. He never knew his 

father until he went to live with his mother, who was living with another man, in 

Sasolburg. His natural father also lives in Sasolburg with another woman. The 


14

15 

accused attended school in Sasolburg and used to visit his grandmother during school 

holidays. The rape of the first complainant occurred during one of those visits to his 

grandmother. 

[16] Concerning the offences committed by the accused, rape is obviously a very 

serious offence, “constituting as it does a humiliating, degrading and brutal invasion of 

the privacy, the dignity and the person of the victim” (S v Chapman 1997 (2) SACR 3 

(SCA) 5 b). As was said in that case, women in this country have a legitimate claim 

“to walk peacefully on the streets, to enjoy their shopping and their entertainment, to 

go and come to work, and to enjoy the peace and tranquillity of their homes without 

fear, the apprehension and the insecurity which constantly diminishes the quality and 

enjoyment of their lives” (at 5 c). In both instances in the present matter the accused 

confronted the complainants while they were minding their own business, walking 

peacefully in the street. He pulled them to his room where he repeatedly (four times) 


16 

raped the first complainant. In between those he locked her in his room. The second 

complainant was raped twice. The accused’s conduct can be described as nothing less 

than that of a sexual thug who considered young girls – they were in standard 4 and 5 

respectively at school – as objects to be used to satisfy his lust. The repeated rape of 

the complainants shows that he exploited to the full the position of power which he 

held over them (cf S v Swart 2000 (2) SACR 566 (SCA) par 27. With regard to the 

first count he even had the audacity to show aggression towards and to fight the 

complainant’s father when he came to rescue his daughter. 

[17] The rapes that we are concerned with here, though very serious, cannot be 

classified as falling within the worst category of rape. Although what appeared to be a 

firearm was used to threaten the complainant in the first count and a knife in the 

second, no serious violence was perpetrated against them. Except for a bruise to the 

second complainant’s genitalia no subsequently visible injuries were inflicted on them. 


17 

According to the probation officer – she interviewed both complainants – they do not 

suffer from any after-effects following their ordeals. I am sceptical of that but the fact 

remains that there is no positive evidence to the contrary. These factors need to be 

taken into account in the process of considering whether substantial and compelling 

circumstances are present justifying a departure from the prescribed sentence. 

[18] It perhaps requires to be stressed that what emerges clearly from the decisions in 

Malgas and Dodo is that it does not follow that simply because the circumstances 

attending a particular instance of rape result in it falling within one or other of the 

categories of rape delineated in the Act, a uniform sentence of either life imprisonment 

or indeed any other uniform sentence must or should be imposed. If substantial and 

compelling circumstances are found to exist, life imprisonment is not mandatory nor is 

any other mandatory sentence applicable. What sentence should be imposed in such 

circumstances is within the sentencing discretion of the trial court, subject of course to 


18 

the obligation cast upon it by the Act to take due cognisance of the legislature’s desire 

for firmer punishment than that which may have been thought to be appropriate in the 

past. Even in cases falling within the categories delineated in the Act there are bound 

to be differences in the degree of their seriousness. There should be no 

misunderstanding about this: they will all be serious but some will be more serious 

than others and, subject to the caveat that follows, it is only right that the differences in 

seriousness should receive recognition when it comes to the meting out of punishment. 

As this Court observed in S v Abrahams 2002 (1) SACR 116 (SCA) “some rapes are 

worse than others and the life sentence ordained by the Legislature should be reserved 

for cases devoid of substantial factors compelling the conclusion that such a sentence is 

inappropriate and unjust” (para 29). 

[19] One must of course guard against the notion that because still more serious cases 

than the one under consideration are imaginable, it must follow inexorably that 


19 

something should be kept in reserve for such cases and therefore that the sentence 

imposed in the case at hand should be correspondingly lighter than the severer 

sentences that such hypothetical cases would merit. There is always an upper limit in 

all sentencing jurisdictions, be it death, life or some lengthy term of imprisonment, and 

there will always be cases which, although differing in their respective degrees of 

seriousness, none the less all call for the maximum penalty imposable. The fact that 

the crimes under consideration are not all equally horrendous may not matter if the 

least horrendous of them is horrendous enough to justify the imposition of the 

maximum penalty. 

[20] Whilst I am persuaded that in respect of the first count the factors mentioned in 

para 17 above, taken together with the accused’s relative youth and his other personal 

circumstances, the fact that his previous conviction, though of a sexual nature, did not 

involve non-consensual sex, are such that a departure from the prescribed sentence is 


20 

justified on the basis that such a sentence would be disproportionate to the crime, the 

criminal and the legitimate interests of society, the same cannot be said without more 

about the second count. Here the accused had been arrested on the first count, 

appeared in court where he was released in the custody of his grandmother, but within 

a period of just over two months he committed a similar offence in almost similar 

fashion. What must be remembered, however, is that at the time of the second rape, 

the accused had not as yet been convicted on the first count. Again this is of course no 

excuse. But the Legislature has itself distinguished him from persons who, having 

been convicted of two or more offences of rape but not yet sentenced, commits yet 

another rape. If, for example, the accused in the first instance had not raped the first 

complainant more than once and he then in the second instance raped the second 

complainant only once while awaiting trial on the first count the prescribed sentence of 

life imprisonment would not have come into the reckoning. 


21 

[21] In his heads of argument counsel for the State submitted that no substantial and 

compelling circumstances were present in this matter. However, he did not persist in 

that argument before us. In fact he frankly conceded that life imprisonment would be 

disproportionate to the crimes, the criminal and the legitimate interests of society. 

Although a court is of course not bound by counsel’s submissions regarding sentence, 

the appellant here is the State and I am of the view that a concession of that nature by 

counsel for the State for which there is some foundation in the facts of the case should 

be given due weight. 

[22] I have given careful consideration to all these factors. The case is a borderline 

one. However, I am satisfied that the circumstances of this case render the prescribed 

sentence of life imprisonment too severe to be just even in respect of the second count. 

[23] What, then, is the appropriate sentence for each offence? This appeal is in effect 

against the alleged leniency of the sentences imposed by the court a quo. Counsel for 


22 

the accused submitted that the only aspect on which Kotze J misdirected himself was 

the question of the existence or otherwise of substantial and compelling circumstances. 

She argued that the misdirection was not such as to warrant an interference with the 

sentences imposed. Substantial and compelling circumstances were indeed present, so 

it was contended by counsel for the accused, and the sentences imposed by the court a 

quo were not excessively lenient. 

[24] In S v Gqamana 2001 (2) SACR 28 (C) a 23 year old accused was convicted of 

raping a complainant aged 14 years and 10 months. He had thought that she was 18 

years old. He had no previous convictions. The facts of that case are very similar to 

the present one. The accused and the complainant were strangers to one another. He 

induced her to accompany him to his shack by swearing at her and threatening to shoot 

her although he did not produce a firearm. At his shack he raped her. Approximately 

30 minutes later he had sexual intercourse with her again at the same place. He left the 


23 

shack, locking her inside. She made her escape when the accused’s friend arrived and 

let her out. Having concluded that the prescribed sentence of life imprisonment would 

be “utterly disproportionate” to the sentence which he would regard as appropriate, 

Thring J sentenced the accused to 8 years’ imprisonment. 

[25] In S v Abrahams, supra, the accused had been convicted in the regional court of 

raping his daughter who was under the age of 16 years. The State appealed against the 

sentence of 7 years which had been imposed upon the accused by Foxcroft J in the 

Cape Provincial Division and where the learned judge had found that substantial and 

compelling circumstances were present. This Court, having concluded that the 

sentence of 7 years was inappropriate, increased it to 12 years. 

[26] These are but two cases from which it is clear that courts view these kinds of 

offences in a very serious light. What is disturbing in the present matter is that the 

cumulative effect of the sentences imposed by the court a quo does not adequately 


24 

reflect the seriousness of the offences, particularly the fact that the accused committed 

the second offence at a time when he was awaiting trial on a similar offence. I accept 

that the court a quo gave some recognition to this by imposing a sentence in excess of 

the one imposed on the first count. But the fact remains that the sentences imposed are 

collectively woefully inadequate. 

[27] In considering what are the appropriate sentences in this case I take heed of what 

was said in S v Sadler 2000 (1) SACR 331 (A) para 10, viz: 

“[I]t is important to emphasise that for interference to be justified, it is 

not enough to conclude that one’s own choice of penalty would have 

been an appropriate penalty. Something more is required; one must 

conclude that one’s own choice of penalty is the appropriate penalty and 

that the penalty chosen by the trial court is not. Sentencing appropriately 

is one of the more difficult tasks which faces courts and it is not 

surprising that honest differences of opinion will frequently exist. 

However, the hierarchical structure of our courts is such that where such 

differences exist it is the view of the appellate Court which must prevail.” 

In my view the circumstances of this case call for the imposition of a period of direct 


25 

imprisonment which cumulatively is substantially longer than that imposed by the 

court a quo. I consider a sentence of 8 years’ imprisonment on the first count and 12 

years’ imprisonment on the second count to be the appropriate sentences. 

[28] I make the following order: 

CONCUR: 

1. The appeal succeeds. 

2. The sentences imposed by the court a quo are set aside and replaced with 

the following: 

“(a) On count 1 : 8 years’ imprisonment. 

(b) On count 2 : 12 years’ imprisonment.” 

The sentences are ante-dated to 30 June 1999. 

MARAIS JA) 

CAMERON JA) 

……………………… 

L MPATI 



In the matter between : 



Reportable 

CASE NO: 654/02 


and 

RIAAN SWART Respondent 

_____________________________________________________________________________ 

Before: STREICHER, NUGENT JJA, SOUTHWOOD, VAN HEERDEN & 

MOTATA AJJA 

Heard: 18 NOVEMBER 2003 

Delivered: 28 NOVEMBER 2003 

Summary: Sentence – rape – gravity of offence to be given due weight 

_____________________________________________________________________________ 

J U D G M E N T 

____________________________________________________________________________ 

NUGENT JA 


NUGENT JA: 

[1] The respondent was convicted in the High Court at Johannesburg (by 

Borchers J and assessors) of housebreaking with intent to rape, two counts of 

rape, and two counts of indecent assault. The two convictions for rape brought 

the matter within the terms of s 51 read with Part I of Schedule 2 to the Criminal 

Law Amendment Act No 105 of 1997 but the court was satisfied that substantial 

and compelling circumstances justified the imposition of a lesser sentence than 

the prescribed sentence of life imprisonment. For the offences taken together the 

respondent was sentenced to seven years’ imprisonment which was suspended 

for five years on the following conditions: 

‘1. That he is not convicted of rape, indecent assault or housebreaking, committed during 

the period of suspension. 

2. That he abstain from the use of any alcoholic beverage during the period of 

suspension. 

3. That he submit himself to correctional supervision in terms of s 276(1)(h) of Act 51 of 

1997 for a period of 3 years. 

4. That such sentence of correctional supervision shall include the following 

components: 

(a) That he receive therapy from Dr Aaron Segal for such period as Dr Segal and 

the officials of the Department of Correctional Supervision, in consultation 

with each other, deem necessary. 

(b) That he place himself under the control and supervision of the Correctional 

Supervision Officer stationed at Benoni. 

(c) That he fulfil all the requirements of Dr Segal and the said officials, including 

possible placement for therapy at the Christian Alcoholic Services, including 


2

attendance of any courses and therapy to be determined by them, and including 

admission as an in patient for therapy at any institution determined by them. 

(d) That he be subjected to house arrest, the precise times and the period thereof to 

be determined by the officials of Correctional Services Department. 

(e) That he render 300 hours of community service, at the venues and for the 

periods determined by the said officials. 

(f) That he reside at the home of his aunt, Mrs Claassen (sic), and does not leave 

or change this address without the consent of the said officials. 

5. That he report to Mrs Stander, or to Mrs Snyman, of the Department of Correctional 

Services at First Floor, Mutual & Federal Buildings, Elston Avenue, Benoni by noon 

on Monday, 31 July 2001.’ 

[2] The State now appeals against that sentence as provided for in s 316B of 

the Criminal Procedure Act No 51 of 1977 with leave granted by the trial court. 

There are two preliminary matters that need to be dealt with before turning to 

the merits of the appeal. 

[3] The respondent was sentenced on 26 July 2001 and leave to appeal was 

granted on 15 February 2002. Section 316 (5) of the Criminal Procedure Act 

(which is made applicable to appeals by the State by s 316B (2)) provides that 

once leave to appeal to this court has been granted 

‘… the registrar of the court granting such application … shall cause to be transmitted to the 

… registrar [of the Supreme Court of Appeal] a certified copy of the record, including copies 

of the evidence, whether oral or documentary, taken or admitted at the trial, and a statement of 

the grounds of appeal.' 

The record of the trial was lodged with the registrar of this court on 17 

December 2002 (the record was lodged by the Director of Public Prosecutions 


3

ather than by the registrar of the Johannesburg High Court but that is not 

material). 

[4] Rule 5(5) of the former rules of this court required an appellant in a 

criminal case to lodge the record within three months of being granted leave to 

appeal. That has not been repeated in the current rules, for in my view Rules 

8(1) and (3), properly construed, apply only to appeals in civil cases. (Rule 52 

of the Uniform Rules also stipulates no time for the filing of the record). But no 

doubt this court may make an appropriate order if the record is not lodged within 

a reasonable time, either in terms of s 342A of the Criminal Procedure Act or in 

the exercise of the inherent power to protect and regulate its own process that is 

conferred upon it by s 173 of the Constitution. At the commencement of the 

hearing of this appeal counsel for the respondent said that she left it in the hands 

of the court to decide whether the appeal had lapsed because of the delay. Only 

when asked whether it was her contention that the appeal had lapsed did she 

submit that it had. However, on the assumption that an appeal will lapse if the 

record is not lodged within a reasonable time, in the absence of facts indicating 

that the delay was unreasonable in the circumstances of the present case I do not 

think it can be said that this appeal has lapsed. The respondent’s counsel 

submitted further that the delay in pursuing the appeal is a consideration that 

ought in any event to be borne in mind in deciding whether to interfere with the 

sentence and I have done so. 

[5] The respondent also applied to place before us further evidence that was 

said to be relevant to sentence. The evidence was contained in affidavits 


4

deposed to by Mrs Classen (the respondent’s aunt referred to in paragraph 4(f) 

of the order made by the trial court) and a senior horticulturist employed by the 

Ekurhuleni Metropolitan Municipality (which is where the respondent 

performed the community service referred to in paragraph 4(e) of that order). 

[6] Section 322(2) of the Criminal Procedure Act provides that upon an 

appeal against sentence the court of appeal may confirm the sentence or it may 

delete or amend the sentence and impose ‘such punishment as ought to have 

been imposed at the trial’. It has been held that it is implicit in the powers 

conferred upon a court of appeal that it may take account only of circumstances 

that existed at the time the trial court imposed its sentence (R v Verster 1952 (2) 

SA 231 (A) at 236 A-D; R v Hobson 1953 (4) SA 464 (A) at 466 A-B; S v Marx 

1992 (2) SACR 567 (A) at 573 i-j) but it has been suggested that exceptional 

circumstances might permit a departure from that rule (S v Marx 1989 (1) SA 

222 (A) at 226C). I have assumed that this court may indeed admit further 

evidence in exceptional circumstances, bearing in mind particularly that a court 

is bound to ensure that every accused is given a fair trial as provided for in s 35 

(3) of the Bill of Rights. In the present case no such circumstances exist for the 

evidence that is sought to be adduced does not take the matter further and its 

exclusion cannot prejudice the respondent. To the extent that the evidence is 

admissible at all it constitutes no more than confirmation that the respondent has 

thus far observed all the terms of the sentence that the trial court imposed and 

that he is a person who is ordinarily polite and well-behaved. We would in any 

event assume that the respondent is complying with the terms of his sentence (if 


5

that were to be relevant) and the respondent’s character was in any event 

established before the trial court. The evidence accordingly adds nothing 

material and no purpose is served by admitting it. 

[7] At the time the offences were committed the respondent (who was then 30 

years old) was a lodger at the home of Mr and Mrs Ferreira. The complainant 

(who was about fifteen years older than the respondent) and her husband also 

lodged on the premises. The respondent lived in the main house together with 

Mr and Mrs Ferreira and the complainant and her husband lived in a separate 

cottage. Contact between the respondent and the complainant had been limited 

to an occasional exchange of greetings. The offences were committed between 

approximately 20h30 and 21h00 on 5 November 1999 while the complainant’s 

husband was at work and the complainant was alone in the cottage. 

[8] The circumstances in which the offences were committed are summarised 

in the trial court’s chronological narrative of the evidence. All the material 

evidence dealt with in that narrative was accepted by the trial court and none of 

its findings of fact were placed in issue before us. The trial court’s narrative, 

appropriately adapted, and abridged where necessary, provides a convenient 

means for setting out the material facts (stylistic adaptations have also been 

made where it was considered to be appropriate): 

1. At about 20:30 on 5 November 1999 Mr and Mrs Ferreira set out from home on an 

outing that they had planned earlier that week. The respondent, who was almost in the 

position of a member of the family and often accompanied the family when they went 

out, elected not to accompany them. 


6

2. Bennie Ferreira, the teenage son of Mr and Mrs Ferreira, remained at home for a while 

after his parents had left. He came across the respondent in the main house. The 

respondent was drunk and was pouring himself more liquor (which Bennie thought 

might be brandy, whisky or beer). The respondent asked Bennie whether the 

complainant’s husband was with her. Bennie told the respondent that he did not know 

and soon thereafter went out himself. The only people left on the premises were the 

accused and the complainant. 

3. Soon after Bennie left the complainant heard a knocking on one of her windows. She 

went to it and saw the respondent outside with a beer can in one hand and a brown 

750 ml bottle - which she thought contained liquor - in the other. He was standing 

outside her door. To her surprise - as they did not ordinarily communicate with one 

another - he asked her if she was all right. She replied that she was and she moved away 

from the window. 

4. A very short while later the respondent again rapped on the window. The complainant 

went to the window and the respondent asked her whether she was lonely. She was 

irritated by his return and replied curtly that she was fine and that she was in bed. She 

returned to her bed, switched off the light, and dozed off. 

5. Some time later (she could not say what time had elapsed but it was probably no more 

than a few minutes) she woke to find the respondent in her room, crouching beside her 

bed. 

6. The complainant screamed, whereupon the respondent pounced onto the bed, pulled 

aside the duvet that was covering the complainant, and hit her in the face, at the same 

time saying "Shut up, you bitch". 

7. The respondent then forced the complainant’s legs apart. She was dressed only in a long 

T-shirt and wore no underwear. The respondent was wearing a T-shirt and shorts. The 


7

espondent overpowered the complainant and when she tried to scratch him with her 

fingernails he held her down with one hand and again hit her in the face with the other. 

8. The respondent then tried to penetrate the complainant sexually but his penis was not 

sufficiently erect, so he pushed one of her legs up behind her head and then succeeded 

in penetrating her vagina. He had only a semi-erection and struggled to do so. 

9. The respondent then asked "Where is the butter?" and extracted his penis and dragged 

the complainant by her hair to the kitchen area (according to Mrs Ferreira the 

respondent had been in the cottage before the complainant moved in and would thus 

have known its layout). 

10. In the kitchen the respondent exposed his penis and ordered the complainant twice to 

put butter on it. She applied margarine to his penis as she was ordered to do. He had her 

in his control all the time as he was holding her by her hair and pulling her about by it. 

He then ordered her to spread margarine on her vagina and again she did as she was 

ordered. 

11. The respondent’s manner of speech was abnormal. The complainant said that he was 

speaking slowly and in a tone that made her cringe. The respondent’s usual language 

was Afrikaans but whenever he spoke to the complainant that night he did so in English 

(she was English-speaking). 

12. Still pulling the complainant by her hair the respondent then dragged her to the 

adjoining bathroom where he pushed her over the bath and penetrated her anally. That 

caused pain to the complainant and she screamed again, whereupon the respondent hit 

her hard on one of her ears. 

13. The complainant felt a bowel movement commencing and begged to use the toilet. The 

respondent appeared to comprehend her request because - still pulling her by the hair - 

he dragged her from the bath and pushed her onto the toilet. However the complainant 


8

had lost control of her bowels and defecated on the floor on her way to the toilet and 

then again in the toilet. 

14. While the complainant sat on the toilet the respondent manoeuvred her head by pulling 

hard at her hair and put his penis into her mouth causing the complainant almost to 

choke. 

15. The respondent then pulled the complainant back to the bedroom, pushed her onto the 

bed, and penetrated her vagina with his penis. 

16. Again the complainant screamed, whereupon the respondent put his hand into her 

mouth, with his fingers behind her teeth, and pulled her jaw. The complainant bit his 

hand and the respondent in turn bit her breast. The respondent then altered his position, 

withdrew his penis, and penetrated the complainant yet again. On that occasion he 

pinned her arm to her chest and she felt as if she was suffocating. 

17. All the incidents of penetration seem to have been of very short duration. On one 

occasion, while he was penetrating her, the respondent asked the complainant whether 

she liked what he was doing and she smelt liquor on his breath. 

18. After the third act of penetration the respondent shifted upwards and the complainant 

attempted to fight back. She tried to scratch him and she grabbed his penis and testicles 

as he knelt on the bed. She twisted or grabbed them forcibly with the obvious intent to 

cause him pain but he showed no signs of pain – in fact he did not react at all. The 

complainant said that he made no attempt to stop her and it almost appeared that he was 

enjoying it. 

19. Then - and for no apparent reason –the respondent toppled off the bed onto the floor. 

The respondent sat on the floor with his head between his hands and twice said "The 

bitches, tell them I love them". He then moved to the single step between the bedroom 

and the sitting room where he sat - his head between his hands - muttering something to 

himself in Afrikaans that the complainant did not understand. 


9

20. The complainant noted a complete change of attitude - from aggression and control to 

passivity and apparent confusion. She seized the opportunity to move, as calmly and 

unobtrusively as possible, past the respondent towards the door. The respondent made 

no attempt to stop her. 

21. The complainant opened the door leading outside and went to the gate that opened onto 

the street. Meanwhile the respondent had followed her. At the gate he fell against her. 

She moved away and he fell to one side. 

22. The complainant ran to a nearby house. It was then shortly after 21:00. Injured, half- 

dressed, and highly upset, she reported that she had been raped. Assistance was 

summoned from various quarters. A traffic officer was one of the first to arrive. He 

went to the Ferreiras' home, where the door was opened by Bennie Ferreira who must 

just have arrived home. Bennie found the respondent in the house still noticeably drunk, 

and talking what seemed to him to be drunken nonsense. He said to Bennie words to the 

effect "Vlieënde pierings, vlieënde pierings, kyk hoe lyk ek nou", and Bennie saw 

marks on the accused's body. He was at this point dressed only in shorts. 

[9] Two completed acts of rape were found to have been committed, which 

brought the matter within the terms of Part I of Schedule 2 to the Criminal Law 

Amendment Act No 105 of 1997 (potentially attracting a prescribed sentence of 

life imprisonment). Had the respondent's conduct constituted only one act of 

rape the matter would have fallen within the terms of Part III of Schedule 2, 

attracting a potential minimum sentence of ten years’ imprisonment. It is not 

necessary to consider whether the trial court was correct in that conclusion, 

(even if it was open to us to do so, bearing in mind that the respondent has not 

appealed against his convictions), and I expressly refrain from doing so, for the 


10

trial court found that there were substantial and compelling circumstances that 

justified the imposition of a lesser sentence than the minimum sentences 

prescribed by the Act and that finding has not been placed in issue by the State. 

The trial court was thus at large to impose the sentence that was appropriate on a 

conspectus of all the facts and it was not material whether those facts strictly fell 

within Part I or within Part III of the Schedule. 

[10] It is almost otiose to repeat what was said by this court in S v Zinn 1969 

(2) SA 537 (A) at 540G – in approaching the question of sentence a court must 

consider ‘the triad consisting of the crime, the offender and the interests of 

society’ – and in S v Rabie 1975 (4) SA 855 (A) at 862G-H – ‘punishment 

should fit the criminal as well as the crime, be fair to society, and be blended 

with a measure of mercy according to the circumstances’. In Rabie’s case at 

862A-B Holmes JA reiterated that ‘the main purposes of punishment are 

deterrent, preventive, reformative and retributive’. 

[11] While it was observed in S v Karg 1961 (1) SA 231 (A) at 236A that the 

retributive aspect of punishment has tended to yield ground to the aspects of 

prevention and correction, more recently this court said the following in S v 

Nkambule 1993 (1) SACR 136 (A) at 147c-e: 

‘Retribusie moet nie uit die oog verloor word nie. Retribusie het nie ‘n vaste plek laag 

op die rangorder van strafoorwegings nie. Sy oorwegingskrag hang van die omstandighede af. 

R v Karg 1961 (1) SA 231 (A) op 235G-236D bevestig dit … Niemand is geneë om 

strafoplegging aan die hand daarvan te motiveer nie omdat dit die indruk van ‘n oog-vir-oog 

benadering skep. Ek het vantevore in S v Mafu 1992 (2) SASV 494 (A) 497 gepoog om 


11

vergelding in sy juiste perspektief te stel. Dit is nie ‘n oorweging wat in isolasie staan nie 

maar wat in samehang met die faktor deur Nigel Walker ‘denunciation’ (dit is ‘to show 

society’s abhorrence’ : sien Grosman a w op 23) genoem, gesien word. En hoewel dikwels 

reeds gesê is dat retribusie sy belang verloor het, het hierdie Hof dit reeds by herhaling as 

deurslaggewend by die oplegging van bepaalde doodvonnisse gegee. Sien bv S v Nkwanyana 

and Others 1990 (4) SA 735 (A) op 749C-D.’ 

And in S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 519d-e: 

‘Given the current levels of violence and serious crimes in this country, it seems 

proper that, in sentencing especially such crimes, the emphasis should be on retribution and 

deterrence (cf Windlesham ‘Life Sentences: The Paradox of Indeterminacy’ [1989] Crim LR 

at 244, 251). Retribution may even be decisive (S v Nkwanyana and Others 1990 (4) SA 735 

(A) at 749C-D).’ 

And earlier in S v di Blasi 1996 (1) SACR 1 (A) at 10f-g: 

‘The requirements of society demand that a premeditated, callous murder such as the 

present should not be punished too leniently lest the administration of justice be brought into 

disrepute. The punishment should not only reflect the shock and indignation of interested 

persons and of the community at large and so serve as a just retribution for the crime but 

should also deter others from similar conduct.’ 

[12] What appears from those cases is that in our law retribution and 

deterrence are proper purposes of punishment and they must be accorded due 

weight in any sentence that is imposed. Each of the elements of punishment is 

not required to be accorded equal weight, but instead proper weight must be 

accorded to each according to the circumstances. Serious crimes will usually 

require that retribution and deterrence should come to the fore and that the 

rehabilitation of the offender will consequently play a relatively smaller role. 


12

Moreover, as pointed out in S v Malgas 2001 (2) SA 1222 (SCA) at 1236E, 

where a court finds that it is not bound to impose a prescribed sentence ‘the 

sentence to be imposed in lieu of the prescribed sentence should be assessed 

paying due regard to the bench mark which the Legislature has provided’. 

[13] The sentence that was imposed by the trial court – and the reasons that 

were given for doing so – all point to those considerations having been given 

little weight. Dealing with the four aims of punishment the learned judge 

concluded that none, except retribution, would be served by a sentence of direct 

imprisonment. After noting that retribution (the proper meaning of which is 

discussed in Terblanche The Guide to Sentencing in South Africa, esp para 8.6) 

is a legitimate aim of punishment the learned judge went on to say 

‘… but it is in my view also a worthless and perhaps primitive objective if it leaves the 

offender unrehabilitated, and society as a result in danger on his release from prison. Society’s 

interests are better served by the rehabilitation of the offender, if such be possible …’ 

Dealing with the element of deterrence the learned judge said that she 

‘…strongly doubt[ed] that a sentence of imprisonment, imposed in this present matter, will 

convey the message to those of the general public who drink heavily, that they will be 

imprisoned if they commit rape while heavily intoxicated, for the simple reason that most of 

such people, like the accused when sober, simply cannot conceive of themselves performing 

such an act’. 

As for the deterrence of the accused himself the learned judge expressed ‘similar 

doubts about such a result occurring from a sentence of direct imprisonment’, 

for she was of the view that unless the respondent was cured of his drinking 

problem he might well offend again when he was released from prison. 


13

[14] The sentiments expressed by the learned judge were translated into a 

sentence that was directed towards curing the respondent of his drinking 

problem, while the grave crimes that he committed faded far into the 

background. In my view the learned judge was materially misdirected in the 

approach that she took. I have pointed out that in the case of serious crimes 

society's sense of outrage and the deterrence of the offender and other potential 

offenders deserve considerable weight. Amongst the permissible sentencing 

options that the Legislature has made available to the courts, imprisonment is 

pre-eminently designed to fulfil those purposes and I do not think it is open to a 

court to dismiss it perfunctorily, as the trial court was inclined to do. The result 

in the present case was that the sentence imposed was startlingly inappropriate 

and the misdirection allows this court to reconsider the sentence. 

[15] The appellant committed a deplorable offence. He subjected the 

complainant to extreme humiliation and degradation. Her uncontested evidence 

as to the effect of the assault on her was: 

‘Well, I had no confidence in myself. I have not been able to work. I have not been able to 

look for work, I could not bring myself to. In the first few weeks after it if I went outside I 

wore dark glasses. I wore this skirt that I am wearing today. I hardly go anywhere without it 

because it covers me up. I did have a breakdown within the Lynnmed. I could only stay in for 

a week because our medical aid, we did not have enough money on our medical aid. I have 

been on Prozac and I have been on Urbanol. I had to give those up because our medical aid 

ran out towards the end of the year. It has affected my sex life with my husband. It was at 

least five months before we had any sexual relationship after this and at the moment it is 

about nil because I just get all uptight and everything when he comes near me. I had 


14

flashbacks. When my husband was having to work the shifts that he started that night I was 

lying in bed with every light in the flat on with all my clothes on, with three kitchen knives 

and my husband's gun in the bed. That is how badly I felt. I was a wreck.’ 

[16] In S v Chapman 1997 (3) SA 341 (SCA) at 344J-345B this court said the 

following: 

‘Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal 

invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to 

privacy and the integrity of every person are basic to the ethos of the Constitution and to any 

defensible civilisation. 

Women in this country are entitled to the protection of these rights. They have a legitimate 

claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go 

and come from work, and to enjoy the peace and tranquillity of their homes without the fear, 

the apprehension and the insecurity which constantly diminishes the quality and enjoyment of 

their lives. 

The Courts are under a duty to send a clear message to the accused, to other potential rapists 

and to the community: We are determined to protect the equality, dignity and freedom of all 

women, and we shall show no mercy to those who seek to invade those rights.' 

[17] No doubt the court did not intend to suggest that the quality of mercy 

should be altogether overlooked – for it is an intrinsic element of civilised 

justice – but rather to emphasise that retribution and deterrence will come to the 

fore in relation to such crimes. 

[18] The personal circumstances of the respondent were set out fully in the 

judgment of the trial court and I do not intend to do more than summarise the 

principal features. The respondent is one of a number of siblings who was 

brought up in modest circumstances. His upbringing was uneventful except that 


15

he has a relatively low IQ and experienced learning difficulties, with the result 

that he has a negative self-image and came into conflict with his mother. After 

completing school he spent two years in the army, which was at that time being 

used to quell civil unrest, and he is said to have suffered emotionally as a result. 

While he was in the army the respondent began to drink heavily. After leaving 

the army the respondent went through an unsettled period until he commenced 

employment as a spray-painter and he remained in that employment until his 

arrest. He had a short and unsuccessful marriage. 

[19] The respondent was a regular abuser of alcohol and would often have no 

recall of what had happened while he was intoxicated. On one occasion he found 

himself in a police cell when he recovered his sobriety. On another occasion he 

found that he had been injured. At the time he committed the offences he was 

severely intoxicated, which constituted the 'substantial and compelling 

circumstances' that were found to exist by the trial court. But while his state of 

intoxication is also a consideration to be taken into account in determining a 

proper sentence it is not one that can be permitted to obscure the gravity of the 

crimes. 

[20] In my view the offences, taken together, in the circumstances warranted a 

sentence of twelve years’ imprisonment. I have taken into account, however, 

that the respondent was imprisoned for twenty-one months while awaiting trial, 

and that he has already served a substantial portion of the sentence of 

correctional supervision that was imposed by the trial court. With those 


16

considerations in mind in my view the appropriate sentence to be served by the 

respondent at this stage is imprisonment for eight years. 

[21] The appeal is upheld. The sentence imposed by the trial court is set aside 

and the following sentence is substituted: 

‘The accused is sentenced to imprisonment for eight years.’ 

STREICHER JA) 

SOUTHWOOD AJA) 

VAN HEERDEN AJA) CONCUR 

MOTATA AJA) 

17 

_____________ 

NUGENT JA 


THE SUPREME COURT OF APPEAL OF SOUTH 

AFRICA 


REPORTABLE 

CASE NO: 350/2003 

THE STATE APPELLANT 

and 

KHEHLANI MVAMVU RESPONDENT 

CORAM: MTHIYANE, CLOETE and VAN HEERDEN JJA 

HEARD: 9 SEPTEMBER 2004 

DELIVERED: 29 SEPTEMBER 2004 

Summary: Rape – Appeal by State against sentence– rural and unsophisticated 

accused sentenced to an effective 5 years’ imprisonment for the multiple rape (on two 

occasions) of his customary law wife – substantial and compelling circumstances found to 

exist – sentencing court required to balance all factors relevant to sentencing against 

benchmark provided by the Legislature in section 51 of the Criminal Law Amendment 

Act 105 of 1997. 

________________________________________________________ ___ 

JUDGMENT 

MTHIYANE JA: 


MTHIYANE JA: 

[1] This case highlights the importance of the individualization of punishment 1 

and the need for the sentencing court properly to balance all the factors relevant 

to sentencing against the benchmark provided by the Legislature in respect of 

certain serious offences. 2 The State appeals against an effective five-year prison 

sentence imposed on the respondent (‘the accused’) for the multiple rape (eight 

incidents on two occasions), abduction and assault of his customary law wife, Ms 

Cynthia Sokhawakile (‘the complainant’). 

[2] The accused was convicted in the regional court at Knysna on two counts 

of rape, one count of abduction and one count of assault. The matter was 

thereafter referred to the Cape High Court for sentence in terms of s 52 of the 

Criminal Law Amendment Act 105 of 1997 (‘the Act’). The court a quo (Moosa 

J) confirmed the convictions and sentenced the accused to 5 years’ and 3 years’ 

imprisonment respectively on the two rape counts, and to 3 years’ and 3 months’ 

imprisonment respectively for the abduction and the assault. The sentences were 

ordered to run concurrently. 

1 S v Toms; S v Bruce 1990 (2) SA 802 (A) at 806 H-I. 

2 See s 51 of, read with Schedule 2 to, the Criminal Law Amendment Act 105 of 1997 for a description 

of the offences concerned. 


2

[3] The State contends that, having regard to the minimum sentence provisions 

contained in s 51 of the Act, the sentence imposed on the accused was too 

lenient. Sections 51 (1) and 51 (3) (a) of the Act provide that if a High Court has 

convicted a person of an offence referred to in Part I of Schedule 2, it shall 

sentence that person to imprisonment for life unless it is satisfied that there are 

substantial and compelling circumstances which justify the imposition of a lesser 

sentence. 3 

[4] Before turning to the facts a brief consideration of the background of the 

accused and the complainant is necessary for a better understanding of the setting 

against which the offences were committed. The accused was born at Qumbu in 

the Transkei, where he lived according to the traditions, customs and beliefs of 

his tribe. Although he passed grade seven at school he led a simple and 

unsophisticated life. In 1995 he entered into a customary marriage with the 

complainant whom he had known from childhood. She was about 15 years old at 

the time. They had two children: one who died soon after birth and a daughter 

who was approximately five years old when the accused was sentenced. In April 

1999 their marriage experienced problems which resulted in the complainant 

leaving the accused to stay with her brother, Mr Siyabulela Sokhawakile. She 

assumed that the marriage had ended, not least because the accused’s uncle had 

given her permission to remove her traditional wedding attire. (The accused’s 

3 See, in this regard, S v Malgas 2001 (1) SACR 469 (SCA) para 25. 


3

father was deceased, having committed suicide some years previously.) The 

accused on the other hand regarded the marriage as extant, because the lobolo 4 he 

had paid in respect of the complainant had not been returned by her family. 5 In 

addition, according to the accused, the two families had not met to attempt to 

reconcile the couple, as required by customary law. 6 Both of these latter two 

aspects were emphasized by the expert witness called by the court, Reverend 

Ngesi. The accused also believed that the complainant’s family were the cause of 

the break-up of their marriage. The problems in the marriage arose some time 

after the accused and the complainant had left Transkei for Knysna, where the 

accused was working. 

[5] I now turn to consider the facts. On Wednesday 12 May 1999 the accused 

and the complainant attended the magistrate’s court at Knysna for the hearing of 

a child maintenance complaint and a domestic violence dispute. At the 

conclusion of the hearing a domestic violence interdict was issued against the 

accused by consent. Upon their return to their respective places of residence the 

accused persuaded the complainant to travel with him in the same taxi. When she 

reached her destination he tried to prevent her from disembarking and begged her 

4 

Lobolo is consideration paid by the bridegroom to the family of the bride before the marriage. It is 

similar to a dowry or bride price in a Western marriage, though not quite the same. Bekker Seymour’s 

Customary Law 5 ed (1989) 151 describes lobolo as ‘the rock on which the customary marriage is 

founded.’ 

5 

Warner A Digest of Native Case Law para 1794 records that if the court grants a decree of divorce in a 

customary marriage, an order for the return of lobolo or any portion thereof furnished the woman’s 

father is peremptory. 

6 

According to Warner op cit para 1788, an attempt at reconciliation is an essential preliminary to the 

action for divorce at customary law. 


4

to return to his home. She refused and proceeded to alight from the taxi. He also 

disembarked. When she ran away soon after alighting he pursued her and caught 

up with her near a neighbour’s house. He began to drag her away and a scuffle 

ensued. As he was trying to pull her towards him she clung on to a pole 

supporting the neighbour’s boundary fence. Her resistance came to naught as the 

pole gave in and was ripped out of the ground. She then broke away from him 

and ran into the neighbour’s house but he followed and again accosted her. The 

accused ultimately had his way and took her to his home by force. He kept her 

there against her will from Wednesday 12 May until Friday 15 May 1999. During 

that period he raped her on six occasions. The complainant managed to escape on 

Friday 15 May, after the accused had left the house for a while. 

[6] The second incident occurred on 29 May 1999. The accused visited the 

complainant at her brother’s house. He asked to speak to her but the 

complainant’s brother was only prepared to allow him to do so if this took place 

in the house. But shortly after the complainant’s brother had left the house (to 

fetch his uncle to help him to deal with the accused, who was armed with a 

knife), the accused forcibly removed the complainant and dragged her into the 

bush to a place near an abandoned abattoir where he raped her twice. On this 

occasion he also assaulted the complainant by hitting her twice on her thigh with 

a stick. 


5

[7] Having regard to the minimum sentence provisions, the judge a quo found 

that ‘substantial and compelling circumstances’ justifying the imposition of a 

lesser sentence were present as contemplated by the Act. 7 I cannot find any fault 

with this conclusion. In the appeal before us the correctness of this finding was 

conceded by the State. 

[8] In passing sentence the judge a quo took into account the following factors 

in aggravation of sentence in relation to the first incident: the fact that the 

accused had forced the complainant to accompany him to his home and had held 

her captive for two days; that he had raped her on six occasions; that he had 

threatened her with a knife and had also threatened to douse her with petrol and 

burn her; that the rape took place after the complainant had just come from court, 

where she had obtained a domestic violence interdict against him; and that, had it 

not been for the fact that the complainant had escaped and reported the matter to 

the police, he would in all probability have continued with his conduct. 

[9] As to the second incident the judge a quo took into account the fact that the 

complainant had been forcibly removed from her place of residence; that she had 

been threatened with a knife; that the accused had performed certain acts of 

witchcraft to frighten her; that she had been raped twice; that she had been hit 

with a stick; that the accused committed the second rape knowing that the police 

7 Section 51(3)(a) of the Act. 


6

were looking for him; and that he may have continued to rape and assault the 

complainant, had he not been interrupted by the complainant’s brother and some 

elders. The court also noted that the accused had shown no remorse. 

[10] The learned judge then had regard to the seriousness of both offences and 

the interests of the community, in particular the community’s demand for the 

imposition of heavy sentences on perpetrators of sexual offences against women. 

[11] In mitigation of sentence the learned judge found that the crimes were 

what he termed ‘crimes of passion’; that the accused had repeatedly tried to effect 

a reconciliation with the complainant and had pleaded with her to return to him; 

that members of the complainant’s family had possibly contributed to the break- 

up of the marriage; that the complainant still had ‘feelings’ for the accused; that, 

if the family had left the couple to lead their lives, the problems between them 

might not have arisen; that the complainant had not complained to the accused’s 

sister when she arrived at the accused’s home during the period when the 

complainant was being held against her will; and that the accused and the 

complainant had different perceptions of whether they were still married to each 

other or not. 

[12] Turning to the personal circumstances of the accused, the learned judge 

noted that the accused was 33 years old; that the couple had known each other 


7

from childhood and had a five-year old child; that the accused left school in grade 

eight (standard six); that he was at the time of the incidents in permanent 

employment with Murray and Roberts; that, according to the social worker, he 

did not appear to be an aggressive person; that he lived according to traditional 

values and customary practices; and that he had to be treated as a first offender as 

no previous convictions had been proved against him. Although the accused’s 

attorney informed the court from the bar that he had a previous conviction for 

assault, for which he had been sentenced to nine months’ imprisonment, no 

account was taken of this – and properly so, as the State did not seek to prove it. 8 

The court was informed further that the complainant in that case was the 

accused’s sister-in-law whom the accused regarded as interfering with his 

marriage. 

[13] Although the judge a quo granted the State leave to appeal against the 

sentences on all the counts, argument before us was limited to an attack on the 

propriety of the sentences imposed on the rape counts. Counsel for the State 

submitted that the sentence of five years for the first rape count was too light and 

that the second rape count, for which the accused was only sentenced to three 

years’ imprisonment, was in fact more serious than the first. This was because at 

that stage the accused knew that he was being sought by the police for the first 

8 See in this regard, S v Maputle 2002 (1) SACR 550 (W) at 555 f-g, a case in which the trial magistrate 

took into account a previous conviction of the accused which the State had not proved. This was found 

by the court of appeal to be a serious irregularity. 


8

incident. A number of factual misdirections were relied upon. First, the learned 

judge’s finding that the offences in question were ‘crimes of passion’ was 

attacked. In my view this finding is, with respect, not correct as the offences were 

not committed without rational reflection whilst the perpetrator was influenced 

by barely controllable emotion, which is an essential characteristic of a crime of 

passion. Secondly, the finding that the complainant still had ‘feelings’ for the 

accused was correctly attacked because the complainant had made it clear to the 

accused that she did not want to have anything further to do with him and had in 

fact left him. A third misdirection, so counsel for the State submitted, was the 

learned judge’s reliance – as a mitigating factor - on the complainant’s failure to 

report the rape to the accused’s sister, when the latter had arrived at the house 

where the complainant was being held captive. Counsel reminded us that in her 

evidence the complainant had given a plausible explanation for her failure to 

report - she said that the sister had previously been antagonistic towards her and 

would not have been sympathetic to her plight - and this explanation appears to 

have been overlooked by the judge a quo. 

[14] I agree that the court a quo did indeed misdirect itself in the respects set 

out above, and that the misdirections are material, so entitling this court to 

interfere with the sentence imposed. The circumstances in which a court of 

appeal is entitled to interfere with sentence were encapsulated by Marais JA in S 

v Malgas as follows: 


9

‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the 

trial court, approach the question of sentence as if it were the trial court and then substitute the 

sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing 

discretion of the trial court. Where material misdirection by the trial court vitiates its exercise 

of that discretion, an appellate court is of course entitled to consider the question of sentence 

afresh. In doing so, it assesses sentence as if it were a Court of first instance and the sentence 

imposed by the trial court has no relevance. As it is said, an appellate Court is at large. 

However, even in the absence of material misdirection, an appellate court may yet be justified 

in interfering with the sentence imposed by the trial court. It may do so when the disparity 

between the sentence of the trial court and the sentence which the appellate court would have 

imposed had it been the trial court is so marked that it can properly be described as “shocking”, 

“startling” or “disturbingly inappropriate”’. 9 

[15] I am also satisfied that the sentences imposed in respect of the two rape 

counts were so disturbingly inappropriate as to lead to the inference that the 

judge a quo failed to exercise his discretion properly. As already indicated I agree 

with the finding of the court a quo that there were substantial and compelling 

circumstances in casu justifying the imposition of a lesser sentence than life 

imprisonment. The complainant and the accused were not strangers to each other. 

They had lived together as husband and wife in a customary marriage 

relationship for a number of years before the rapes. There was no evidence that 

the complainant suffered any lasting psychological trauma to speak of, although 

she did mention in her evidence that she still thought about the incidents. She 

9 S v Malgas supra para 12; also S v Abrahams 2002 (1) SACR 116 (SCA) para 15. 


10

only suffered minor injuries. In fact, at the time sentence was considered, the 

complainant could not be found and gave no evidence in aggravation of sentence. 

While rape is undoubtedly a very serious offence, I am not convinced that this is 

a case, despite the provisions of the Act, which requires the maximum sentence 

which can be imposed by a court. In this regard the remarks of Cameron JA in S v 

Abrahams, a case which concerned the imposition of the minimum sentences 

prescribed by the Act, are both instructive and apposite: 

‘… rape can [n]ever be condoned. But some rapes are worse than others, and the life sentence 

ordained by the Legislature should be reserved for cases devoid of substantial factors 

compelling the conclusion that such a sentence is inappropriate and unjust.’ 10 

[16] As stated earlier in the judgment the accused believed that he and the 

complainant were still married at the time of the incidents. Having regard to the 

evidence of Reverend Ngesi, it would appear at the time of the offence that the 

couple were indeed in all probability still formally married under customary law. 

It is clear from his evidence that at the time of the incidents the accused honestly 

(albeit entirely misguidedly) believed that he had some ‘right’ to conjugal 

benefits. His actions, though totally unacceptable in law, might well be (albeit 

only to a limited extent) explicable given his background. He grew up and lived 

in a world of his own, of tradition and Black medicine – which was not 

completely strange to the complainant (they grew up together and come from the 

10 See supra para 29. 


11

same area). His actions were shaped and moulded by the norms, beliefs and 

customary practices by which he lived his life. Though the rapes were 

accompanied by some acts or threats of violence, it does not appear that the 

prime objective was to do the complainant harm. The key aim, it seems, was to 

subjugate the complainant to his will and to persuade her to return to him – a 

consequence of male chauvinism, perhaps associated with traditional customary 

practices. That these traits or habits are difficult to discard appears to have been 

true of the accused. The complainant’s rights to bodily integrity and dignity and 

her entitlement to have these rights respected and protected 11 were not foremost 

amongst his concerns. These ingrained traits and habits of the accused cannot be 

ignored when considering an appropriate sentence. He wanted the complainant 

back home, as his wife - in one piece. The threats he made were empty, albeit 

designed to frighten her. 

[17] These factors perforce have to be weighed up against the benchmark 

provided by the legislature for offences of this type. In imposing the sentences of 

5 years’ and 3 years’ imprisonment for the two rapes (eight incidents) it would 

appear that the judge a quo reasoned, erroneously, that having found substantial 

and compelling circumstances to be present, he considered himself to have a free 

and unfettered discretion to impose any sentence he considered appropriate. In so 

doing, he appears to have overlooked the benchmark indicating the seriousness 

11 Sections 10 and 12 of the Constitution. 


12

with which the Legislature views offences of this type. This approach amounts to 

a material misdirection. It is as well to recall what Marais JA said in Malgas. 

Dealing with departure from the prescribed minimum sentence provisions 

prescribed by the Act the learned judge said: 

‘What stands out quite clearly is that the courts are a good deal freer to depart from the 

prescribed sentences than has been supposed in some of the previously decided cases and that 

it is they who are to judge whether or not the circumstances of any particular case are such as 

to justify a departure. However, in doing so, they are to respect, and not merely pay lip service 

to, the Legislature’s view that the prescribed periods of imprisonment are to be taken to be 

ordinarily appropriate when crimes of the specified kind are committed.’ 

Marais JA continued: 

‘If the sentencing court on consideration of the circumstances of the particular case is satisfied 

that they render the prescribed sentence unjust in that it would be disproportionate to the crime, 

the criminal and the needs of society, so that an injustice would be done by imposing that 

sentence, it is entitled to impose a lesser sentence. 

In so doing, account must be taken of the fact that crime of that particular kind has been 

singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed 

sentence should be assessed paying due regard to the bench mark which the Legislature 

has provided’. 12 (Emphasis added.) 

In S v Abrahams, Cameron JA put it thus: 

‘The prescribed sentences the Act contains play a dual role in the sentencing process. Where 

factors of substance do not compel the conclusion that the application of the prescribed 

sentence would be unjust, that sentence must be imposed. However, even where such factors 

12 S v Malgas supra para 25. 


13

are present, the sentences the Act prescribes create a legislative standard that weighs upon the 

sentencing court’s discretion. This entails sentences for the scheduled crimes that are 

consistently heavier than before.’ 13 

[18] In my view even in the absence of misdirection this court would have been 

entitled to intervene, given that the sentences imposed in respect of the rape 

counts were disturbingly inappropriate. I am satisfied that on both of the bases 

indicated in Malgas in the passages quoted in para [14] above, this court is 

entitled to reconsider the sentence. The crimes committed by the accused were 

undoubtedly serious and the legislature has provided a benchmark which must be 

borne in mind at all times. Giving due weight to the aggravating and mitigating 

circumstances and to the special circumstances of this case as set out above and 

bearing in mind that, when sentence was passed, the accused had already been in 

custody for more than three and half years, an appropriate sentence is, in my 

view, ten years in respect of each of the two counts of rape, such sentences to run 

concurrently with each other and with the sentences imposed for the other 

offences. 

[19] The appeal accordingly succeeds. The sentences imposed by the court a 

quo are set aside and are replaced by the following sentences: 

Count 1: Rape: 10 years’ imprisonment; 

13 Supra para 25. 


14

Count 2: Abduction: 3 years’ imprisonment; 

Count 3: Rape: 10 years’ imprisonment; 

Count 4: Assault: 3 months’ imprisonment. 

The sentences on counts 2, 3 and 4 are to run concurrently with each other and 

with the sentence on count 1. To the extent necessary, the sentences are antedated 

in terms of s 282 of the Criminal Procedure Act 51 of 1977 to 7 November 2002, 

being the date upon which the sentences were imposed. 

CONCUR: 

CLOETE JA 

VAN HEERDEN JA 

15 

__________________ 

KK MTHIYANE 



THE SUPREME COURT OF APPEAL OF SOUTH 

AFRICA 


REPORTABLE 

CASE NO: 363/2005 

THE DIRECTOR OF PUBLIC PROSECUTIONS 

KWAZULU-NATAL APPELLANT 

and 

P RESPONDENT 

CORAM: HARMS, STREICHER, MTHIYANE JJA, 

COMBRINCK and NKABINDE AJJA 

HEARD: 9 NOVEMBER 2005 

DELIVERED: 1 DECEMBER 2005 

Summary: Sentence – appeal by state against sentence imposed on a 14 year 

old girl upon conviction for murder of her grandmother and theft – whether 

postponement of the passing of sentence coupled with 36 months of correctional 

supervision in terms of s 276(1)(h) of Act 51 of 1977 on certain conditions 

appropriate, given the severity of the offence – traditional and postconstitutional 

approach to sentencing with respect to a child offender (under 18 

years old) considered. Appellate court’s entitlement to interfere also considered. 

JUDGMENT 

MTHIYANE JA: 


MTHIYANE JA: 

Introduction 

[1] This is an appeal by the state, with the leave of this court, against 

the sentence imposed by Swain J, sitting in the High Court, 

Pietermaritzburg, in KwaZulu Natal, upon the conviction of P, a 14 year 

old girl (the accused), for the murder of her grandmother (the deceased) 

and theft. The passing of sentence was postponed for a period of 36 

months on condition that the accused complies with the conditions of a 

sentence of 36 months of correctional supervision in terms of s 276(1)(h) 

of the Criminal Procedure Act 51 of 1977. These conditions include 

provisions relating to house arrest, schooling, therapy, supervised 

probation, and the performance of community service. 

The Facts 

[2] During the evening of 14 September 2002, some time after 20:00, 

the accused, who was then 12 years and 5 months old, approached two 

men, Mr Vusumuzi Tshabalala and Mr Sipho Hadebe, who were under 

the influence of liquor, in the street in the vicinity of the house of the 

deceased and asked them to help her to kill her grandmother who, she 

alleged while crying, had killed both her parents. She promised that they 


2

could remove whatever they wished from the house and even promised 

the one to have sexual relations with him in return for killing the 

deceased. They followed her into the house, where she again asked them 

to kill the deceased who was lying on a bed asleep. The accused had 

earlier placed sleeping tablets in tea that she had made for the deceased. 

The accused supplied them with kitchen knives. Hadebe strangled the 

deceased, resulting in her death, from what was described by the state 

pathologist, Dr Dhanraj Maney, in the post-mortem report as ‘manual 

strangulation’. Not satisfied, the accused insisted that the throat be cut, 

which was done. 

[3] The accused gave Tshabalala and Hadebe some jewellery and 

permitted them to take a video recorder, a satellite decoder and clothing 

in return for having murdered the deceased. Tshabalala and Hadebe were 

arrested and charged with the murder of the deceased, to which they both 

pleaded guilty on 2 October 2002 and were each sentenced to twenty five 

years’ imprisonment. 

[4] The accused’s explanation for her participation in the killing was 

that she had done so on the instructions of an erstwhile boyfriend of the 

deceased’s daughter, who offered her money to kill the deceased. Her 

evidence was that the plan how to kill the deceased had been hatched by 


3

this person. Swain J rejected the accused’s version and found that she had 

acted of her own volition, with no external coercion. On the evidence as a 

whole there is no reason to doubt the correctness of this finding. Despite 

the rejection of her version, the accused persisted in it to the end. To this 

day her motive for the murder is not known. After her father had 

committed suicide she chose out of her own will to live with the deceased 

in preference to living with her mother. The only motive one can surmise 

is the fact that the deceased and she had an argument about her 

relationship with a man of 20, whom she phoned, running up a telephone 

bill of about R2 000 during one month. 

[5] On appeal the sentence was attacked by the state as being too 

lenient given the gravity of the offences committed by the accused. The 

state argued that the learned trial judge had failed to exercise his 

discretion properly and misdirected himself in a number of respects. It 

was submitted by counsel for the state that, given ‘the compelling 

aggravating features peculiar to the murder’, direct imprisonment should 

have been imposed upon the accused, notwithstanding her youth. 

[6] In the view which I take of the matter I do not consider it necessary 

to deal with each argument raised in this regard. Suffice it to say that, 

having had regard to the evidence and the trial judge’s assessment of it, I 


4

am satisfied that the judge gave due and careful, if not anxious, 

consideration to the matter. I am not persuaded that, save in one material 

respect, he misdirected himself. 

[7] The trial judge, in my view, did not approach the evidence of the 

witnesses dealing with sentence with the necessary degree of objectivity 

and accepted their say-so without considering whether they had a factual 

basis for their opinion. This caused him to place too much emphasis on 

the personal circumstances of the accused, under-emphasising the other 

material considerations. The evidence of Prof Sloth-Nielsen was in part 

inadmissible. Courts do not need professors of law to tell them what the 

law is or should be. The trial judge was especially taken in by the 

evidence of Mrs Joan van Niekerk who, without any factual basis, came 

to the conclusion that the accused’s childhood had shaped her to commit 

the crimes in question. He also failed to consider that her evidence, as 

that of some of the others, was not objective and was based on what the 

accused had told them, while he knew (and they should have known) that 

the accused was a callous liar, prepared without compunction to concoct a 

version, create a false alibi and weave a web of falsehoods in order to 

implicate others. After the murder she was able for months on end to hide 

her complicity. This, according to the expert opinion of Mrs van Niekerk, 

was all due to the fact that her father had committed suicide, that the 


5

elations between the deceased and her mother were bad, that the 

grandmother led a not exemplary life and that the accused hated her 

grandmother, ignoring the fact that her version to others was that she 

loved her. 

[8] It might be the right opportunity to have regard again to the words 

of Rumpff CJ when he dealt with a related matter in S v Loubscher: 1 

‘In hierdie stadium moet gemeld word dat Dr Hayden, wat nie 'n psigiater of 

sielkundige is nie, 'n opinie uitgespreek het oor die waarskynlike verminderde 

toerekeningsvatbaarheid van die beskuldigde sonder dat hy enigsins sy opinie 

geknoop het aan die spesifieke feite van hierdie saak. Ook is dit opmerklik dat die 

deskundige getuies, wie se verklarings ek nog sal noem, versuim om dit te doen.’ 

‘Mens vra jouself af wat die waarde van hierdie "doppelgänger"-assumpsie [a 

theory advanced by the experts] is in die lig van die antwoord van die beskuldigde.’ 

‘Die deskundiges wat die verklarings gemaak het, weet baie goed, of behoort 

te weet, dat getuienis oor die geestestoestand van 'n beskuldigde, wat aan moord 

skuldig bevind is, alleen dan behoorlik oorweeg kan word wanneer die besonderhede 

van die moord in aanmerking geneem word. Hulle weet, of behoort te weet, dat 'n Hof 

nie staat kan maak op bewerings van 'n algemene aard wat nie in verband gebring 

word met die feite van die spesifieke geval nie.’ 

‘Indien die deskundiges die getuienis van die beskuldigde gelees het, soos dit 

hulle plig was om te doen, moes hulle tot die konklusie gekom het dat in die getuienis 

daar geen indikasie hoegenaamd was dat beskuldigde anders as 'n "normale" 

1 1979 (3) SA 47 (A) at 57. 


6

misdadiger opgetree het nie en dat uit die getuienis as 'n geheel geneem, en uit die 

pleeg van die daad self en die ander misdade, daar geen rede geblyk het nie waarom 

die beskuldigde as verminderd toerekeningsvatbaar beskou moes word.’ 

‘Die kritiek wat op die getuienis van die deskundiges in hierdie saak 

uitgespreek is, moet gesien word in die lig van die begeerte van die juris dat daar 

samewerking behoort te wees oor die probleem van toerekeningsvatbaarheid en 

aanspreeklikheid in verband met 'n misdaad tussen die juris aan die een kant, en die 

psigiater of die sielkundige of die neuroloog aan die ander kant, met erkenning van 

mekaar se grondliggende benadering en probleme. 

Hierdie begeerte is reeds uitgespreek in 1967 in die Report of the Commission 

of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters. 

Ná verwysing na voorbeelde van sekere uiterste gevalle van onaanvaarbare opinies 

deur juriste en medici word die volgende gekonstateer in paras 1.19 en 1.20: 

"1.19. It is these extreme views which call for a coolheaded approach 

to the problems which are not to be evaded by the psychologist and the 

psychiatrist, on the one hand, and the jurist on the other, but must be solved by 

the co-operation of both parties in the best interests of society. 

1.20. What is required of the psychiatrist and the psychologist is a 

sense of responsibility towards the views of society and the purpose and 

essence of punishment, and what is required of the jurist and the public is 

appreciation for the development of psychiatric and psychological 

knowledge." 

Hiervolgens rus daar 'n plig op die juris sowel as op die geestesdeskundige en 

dit is die plig van 'n geestesdeskundige om in 'n strafsaak nie slegs algemene opinies 

uit te spreek nie, wat miskien op mediese gebied as verantwoord beskou kan word, 


7

maar om sy opinies te lewer met behoorlike inagneming van wat die taak van 'n 

verhoorhof is by die toepassing van die strafreg en veral by die oorweging van 

toerekeningsvatbaarheid en strafregtelike aanspreeklikheid.’ 

[9] The accused, in my view, and in spite of her age and background, 

acted like an ‘ordinary’ criminal and should have been treated as such. 

She had no mental abnormalities and, something the judge had noted, was 

able to pass herself off and in many respects acted like someone of about 

18 years of age. That is what at least one witness thought her age was. All 

the guesswork about her mental and physical age in contradistinction to 

her actual age pales into insignificance. 

[10] That is, however, not the end of the matter. What troubles, is 

whether the sentence (if postponement of sentence can be regarded as a 

sentence) imposed was appropriate in the circumstances of this case. The 

test for interference by an appeal court is whether the sentence imposed 

by the trial court is vitiated by irregularity or misdirection or is 

disturbingly inappropriate. (See S v Rabie) 2 . Even in the absence of 

misdirection, it would still be competent for this court to interfere if it 

2 1975 (4) SA 855 (A) at 857D-F; See also S v Pillay 1977 (4) SA 531 (A); S v Pieters 1987 (3) SA 717 

(A); S v Sadler 2000 (1) SACR 331 (SCA); S v Salzwedel and Others 1999 (2) SACR 586 (SCA). 


8

were satisfied that the trial court had not exercised its discretion 

reasonably 3 and imposed a sentence which was not appropriate. 

The Issue on Appeal 

[11] In my view the issue on appeal can therefore be narrowed down to 

whether the sentence imposed by the trial court was appropriate, given 

that court’s duty to have regard to the seriousness of the offence and the 

interests of society as well as the true character of the accused. This issue 

must of course now be considered not only with reference to the so-called 

traditional approach to sentencing but also with due regard to the 

sentencing regime foreshadowed in s 28 (1) (g) of the Constitution and 

international developments as reflected in, for instance, instruments 

issued under the aegis of the United Nations. 

[12] There can be no question that at the best of times the sentencing of 

a juvenile offender is never easy and is far more complex than the 

sentencing of an adult offender (S v Ruiters 4 ; SS Terblanche The Guide to 

Sentencing in South Africa (1999) 5 ). It is even worse if the youthful 

offender concerned is a child, 6 as in this case. As pointed out in Brandt v 

3 S v Pieters at 734H. 

4 1975 (3) SA 526 (C) at 531E-F. 

5 (1999) ch 12 375. 

6 Section 28 (3) states: ‘child’ means a person under the age 18 years. 


9

S 7 our criminal justice system has never treated the sentencing of a child 

offender as a ‘separate, self contained and compartmentalised’ field of 

judicial activity. The youth of the offender has, however, always been 

recognised at common law as a mitigating factor for purposes of 

sentence. (S v Jansen; 8 S v Lehnberg en`n ander 9 ) 

The Traditional Approach 

[13] The so-called traditional approach to sentencing required (and still 

does) the sentencing court to consider the ‘triad consisting of the crime, 

the offender and the interests of society’ (S v Zinn 10 ). In the assessment of 

an appropriate sentence, the court is required to have regard to the main 

purposes of punishment namely, the deterrent, preventive, reformative 

and the retributive aspects thereof (S v Khumalo 11 ). To these elements 

must be added the quality of mercy, 12 as distinct from mere sympathy for 

the offender. As noted by this court in Brandt ‘the traditional aims of 

punishment have been affected by the Constitution’. 

The Constitution and the International Instruments 

7 [2005] 2 All SA 1 (SCA) at para 14. 

8 1975 (1) SA 425 (A). 

9 1975 (4) SA 553 (A). 

10 1969 (2) SA 537 (A) at 540G. 

11 1984 (3) SA 327 (A) at 330D. 

12 S v Rabie supra at 861D-F and 866A-C. 


10

[14] With the advent of the Constitution the principles of sentencing 

which underpinned the traditional approach must, where a child offender 

is concerned, be adapted and applied to fit in with the sentencing regime 

enshrined in the Constitution, and in keeping with the international 

instruments which lay ‘emphasis on reintegration of the child into 

society’. 13 The general principle governing the sentencing of juvenile 

offenders is set out in s 28 (1) (g) of the Constitution. The section reads: 

‘Every child has the right – 

(g) not to be detained except as a measure of last resort, in which case, in addition 

to the rights a child enjoys under sections 12 and 35, the child may be detained only 

for the shortest appropriate period of time, and has the right to be – 

(i) kept separately from detained persons over the age of 18 years; and 

(ii) treated in a manner, and kept in conditions, that take account of the 

child’s age; . . .’ 

[15] Section 28 has its origins in the international instruments of the 

United Nations. Of relevance to this case is the United Nations 

Convention on the Rights of the Child (1989) which South Africa ratified 

on 16 June 1995 14 and thereby assumed an obligation under International 

Law to incorporate it into its domestic law. 15 Various articles under the 

convention provide that juvenile offenders under the age of 18 years 

13 Report on Juvenile Justice (Project 106) at 150. 

14 In South Africa the 16 June is recognized as Children’s Day and is a public holiday. 

15 S v Kwalase 2000 (2) SACR 135 (C) at 138g. 


11

‘should as far as possible be dealt with by the criminal justice system in a 

manner that takes into account their age and special needs.’ 16 Also of 

relevance is article 40 (1) of the Convention which recognizes the right of 

the child offender ‘to be treated in a manner consistent with the 

promotion of a child’s sense of dignity and worth, which reinforces the 

child’s respect for human rights and fundamental freedom of others and 

which takes into account the child’s age and the desirability of promoting 

the child’s reintegration and the child’s assuming a constructive role in 

society.’ 17 Section 28 (1) (g) of our Constitution appears to be a replica of 

s 37 (b) of the Convention which provides that children in conflict with 

the law must be arrested, detained or imprisoned ‘only as a matter of last 

resort and for the shortest appropriate period of time.’ 18 

[16] The Convention has to be considered in conjunction with other 

international instruments. Most of these instruments are referred to 

extensively in Brandt. 19 Of particular relevance in this case, however, is 

the United Nations Standard Minimum Rules for the Administration of 

Juvenile Justice (1985) (‘Beijing Rules’), in particular rule 5 (1). The rule 

recommends that a criminal justice system should ‘ensure that any 

reaction to juvenile offenders shall always be in proportion to the 

16 S v Kwalase at 138g. 

17 S v Kwalase at 138g. 

18 S v Kwalase at 138i. 

19 Para 16. 


12

circumstances of both the offender and the offence’. 20 The rule should, 

however, not be read in isolation because rule 17 (1) (a) provides that: 

‘The reaction taken shall always be in proportion not only to the circumstances and 

the gravity of the offence but also to the circumstances and the needs of the juvenile 

as well as the needs of society’ 

The commentary notes that it is difficult to formulate guidelines because 

of the unresolved conflicts of a philosophical nature including 

rehabilitation versus just deserts, assistance versus repression and 

punishment, merits of the case versus protection of society in general and 

general deterrence versus individual incapacitation. 

The South African Law Commission 

[17] In July 2000 the South African Law Commission Project 

Committee on Juvenile Justice (Project 106) released a Discussion Paper 

embodying a draft Child Justice Bill. On the sentencing of child offenders 

there is unqualified support for the principle that ‘detention should be a 

matter of last resort.’ 21 It also recommended that ‘the sentence of 

imprisonment for children below a certain age (14) years be excluded.’ 

Following the Beijing Rules, in particular rule 17 (1) (c) thereof the 

committee recommended that imprisonment should only be imposed 

20 S v Kwalase at 139c-e. 

21 S A Law Commission Report on Juvenile Justice (Project 106) 153 footnote 16. 


13

upon children who have been convicted of serious and violent offences. 22 

These recommendations have not as yet been adopted by Parliament and 

can have but peripheral value at this stage. 

[18] Having regard to s 28 (1) (g) of the Constitution and the relevant 

international instruments, as already indicated, it is clear that in every 

case involving a juvenile offender, the ambit and scope of sentencing will 

have to be widened in order to give effect to the principle that a child 

offender is ‘not to be detained except, as a measure of last resort’ and if 

detention of a child is unavoidable, this should be ‘only for the shortest 

appropriate period of time’. This of course applies to a juvenile offender 

who is under the age of 18 years as provided for in s 28 (1) (g) of the 

Constitution. Furthermore if the juvenile concerned is a child as 

described, he or she should be kept separately from persons over the age 

of 18 years and the sentencing court will have to give directions to this 

effect, if it considers that the case before it warrants detention. This 

follows from s 28 (2) of the Constitution which provides that a child’s 

best interests are of paramount importance in every matter concerning the 

child. 

22 Op cit. 


14

[19] It must be remembered that the Constitution and the international 

instruments do not forbid incarceration of children in certain 

circumstances. All that it requires is that the ‘child be detained only for 

the shortest period of time’ and that the child be ‘kept separately from 

detained persons over the age of 18 years.’ It is not inconceivable that 

some of the courts may be confronted with cases which require detention. 

It happened in the United Kingdom not so long ago in the case of R v 

Secretary of State for the Home Department, ex parte Venables; R v 

Secretary of State for the Home Department, ex parte Thompson 23 where 

two boys aged ten were convicted of the murder of a two year old boy in 

appalling circumstances. Leaving aside the details relating to the appeal 

processes, they were sentenced to ten years. 

[20] I turn now to consider the facts relevant to the sentence of the 

accused. The strongest mitigating factor in favour of the accused is her 

youthfulness: she was 12 years and 5 months’ old at the time of the 

offence. A second most important factor is that she has no previous 

conviction. This is an important factor because even the Beijing rules 

(rule 17 (1) (c)) provide for incarceration of a child who has committed ‘a 

serious violent act against another person and or persists in committing 

23 [1997] All ER 97. 


15

other serious offences’ 24 albeit as a measure of last resort and for the 

shortest period of time. 

[21] As against the above mitigating factors (to which of course her 

personal circumstances must be included) are the aggravating features of 

the case which prompted the trial judge to remark that if he were to look 

only at the gravity of the offence committed by the accused, there was no 

doubt that the imprisonment of the accused might be regarded as the only 

appropriate punishment. The accused arranged for the brutal murder of 

her grandmother at the hands of two strangers who now languish in 

prison, each serving sentences of imprisonment of twenty five years. The 

killing was particularly gruesome: the deceased had her throat cut in her 

bedroom and was slaughtered like an animal. The accused provided the 

killers with knives. She stood watching while the killers carried out her 

evil command and even callously allowed her 6 year old brother to enter 

the room when her sordid mission had been accomplished. Mercifully, 

the deceased was unaware of what was happening because the accused 

had drugged her by putting sleeping tablets in her tea. The murder was 

premeditated. One would expect a person of that age to have been 

remorseful. Not the accused. While the killers were still in the house after 

the murder she telephoned her boyfriend – a twenty year old – to try and 

24 Op cit footnote 16. 


16

fabricate an alibi. As if that was not bad enough she rewarded the killers 

with a number of household goods belonging to the deceased, as 

indicated earlier in the judgment. One can go on and on. Every chapter of 

this sordid tale reveals the evil mindedness of the accused. One of the 

more worrying aspects of the case is that no motive was given for the 

killing, which makes it imperative for this court to consider a sentence 

that would to some extent ensure that those who come into contact with 

her are protected. 

[22] Although Swain J gave anxious consideration to the matter, I agree 

with counsel for the state that he failed to have sufficient regard to the 

gravity of the offence. The postponement of the passing of sentence even 

when coupled with correctional supervision was, in my view, 

inappropriate in the circumstances and leaves one with a sense of shock 

and a feeling that justice was not done. Even in the case of a juvenile as 

already indicated the sentence imposed must be in proportion to the 

gravity of the offence. If this case does not call for imprisonment of a 

child, I cannot conceive of one that will. Admittedly in his judgment the 

learned judge did allude to the principle of proportionality but, I believe, 

he failed to give due and sufficient weight to it, and this court is therefore 

at large to interfere and impose what it considers to be an appropriate 


17

sentence. In Brandt 25 and Kwalase 26 the court reiterated that 

proportionality in sentencing juvenile offenders was required by the 

Constitution. Of course proportionality in sentencing is not meant to be in 

the sense of an ‘eye for an eye’ as was cautioned by Harms AJA in a 

dissenting judgment in S v Mafu 27 where he noted that proportionality 

does not imply that punishment be equal in kind to the harm that the 

offender has caused. 

[23] If I had been a judge of first instance I would have seriously 

considered imposing a sentence of imprisonment. The court below was 

very concerned about the accused’s reintegration into society should she 

be sent to prison. It is a valid concern but the fact that she could not study 

what she wishes and that the schooling facilities are not ideal, are in my 

view factors of limited value. The present case is, however, far from 

simple. We know that the Department of Correctional Services, in 

detaining children, does not comply with either the Constitution or the 

provisions of its Act. There is also no indication that, in this case, it 

would. There appears to be a general unwillingness to accept the fact that 

there are children that have to be detained in prison-like facilities, and 

there are none for their purposes. All the other detention options are as 

25 At para 19. 

26 At 139f. 

27 1992 (2) SACR 494 (A) at 497d. 


18

ad or non-existent. The court below was told that there is some kind of 

provincial facility in the Western Cape but it will not accept children 

from other provinces unless those are prepared to pay, which the relevant 

province apparently cannot or will not. 

[24] Although prison conditions are generally not a matter with which a 

sentencing court should concern itself – since it is a matter for the 

government, the Ministry of Correctional Services and the Prison 

authorities to rectify – and although it is not for the sentencing court to 

first undertake an investigation as to whether there is accommodation 

available in prison for a juvenile offender each time it considers passing a 

custodial sentence, we cannot close our eyes to the facts as we know 

them. 

[25] In spite of my reservations about the duty of a sentencing court to 

investigate prison conditions and the like, I have to refer to the fact that 

the witnesses from Correctional Services misled the court below. When 

correctional supervision was introduced, courts embraced it 

enthusiastically as a real sentencing option, something that will have a 

substantial effect on the prison population in this country. As time went 

on courts became more sceptical but I am now completely disillusioned. 

We asked for a report from Correctional Services to determine the nature 


19

and scope of their supervision since the judge had requested that the 

accused should be visited at least four times per week at irregular 

intervals. Without proper supervision house arrest has no value. The 

affidavit indicates that although the accused was sentenced on 17 

December 2004, there were no visits during the festive season, in January 

there were 9, in February 3, in March 2, then one per month and, 

suddenly when the appeal was enrolled, there were 6 during October. 

Although a telephone had been installed, there were six telephone 

contacts in all. More disturbing is the fact that the visits and contacts were 

all during office hours, leaving the accused free to do what she wishes 

after hours and during week-ends. We have invited counsel for the state 

to provide us with proposals of how to make the house arrest effective, 

but they have failed to file any suggestions. However, one cannot fault 

the trial judge for having imposed this sentence, carefully crafted as he 

did, and it has to stand subject to minor amendments that speak for 

themselves. 

[26] It is the postponement of sentence that has to be reconsidered. It is 

too late to impose a sentence of direct imprisonment but the interests of 

justice will be served by imposing a term of imprisonment but suspending 

it on certain conditions, which if breached might result in the accused 

having to serve time in prison. In this way, I believe, recognition will be 


20

given to the interests of society in the sense that it would be protected 

against her, and she against society, which might wish to seek revenge. 

[27] Since the state was substantially successful, the accused is not 

entitled to an award of costs. 

[28] In the result the appeal is allowed. The sentence imposed by the 

trial court is replaced with the following: 

‘The accused is sentenced to: 

1. Seven years’ imprisonment, the whole of which is suspended for 5 

years on condition that the accused is not again convicted of an 

offence of which violence is an element, committed during the 

period of suspension and for which she is sentenced to a term of 

imprisonment without the option of a fine. 

2. Thirty-six months of correctional supervision in terms of section 

276(1)(h) of the Criminal Procedure Act on the following 

conditions: 

(a) that she be placed under house arrest, in the care and 

21 

custody of her mother and legal guardian for the 

duration of thirty-six months, on the conditions set out 

below; 


(b) that she be confined to the flat occupied by her mother 

save and except in the following circumstances: 

22 

(i) that she attend school during ‘normal school 

hours’. For these purposes ‘normal school 

hours’ means one (1) hour prior to the 

commencement of school and one (1) hour after 

the conclusion of school, for the purpose of 

travelling to and from school; 

(ii) that she attend official school activities falling 

outside of ‘normal school hours’ as sanctioned 

by the principal of the school; 

(iii) that she attend the NICRO program known as 

‘Journey’, other life skills training and 

therapeutic courses, activities or counselling as 

prescribed by Mrs Joan van Niekerk and/or the 

correctional officer; 

(iv) that she receive medical and/or dental treatment 

as determined by a medical doctor or dentist; 

(v) that she be in the building of which the flat 

forms a part, but outside the confines of the flat 

itself for one hour between 16:00 and 17:00 

during school term, and for two (2) hours in 


23 

total respectively between 10:00 and 11:00 and 

between 15:00 and 16:00 during school 

holidays; 

(c) that she receive regular support therapy from Mrs Joan 

van Niekerk, or any other suitable professional 

designated by her, and that she co-operate fully in 

receiving such therapy; 

(d) that she render one hundred and twenty (120) hours 

per year of community service, as approved by Mrs 

Joan van Niekerk and the correctional officer, in 

addition to her school curriculum activities, when she 

attains fifteen (15) years of age; 

(e) that she be permitted visitors at the flat where she 

lives, as approved by the accused’s mother and Mrs 

Joan van Niekerk, only in the presence of her mother; 

(f) Mrs Joan van Niekerk or the correctional officer are 

requested to submit quarterly reports to the Director of 

Public Prosecutions, briefly setting out the progress 

being made by the accused and the general 

compliance by the accused with the terms of this 

order; 


(g) that correctional officer is ordered to visit the flat 

24 

where the accused will be living at least four times per 

month, including weekends and after office hours, at 

irregular intervals to ensure compliance by the 

accused with the terms of her confinement. The 

correctional officer is also ordered to telephone the 

accused, once a telephone has been installed in the 

flat, at irregular intervals and after hours to ensure 

compliance by the accused; 

(h) the Director of Public Prosecutions, Mrs Joan van 

Niekerk and/or the correctional officer, are given 

leave to approach this Court at any time, for a 

variation of the terms of this order; 

(i) In the event of any breach by the accused of any of 

these conditions, the correctional officer is directed to 

immediately report such breach on affidavit to the 

Director of Public Prosecutions who may then apply 

for the necessary relief.’ 

__________________ 

KK MTHIYANE 



CONCUR: 

HARMS JA 

STREICHER JA 

COMBRINCK AJA 

NKABINDE AJA 


25





Reportable 

Case Number : 513 / 03 

JAN HENDRIK BRANDT APPELLANT 

and 

THE STATE RESPONDENT 

Coram : CAMERON, MTHIYANE, BRAND JJA, PATEL and PONNAN AJJA 

Date of hearing : 9 NOVEMBER 2004 

Date of delivery : 30 NOVEMBER 2004 

SUMMARY 

Sentence – s51(3)(b) of the Criminal Law Amendment Act 105 of 1997 

interpreted – suitability of imprisonment for life as a sentencing option for 

child offenders considered. 

___________________________________________________________________ 

J U D G M E N T 

___________________________________________________________________ 


PONNAN AJA: 

[1] The principal issue in this appeal is a sentence of life imprisonment 

imposed on the appellant for a murder he committed when he was 17 

years and 7 months old. This brings into question the application of the 

minimum sentence legislation to offenders under 18. High courts have 

given conflicting decisions on this issue, which the appeal requires us to 

resolve. 

[2] The appellant was convicted, pursuant to his plea of guilty, by 

Sandi AJ in the High Court at Grahamstown of three charges: murder, 

robbery with aggravating circumstances and attempted robbery. 

Applying the minimum sentencing legislation (Criminal Law Amendment 

Act 105 of 1997) without regard to the appellant’s age, the trial judge 

sentenced him to life imprisonment. An appeal against sentence to a full 

court, with the trial court’s leave, was dismissed. The members of the 

court differed on the interpretation of the minimum sentencing legislation 

and its application to the appellant’s case. This further appeal is with the 

special leave of this Court. 

[3] At his trial the appellant entered a lengthy plea explanation that 

indicated that before the events in issue he became a member of a 

satanic coven in Port Elizabeth. On 12 June 2000 he hitch-hiked to his 

parents’ home in Hofmeyr, journeying with the express purpose of killing 


2

his parents. That, he had been told by members of the satanic sect, 

would elevate him to the status of a high priest within the coven. For 

that purpose he had purchased a knife in Cradock for the sum of 

R45,00. When he arrived at his parental home, however, he was unable 

to go through with the deed. He then sought refuge in brandy and 

dagga. Realising that he required money and a motor vehicle to return 

to Port Elizabeth, he decided to rob the deceased, a 75 year old female 

neighbour. He called on the deceased (who was known to him and his 

family and who was alone at the time) on the pretext that he had been 

sent by his parents to borrow recipes. He claimed – an account the trial 

court rightly rejected – that to appease members of his coven (who 

according to him would have been disgruntled by the abandonment of 

his plan to kill his parents) he then decided to kill the deceased instead. 

He dealt the deceased a single, fatal blow to her neck with the knife that 

he had purchased, and then stage-managed the scene to create the 

impression that she had committed suicide. To calm himself he smoked 

more dagga and consumed more brandy. He then removed a portable 

radio, the deceased's car keys and the sum of R300,00. He went to the 

garage only to discover that the deceased's car was not there. He was 

arrested on 28 July 2000 and had been in custody for approximately 

seven months when he was convicted. 


3

[4] Central to the appeal is the construction to be placed on s51 of the 

Criminal Law Amendment Act 105 of 1997 ('the Act'), which provides: 

'51 Minimum sentences for certain serious offences 

(1) Notwithstanding any other law but subject to subsections (3) and (6), a High 

Court shall – 

(a) if it has convicted a person of an offence referred to in Part I of Schedule 2; or 

(b) If the matter has been referred to it under s 52(1) for sentence after the 

person concerned has been convicted of an offence referred to in Part I of 

Schedule 2, 

sentence the person to imprisonment for life. 

(2) Notwithstanding any other law but subject of subsections (3) and (6), a regional 

court or a High Court, including a High Court to which a matter has been referred 

under section 52(1) for sentence, shall in respect of a person who has been 

convicted of an offence referred to in – 

(a) Part II of Schedule 2, sentence the person, in the case of – 

(i) a first offender, to imprisonment for a period not less than 15 years; 

(ii) a second offender of any such offence, to imprisonment for a period not 

less than 20 years; and 

(iii) a third or subsequent offender of any such offence, to imprisonment for a 

period not less than 25 years; 

(b) Part III of Schedule 2, sentence the person, in the case of – 

(i) a first offender, to imprisonment for a period not less than ten years; 



(iii) a third or subsequent offender of any such offence, to imprisonment for a 



4

(c) Part IV of Schedule 2, sentence the person, in the case of – 

(i) a first offender, to imprisonment for a period not less than 5 years; 



(iii) a third or subsequent offender of any such offence, to imprisonment for a period 

not less than ten years 

Provided that the maximum sentence that a regional court may impose in terms of 

this subsection shall not be more than five years longer than the minimum sentence 

that it may impose in terms of this subsection. 

(3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and 

compelling circumstances exist which justify the imposition of a lesser sentence than 

the sentence prescribed in those subsections, it shall enter those circumstances on 

the record of the proceedings and may thereupon impose such lesser sentence. 

(b) If any court referred to in subsection (1) or (2) decides to impose a sentence 

prescribed in those subsections upon a child who was 16 years of age or older, 

but under the age of 18 years, at the time of the commission of the act which 

constituted the offence in question, it shall enter the reasons for its decision on the 

record of the proceedings. 

....... 

(6) The provisions of this section shall not be applicable in respect of a child who 

was under the age of 16 years at the time of the commission of the act which 

constituted the offence in question.' 

[5] Applying s51(3)(a) only, Sandi AJ asked himself whether 

‘substantial and compelling circumstances’ were present, and concluded 

that there were none. He therefore imposed the statutorily prescribed 


5

minimum sentence of life imprisonment for the murder. Taking the 

second and third charges as one for the purposes of sentence, he 

sentenced the appellant to imprisonment for a minimum term of 15 

years. Sandi AJ granted the appellant leave to appeal against sentence 

to the full court of the Eastern Cape Division. The majority of the court 

(Liebenberg J, Parker AJ concurring) considered the application of 

s51(3)(b), but concluded that although, since the appellant’s age had 

been overlooked in the trial court, it was entitled to impose sentence 

afresh, the sentence of life imprisonment was appropriate. In dismissing 

the appeal, the majority held that the interpretation of s51(3)(b) by 

Cachalia J (Blieden J and Jordaan AJ concurring) in S v Nkosi 2002 (1) 

SACR 135 (W) was wrong and declined to follow it. In his dissent Pillay J 

followed Nkosi. 

[6] At the hearing of the appeal, Mr Pretorius on behalf of the 

appellant, somewhat surprisingly, disavowed reliance on Nkosi or for 

that matter the minority judgment of Pillay J in the court a quo. Instead 

he favoured the construction placed on s51 by Liebenberg J. Further 

support for such an interpretation, he submitted, was to be found in the 

later judgment of Direkteur van Openbare Vervolgings, Transvaal v 

Makwetsja 2004 (2) SACR 1 (T). Makwetsja, a full bench decision of the 

Transvaal Provincial Division, declined to follow Nkosi and also the 


6

approach adopted by Van Heerden J in S v Blaauw 2001 (2) SACR 255 

(C). 

[7] In Blaauw, Van Heerden J suggested that a Court was not obliged 

in terms of s51(3)(b) to impose the minimum sentence on a child who at 

the time of the commission of the offence was 16 or 17 years old unless 

the State satisfied the Court that the circumstances justified the 

imposition of such a sentence. In Nkosi (at 141 g-j), Cachalia J held: 

‘The distinction between s51(3)(a) and s51(3)(b) lies in the nature of the discretion 

that a court has when considering the positions of the two classes of offender. In the 

former case a Court should ordinarily impose the prescribed sentence unless there is 

some weighty justification for the imposition of a lesser sentence. The Legislature 

has therefore limited the discretion of a Court to depart from the minimum sentence 

(see S v Malgas (supra para [25]…)). In the latter case there is no reference at all to 

substantial and compelling circumstances. The express wording of the section only 

requires a Court to justify a decision to impose the prescribed sentence by entering 

its reasons on the record. It does not limit a Court’s discretion to impose an 

appropriate sentence on this class of offender’. 

[8] Makwetsja, like the majority in the court a quo, declined to 

subscribe to the interpretation of the section advanced in Blaauw and 

Nkosi. The reasons advanced in each instance for not doing so may be 

summarised as follows: Whilst the statutorily prescribed minimum 

sentence should be imposed on offenders between the ages of 16 and 

18 only in extreme cases, that did not mean that the Legislature did not 


7

intend those sentences to apply to all offenders above the age of 16 

years. If the legislature did not in fact intend the minimum sentences to 

apply to child offenders aged 16 and 17 it would have explicitly excluded 

that category of offender as it had children below the age of 16 (s51(6)). 

Section 51(1) decrees that the minimum sentence must be imposed, 

subject to ss3(a) and (b). Youthfulness per se would ordinarily constitute 

a substantial and compelling circumstance. If a sentencing court intends 

to impose the prescribed minimum then s51(3)(b) envisages that it set 

out clearly its reasons for doing so. The scheme of the section serves to 

remind a sentencing court to make ‘doubly sure’ that a youthful offender, 

who has to be sentenced with caution, is deserving of the prescribed 

minimum. 

[9] The minimum sentencing legislation must be read in the light of the 

values enshrined in the Constitution and interpreted in a manner that 

respects those values. Section 51 distinguishes between adult 

offenders and child offenders. Section 28 of the Constitution defines a 

child as a person under the age of 18 years. Two categories of child 

offenders are envisaged by the Act: first, those below the age of 16; and, 

second, those between the ages of 16 and 18. The section does not 

apply at all to a child who was under the age of 16 years at the time of 

the commission of the offence (s51(6)). For adult offenders, the 

legislature has ordained life imprisonment or one of other prescribed 


8

minimum sentences unless substantial and compelling circumstances 

are found to exist (s51(1) read with s51(3)(a)). 

[10] The notional starting point of the enquiry for the two categories of 

offenders to whom the Act does apply thus differs. For adult offenders 

the starting point is the minimum sentence prescribed by the legislature. 

That sentence, which is intended to be a severe and standardised one, 

may only be departed from if there is weighty justification therefor (S v 

Malgas 2001 (1) SACR 469 (SCA) para 25). It is for the adult offender 

to establish that substantial and compelling circumstances justifying a 

departure are present. 

[11] For child offenders between the ages of 16 and 18, the sentencing 

court starts with a clean slate. Subject to the weighting effect of the 

statutorily prescribed minimum sentences, the sentencing court is free to 

impose such sentence as it would ordinarily have imposed. It may 

decide in the exercise of its sentencing discretion to impose the 

minimum sentence prescribed by s51(2) for an offence of the kind 

specified in Schedule 2. That a discretion to impose the minimum 

sentence does indeed exist is clear from the use of the words ‘decides’ 

and ‘decision’ in s51(3)(b). The sentencing court is called upon in the 

exercise of its discretion to make a decision as to whether or not to 

impose the minimum sentence prescribed by the Act. But it is not 


9

obliged to impose the statutorily prescribed minimum sentence: and, if it 

does do so, it is required to enter its reasons for its decision on the 

record of the proceedings. (See Sv Nkosi supra at 141b-j; and S v 

Blaauw supra at 263e-264j.) 

[12] The effect of the provision is thus that s51(3)(b) automatically 

gives the sentencing court the discretion that it acquires under s51(3)(a) 

only where it finds substantial and compelling circumstances. It follows 

that the 'substantial and compelling' formula finds no application to 

offenders between 16 and 18. A court is therefore generally free to 

apply the usual sentencing criteria in deciding on an appropriate 

sentence for a child between the ages of 16 and 18. As in a case where 

s51(3)(a) finds application, the court in arriving at an appropriate 

sentence must, however, not lose sight of the fact that offences of the 

kind specified in Schedule 2 of the Act have been singled out by the 

legislature for severe sentences. The gravity of the offence must 

accordingly receive recognition in the determination of an appropriate 

sentence. 

[13] The Constitution, read with the various international instruments 

that have a bearing on the subject of the rights of young people in 

conflict with the law, furnishes the backdrop to this approach. Section 

28(2) of the Constitution provides: '[A] child's best interests are of 


10

paramount importance in every matter concerning the child'. That 

statement of general principle is the clearest indication that child 

offenders are deserving of special attention. More so, it would seem, in 

the sphere of sentencing. The ideal is that no child should ever be 

caged, 1 though in practice there will always be cases that are so serious 

that imprisonment would be the only appropriate punishment. 2 

[14] The recognition that children accused of committing offences 

should be treated differently to adults is now over a century old. 3 

Historically, the South African justice system has never had a separate, 

self-contained and compartmentalised system for dealing with child 

offenders. Our justice system has generally treated child offenders as 

smaller versions of adult offenders. 4 In S v Williams and others 5 1995 

(3) SA 632 (CC) para 74 the Constitutional Court in abolishing whipping 

sounded ‘a timely challenge to the State to ensure the provision and 

execution of an effective juvenile justice system’. 

[15] The traditional aims of punishment, particularly in respect of child 

offenders, therefore have to be re-appraised and developed to accord 

1 

Julia Sloth-Nielsen ‘No child should be caged – closing doors on the detention of children’ 1995 (8) 

SACJ 47. 

2 

S S Terblanche The Guide to Sentencing in South Africa para 3.4. 

3 

The Illinois Juvenile Court Act, which is widely credited as providing the first example of legislation 

establishing a separate juvenile justice system celebrated its centenary in 1999. See Prof Julia Sloth- 

Nielsen ‘The role of international human rights law in the development of South Africa's legislation on 

juvenile justice’ 2001 (1) 5 Law, Democracy & Development 59. 

4 

Ann Skelton ‘Developing a juvenile justice system for South Africa: International instruments and 

restorative justice’ 1996 Acta Juridica 180. 

5 

Also reported at 1995 (2) SACR 251 and 1995 7 BCLR 861. 


11

with the spirit and purport of the Constitution. International documents 

on child justice emphasise the re-integration of the child into society. 

Indeed the aims of re-socialisation and re-education must now be 

regarded as complementary to the judicial aims of punishment 

applicable to adult offenders. 6 A child charged with an offence must be 

dealt with in a manner which takes into account his/her age, 

circumstances, maturity as well as intellectual and emotional capacity. 

[16] International law has ushered in what has been described as a 

‘revolution’ for the administration of child justice. 7 Four key international 

instruments that deal with children in conflict with the law are the United 

Nations Convention on the Rights of the Child (CRC), 8 and three sets of 

non-binding rules: the United Nations Guidelines for the Prevention of 

Juvenile Delinquency (the Riyadh guidelines); 9 the United Nations 

Standard Minimum Rules for the Administration of Juvenile Justice (the 

Beijing Rules); 10 and, the United Nations Rules for the Protection of 

Juveniles Deprived of their Liberty (the JDL’s). 11 The provisions of these 

international instruments are supplemented, closer to home, by the 

6 

Julia Sloth-Nielsen ‘Child Justice and Law Reform’ in C J Davel Introduction to Child Law in South 

Africa para 22.9. 

7 

Davel op cit para 22.1.2. 

8 

The United Nations Convention on the Rights of the Child (Resolution 44/25) was adopted by the 

UN General Assembly on 20 November 1989 and ratified by the South African Parliament on 16 June 

1995 whereafter the formal instrument of ratification was deposited with the Secretary–General of the 

UN on 30 June 1995 and has been in force in South Africa since 30 July 1995. (See Skelton op cit 

Acta Juridica at 180.) 

9 

Resolution 45/112 adopted by the UN General Assembly on 14 December 1990. 

10 

Resolution 40/33 adopted by the UN General Assembly on 29 November 1985. 

11 

Resolution 45/113 adopted by the UN General Assembly on 14 December 1990. 


12

African Charter on the Rights and Welfare of the Child. 12 The principles 

fundamental to these instruments have found articulation in our 

Constitution. 

[17] The rules and guidelines set out in these international instruments 

are detailed and provide specific suggestions for the realisation of the 

broad goals that it embodies. Since its introduction the CRC has 

become the international benchmark against which legislation and 

policies can be measured. Traditional theories of juvenile justice now 

have a new 'framework within which to situate juvenile justice: a 

children's rights model'. 13 

[18] The principle that detention is a matter of last resort (and for the 

shortest appropriate period of time) is the leitmotif of juvenile justice 

reform. 14 Those principles are articulated in international law 15 and are 

enshrined in s28(1)(g) of the Constitution which reads: '[E]very child has 

the right not to be detained except as a measure of last resort, in which 

case ..... the child may be detained only for the shortest appropriate 

period of time, ....'. 

[19] Guiding principles must therefore include the need for 

proportionality (see S v Kwalase 2000 (2) SACR 135 (C)). The 

12 The Charter was ratified by the South African Parliament on 18 November 1999. 

13 Sloth-Nielsen op cit Law, Democracy and Development at 66. 

14 Sloth-Nielsen op cit Law, Democracy and Development 78. 

15 Article 37(b) of the CFC; Beijing Rule 17.1 


13

overriding message of the international instruments as well as of the 

Constitution is that child offenders should not be deprived of their liberty 

except as a measure of last resort and, where incarceration must occur, 

the sentence must be individualised with the emphasis on preparing the 

child offender from the moment of entering into the detention facility for 

his or her return to society. 

[20] In sentencing a young offender, the presiding officer must be 

guided in the decision-making process by certain principles: including 

the principle of proportionality; the best interests of the child; and, the 

least possible restrictive deprivation of the child's liberty, which should 

be a measure of last resort and restricted to the shortest possible period 

of time. Adherence to recognised international law principles, must 

entail a limitation on certain forms of sentencing such as a ban on life 

imprisonment without parole for child offenders. 

[21] The Project Committee of the South African Law Commission on 

Juvenile Justice (Project 106) has since 1997 produced an issue 

paper, 16 a discussion paper, 17 and, finally a report 18 and a Bill on juvenile 

justice which was released on 8 August 2000. 19 The Child Justice Bill, 

which was introduced in Parliament on 3 August 2002 and debated 

16 South African Law Commission Issue Paper Number 9 (1996). 

17 Discussion Paper Number 79 (1998). 

18 Report on Juvenile Justice (2000). 

19 Sloth-Nielson op cit Law, Democracy and Development at 72. 


14

during 2003, inter alia prohibits the sentence of life imprisonment for 

children who commit offences whilst under the age of 18. 

[22] This background reinforces the interpretation given to s51(3)(b) 

above. If the notional starting point for the category of offender 

envisaged in ss3(b) is that the minimum prescribed sentence is 

applicable, as the majority in the court a quo and the full bench in 

Makwetsja suggest, then imprisonment (the prescribed sentence) would 

be the first resort for children aged 16 and 17 years in respect of 

offences covered by the Act instead of the last resort. It is true that the 

full court in Makwetsja emphasised that on its interpretation the 

legislature sought to make ‘doubly certain’ that the sentencing court 

found the prescribed minimum sentence appropriate, and suggested that 

a court would ‘readily’ conclude that the youth of an offender between 16 

and 18 was in itself a substantial and compelling circumstance (para 47). 

Nevertheless, on the approach of the majority in the court a quo and of 

the Transvaal Provincial Division in Makwetsja, a sentencing court would 

be unable to depart from the statutorily prescribed minimum unless the 

child offender establishes the existence of substantial and compelling 

circumstances. To this extent the offender under 18 would be burdened 

in the same way as an offender over 18. This would infringe the 

principle that imprisonment as a sentencing option should be used for 

child offenders as a last resort and only for the shortest appropriate 


15

period of time 20 (see V v United Kingdom 30 E.H.R.R. 121 para 118). It 

would also conflict with the by now well-established sentencing 

principles of proportionality and individualisation (see S v Kwalase at 

139 e-I; V v United Kingdom para 123 and 126). 

[23] From this point of view the approach adopted in Nkosi and Blaauw 

is preferable. I would however qualify what was said in those judgments 

by adding that the fact that the legislature has ordained the minimum 

sentences (S v Malgas 2001 (1) SACR 469 (SCA) para 25) must receive 

recognition in determining the actual sentence. So qualified, the 

reasoning in Blaauw and Nkosi in my view accords generally with 

internationally recognised trends and constitutionally acceptable 

principles relating to the sentencing of child offenders. Importantly it 

ensures that the duty remains on the prosecution – where it ought to in 

the case of child offenders – to persuade a sentencing court that the 

minimum sentence should be imposed. 

[24] To summarise: 

(a) The legislative scheme entails that the fact that an offender is under 

18 although over 16 at the time of the offence automatically confers a 

discretion on the sentencing court which is without more free to depart 

from the prescribed minimum sentence. 

20 

Ann Skelton ‘Juvenile justice reform: children’s rights and responsibilities versus crime control’ in 

CJ Davel Children’s Rights in a Transitional Society (1999) 88 at 99-100. 


16

(b) In consequence the sentencing court is generally free to apply the 

usual sentencing criteria in deciding on an appropriate sentence. 

(c) The offender under 18 though over 16 does not have to establish the 

existence of substantial and compelling circumstances because 

s51(3)(a) finds no application to him or her. 

(d) By contrast with the class of offender under 16, however, the 

statutory scheme requires that the sentencing court should take into 

account the fact that the legislature has ordinarily ordained the 

prescribed sentences for the offences in question. This operates as a 

weighting factor in the sentencing process. 

(e) It follows on this approach that where the provisions of s51(2) apply 

the regional court retains its competence to finalise the matter contrary 

to the conclusion in Makwetsja. 

[25] Returning to the facts of the present appeal: the evidence in 

mitigation reveals a childhood characterised by neglect, ill-discipline and 

ineffective parenting. The appellant was raised in an atmosphere of 

social and emotional deprivation. Alcohol and substance abuse were 

the order of the day and clashes with the law were commonplace at an 

early age, followed inevitably by admission to a place of safety and an 

industrial school. Two attempts at suicide followed. Little wonder then 

that Satanism and its ritualistic practices appeared attractive to his still 

impressionable, immature mind. The tale is woeful. It is of a child failed 


17

y his parents (both of whom appear to be low-functioning individuals), 

his community and society generally: one that is not entirely uncommon 

in this country. 

[26] On the other hand, the offence itself is particularly heinous. The 

deceased, a defenceless elderly lady, was murdered in the sanctity of 

her home by the appellant who entered under some false pretext in 

order to perpetrate a robbery. The trial court, as also the court a quo, 

held that the appellant’s motive in killing the deceased was to avoid 

detection, as he was known to her. In that conclusion neither can be 

faulted. These are all strongly aggravating factors. To his credit, in 

pleading guilty the appellant expressed contrition and remorse. Against 

the enormity of the crime and the public interest in an appropriately 

severe punishment, must be weighed the personal circumstances of the 

appellant that are strongly mitigating. Given the appellant’s relative 

youthfulness rehabilitation remains a real prospect even after a fairly 

long period of imprisonment. In my view, taking all this into account, and 

not losing from sight that the legislature has ordained that the ordinarily 

appropriate sentence for murder is life imprisonment, a term of 18 years’ 

imprisonment is appropriate. 

[27] In the result the appeal against sentence succeeds to the extent 

that: 


18

(a) the sentence of life imprisonment on count 1 is set aside; 

(b) there is substituted for it a sentence of imprisonment for a term of 

18 years; 

(c) the sentence of 15 years’ imprisonment on counts 2 and 3 will run 

CONCUR: 

concurrently with the sentence of 18 years on count 1. 

CAMERON JA 

MTHIYANE JA 

BRAND JA 

PATEL AJA 

19 

V M PONNAN 

ACTING JUDGE OF APPEAL 





CASE NO: 262/05 

Reportable 

NTSHENGEDZENI SIKHIPHA Appellant 

and 


Coram: SCOTT, LEWIS, VAN HEERDEN JJA 

Heard: 12 May 2006 

Delivered: 30 May 2006 

Summary: Trial of an unrepresented accused not vitiated by irregularity: 

sentence of life imprisonment for the rape of a child of 13 set aside and 

replaced with sentence of 20 years’ imprisonment. 

Neutral citation: This case may be cited as Sikhipha v State [2006] SCA 

71 (RSA) 

JUDGMENT 


2 

LEWIS JA 

[1] The appellant was convicted in the regional court, Venda, of the rape of 

a thirteen-year old girl. He was sentenced in terms of s 51(1) of the Criminal 

Law Amendment Act 105 of 1997 (‘the Act’) to life imprisonment by the High 

Court, Venda (Hetisani J). The appeal against both conviction and sentence 

lies with the leave of this court. 

[2] In so far as conviction is concerned, the appellant argues that it should 

be set aside on the basis of a number of trial irregularities: first, that the 

appellant was unrepresented, and his legal rights were not properly explained 

to him; second, that a medical report (Form J 88) was handed in and 

accepted as evidence when the appellant did not fully appreciate its 

significance; third, that the presiding magistrate did not establish that the 

complainant and her brother, both minors at the time of the trial, and who 

testified for the State, understood the nature of the oath before giving 

evidence; and fourth, that the regional magistrate failed to assist the appellant 

in the conduct of his trial and cross-examined the appellant himself. 

[3] Before dealing with these I shall deal first with the evidence leading to 

conviction. The complainant, who was 14 at the time of the trial, testified that 

she lives in a house in the Divhani Location, Venda. On 10 January 2002, 

when she was 13 years old, she was called by her neighbour, the appellant, 

who asked her to bring him some water. When she did so, he grabbed her 

and dragged her onto the grass outside his house. She screamed and he 


covered her mouth. He undressed her, lay on top of her and had sexual 

intercourse with her. He raped her, she said. 

[4] Her brother, Patrick, testified that he had passed by the house and 

seen the appellant lying on top of the complainant outside the appellant’s 

house. He had run off to report the matter to the deputy headman of the 

village. The latter told him to report the incident to the police. Patrick had gone 

home before going to the police and had encountered his and the 

complainant’s mother. He informed his mother of what he had seen. The 

mother testified that she had gone to speak to the deputy headman too. She 

returned home, and asked the complainant what had happened. The 

complainant refused to tell her. 

[5] Patrick telephoned the police, as apparently did the deputy headman, 

and the police, after examining the complainant, took her to hospital. A doctor 

confirmed that she had had sexual intercourse: her vulva was swollen, 

bruised and covered with a ‘whitish’ ‘foul-smelling’ discharge, her labia minora 

were bruised with slight bleeding and her hymen was absent. I shall revert to 

the J 88 form signed by him. 

[6] The appellant, who had pleaded not guilty and had proffered no plea 

explanation, denied that he had sexual intercourse with her. His cross- 

examination consisted in the main of questions about how she had brought 

water to him, and the colour of the receptacle she claimed to have taken into 

his yard. 


3

[7] The magistrate found the appellant guilty of rape, and referred him, in 

terms of s 52 of the Act, for sentencing to the high court: a regional court does 

not have jurisdiction to impose a sentence of life imprisonment, required by 

s 51(1) of the Act, read with Part I of Schedule 2 (rape committed where the 

victim is under 16 years of age). Hetisani J, after hearing evidence in 

mitigation, imposed a sentence of life imprisonment on the appellant. 

[8] I turn now to the procedural irregularities which the appellant argues 

vitiate the trial in the regional court. At the outset it should be recalled that 

whether an irregularity results in an unfair trial depends on whether the 

accused has been prejudiced, a principle restated recently in Hlantlalala v 

Dyantyi NO 1 and S v May. 2 

[9] The appellant was unrepresented and elected to conduct his own 

defence. His right to legal representation and his right to legal aid were not 

explained to him properly, the appellant argues. The record of the regional 

magistrate’s notes shows, however, that ‘Accused is explained of his rights to 

legal representation and legal aid, and he elects to conduct his own defence’. 

The prosecutor repeated at the start of the trial that ‘the accused elected to 

conduct his own defence’ and the court confirmed this with the appellant. 

There is no evidence to suggest that the appellant was not apprised of his 

rights (although the argument is made that this was the case), nor any part of 

the record that shows that he was prejudiced by the absence of a legal 

1 1999 (2) SACR 541 (SCA) paras 8 and 9. 

2 2005 (2) SACR 331 (SCA) paras 7 and 8. 


4

epresentative. I consider therefore that there was no irregularity in this 

respect. 

[10] It should be said, however, that where an accused is faced with a 

charge as serious as that of rape, and especially where he faces a sentence 

of life imprisonment, he should not only be advised of his right to a legal 

representative but should also be encouraged to employ one and to seek 

legal aid where necessary. It is not desirable for the trial court in such cases 

merely to apprise an accused of his rights and to record this in notes: the 

court should, at the outset of the trial, ensure that the accused is fully 

informed of his rights and that he understands them, and should encourage 

the accused to appoint a legal representative, explaining that legal aid is 

available to an indigent accused. 3 

[11] The second irregularity alleged is that the J 88 form was handed in with 

the appellant’s consent although he did not appreciate its import. Although he 

was advised as to what it said, the appellant argued, he did not understand its 

implications. The basis of this submission is that at the commencement of the 

trial, after the charge had been put to him, the appellant asked whether there 

was a document stating that he had had sexual intercourse with the 

complainant. The regional magistrate replied that he did not know. The 

appellant stated that he denied that he had intercourse with the complainant. 

The court continued to explain the charge, and competent verdicts. The State 

then asked for leave to hand in the J 88, stating that the contents had been 

3 See S v Mbambo 1999 (2) SACR 421 (W) at 428h-i. 


5

explained to the appellant and that he had no objection to its being handed in. 

The appellant argues that this supports the claim that he did not understand 

its implications. I do not see how the proceedings show that the appellant did 

not understand the legal implications of the form. He denied having 

intercourse and of course the J 88 does not refer to any suspect. 

[12] Even if the appellant had not fully appreciated that the form was 

evidence that the complainant had had intercourse, and that she had been 

bruised in the process, there was no basis for any objection to the handing in 

of the form, as counsel for the appellant was constrained to concede. Whether 

he understood its legal implications or not is thus irrelevant. The appellant 

argues also, however, that the J 88 was defective in that it was not dated and 

does not state when the complainant was examined. However, the form is 

stamped with a date and accompanied by a certificate from the doctor stating 

that he had examined the complainant and that the facts set out there were 

determined by him after the examination. The certificate is dated 11 January 

2002. The complainant testified that she was examined on the same day as 

she had been raped, 10 January. I do not consider that there is anything 

wrong with the completion of the paperwork the day after the examination. 

The appellant is not in any way prejudiced by the acceptance into evidence of 

the J 88 form. Moreover, the doctor’s certificate and J 88 form would in any 

event have been admissible, and prima facie proof of its contents, in terms of 

s 212(4) of the Criminal Procedure Act 51 of 1977. Again, there is no 

irregularity in this respect. 


6

[13] The third irregularity alleged is that the regional magistrate did not 

enquire whether either the complainant or her brother, understood the oath 

that was administered to them, and that therefore their evidence should have 

been inadmissible. There is no substance in this complaint. Section 164 of the 

Criminal Procedure Act permits a presiding officer to dispense with the taking 

of an oath where it appears that a child does not understand the nature and 

import of the oath. In such circumstances an enquiry should be held as to the 

level of understanding of the witness, and the presiding officer must admonish 

the child to tell the truth. But a formal enquiry is not necessary, as long as the 

presiding officer has formed an opinion that the witness does not understand 

the meaning of the oath. 4 In this case, however, the oath was administered to 

both the complainant, who was 14 at the time of the trial, and her brother, 

whose age does not appear from the record. The situation is different. There 

is no requirement that the trial court must formally enquire whether a witness 

understands the oath, nor that the presiding officer must record that fact. 5 Of 

course a presiding officer must be satisfied that a witness does understand 

the oath, but he or she may form a view in this regard without formally making 

an enquiry or recording his or her view. There is nothing at all in the evidence 

to suggest that either the complainant or her brother were ignorant of the 

import of the oath. 

[14] The fourth irregularity complained of is that the regional magistrate did 

not assist the appellant, but rather descended into the arena and in effect 

cross-examined him. The instances cited by the appellant do not bear out the 

4 See for example S v B 2003 (1) SACR 52 (SCA) and Director of Public Prosecutions, 

KwaZulu Natal v Mekka 2003 (2) SACR 1 (SCA). 

5 S v Chalale 2004 (2) SACR 264 (W) para 3. 


7

complaint. It is true that the court asked the appellant questions when he was 

cross-examining the complainant, including whether he had inserted his penis 

into the complainant’s vagina. Such questioning was not merely a clarification 

of a question or of an answer. But the appellant did not give an answer that in 

any way prejudiced him. Moreover, he was appropriately assisted by the 

regional magistrate when he gave evidence and was cross-examined. 

Accordingly there is no substance in this complaint. There is thus no 

foundation for any of the complaints about irregularities, and the appeal 

against the conviction fails. 

[15] Hetisani J imposed a sentence of life imprisonment on the appellant in 

terms of s 51(1) of the Act after concluding that there were no ‘substantial and 

compelling circumstances’ that justified the imposition of a lesser sentence. 6 

Circumstances were substantial and compelling, he concluded, only when 

exceptional: they would be ‘very rare to find’ in a case like this. 

[16] The judge misunderstood what is meant by substantial and compelling 

circumstances. This court, in S v Malgas, 7 held that in determining whether 

there are substantial and compelling circumstances, a court must be 

conscious that the legislature has ordained a sentence that should ordinarily 

be imposed for the crime specified, and that there should be truly convincing 

reasons for a different response. It is for the court imposing sentence to 

decide whether the particular circumstances call for the imposition of a lesser 

sentence. Such circumstances include those factors traditionally taken into 

6 Section 51(3) of the Act. 

7 2001 (1) SACR 469 (SCA). 


8

account in sentencing – mitigating factors. Of course these must be weighed 

together with aggravating factors. But none of these need be ‘exceptional’. 

[17] In my view the judge below committed a serious misdirection in looking 

only for exceptional circumstances, and in failing to have regard to mitigating 

factors. The sentence of life imprisonment must therefore be set aside, and 

this court must consider an appropriate sentence mindful of the sentence that 

the legislature has considered appropriate for the rape of a child under 16 – 

life imprisonment. 

[18] Factors in mitigation include the fact that the appellant is a first 

offender; that he has a wife and children dependent upon him; that he has a 

trade (he is a bricklayer) and makes a living from his work; that he was 31 

years old at the time of the trial, and that he is capable of rehabilitation. 

Moreover the complainant was not seriously injured. However, no evidence 

was led as to the psychological consequences for her of the rape. But there 

can be no doubt that the rape was traumatic for her. She was only 13 when a 

neighbour, a married man, more than twice her age, dragged her across his 

yard and had sexual intercourse with her against her will. Her injuries may 

have been minor, but she must have been severely affected. 

[19] The sentence of life imprisonment required by the legislature is the 

most serious that can be imposed. It effectively denies the appellant the 

possibility of rehabilitation. Moreover, the mitigating factors are not 

speculative or flimsy. In my view, life imprisonment is not a just sentence for 


9

the appellant. However, a lengthy sentence of imprisonment is warranted. I 

consider that a period of 20 years’ imprisonment will send a message to the 

community that rape, and especially the rape of a young girl, will be visited 

with severe punishment. It will send a strong deterrent message. 

[20] In conclusion I wish to refer to what I regard as unacceptable conduct 

on the part of the judge below. In passing sentence he remarked that he did 

not know what had driven the appellant to rape a young girl. He continued: ‘I 

must say if you had raped a woman above or around 20, the court would say 

oh, well, she might have tempted him and so on and so forth.’ This statement 

suggests a belief held by the judge that women entice men to rape them 

simply by virtue of being women. Perhaps that is not what the judge meant to 

imply. But courts should be more cautious in their expression. It is never 

appropriate to suggest that men are entitled to have sex with women against 

their will simply because they are women, or because they have dressed or 

behaved seductively. A court should not condone such a view let alone 

express it. 

[21] The appeal against sentence is upheld. The sentence of the court 

below is set aside and replaced with the following: 

‘The accused is sentenced to 20 years’ imprisonment.’ 

Concur: 

Scott JA and Van Heerden JA 

10 

_____________ 

C H Lewis 

Judge of Appeal 


FORM A 

FILING SHEET FOR EASTERN CAPE JUDGMENT 

CASE NUMBER: CA 197/2006 

DATE HEARD: 5 February 2007 

DATE DELIVERED: 8 February 2007 

MNCEDISI SNOTI 

vs 

THE STATE 

JUDGE(S): Pickering J, Froneman J, Plasket J 

LEGAL REPRESENTATIVES: 

Appearances: 

for the Appellant(s): Adv. E. Threron 

for the Respondent(s): Adv. L. Williams 

Instructing attorneys: 

Applicant(s)/Appellant(s): 

Respondent(s): 

CASE INFORMATION: 

• Nature of proceedings : Appeal 


IN THE HIGH COURT OF SOUTH AFRICA 

(EASTERN CAPE DIVISION) 


MNCEDISI SNOTI Appellant 

And 

CASE NO: CA 197/2006 

DATE DELIVERED: 


PICKERING J: 

JUDGMENT 

This is an appeal to the Full Bench of this Division against a sentence of life 

imprisonment imposed by Jones J upon appellant pursuant to a conviction of 

rape in the South East Cape Local Division. Appellant, a 29 year old man, 

was charged as accused no 1 with the rape of complainant, a 9 year old girl. 

One Eunice Weziwe Cingi Makana, a woman, appeared as accused no 2, 

charged with being an accomplice to the aforesaid rape. She was eventually 

acquitted on this charge. 

It appears from the evidence of complainant that she, appellant and accused 

no 2 shared a bedroom at the house of one Sis Nomabaca, complainant’s 

paternal aunt. On the night of 3 November 2004 complainant was sent to buy 

some home made liquor for appellant. On her return with the liquor she was 

called by accused no 2 who whispered to her that appellant loved her and that 

she should go and sleep with him on his mattress. I interpose to mention that 

accused no 2 in her evidence denied having said this to complainant. 

Although Jones J was satisfied as to the credibility of the complainant he 

considered that, in the absence of any corroboratory evidence, it would be 

dangerous to convict accused no 2 on the single evidence of a child witness, 

hence her acquittal. 


2

Be that as it may, complainant stated that she obeyed accused no 2 and went 

to appellant where he was lying on his mattress. Appellant undressed her 

proceeded to rape her. When he penetrated her vagina she “jumped” and 

screamed because of what she described as being terrible pain. Appellant 

then closed her mouth with one hand and slapped her on the thigh with the 

other hand. When he was finished he gave her R6,00 which she told him she 

did not want. Accused no 2 then “borrowed” it. The following morning 

complainant reported the incident to her grandmother. Complainant was 

thereafter taken for a medical examination to Dr. Mazibuko who recorded her 

findings on form J88 (exhibit C). Dr. Mazibuko also testified at the trial. Her 

findings and evidence were summarised by Jones J as follows: 

“Her findings were that the child’s hymen was not intact and that the 

area around the hymen and the opening of the vagina was swollen, 

oedematous and red. She has illustrated the oedematous area on the 

drawing on the form J88. She is of the view that the child’s evidence 

that she did not bleed does not seriously affect her findings because 

the removal of the hymen in this way, it was completely absent, does 

not necessarily involve visible bleeding. ... The conclusion from the 

medical evidence is that there was penetration by an object into the 

child’s sexual organs at least as far as the opening of the vagina.” 

In his judgment on sentence Jones J described complainant as being a bright 

and intelligent little girl. It appears that she was given counselling at an early 

stage by Child Line and that although her grandmother indicated that 

complainant had subsequently become forgetful there is no evidence of deep 

seated and permanent psychological trauma. In this regard Jones J stated 

that whilst in his view there is no case of rape, particularly on a little child, 

which does not have some kind of psychological after-effects there was, in the 

present case, no evidence enabling him to measure it and to gauge its effect 

upon complainant in the future. 

As regards the personal circumstances of appellant he is, as I have said, 29 

years of age, and was at the time of the incident unemployed. Although he 


3

had a previous conviction for dishonesty he was treated by Jones J as a first 

offender. During 2000 he was diagnosed as being HIV positive. 

In coming to the conclusion that no substantial and compelling circumstances 

existed which justified the imposition of a lesser sentence than the minimum 

sentence of life imprisonment prescribed by s 51 of Act 105 of 1977 the 

learned Judge took into account as aggravating features two factors in 

particular. Firstly, that complainant was a helpless little girl aged 9 years who 

had been given a place to sleep in appellant’s room where she was supposed 

to be safe. Instead of protecting her appellant raped her in the presence of an 

adult woman. Secondly, the fact that at the time of the incident appellant was, 

to his knowledge, HIV positive. In this regard the learned Judge stated as 

follows: 

“What makes the accused’s moral blameworthiness greater is that he 

knew at the time he committed this offence that he was HIV positive 

and he knew that in imposing himself upon this little girl in the way that 

he did, he exposed her to the risk of infection. In my view this conduct 

places this case within the very worst category of rape cases. It is the 

kind of case for which the ultimate penalty was designed. It is 

necessary to protect our children from this kind of exposure to HIV, to 

serious disease and illness such as HIV and Aids and I believe that it 

is proper that society should be protected permanently from a repetition 

of this kind of conduct.” 

After having granted leave to appeal against the sentence imposed upon 

appellant by him Jones J furnished a report in terms of s 320 of Act 51 of 

1977. In such report he stated that he had inadvertently not referred to a 

significant item of information on sentence given to him from the bar during 

the course of argument in mitigation namely, that subsequent to the rape the 

complainant had been medically examined at regular intervals to establish 

whether or not she had been infected with HIV. The result of the testing was 

that she had not been so infected and that it can now be accepted that 

appellant did not transmit the virus to her. The learned Judge stated that this 


4

objective fact might have a bearing on whether or not a sentence of life 

imprisonment should have been imposed. 

In his judgment on sentence the learned Judge emphasised, correctly with 

respect, that the rape of a small child such as complainant is always an 

extremely serious matter, even in the absence of serious injury and despite 

there being no evidence of permanent psychological after-effects. This is all 

the more so where the perpetrator is a man in a position of trust vis a vis the 

complainant. I agree further with the learned Judge that the fact that 

appellant was aware that he was HIV positive at the time that he committed 

the offence places this case within the worst category of rape cases. 

Compare: S v Mahomotsa 2002 (2) SACR 435 (SCA) at 443f-h. 

Ms. Theron, who appeared for appellant, emphasised the fact that 

complainant had not been infected. I am not persuaded that this fortuitous 

circumstance has any bearing on appellant’s moral blameworthiness. His 

conduct in raping a 9 year old child entrusted to his care whilst knowing of his 

HIV status, was reprehensible in the extreme. 

In my view the learned trial Judge correctly found that in the light of the 

aggravating factors present in the case no substantial and compelling 

circumstances existed justifying a lesser sentence than that of life 

imprisonment. 

Accordingly the appeal against sentence is dismissed. 

_______________ 

J.D. PICKERING 

JUDGE OF THE HIGH COURT 

I agree, 


5

_______________ 

J.C. FRONEMAN 


I agree, 

_______________ 

C. PLASKET 



6









































CASE NO 160/2000 

NHLANHLA NKOMO 

and 

Appellant 


Coram: CAMERON, LEWIS JJA THERON AJA 

Heard: 21 NOVEMBER 2006 

Delivered: 01 DECEMBER 2006 

Reportable 

Summary: Sentence of life imprisonment imposed for multiple rape of complainant: 

court using wrong test to determine whether substantial and compelling 

circumstances were present: sentence set aside and one of 16 years’ imprisonment 

imposed. 

Neutral citation: This case may be cited as Nkomo v The State [2006] 

SCA 167 RSA 

JUDGMENT 

LEWIS JA 


[1] The appellant was convicted of rape and kidnapping by a regional court 

in August 1998. The regional court sentenced him to imprisonment for three 

years for kidnapping but referred the sentence for rape to the Durban High 

Court in terms of s 52 of the Criminal Law Amendment Act 105 of 1997. That 

court (per Levinsohn J) sentenced the appellant to life imprisonment in terms 

of s 51(1) of the Act. The regional court had found that the appellant had 

raped the complainant five times during the course of a night. Rape, when 

committed ‘in circumstances where the victim was raped more than once 

whether by the accused or by any co-perpetrator or accomplice’, attracts a 

minimum sentence of life imprisonment 1 unless the court is satisfied that 

substantial and compelling circumstances exist which justify the imposition of 

a lesser sentence. 2 

[2] The appeal is against the sentence of life imprisonment alone, with the 

leave of the court below. That court found no substantial and compelling 

circumstances that warranted a sentence less than life imprisonment. It is 

significant, however, that the sentence was imposed in 1999 before this court 

in S v Malgas 3 determined the approach to be adopted in finding whether 

substantial and compelling circumstances exist. 

[3] The court below relied heavily on earlier authority which suggested that 

factors regarded as mitigating prior to the enactment of the Act did not in 

themselves warrant the imposition of a sentence less severe than that 

prescribed by the Act. In Malgas, however, it was held that in determining 

whether there are substantial and compelling circumstances, a court must be 

conscious that the legislature has ordained a sentence that should ordinarily 

be imposed for the crime specified, and that there should be truly convincing 

reasons for a different response. But it is for the court imposing sentence to 

decide whether the particular circumstances call for the imposition of a lesser 

1 

Section 51(1) read with Part 1 of Schedule 2 of the Act. 

2 

Section 51((a). 

3 

2001 (1) SACR 469 (SCA), approved in S v Dodo 2001 (1) SACR 594; 2001 (3) SA 382 

(CC). 


2

sentence. Such circumstances may include those factors traditionally taken 

into account in sentencing – mitigating factors – that lessen an accused’s 

moral guilt. These might include the age of an accused or whether or not he 

or she has previous convictions. Of course these must be weighed together 

with aggravating factors. But none of these need be exceptional. 

[4] The court below did not consider the mitigating factors adduced by the 

appellant to constitute substantial and compelling circumstances. In that 

respect it erred. This court is thus free to impose the sentence it considers 

appropriate subject to the provisions of the Act, and in the light of the existing 

post-Malgas jurisprudence of this court. 

[5] Since the appeal is against the sentence alone, it is not necessary to 

deal in any detail with the evidence that led to the conviction. However, some 

background is necessary. The complainant’s testimony, accepted by the 

regional court, was that in the late afternoon before the rapes were committed 

she went to a hotel bar in Isipingo in order to find a woman to whom she had 

lent clothing but who had not returned it to her. She found the woman who 

had suggested that she wait in the bar with the appellant, whom she had not 

previously met, for her return. She sat with the appellant who was drinking 

beer. She drank nothing other than a cold drink but it had tasted peculiar, 

suggesting, albeit implicitly, that it had been laced with alcohol. After a while, 

when the woman had not returned, she decided to leave. But when she 

attempted to do so the appellant forced her to go upstairs with him. He hired a 

room, forced her into it, forced her to undress and had sexual intercourse with 

her against her will. 

[6] The appellant then decided to go back to the bar, and locked her in the 

room, hence the kidnapping conviction. She escaped from the room by 

jumping out of a window, and falling, some ten metres to the ground, on her 

leg, which she injured in the process. The doctor who examined her after she 

reported being raped noted in the J88 form that her left ankle was injured and 

swollen. He noted also that she had an arthritic condition. When the 

complainant testified she said that as a result of her fall she had injured her 


3

hip (it had been dislocated, she said) which was still painful, and that she 

required a crutch to walk. It is not clear whether her hip was painful because 

of her arthritic condition, because of the injury or because the injury 

exacerbated her condition. But her evidence that it was the result of the injury 

was not challenged by the appellant. Nor was the J88 report of the doctor 

contested. He had recorded bruising of the labia minora and majora and a 

torn hymen. The State argues that this suggests that force had been used. 

However, the doctor’s oral evidence related only to the bruising and no 

inference can thus be drawn from the J88. 

[7] Unfortunately when the complainant attempted to escape by jumping 

out of the window of the hotel room she fell where the appellant had been 

sitting and drinking. He forced her back upstairs into the room, and raped her 

four more times during the course of the night. He also forced her to perform 

oral sex on him and slapped her, pushed her and kicked her. He prevented 

her from leaving the room again by taking her clothes away. 

[8] When, the following morning, the complainant managed to escape, she 

went straight to a police station to report the multiple rapes and kidnapping. 

Her evidence was corroborated to a large extent by police officers. They 

confirmed that when she approached them her clothing was dishevelled, and 

she was very distraught. They returned with her to the hotel room where they 

found the appellant. 

[9] The appellant’s version, rejected by the regional court, was that she 

consented to having sex with him, and jumped out the window because she 

was drunk. He had attempted to stop here from injuring herself, but she had 

slipped. 

[10] What, then, are the substantial and compelling circumstances that 

warrant the imposition of a sentence less than life imprisonment? The 

appellant argues that his youth (he was 29 when he raped the complainant) 

and his clean record should count in his favour. So too should the facts that 

he was employed, and has three dependent children, be regarded as 


4

mitigating factors. Moreover, he argues, the complainant was not seriously 

injured. He also contends that, because after the charge against him was laid, 

the complainant had considered withdrawing the charge if she were paid 

compensation, she suffered no serious distress. 

[11] The complainant had indeed considered withdrawing the charge and 

had discussed the question of compensation with the appellant and his family. 

But that, she said, was because pressure was put on her by the appellant’s 

family. In my view the fact that the complainant had discussed the question of 

compensation with the appellant is a neutral factor. It does not in itself show 

that she had not suffered emotional distress. 

[12] There are, however, a number of aggravating factors that must be 

taken into account in determining the appropriate sentence for the appellant. 

He not only raped her more than once, but five times during the course of the 

night. He held her captive in a room while he demeaned and hurt her, forcing 

himself on her repeatedly through the night, even after she had seriously hurt 

herself when jumping out of the window, and was in pain. And he showed no 

remorse, claiming throughout the proceedings that the complainant had lied 

about being raped and about the events that had happened in the bar. At the 

same time he was prepared to pay her in order to persuade her to withdraw 

the charge of rape. The complainant had in fact not appeared when the trial 

was due to commence, because she claimed she was threatened, and had 

even stayed at the appellant’s home town over that period. Eventually she 

was persuaded to proceed with the charge by a senior prosecutor. 

[13] The factors that weigh in the appellant’s favour are that he was 

relatively young at the time of the rapes, that he was employed, and that there 

may have been a chance of rehabilitation. No evidence was led to that effect, 

however. 

[14] Nonetheless these are substantial and compelling circumstances which 

the sentencing court did not take into account. A sentence of life 

imprisonment – the gravest of sentences that can be passed, even for the 


5

crime of murder – is in the circumstances unjust and this court is entitled to 

interfere and to impose a different sentence, one that it considers appropriate. 

[15] In S v Mahomotsa 4 this court pointed out that even in the case of a 

serious and multiple rape a sentence of life imprisonment need not 

necessarily be imposed. If there are compelling and substantial circumstances 

the appropriate sentence is within the court’s discretion. Mpati JA said: 5 

‘The present being a case where the complainants were each raped more than once, the 

prescribed period of imprisonment for life is the sentence which should ordinarily be imposed. 

It should not be departed from lightly and for flimsy reasons which cannot withstand scrutiny 

(S v Malgas . . .; S v Dodo . . .). However, in considering the question, a Court is not 

prohibited by the Act from weighing all the usual considerations traditionally relevant to 

sentence. 

. . . . 

The rapes that we are concerned with here, though very serious, cannot be classified as 

falling within the worst category of rape. Although what appeared to be a firearm was used to 

threaten the complainant in the first count and a knife in the second, no serious violence was 

perpetrated against them. Except for a bruise to the second complainant's genitalia, no 

subsequently visible injuries were inflicted on them. According to the probation officer - she 

interviewed both complainants - they do not suffer from any after-effects following their 

ordeals. I am sceptical of that but the fact remains that there is no positive evidence to the 

contrary. These factors need to be taken into account in the process of considering whether 

substantial and compelling circumstances are present justifying a departure from the 

prescribed sentence. 

It perhaps requires to be stressed that what emerges clearly from the decisions in Malgas and 

Dodo is that it does not follow that simply because the circumstances attending a particular 

instance of rape result in it falling within one or other of the categories of rape delineated in 

the Act, a uniform sentence of either life imprisonment or indeed any other uniform sentence 

must or should be imposed. If substantial and compelling circumstances are found to exist, 

life imprisonment is not mandatory nor is any other mandatory sentence applicable. What 

sentence should be imposed in such circumstances is within the sentencing discretion of the 

trial Court, subject of course to the obligation cast upon it by the Act to take due cognisance 

of the Legislature's desire for firmer punishment than that which may have been thought to 

be appropriate in the past. Even in cases falling within the categories delineated in the Act 

there are bound to be differences in the degree of their seriousness. There should be no 

misunderstanding about this: they will all be serious but some will be more serious than 

4 2002 (2) SACR 435 (SCA). 

5 Paras 14, 17, 18 and 19. See also Rammoko v DPP 2003 (1) SACR 200 (SCA). 


6

others and, subject to the caveat that follows, it is only right that the differences in 

seriousness should receive recognition when it comes to the meting out of punishment. As 

this Court observed in S v Abrahams 2002 (1) SACR 116 (SCA), 'some rapes are worse than 

others and the life sentence ordained by the Legislature should be reserved for cases devoid 

of substantial factors compelling the conclusion that such a sentence is inappropriate and 

unjust' (para [29]). (My emphasis.) 

Of course, one must guard against the notion that because still more serious cases than the 

one under consideration are imaginable, it must follow inexorably that something should be 

kept in reserve for such cases and therefore that the sentence imposed in the case at hand 

should be correspondingly lighter than the severer sentences that such hypothetical cases 

would merit. There is always an upper limit in all sentencing jurisdictions, be it death, life or 

some lengthy term of imprisonment, and there will always be cases which, although differing 

in their respective degrees of seriousness, nonetheless all call for the maximum penalty 

imposable. The fact that the crimes under consideration are not all equally horrendous may 

not matter if the least horrendous of them is horrendous enough to justify the imposition of 

the maximum penalty.’ 

[17] In Mahomotsa, where the State had appealed against the sentences 

imposed in respect of the multiple rapes of two complainants (and where the 

respondent had raped the second complainant while awaiting trial on the first 

charge) this court imposed a sentence of eight years’ imprisonment on the 

first charge and twelve years’ imprisonment on the second. It regarded the 

trial court’s sentences in respect of both counts (six and ten years’ 

imprisonment respectively, but to run concurrently) as ’collectively woefully 

inadequate’. 6 

[18] In S v Sikhipha 7 this court, setting aside a sentence of life 

imprisonment where the appellant had raped a 13 year old girl, regarded as 

substantial and compelling circumstances the facts that the appellant was 

regarded as capable of rehabilitation and that the complainant was not 

seriously injured. The court imposed a sentence of 20 years’ imprisonment 

because of the age of the complainant. 

6 Para 26. 

7 2006 (2) SACR 439 (SCA). 


7

[19] On the other hand, as I have said, in Mahomotsa sentences of eight 

years on the first conviction, and twelve on the second, were considered just. 

Counsel for the appellant argued that the case before us and that in 

Mahomotsa are not dissimilar. The appellant in Mahomotsa had also kept his 

victims captive, and he had raped each of them repeatedly. He had also 

threatened them with weapons, in the first case a firearm and in the second a 

knife. Neither had been seriously injured, however. The appellant did have a 

previous conviction for rape. 

[20] It is trite, however, that each case must be considered having regard to 

its particular facts. In this case the appellant did not use any weapon although 

he did assault the complainant. And he did not seriously injure her, though he 

callously and cruelly disregarded her injury caused when she tried to escape 

from the hotel room. While the complainants in Mahomotsa were raped in 

very similar circumstances to the complainant in this case, I consider that a 

number of aggravating factors distinguish the appellant’s position from that in 

Mahomotsa. 

[21] I have already referred to these. I emphasise, in particular, the brutality 

with which the appellant treated the complainant, raping her four times after 

she had been injured when trying to escape from him; that he forced her to 

perform oral sex on him, assaulting her when initially she refused; that he 

showed absolutely no remorse; and that he was in a comparatively better 

position than her, with education and a permanent job. He should have known 

better. He behaved, in the words of Mpati JA in Mahomotsa, like a ‘sexual 

thug’. 8 These circumstances warrant a heavier sentence than those imposed 

in Mahomotsa; 

[22] That said, I do not believe that his crime should attract the heaviest 

sentence permitted by our law, life imprisonment. I recognize that it may be 

difficult to imagine a rape under much worse conditions. But it is possible, and 

I consider that the prospect of rehabilitation and the fact that the appellant is a 

8 Above, para 16. 


8

first offender must be regarded as substantial and compelling circumstances 

justifying a lesser sentence. What must be borne in mind as well, is the 

statement of this court in S v Abrahams (cited in the passage from 

Mahomotsa above) that life imprisonment as a sentence for rape should be 

imposed only where the case is ‘devoid of substantial factors compelling the 

conclusion that such a sentence is inappropriate and unjust’. 

[23] In all the circumstances, I consider that a sentence of 16 years’ 

imprisonment serves the purposes of punishment, deterrence and the 

protection of the interests of society. 

[24] The appeal is upheld. The sentence imposed by the court below is set 

aside and replaced with the following: 

‘The accused is sentenced to 16 years’ imprisonment.’ 

Concur: Cameron JA 

9 

C H Lewis 

Judge of Appeal 


THERON AJ (DISSENTING) 

[25] I have read the judgment of Lewis JA. I do not agree with the 

conclusion that there are substantial and compelling circumstances in this 

matter and that we should interfere with the sentence imposed by the court 

below. 

[26] The approach to an inquiry such as this is by now well settled. A court 

has a discretion to depart from the prescribed sentence where there are 

substantial and compelling circumstances which compel the conclusion that 

the imposition of the minimum sentence would be unfair or unjust. Such 

departure from the prescribed sentence should not made ‘lightly and for flimsy 

reasons’. 9 Marais JA in S v Malgas cautioned: 

‘Speculative hypotheses favourable to the offender, maudlin sympathy, 

aversion to imprisoning first offenders, personal doubts as to the efficacy of 

the policy implicit in the amending legislation, and like considerations were 

equally obviously not intended to qualify as substantial and compelling 

circumstances’. 10 

Given the facts here present, the prescribed sentence of life imprisonment is 

the sentence which should ordinarily be imposed. 

[27] The background facts underlying the conviction have been adequately 

dealt with in the judgment of Lewis JA and I do not intend to repeat them. I do, 

however, intend to highlight certain aspects thereof; aspects which emphasise 

the brutality of this rape and the indignity and humiliation to which the 

9 S v Malgas 2001 (1) SACR 469 (SCA) para 9. 

10 Ibid. 


10

complainant was subjected. The fact that the complainant jumped from the 

second floor, despite the possible threat of physical injury or worse to herself, 

is indicative of the desperation that she felt and the lengths to which she was 

prepared to go to escape from the clutches of the appellant. The complainant 

was deprived of her liberty for the entire night, during which she was forced to 

remain naked, her clothes having been hidden by the appellant. During the 

course of the night she was subjected to a physical assault to overcome her 

resistance to performing oral sex on the appellant. She was raped a further 

four occasions. When she finally made good her escape she made her way to 

the police station in obvious pain and discomfort. 

[28] This court in S v Abrahams 11 and S v Mahomotsa 12 recognised that 

while all rapes are serious, ‘some rapes are worse than others’. In my view, 

the rape of the complainant is one of the worst imaginable. 13 If life 

imprisonment is not appropriate in a rape as brutal as this, then when would it 

be appropriate? I am of the view that this is precisely the kind of matter the 

legislature had in mind for the imposition of the minimum sentence of life 

imprisonment. Courts must not shrink from their duty to impose, in appropriate 

cases, the prescribed minimum sentences ordained by the legislature. 

[29] Against the backdrop of the unprecedented spate of rapes in this 

country, 14 courts must also be mindful of their duty to send out a clear 

11 

2002 (1) SACR 116 (SCA) para 29. 

12 

2002 (2) SACR 435 (SCA) paras 17-19. 

13 

Lewis JA, in para 22 above, says that ‘it is difficult to imagine a rape under much worse 

conditions’. 

14 

According to crime statistics released by the South African Police Service, 52 733 rapes 

were reported during the period April 2003 to March 2004. In an unreported judgement of this 


11

message to potential rapists and to the community that they are determined to 

protect the equality, dignity and freedom of all women. 15 Society’s legitimate 

expectation is ‘that an offender will not escape life imprisonment – which has 

been prescribed for a very specific reason – simply because [substantial and 

compelling] circumstances are, unwarrantedly, held to be present.’ 16 In our 

constitutional order women are entitled to expect and insist upon the full 

protection of the law. 

[30] I agree with Lewis JA that this case is distinguishable from that of S v 

Mahomotsa. 17 In my view, the aggravating factors in this matter distinguish 

the appellant’s position from that in both Mahomotsa and S v Sikhipha, 18 

warranting the imposition of a heavier sentence than that imposed in the said 

cases. 

[31] I respectfully adopt the view that what is set out in paras 13 and 14 of 

the judgment of Lewis JA do not substantiate the conclusion contended for. 

There is hardly a person of whom it can be said that there is no prospect of 

rehabilitation. The appellant was 29 years old at the time and would ordinarily 

not be regarded as a youthful or immature offender. Employment in itself 

would not necessarily qualify as a substantial and compelling circumstance. In 

following the approach adopted in Malgas 19 of balancing societal and personal 

court, De Beer v S (Case Number 121/04 delivered on 12 November 2004) para 19, Ponnan 

JA states: ‘NICRO estimates that only 1 out of every 20 rapes is reported, whilst the South 

African Police Service puts the figure at 1 out of 35.’ 

15 

S v Chapman 1997 (2) SACR 3 (SCA) at 5d-e. 

16 

Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) para 13. 

17 

2002 (2) SACR 435 (SCA). 

18 

2006 (2) SACR 439 (SCA). 

19 

2002 (1) SACR 469 (SCA) paras 8-9. 


12

interests, I can see no room to conclude that the totality of facts in this case 

are such that they constitute substantial and compelling circumstances. The 

basis therefore suggested by Lewis JA in para 4 of her judgment for 

interfering with the sentence is unwarranted. 

[32] I cannot agree ‘that the prospect of rehabilitation (of which there is no 

evidence) and the fact that the appellant is a first offender’ 20 constitute 

substantial and compelling circumstances within the meaning of that 

expression and are truly convincing reasons for departing from the minimum 

sentence ordained by the legislature. Given the prevalence of rape in our 

society and the brutality of this particular rape, even in the absence of a 

directive from Parliament, life imprisonment would not, in my view, have been 

an inappropriate sentence. 

20 Per Lewis JA para 22 above. 

_____________ 

13 

LV THERON 

Acting Judge of Appeal 


THE SUPREME COURT OF APPEAL OF SOUTH AFRICA 


Case No: 174/01 

REPORTABLE 

ZITHA MABUZA FIRST APPELLANT 

PHILLIP SIMONGO SECOND APPELLANT 

OUPA SITHOLE THIRD APPELLANT 

v 

THE STATE RESPONDENT 

Coram: Nugent, Cachalia JJA et Hurt AJA 

Heard: 22 August 2007 

Delivered: 20 September 2007 

Summary: It is not a prerequisite for a fair trial that there is a verbatim recording of the 

magistrate’s explanation of the rights of unrepresented accused and the response 

of the accused. Sentence of life imprisonment imposed for rape of 15 year old 

complainant and 15 years’ imprisonment for robbery. Under the Criminal Law 

Amendment Act 105 of 1997 youthfulness remains a weighty mitigating factor in 

determining whether substantial and compelling circumstances exist. Sentences 

set aside and effective sentence of 16 years’ imprisonment imposed. 

Neutral citation: This judgment may be referred to as Mabuza v The State [2007] 

SCA 110 (RSA) 

CACHALIA JA 

JUDGMENT 


[1] The three appellants were arrested on 19 August 1998. They faced 

two charges in the Regional Division of Southern-Transvaal. The first was 

robbery of the following items of property from Ms Joyce Mazibuko: a 

television, a ‘hifi’ set, a pair of shoes, an engine-pump, three watches and 

R1 800 in cash. The combined value of the cash and property was R6 859. 

The second charge was that they had each raped Mazibuko’s minor 

daughter, Sibindile Nkuna. The appellants pleaded not guilty and elected to 

conduct their own defences. After hearing evidence the magistrate convicted 

them on both counts. 

[2] The appellants’ convictions made them liable for punishment under 

s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). In relation 

to their convictions for robbery, their conduct fell within s 51(2) read with 

Part II of Schedule 2, which prescribes a minimum sentence of 15 years’ 

imprisonment. Their rape convictions placed them under s 51(1)(a) read with 

several paragraphs of Part 1 of Schedule 2. This included paras (a)(i) and 

(a)(ii) because each appellant had raped Sibindile. (In the case of appellant 1 

the evidence showed that he had raped her twice.) Their conduct also fell 

within para (b)(i) as she was 15 at the time. 1 Because a sentence of life 

imprisonment is the prescribed sentence on this charge, the magistrate 

1 

Concerning rape, Part 1 of Schedule II reads as follows: 

‘Rape – 

(a) When committed – 

(i) in circumstances where the victim was raped more than once whether by the accused or 

by any co-perpetrator or accomplice; 

(ii) by more than one person, where such persons acted in the execution or furtherance of a 

common purpose or conspiracy; 

(iii) . . . 

(iv) . . . 

(b) where the victim – 


(ii) . . . 

(iii) . . . 

(c) . . .’ 


2

transferred the case to the Johannesburg High Court for sentencing in 

accordance with s 52 of the Act. 

[3] When the matter came before Goldstein J in the High Court, the 

appellants accepted legal representation from the Legal Aid Board. 

Probation officers were appointed to compile pre-sentencing reports on their 

behalf. The High Court was, however, unable to find any substantial and 

compelling circumstances, as envisaged in s 51(3)(a) of the Act, to justify 

the imposition of sentences lighter than the prescribed minimum. It therefore 

imposed, on each appellant, the prescribed sentence both for robbery and for 

rape. This appeal, against conviction and sentence, is with leave of the High 

Court. 

[4] The factual findings upon which the magistrate based the appellants’ 

convictions, which the High Court accepted, are not in issue in this appeal. 

Their complaint, made for the first time in this court, is that the absence of a 

verbatim recording of the pre-trial proceedings indicating that the learned 

magistrate had explicitly alerted them to the Act’s severe penalties, 

particularly to the threat of life imprisonment on the rape charge, or any 

indication that they had properly understood this when electing to conduct 

their own defence, vitiates the proceedings. For this contention they find 

support in two judgments of the Johannesburg High Court, S v Thompson 2 

and S v Sibiya 3 . 

[5] It is necessary to deal with Thompson in some detail. The accused 

faced a charged of aggravated robbery. The charge-sheet set out the charge 

2 Unreported Case No: A538/03. 

3 2004 (2) SACR 82 (W). 


3

as ‘robbery with aggravating circumstances as intended in s 1 of Act 51 of 

1977 and read with the provisions of s 51(2)(a) of the Criminal Law 

Amendment Act 105 of 1997’. At an initial appearance before the trial’s 

commencement the magistrate had recorded the following: 

‘Accused informed of gravity of charges and coupled to minimum sentences. Rights to 

legal representation explained. Prefers to conduct own defence.’ 

In his judgment dealing with the conviction the magistrate explained more 

fully that: 

‘The accused was informed of his rights regarding legal representation on the 18 th of 

October . . . by my colleague Mr Brink. The accused elected to conduct his own defence. 

Again on the 8 th of November . . . (I) explained to the accused the gravity of the charges 

against him, and the possibility of a minimum sentence that could be imposed should he 

be convicted. Thereafter the court again explained the rights of the accused to legal 

representation. Again the accused insisted on conducting his own defence.’ 

[6] After convicting the accused the magistrate said the following to him: 

‘As I have explained to you before . . . the court has to apply a minimum sentence. You 

however may escape the minimum sentence should you be able to do the following. The 

court is compelled to impose a minimum sentence of at least 15 years unless there are 

substantial and compelling circumstances to impose a lesser sentence, and, sir, 

unfortunately, the onus is on you to bring those compelling and substantial circumstances 

to the attention of the court. You now have slightly more than a month and I would urge 

you to use the time available . . . to get these substantial and compelling circumstances to 

the fore and be able to present them on the day of sentence. Do you understand this? Also 

bear in mind, even if you cannot think of such circumstances, sir, that 15 years is the 

minimum. It could be as high as 30, depending on your previous convictions. So in other 


4

words, sir, it is of paramount importance that you apply your mind to this. It may assist 

you.’ 

In response to this explanation the record indicates that the accused 

responded simply by saying: ‘I understand’. 

[7] When the trial resumed for the purposes of sentencing, the magistrate 

again carefully explained to the accused what the import of the minimum 

sentence legislation was. In response the accused once again said that he 

understood, but then asked for a suspended sentence. The magistrate, 

however, sentenced him to 16 years’ imprisonment. 

[8] On appeal the High Court (Saldulker AJ, Shakenovsky AJ concurring) 

set aside the conviction and sentence on the ground that the trial had been 

conducted unfairly. In arriving at this conclusion it said the following: 

‘In my judgment, the gravity of the consequences of a conviction for an unrepresented 

accused which result in heavy penalties is an important issue which must weigh with an 

accused when he is requested to make his election with regard to whether or not he 

should dispense with legal representation. 

In the case before me it is quite clear that the appellant did not fully understand the 

enormity after conviction when it was explained to him by the magistrate that the 

minimum sentence was applicable. This was clearly apparent when the appellant asked 

for a suspended sentence. Clearly he did not fully appreciate or understand the gravity of 

what he was now facing. 

In the absence of the record reflecting precisely and verbatim what the appellant’s 

response was, as to whether or not he required legal representation, this court of appeal 

finds itself in difficulty in not being able to establish what precisely was said to the 


5

appellant and what his response was in the absence of these replies appearing from the 

record… 

In order to dispel any doubts as to whether the accused was properly informed of his 

rights, a verbatim recording must appear ex facie the record and not in the form of terse 

and cryptic notes of what was conveyed to the appellant regarding his right to legal 

representation that led him to make his election to conduct his own defence. His reasons 

if given for electing to do so must also be recorded. 

All the aforegoing must therefore appear ex facie the record.’ 4 

The reasoning above followed the earlier reasoning of the same court in 

Sibiya 5 . The absence of a verbatim record of what the court said, so it was 

held in both cases, rendered the trial unfair. 

[9] Our courts have indeed established guidelines dealing with what 

Goldstone J described in S v Radebe; S v Mbonani 6 as the 

‘general duty on the part of judicial officers to ensure that unrepresented accused fully 

understand their rights and the recognition that in the absence of such understanding a 

fair and just trial may not take place.’ 7 

He went on to say that: 

‘If there is a duty upon judicial officers to inform unrepresented accused of their legal 

rights, then I can conceive of no reason why the right to legal representation should not 

be one of them. Especially where the charge is a serious one which may merit a sentence 

which could be materially prejudicial to the accused, such an accused should be informed 

of the seriousness of the charge and of the possible consequences of a conviction. Again, 

4 Paras 27-30. 

5 See paras 37, 43, 46, 47, 48 and 49. 

6 1988 (1) SA 191 (T). 

7 At 195B. 


6

depending upon the complexity of the charge, or of the legal rules relating thereto, and 

the seriousness thereof, an accused should not only be told of this right but he should be 

encouraged to exercise it. He should be given a reasonable time within which to do so. 

He should also be informed in appropriate cases that he is entitled to apply to the Legal 

Aid Board for assistance. A failure on the part of a judicial officer to do this, having 

regard to the circumstances of a particular case, may result in an unfair trial in which 

there may well be a complete failure of justice. I should make it clear that I am not 

suggesting that the absence of legal representation per se or the absence of the suggested 

advice to an accused person per se will necessarily result in such an irregularity or an 

unfair trial and the failure of justice. Each case will depend upon its own facts and 

peculiar circumstances.’ 8 

This court quoted these dicta with approval in S v Mabaso 9 and they have 

frequently been referred to since. 

[10] When the state intends to rely on a specific sentencing regime, as in 

the present matter, our courts have in the same vein insisted that a fair trial 

requires that 

‘its intention pertinently be brought to the attention of the accused at the outset of the 

trial, if not in the charge-sheet then in some other form, so that the accused is placed in a 

position to appreciate properly in good time the charge that he faces and the possible 

consequences.’ 10 

And it is evident, as Lewis JA said recently in S v Sikhipa 11 that 

8 At 196F-I. 

9 1990 (3) SA 185 (A) at 203C-G. 

10 S v Ndlovu 2003 (1) SACR 331 (SCA) at para 12. 

11 2006 (2) SACR 439 (SCA) at para 10. 


7

‘where an accused is faced with a charge as serious as that of rape, and especially where 

he faces a sentence of life imprisonment, he should not only be advised of his right to a 

legal representative but should also be encouraged to employ one and seek legal aid 

where necessary. It is not desirable for the trial court in such cases merely to apprise an 

accused of his rights and to record this in notes: the court should, at the outset of the trial, 

ensure that the accused is fully informed of his rights and that he understands them, and 

should encourage the accused to appoint a legal representative, explaining that legal aid is 

available to an indigent accused.’ 

[11] But while the trial of an unrepresented accused might be unfair if he 

or she is not properly informed of rights that are relevant, it does not follow 

that the failure to record the fact that he or she was so informed, (verbatim or 

otherwise) equally renders the trial unfair. On the contrary the failure to 

record what was told to the accused does not impact upon the fairness of the 

trial and cannot by itself render the trial unfair. To the extent that the 

contrary was held in Thompson and Sibiya, those cases were wrongly 

decided. 

[12] There is no suggestion in the present case that the magistrate did not 

inform the appellants of their right to legal representation. On the contrary, it 

appears from his cryptic notes and also from his judgment, which was 

recorded verbatim, that not only did he inform them of their right to legal 

representation when they first appeared in court and again before the trial 

commenced, but he also explained its importance, the seriousness of the 

charges and their right to apply for legal aid. Nor is their any suggestion that 

they did not understand the magistrate’s explanation when they elected to 

conduct their own defences. Each indicated he did. 


8

[13] Their complaint, as I have mentioned, (and the ground upon which the 

convictions were set aside in Thompson and Sibiya) is that the absence of a 

verbatim recording indicating that the magistrate had warned them of their 

threat of exposure to the Act’s prescribed penalties and that they had 

understood this is sufficient to vitiate the proceedings. This is because, as I 

understand counsel’s submission on the appellants’ behalf, it is doubtful that 

the magistrate made any reference to the prescribed sentences as his 

contemporaneous cryptic notes contain no such indication. If this is so, 

counsel submits, it is also doubtful that they properly understood their 

predicament when electing to conduct their own defence. Their decision to 

defend themselves in these circumstances, so the submission goes, rendered 

the trial unfair. 

[14] The fact that the cryptic notes contain no reference to the magistrate 

informing the appellants of the prescribed sentences does not necessarily 

imply that he did not do so. And a court will not set aside proceedings on the 

mere supposition that he might have done so. Significantly when the matter 

came before Goldstein J for sentencing and the appellants were legally 

represented the learned judge reviewed the record and invited them to make 

submissions on the propriety of the convictions. None did. Had they done so 

the judge would necessarily have obtained a statement from the magistrate in 

accordance with the requirements of s 52(3) of the Act setting forth his 

explanation of what had transpired before he concluded that the proceedings 

had been in accordance with justice. Having not availed themselves of the 

opportunity, the appellants cannot belatedly, and without a proper factual 

basis, impugn the proceedings in the magistrates’ court. 


9

[15] Even if I were to assume, in the appellants’ favour, that the magistrate 

did not alert them to the Act’s penalties, there is still no basis to set aside the 

conviction. The notes reveal, albeit in cryptic form, that the appellants were 

informed that they were facing serious charges. They could thus not 

reasonably have been under any misconception that they faced the prospect 

of lengthy terms of imprisonment when they elected to conduct their own 

defence. 12 In the absence of ‘actual and substantial prejudice’ 13 resulting 

from the failure to inform them of the Act’s provisions, none of which has 

been shown in this case, there is no basis for finding that the trial was 

conducted unfairly. 

[16] Counsel submitted, however, that the fact that appellant 2 believed he 

should only receive a suspended sentence, as he told the probation officer, is 

an indication that he did not appreciate the seriousness of the charges. The 

same submission was also advanced successfully in Thompson. In my view 

there is no proper basis for this inference. The appeal against their 

convictions must therefore fail. I turn to consider their appeals against 

sentence. 

[17] The evidence disclosed that Mazibuko and her daughter, Sibindile, 

were asleep at their Ivory Park home at 2 am on 10 August 1998 when a 

sound awoke them. Sibindile remained in her bed as Mazibuko made her 

way, through the darkness, to the source of the disturbance, a corrugated iron 

door. There appellant 3 confronted her. She screamed, prompting appellant 3 

to hit her on her chest with the knife he wielded as he demanded her silence. 

As she cowered, she noticed the two other appellants in front of her. 

12 Cf S v Ndlovu; S v Sibisi 2005 (2) SACR 645 (W) at 654-656, 653b-g and 644b-655b. 

13 Cf Hlantlalala v Dyanti 1999 (2) SACR 541 (SCA) at paras 8-10. 


10

[18] The appellants then ushered her into Sibindile’s bedroom. There, they 

directed a torch-light on to the girl’s face. They ordered her to stand and then 

switched on the room light. She screamed and two of the appellants 

responded by threatening her with a knife and a small axe. Appellant 3 

demanded money from them. Mazibuko explained that the money was in 

another room. He went to find it but returned with little and demanded more. 

Mazibuko responded by leading appellants 2 and 3 into her bedroom, which 

they then ransacked. They found more money in a bottle. During this time 

appellant 1 remained with Sibindile in her room. Appellant 2 returned to 

Sibindile’s room after this, while appellant 3 remained with Mazibuko. 

[19] Sibindile was now alone in her room with appellants 1 and 2. 

Appellant 1 demanded that she remove her clothing. She pleaded with him 

not to hurt her. But he responded by threatening to hit her with the axe if she 

refused to succumb. In response Sibindile removed her panty and lifted her 

night-dress as she lay on her bed. Appellant 1 then raped her and demanded 

that she desist from crying while he did. After he was done, appellant 2 

raped her. She pleaded with him to desist, but he too ignored her. Appellant 

2 then left the girl’s room and appellant 3 entered. He also raped her in 

appellant 1’s presence, after which appellant 1 raped her again. The 

assailants left, an hour after their intrusion, taking with them the items 

mentioned in the charge sheet. The appellants were arrested shortly 

thereafter. Most of the stolen items were recovered, but not the cash. 

[20] This matter was decided shortly after the Act commenced its 

operation on 1 May 1998. In imposing the prescribed sentence on each 

appellant in respect of both counts, the High Court adopted the test applied 


11

in S v Mofokeng, 14 that the facts of the particular case must be of an 

exceptional nature to justify the conclusion that there are substantial and 

compelling circumstances justifying a departure from the prescribed 

sentence. However in S v Malgas, 15 this court rejected the suggestion that for 

circumstances to be substantial and compelling they must be ‘exceptional.’ 16 

It held that in determining whether there are substantial and compelling 

circumstances present, a court must be aware that the legislature has set a 

benchmark of the sentence that should ordinarily be imposed for a specified 

crime, and that there should be truly persuasive reasons for a different 

response. And when a court decides whether the particular circumstances 

call for the imposition of a lesser sentence, it may consider factors 

traditionally taken into account in making this determination. These include 

the age of the accused, the nature and number of any previous convictions 

and the time spent awaiting trial. These factors must of course be weighed 

against the aggravating factors. But none need be exceptional. 17 

[21] The state submits that notwithstanding the High Court’s application of 

the test that preceded Malgas, its conclusion that there were no substantial 

and compelling circumstances was nonetheless correct. Accordingly it 

submits that this court should not interfere with the sentences. 

[22] The appellants’ dates of birth, as they appear in the SAP 69 forms, are 

given as 17 June 1978 (appellant 1), 28 July 1979 (appellant 2) and 10 June 

1980 (appellant 3). They were thus respectively 20, 19 and 18 years of age at 

the time they committed these offences and are juveniles, traditionally 

14 1999 (1) SACR 502 (W). 

15 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222 (SCA). 

16 S v Mohomotsa 2002 (2) SACR 435 (SCA) at para 10. 

17 S v Nkomo 2007 (2) SACR 198 (SCA) at para 3. 


12

always considered a weighty mitigating factor in the sentencing process. The 

reasons are trite but bear repeating briefly. Youthfulness almost always 

affects the moral culpability of juvenile accused. This is because young 

people often do not possess the maturity of adults and are therefore not in 

the same position to assess the consequences of their actions. They are also 

susceptible to peer pressure and adult influence and are vulnerable when 

proper adult guidance is lacking. There are however degrees of maturity, the 

younger the juvenile the less mature he or she is likely to be. 18 Judicial 

policy has thus appreciated that juvenile delinquency does not inevitably 

lead to adult criminality and is often a phase of adult development. 19 The 

degree of maturity must always be carefully investigated in assessing a 

juvenile’s moral culpability for the purposes of sentencing. The 

Constitutional Court warned in S v Williams 20 that youthful offenders, 

particularly, should not be sacrificed on the altar of deterrence. There is 

therefore compelling justification for the view that youthfulness, at least 

before the advent of the minimum sentencing regime, was per se a factor 

mitigating sentence. 21 

[23] However in requiring a sentencing court to depart from the prescribed 

sentence in respect of offenders who have attained the age of 18 only if 

substantial and compelling circumstances justify this departure the 

legislature has clearly intended that youthfulness no longer be regarded as 

per se a mitigating factor. So while youthfulness is, in the case of juveniles 

who have attained the age of 18, no longer per se a substantial and 

18 S v Lehnberg 1975 (4) SA 553 (A). 

19 S v Z 1999 (1) SACR 427 (E) at 430E-I. 

20 1995 (3) SA 632 (CC) at para 85. 

21 Julia-Sloth Nielsen The Role of International Law in Juvenile Justice Reform in South Africa. 

Unpublished LL.D thesis, University of the Western Cape, 2001, fn 35 at 375. 


13

compelling factor justifying a departure from the prescribed sentence, it 

often will be, particularly when other factors are present. A court cannot, 

therefore, lawfully discharge its sentencing function by disregarding the 

youthfulness of an offender in deciding on an appropriate sentence, 

especially when imposing a sentence of life imprisonment, for in doing so it 

would deny the youthful offender the human dignity to be considered 

capable of redemption. 

[24] Before I deal with the circumstances in this matter, it is necessary to 

review briefly how our courts have dealt with rape under the Act, perhaps 

the most difficult and controversial aspect of the legislation. 22 The leading 

case is S v Mahomotsa. 23 The accused had raped two complainants, the 

second while he was awaiting trial in respect of the first. Both complainants 

were fifteen years of age at the time. The State had proved that the accused 

had had non-consensual sex with the two complainants more than once. He 

had been armed and on both occasions, assaulted and insulted the 

complainants. This court considered 8 years’ imprisonment to be appropriate 

on the first and 12 years’ imprisonment on the second. In arriving at this 

conclusion it said the following: 

‘The rapes that we are concerned with here, though very serious, cannot be classified as 

falling within the worst category of rape. Although what appeared to be a firearm was 

used to threaten the complainant in the first count and a knife in the second, no serious 

violence was perpetrated against them. Except for a bruise to the second complainant's 

genitalia, no subsequently visible injuries were inflicted on them. According to the 

probation officer - she interviewed both complainants - they do not suffer from any after- 

22 See S S Terblanche Guide to Sentencing in South Africa 2ed at pp 52-53, 67. 

23 2002 (2) SACR 435 (SCA) at paras 17-18. 


14

effects following their ordeals. I am sceptical of that but the fact remains that there is no 

positive evidence to the contrary. These factors need to be taken into account in the 

process of considering whether substantial and compelling circumstances are present 

justifying a departure from the prescribed sentence. 

It perhaps requires to be stressed that what emerges clearly from the decisions in Malgas 

and Dodo is that it does not follow that simply because the circumstances attending a 

particular instance of rape result in it falling within one or other of the categories of rape 

delineated in the Act, a uniform sentence of either life imprisonment or indeed any other 

uniform sentence must or should be imposed. If substantial and compelling circumstances 

are found to exist, life imprisonment is not mandatory nor is any other mandatory 

sentence applicable. What sentence should be imposed in such circumstances is within 

the sentencing discretion of the trial Court, subject of course to the obligation cast upon it 

by the Act to take due cognisance of the Legislature's desire for firmer punishment than 

that which may have been thought to be appropriate in the past. Even in cases falling 

within the categories delineated in the Act there are bound to be differences in the degree 

of their seriousness. There should be no misunderstanding about this: they will all be 

serious but some will be more serious than others and, subject to the caveat that follows, 

it is only right that the differences in seriousness should receive recognition when it 

comes to the meting out of punishment. As this Court observed in S v Abrahams 2002 (1) 

SACR 116 (SCA), 'some rapes are worse than others and the life sentence ordained by 

the Legislature should be reserved for cases devoid of substantial factors compelling the 

conclusion that such a sentence is inappropriate and unjust.' 

[25] In S v Sikhipha 24 this court set aside a sentence of life imprisonment 

for the rape of a 13 year old girl and in its place substituted a sentence of 

20 years’ imprisonment. It regarded as substantial and compelling the fact 

that the appellant, who was 35 years of age, had a trade and a family that 

24 2006 (2) SACR 439 (SCA). 


15

was dependent upon him, that he was capable of rehabilitation and that the 

complainant had not been badly injured. 

[26] In S v Nkomo 25 this court also set aside a sentence of life 

imprisonment where the appellant, who was 29 years of age, had forced the 

complainant into a hotel room and locked her inside and then raped her. 

Afterwards she tried to escape by jumping through a window that was some 

10 meters from the ground injuring herself in the process, although not 

seriously. The appellant then forced her back into the hotel room where he 

raped her four more times. He also made her perform oral sex on him. As in 

Sikhipha the appellant was employed and had a family who was dependent 

upon him. A sentence of 16 years’ imprisonment was considered 

appropriate. 

[27] I revert to the present matter. No viva voce evidence was led on 

sentence. The pre-sentencing reports were the only evidence before the High 

Court. They reveal, briefly, that the appellants, all Mozambican, grew up in 

difficult circumstances. They left their country because of adverse socio- 

economic conditions to find employment in South Africa. Appellant 1 had 

no formal education and appellants 2 and 3 were not able to progress beyond 

primary school. Appellant 1, who had been employed as a gardener at the 

time of his arrest, was earning a fortnightly wage of R440. The other 

appellants were unemployed at the time of the commission of these crimes. 

There is no evidence that they were living under any form of adult 

supervision at the time they committed the offences. 

25 2007 (2) SACR 198 (SCA). 


16

[28] They have no previous convictions and were in custody for almost 

10 months before being sentenced. The rape was not planned. There was no 

gratuitous violence in addition to the rape. Sibindile’s examination provided 

corroboration of ‘forceful sexual intercourse.’ There were no other injuries 

and the J88 form, which is the report of the medical examination, notes that 

her physical powers, general state of health and mental state were not 

perceptibly impaired. Appellant 3 struck Mazibuko once on her chest to 

silence her. Sibindile’s physical examination revealed that even though there 

was evidence of a previous sexual encounter, her hymen was bruised and the 

membrane below the vagina opening had a moderate tear. 

[29] As against these mitigating factors the aggravating factors must be 

considered. There can hardly be a more terrifying experience than to be 

awakened in the middle of the night by armed intruders, to have one’s 

privacy invaded and to be subjected to an ordeal for an hour with no idea of 

one’s fate. This is what the appellants subjected Mazibuko and her daughter 

to. The appellants threatened to hurt them if they did not co-operate. They 

ignored Sibindile’s crying and pleas not to rape her. It would have been 

obvious to them that she was distressed but they threatened to chop her with 

the axe if she refused to succumb to their predatory behaviour. They each 

raped her in turn and then appellant 1 did so for a second time. They invaded 

her body, humiliated her and stripped her of her dignity. And despite 

overwhelming evidence against them, they denied any involvement in the 

crimes throughout the trial and continued to do so to the probation officers 

who interviewed them during the compilation of their pre-sentencing 

reports. 


17

[30] I have weighed these factors and conclude that this case warrants a 

severe sentence, but it is not one that is devoid of substantial and compelling 

circumstances justifying a lesser sentence than the prescribed minimum. The 

imposition of the prescribed sentences would be disproportionately harsh. 

The appeal against sentence is upheld and the sentences imposed by the 

court below are set aside and replaced with the following: 

‘On count 1 (robbery) each accused is sentenced to 8 years’ imprisonment. 

On count 2 (rape) each accused is sentenced to 16 years’ imprisonment. The 

sentence on count 1 will run concurrently with that on count 2. In terms of s 

276B (2) of the Criminal Procedure Act 51 of 1977 I direct that the non- 

parole-period shall be 8 years.’ 

CONCUR: 

NUGENT JA 

HURT AJA 

18 

_______________ 

A CACHALIA 



CONSTITUTIONAL COURT OF SOUTH AFRICA 

Case CCT 53/06 

[2007] ZACC 18 

M * Applicant 

versus 


CENTRE FOR CHILD LAW Amicus Curiae 

Heard on : 22 February 2007 

Decided on : 26 September 2007 

SACHS J: 

JUDGMENT 

[1] When considering whether to impose imprisonment on the primary caregiver of 

young children, did the courts below pay sufficient attention to the constitutional 

provision that in all matters concerning children, the children’s interests shall be 

paramount? 

Background 

* At the commencement of the hearing on 22 February 2007 this Court issued an order that the citation of the 

case name in this matter shall be “M v The State” in order to protect the identity of the applicant’s three minor 

children. 


SACHS J 

[2] M is a 35 year old single mother of three boys aged 16, 12 and 8. In 1996 she 

was convicted of fraud and sentenced to a fine coupled with a term of imprisonment 

that was suspended for five years. In 1999 she was charged again with fraud, and 

while out on bail after having been in prison for a short period, committed further 

fraud. In 2002 she was convicted in the Wynberg Regional Court on 38 counts of 

fraud and four counts of theft. The Court took all the counts together for purposes of 

sentence. The total amount involved came to R29 158, 69. The Court asked for a 

correctional supervision report. The report indicated that M would be an appropriate 

candidate for a correctional supervision order. Despite strong pleas from her attorney 

that she not be sent to prison the Court sentenced her to four years’ direct 

imprisonment. 1 

[3] The Regional Magistrate refused to grant bail pending an appeal, but after M 

had been in jail for three months, the Cape High Court granted leave to appeal and 

allowed her to be released on bail. The High Court later held that she had been 

wrongly convicted on a count of fraud involving an amount of R10 000, and, since 

this reduced the quantum of the remaining counts to R19 158, 69, converted her 

sentence to one of imprisonment under section 276(1)(i) 2 of the Criminal Procedure 

1 The order reads as follows: 

“All the counts are taken as one for purposes of sentence and you are sentenced to: FOUR (4) 

YEARS’ IMPRISONMENT. In terms of Section 280 of the Criminal Procedure Act the 

Court orders that if the suspended sentence imposed on the 24 th of February 1996 is put into 

operation, if that is put into operation, that two years of the four years that is imposed today 

will run concurrently with that sentence.” 

2 Section 276(1) provides: 

“(1) Subject to the provisions of this Act and any other law and of the common law, the 

following sentences may be passed upon a person convicted of an offence, namely— 

. . . 

TRAINING CONFERENCE ON SENTENCING 2CHALLENGES 

IN THE REGIONAL COURT 294

SACHS J 

Act (the CPA). The effect of this change was that after she had served eight months 

imprisonment, the Commissioner for Correctional Services (the Commissioner) could 

authorise her release under correctional supervision. The Court denied her leave to 

appeal against this sentence to the Supreme Court of Appeal. 

[4] M then petitioned the Supreme Court of Appeal for leave to appeal against the 

order of imprisonment. The Supreme Court of Appeal turned down her request. It did 

not give reasons. She next applied to this Court for leave to appeal against the refusal 

of the Supreme Court of Appeal to hear her oral argument, as well as against the 

sentence imposed by the High Court. 

[5] This Court refused the first part of her application, namely, that she be given 

leave to appeal on the ground that the Supreme Court of Appeal had given no reasons 

for refusing to hear oral argument. It did, however, enrol her application for leave to 

appeal against the sentence. The directions by the Chief Justice required the parties to 

deal with the following issues only: 

I. What are the duties of the sentencing court in the light of section 28(2) 

of the Constitution and any relevant statutory provisions when the 

person being sentenced is the primary caregiver of minor children? 

II. Whether these duties were observed in this case. 

III. If it was to hold that these duties were not observed, what order should 

this Court make, if any? 

(i) imprisonment from which such a person may be placed under correctional 

supervision in the discretion of the Commissioner or a parole board.” 



SACHS J 

The Registrar was directed to serve a copy of these directions on the Minister for 

Social Development and the Minister for Justice and Constitutional Development, 

who were given the opportunity to file affidavits if they wished. 

[6] Advocate Paschke was appointed curator ad litem. He produced a 

comprehensive report supported by a report compiled by a social worker, Ms Cawood. 

The Centre for Child Law of the University of Pretoria was admitted as amicus curiae 

and Ms Skelton made wide-ranging written and oral submissions on the constitutional, 

statutory and social context in which the matter fell to be decided. 

[7] The applicant, the curator and the amicus all contended that the effect of 

section 28 of the Constitution was to require sentencing courts, as a matter of general 

practice, to give specific and independent consideration to the impact that a custodial 

sentence in respect of a primary caregiver could have on minor children. On the facts 

of this case they argued that due consideration of the interests of M’s children required 

that an appropriately stringent correctional supervision order should be imposed in 

place of a custodial sentence. 

[8] The National Director of Public Prosecution replied that current sentencing 

procedures in the courts already took account of the interests of children, and that on 

the facts of the case the decision of the High Court should not be interfered with. 

Counsel for the Department of Social Development and the Department of Justice and 



SACHS J 

Constitutional Development adopted a similar position, submitting a comprehensive 

report from a team of social workers to assist the Court. 

[9] We are grateful to all the above persons for the careful and methodical manner 

in which they undertook their tasks. In matters concerning children it is important that 

courts be furnished with the best quality of information that can reasonably be 

obtained in the circumstances. The extensive information and thoughtful arguments 

advanced by all the above-mentioned protagonists in this matter fully meet this 

standard. Aided by this most helpful material I respond in sequence to the questions 

as formulated in the directions. 

I. What are the duties of the sentencing court in the light of section 28(2) of the 

Constitution and any relevant statutory provisions when the person being sentenced is 

the primary caregiver of minor children? 

(a) The current approach to sentencing 

[10] Sentencing is innately controversial. 3 However, all the parties to this matter 

agreed that the classic Zinn 4 triad is the paradigm from which to proceed when 

3 South African Law Commission Report on a New Sentencing Framework Project 82 (November, 2000) at 

para 1.1. The report explains at para 1.2 that individual decisions are announced to a critical public who analyse 

them against a variety of expectations. They not only ask whether the sentences express public condemnation of 

the crime adequately and protect the public against future crimes by the reform and incapacitation of offenders 

and by the deterrence of both the individual offender and other potential offenders, but also whether the 

sentences are just in the sense that similar sentences are being imposed for offences that are of equal seriousness 

or heinousness. In addition there is a growing expectation that the sentence must be restorative, in the sense 

both of compensating the individual who suffered as the result of a crime and of repairing the social fabric that 

criminal conduct damages. All these concerns are inevitably particularly prominent amongst victims of crime, 

who have a special interest in the offences that they themselves have suffered. 



SACHS J 

embarking on “the lonely and onerous task” 5 of passing sentence. According to the 

triad the nature of the crime, the personal circumstances of the criminal and the 

interests of the community are the relevant factors determinative of an appropriate 

sentence. 6 In Banda Friedman J explained that: 

“The elements of the triad contain an equilibrium and a tension. A court should, 

when determining sentence, strive to accomplish and arrive at a judicious 

counterbalance between these elements in order to ensure that one element is not 

unduly accentuated at the expense of and to the exclusion of the others. This is not 

merely a formula, nor a judicial incantation, the mere stating whereof satisfies the 

requirements. What is necessary is that the Court shall consider, and try to balance 

evenly, the nature and circumstances of the offence, the characteristics of the offender 

and his circumstances and the impact of the crime on the community, its welfare and 

concern.” 7 

Since January 2003, what was previously known as the South African Law Commission (the SALC) has been 

called the South African Law Reform Commission. Because the publications by that Commission referred to in 

this judgment were brought out before its name was changed, I use the former designation. 

4 In S v Zinn 1969 (2) SA 537 (A) at 540G-H the Appellate Division formulated the triadic sentencing formula 

as follows: “What has to be considered is the triad consisting of the crime, the offender and the interests of 

society.” The Zinn triad has subsequently become the mantra when pronouncing sentence, but courts have been 

criticised for invoking it perfunctorily as an invocation. Nevertheless, the triad still retains its status as 

sentencing north star (see for example S v Malgas 2001 (2) SA 1222 (SCA) at 1232A where the triad once again 

received the Supreme Court of Appeal’s imprimatur). 

5 Malgas above n 4 at 1225H quoting Hogarth Sentencing as a Human Process (University of Toronto Press, 

Toronto 1971) at 5. 

6 Thus, placing over-emphasis on the nature of the crime at the expense of the personal circumstances of the 

offender was regarded in Zinn (above n 4 at 540F/G-G) as a misdirection, rendering the sentence susceptible to 

being set aside by a court of appeal. This Court has also held in S v Dodo 2001 (2) SA 382 (CC); 2001 (5) 

BCLR 423 (CC); 2001 (1) SACR 594 (CC) at para 38 that if carried to disproportionate extremes, it would 

amount to disregard of the interests of the convicted person since it “. . . is to ignore, if not to deny, that which 

lies at the very heart of human dignity”. 

It has been suggested that the triad is incomplete because it leaves the victim out of the equation (S v Isaacs 

2002 (1) SACR 176 (C) at 178B/C-C). This issue is not before us, and need not be further entertained. Linked 

to this is the need to reconfigure the sentencing process in appropriate cases in keeping with the principles of 

restorative justice (SALC Report on a New Sentencing Framework above n 3 at 24-5), a matter which is 

considered below at paras 64 and 71. 

7 S v Banda and Others 1991 (2) SA 352 (B) at 355A-B/C. 



SACHS J 

And, as Mthiyane JA pointed out in P, 8 in the assessment of an appropriate sentence 

the court is also required to have regard to the main purposes of punishment, namely, 

its deterrent, preventive, reformative and retributive aspects. To this the quality of 

mercy, as distinct from mere sympathy for the offender, had to be added. Finally, he 

observed, it was necessary to take account of the fact that the traditional aims of 

punishment had been transformed by the Constitution. 9 It is this last observation that 

lies at the centre of this case. 

[11] P confirmed the need for a re-appraisal of the juvenile justice system in the 

light of the Constitution. The issue was the extent to which the interests of a child 

should weigh where the child herself was the offender. The present case calls upon us 

to consider the situation where it is not a juvenile offender facing sentencing but the 

primary caregiver of a child. In these circumstances, does the new constitutional 

order require a fresh approach to sentencing? More particularly, does section 28 of 

the Constitution add an extra element to the responsibilities of a sentencing court over 

and above those imposed by the Zinn triad, and if so, how should these responsibilities 

be fulfilled? 

8 Director of Public Prosecutions, KwaZulu-Natal v P 2006 (3) SA 515 (SCA); [2006] 1 All SA 446 (SCA); 

2006 (1) SACR 243 (SCA) at para 13. P, a twelve year old girl had paid two men to suffocate and then slit the 

throat of her grandmother, with whom she lived, after she had drugged her. For this act she had furnished the 

murderers with articles from the deceased’s house and offered herself sexually to them. The trial Court had 

imposed a correctional supervision order, and the State had appealed to the Supreme Court of Appeal. After 

emphasising the significance of the United Nations Convention on the Right of the Child (the CRC) and section 

28 of the Constitution, the Supreme Court of Appeal partially upheld the appeal, concluding that correctional 

supervision on its own was not severe enough. It held that a sentence of seven years’ imprisonment, entirely 

suspended on condition of P’s compliance with a rigorous regime of correctional supervision, was more 

appropriate. In P it was held at para 19 that the Constitution and the international instruments did not forbid 

incarceration of children in certain circumstances, but merely required that the “‘child be detained only for the 

shortest period of time’” and that the child be “‘kept separately from detained persons over the age of 18 

years’.” The Supreme Court of Appeal noted that it was not inconceivable that some of the courts may be 

confronted with cases which required detention. 

9 Id at para 13. 



(b) The significance of section 28(2) of the Constitution 

SACHS J 

[12] Section 28(2) of the Constitution provides that “[a] child’s best interests are of 

paramount importance in every matter concerning the child.” South African courts 

have long had experience in applying the “best interests” principle in matters such as 

custody or maintenance. 10 In our new constitutional order, however, the scope of the 

best interests principle has been greatly enlarged. 11 

[13] Indeed, it is the very sweeping character of the provision that has led questions 

to be asked about its normative efficacy. For example, in Jooste Van Dijkhorst J 

stated: 

“[The] wide formulation [of section 28(2)] is ostensibly so all-embracing that the 

interests of the child would override all other legitimate interests of parents, siblings 

and third parties. It would prevent conscription or imprisonment or transfer or 

dismissal by the employer of the parent where that is not in the child’s interest. That 

can clearly not have been intended. In my view, this provision is intended as a 

general guideline and not as a rule of law of horizontal application. That is left to the 

positive law and any amendments it may undergo.” 12 

10 The best interests of the child principle was articulated as long ago as 1948 by the Appellate Division in 

Fletcher v Fletcher 1948 (1) SA 130 (A), and has since found application in numerous judgments. Section 7(1) 

of the Children’s Act 38 of 2005, parts of which entered into force on 1 July 2007 and replaces the Child Care 

Act 74 of 1983 and Children’s Act 33 of 1960, sets out a lengthy list of factors for courts to consider when 

determining a child’s best interests under the Act and under the Constitution. Such factors include, but are not 

limited to, the nature of the personal relationship between the child and the parents; the child’s physical and 

emotional security; the need for a child to be brought up within a stable family; and the relevant characteristics 

of the child. See also Barrett and Burman “Deciding the best interests of the child: an international perspective 

on custody decision-making” (2001) 118 SALJ 556 at 560. Compare Bennett “The best interests of the child in 

an African context” (1999) 20 Obiter 145 at 150-1 stating that protecting the interests of the family was 

indirectly protecting the interests of children, who like other individuals were not thought of as rights-bearers in 

the customary context. 

11 See for instance Brandt v S [2005] 2 All SA 1 (SCA) at paras 15-6. 

12 Jooste v Botha 2000 (2) SA 199 (T) at 210C-D/E. That case turned in part on whether, in the interests of a 

child, the courts could compel a father to show love and care to his child (hence the reference to horizontal 



SACHS J 

[14] While section 28 undoubtedly serves as a general guideline to the courts, its 

normative force does not stop there. On the contrary, as this Court has held in 

De Reuck, 13 Sonderup 14 and Fitzpatrick, 15 section 28(2), read with section 28(1), 

establishes a set of children’s rights that courts are obliged to enforce. I deal with 

these cases later. 16 At this stage I merely point out that the question is not whether 

section 28 creates enforceable legal rules, which it clearly does, but what reasonable 

limits can be imposed on their application. 

[15] The ambit of the provisions is undoubtedly wide. The comprehensive and 

emphatic language of section 28 indicates that just as law enforcement must always be 

gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted 

and the common law developed in a manner which favours protecting and advancing 

the interests of children; and that courts must function in a manner which at all times 

shows due respect for children’s rights. As Sloth-Nielsen pointed out: 

“[T]he inclusion of a general standard (‘the best interest of a child’) for the protection 

of children’s rights in the Constitution can become a benchmark for review of all 

proceedings in which decisions are taken regarding children. Courts and 

application). The Court held that there is not a legally enforceable obligation upon parents to love and care for 

their children. This is a difficult issue on which this Court need not express an opinion. 

13 De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 

(CC); 2003 (12) BCLR 1333 (CC); 2003 (2) SACR 445 (CC) at paras 54-5. 

14 Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) also reported as LS v AT and Another 2001 (2) 

BCLR 152 (CC) at para 29. 

15 Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC); 2000 (7) 

BCLR 713 (CC) at para 17. 

16 See below para 26. 



administrative authorities will be constitutionally bound to give consideration to the 

effect their decisions will have on children’s lives.” 17 

SACHS J 

[16] Secondly, section 28 must be seen as responding in an expansive way to our 

international obligations as a State party to the United Nations Convention on the 

Rights of the Child (the CRC). 18 Section 28 has its origins in the international 

instruments of the United Nations. 19 Thus, since its introduction the CRC has become 

the international standard against which to measure legislation and policies, and has 

established a new structure, modelled on children’s rights, within which to position 

traditional theories on juvenile justice. 20 I do not suggest that a children’s rights 

model for juvenile justice, where children themselves are directly in trouble with the 

law, should automatically be transposed to sentencing in cases where children are only 

indirectly affected because their primary caregivers are about to be sentenced. What 

should be carried over, however, is a parallel change in mindset, one that takes 

appropriately equivalent account of the new constitutional vision. 

17 Sloth-Nielsen “Chicken soup or chainsaws: some implications of the constitutionalisation of children’s rights 

in South Africa” (1996) Acta Juridica 6 at 25. The change is illustrated by alterations made to the Child Care 

Act. As Sloth-Nielsen observes, before interim amendments were brought about by the Child Care Amendment 

Act 96 of 1996, the principal Child Care Act was not child-centred, but focused on parents’ unfitness or inability 

to care for their child. The best interests of the child were not expressly a paramount consideration for decisions 

regarding children in terms of the Child Care Act. Children living on the street, children with disabilities, and 

other significant groups of vulnerable children in especially difficult circumstances in South African society 

were accordingly largely ignored in the statutory framework before the new constitutional order came into being 

(Sloth-Nielsen “The Child’s Right to Social Services, the Right to Social Security, and Primary Prevention of 

Child Abuse: Some Conclusions in the Aftermath of Grootboom” (2001) 17 SAJHR 210 at 211). 

18 The CRC was ratified by South Africa on 16 July 1995. 

19 See Mthiyane JA in P above n 8 at para 15. 

20 Per Ponnan AJA in Brandt above n 11 at para 17. In P above n 8 at paras 19-20 the Supreme Court of Appeal 

further pointed out that the overarching thesis of the international instruments and the Constitution was that 

child offenders should not be deprived of their freedom except as a measure of last resort and then only for the 

shortest possible period of time, and adds at para 14 even then the sentence must be individualised so as to 

prepare the child offender for reintegration into society upon his or her release from prison. It added at para 16 

that the principles guiding a sentencing officer in arriving at a suitable sentence for a juvenile offender are the 

principles of proportionality and the best interests of the child. 



SACHS J 

[17] Regard accordingly has to be paid to the import of the principles of the CRC as 

they inform the provisions of section 28 in relation to the sentencing of a primary 

caregiver. The four great principles of the CRC which have become international 

currency, and as such guide all policy in South Africa in relation to children, are said 

to be survival, development, protection and participation. 21 What unites these 

principles, and lies at the heart of section 28, I believe, is the right of a child to be a 

child and enjoy special care. 22 

[18] Every child has his or her own dignity. If a child is to be constitutionally 

imagined as an individual with a distinctive personality, and not merely as a miniature 

adult waiting to reach full size, he or she cannot be treated as a mere extension of his 

or her parents, umbilically destined to sink or swim with them. The unusually 

comprehensive and emancipatory character of section 28 presupposes that in our new 

dispensation the sins and traumas of fathers and mothers should not be visited on their 

children. 

[19] Individually and collectively all children have the right to express themselves as 

independent social beings, to have their own laughter as well as sorrow, to play, 

imagine and explore in their own way, to themselves get to understand their bodies, 

minds and emotions, and above all to learn as they grow how they should conduct 

21 SALC The Review of the Child Care Act (18 April 1998) Issue Paper 13 Project 110 at para 2.1. 

22 Article 25(2) of the Universal Declaration of Human Rights states that “[m]otherhood and childhood are 

entitled to special care and assistance . . . ”. 



SACHS J 

themselves and make choices in the wide social and moral world of adulthood. And 

foundational to the enjoyment of the right to childhood is the promotion of the right as 

far as possible to live in a secure and nurturing environment free from violence, fear, 

want and avoidable trauma. 

[20] No constitutional injunction can in and of itself isolate children from the shocks 

and perils of harsh family and neighbourhood environments. What the law can do is 

create conditions to protect children from abuse 23 and maximise opportunities for 

them to lead productive and happy lives. Thus, even if the State cannot itself repair 

disrupted family life, it can create positive conditions for repair to take place, and 

diligently seek wherever possible to avoid conduct of its agencies which may have the 

effect of placing children in peril. It follows that section 28 requires the law to make 

best efforts to avoid, where possible, any breakdown of family life or parental care 

that may threaten to put children at increased risk. Similarly, in situations where 

rupture of the family becomes inevitable, the State is obliged to minimise the 

consequent negative effect on children as far as it can. 

[21] These considerations reflect in a global way rights, protection and entitlements 

that are specifically identified and accorded to children by section 28. They are 

23 In Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 

2000 (11) BCLR 1169 (CC) at paras 77-8 Yacoob J pointed out that the fact that section 28(1)(b) contemplated 

that a child had the right to parental or family care in the first place, and the right to alternative appropriate care 

only where that was lacking, did not mean that the State incurred no obligation towards children who are being 

cared for by parents or members of family. He stated that the State must provide the legal and administrative 

infrastructure necessary to ensure that children are accorded the protection contemplated in section 28. 

Normally that obligation would be fulfilled by enacting legislation and implementing enforcement mechanisms 

for the maintenance of children, their protection from maltreatment, abuse, neglect or degradation, and the 

prevention of other forms of abuse of children mentioned in section 28. 



SACHS J 

extensive and unmistakable. Section 28(1) provides for a list of enforceable 

substantive rights that go well beyond anything catered for by the common law and 

statute in the pre-democratic era. 24 For present purposes, it is necessary to highlight 

section 28(1)(b) which states that “[e]very child has the right to family care or parental 

care, or to appropriate alternative care when removed from the family environment”. 

[22] Furthermore, as Goldstone J pointed out in Fitzpatrick, section 28(1) is not 

exhaustive of children’s rights: 

“Section 28(2) requires that a child’s best interests have paramount importance in 

every matter concerning the child. The plain meaning of the words clearly indicates 

that the reach of s 28(2) cannot be limited to the rights enumerated in s 28(1) and 

28(2) must be interpreted to extend beyond those provisions. It creates a right that is 

24 Section 28(1) of the Constitution provides: 

“Every child has the right— 

(a) to a name and a nationality from birth; 

(b) to family care or parental care, or to appropriate alternative care when removed from 

the family environment; 

(c) to basic nutrition, shelter, basic health care services and social services; 

(d) to be protected from maltreatment, neglect, abuse or degradation; 

(e) to be protected from exploitative labour practices; 

(f) not to be required or permitted to perform work or provide services that— 

(i) are inappropriate for a person of that child’s age; or 

(ii) place at risk the child’s well-being, education, physical or mental health or 

spiritual, moral or social development; 

(g) not to be detained except as a measure of last resort, in which case, in addition to the 

rights a child enjoys under section 12 and 35, the child may be detained only for the 

shortest appropriate period of time, and has the right to be— 

(i) kept separately from detained persons over the age of 18 years; and 

(ii) treated in a manner, and kept in conditions, that take account of the child’s 

age; 

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in 

civil proceedings affecting the child, if substantial injustice would otherwise result; 

and 

(i) not to be used directly in armed conflict, and to be protected in times of armed 

conflict.” 



independent of those specified in s 28(1). This interpretation is consistent with the 

manner in which s 28(2) was applied by this Court in Fraser v Naude and Others.” 25 

(Footnote omitted.) 

SACHS J 

It will be noted that he spoke about a right, and not just a guiding principle. It was 

with this in mind that this Court in Sonderup referred to section 28(2) as “an 

expansive guarantee” that a child’s best interests will be paramount in every matter 

concerning the child. 26 

[23] Once more one notes that the very expansiveness of the paramountcy principle 

creates the risk of appearing to promise everything in general while actually delivering 

little in particular. Thus, the concept of “the best interests” has been attacked as 

inherently indeterminate, providing little guidance to those given the task of applying 

it. 27 Van Heerden in Boberg states that: 

“[T]he South African Constitution, as also the 1989 United Nations Convention on 

The Rights of the Child and the 1979 United Nations Convention on the Elimination 

of All Forms of Discrimination Against Women, enshrine the ‘best interests of the 

child’ standard as ‘paramount’ or ‘primary’ consideration in all matters concerning 

children. It has, however, been argued that the ‘best interests’ standard is problematic 

in that, inter alia: (i) it is ‘indeterminate’; (ii) members of the various professions 

dealing with matters concerning children (such as the legal, social work and mental 

health professions) have quite different perspectives on the concept ‘best interests of 

the child’; and (iii) the way in which the ‘best interests’ criterion is interpreted and 

applied by different countries (and indeed, by different courts and other decision- 

25 Above n 15 at para 17. 


27 See, for example, Van Bueren The International Law on the Rights of the Child (Martinus Nijhoff, The Hague 

1998) 46-51; Clark “A ‘Golden Thread’? Some Aspects of the Application of the Standard of the Best Interest 

of the Child in South African Family Law” (2000) 1 Stell LR 3 at 15; Reece “The Paramountcy Principle: 

Consensus or Construct?” (1996) 49 Current Legal Problems 267 at 268; Heaton “Some General Remarks on 

the Concept ‘Best Interests of the Child’” (1990) 53 THRHR 95 at 95. 



makers within the same country) is influenced to a large extent by the historical 

background to, and the cultural, social, political and economic conditions of the 

country concerned, as also by the value system of the relevant decision-maker.” 28 

(Footnotes omitted.) 

SACHS J 

[24] These problems cannot be denied. Yet this Court has recognised that it is 

precisely the contextual nature and inherent flexibility of section 28 that constitutes 

the source of its strength. Thus, in Fitzpatrick this Court held that the best interests 

principle has “never been given exhaustive content”, but that “[i]t is necessary that the 

standard should be flexible as individual circumstances will determine which factors 

secure the best interests of a particular child.” 29 Furthermore “‘(t)he list of factors 

competing for the core of best interests [of the child] is almost endless and will 

depend on each particular factual situation’.” 30 Viewed in this light, indeterminacy of 

outcome is not a weakness. A truly principled child-centred approach requires a close 

and individualised examination of the precise real-life situation of the particular child 

involved. To apply a pre-determined formula for the sake of certainty, irrespective of 

the circumstances, would in fact be contrary to the best interests of the child 

concerned. 

[25] A more difficult problem is to establish an appropriate operational thrust for the 

paramountcy principle. The word “paramount” is emphatic. 31 Coupled with the far- 

28 Van Heerden et al Boberg’s Law of Persons and the Family 2 ed (Juta & Co Ltd, Kenwyn 1999) at 502-3. 


30 Id at fn 11 quoting from Van Bueren The International Law on the Rights of the Child (Martinus Nijhoff 

Publishers, Dordrecht 1995) at 47. 

31 It is notably stronger than the phrase “primary consideration” referred to in international instruments. 

Article 3 of the Convention on the Rights of the Child provides: 



SACHS J 

reaching phrase “in every matter concerning the child”, and taken literally, it would 

cover virtually all laws and all forms of public action, since very few measures would 

not have a direct or indirect impact on children, and thereby concern them. Similarly, 

a vast range of private actions will have some consequences for children. This cannot 

mean that the direct or indirect impact of a measure or action on children must in all 

cases oust or override all other considerations. If the paramountcy principle is spread 

too thin it risks being transformed from an effective instrument of child protection into 

an empty rhetorical phrase of weak application, thereby defeating rather than 

promoting the objective of section 28(2). The problem, then, is how to apply the 

paramountcy principle in a meaningful way without unduly obliterating other valuable 

and constitutionally-protected interests. 

[26] This Court, far from holding that section 28 acts as an overbearing and 

unrealistic trump of other rights, has declared that the best interests injunction is 

capable of limitation. In Fitzpatrick this Court found that no persuasive justifications 

under section 36 of the Constitution were put forward to support the ban on foreign 

persons adopting South African-born children, which was contrary to the best interests 

of the child. 32 In De Reuck, 33 in the context of deciding whether the definition and 

criminalisation of child pornography was constitutional, this Court determined that 

“In all action concerning children, whether undertaken by public or private social welfare 

institutions, courts of law, administrative authorities or legislative bodies, the best interests of 

the child shall be a primary consideration.” 

Article 4 of the African Charter on the Rights and Welfare of the Child provides: 

“In all actions concerning the child undertaken by any person or authority the best interests of 

the child shall be the primary consideration.” 


33 Above n 13. 



SACHS J 

section 28(2) cannot be said to assume dominance over other constitutional rights. It 

emphasised that 

“. . . constitutional rights are mutually interrelated and interdependent and form a 

single constitutional value system. This Court has held that s 28(2), like the other 

rights enshrined in the Bill of Rights, is subject to limitations that are reasonable and 

justifiable in compliance with s 36.” 34 (Footnote omitted.) 

Similarly, in Sonderup this Court stated that the international obligation to return a 

child to the country of his or her residence for determination of custody would 

constitute a justifiable limitation under section 36 of section 28 rights. 35 This 

limitation on section 28(2) was counterbalanced by the duty of courts to weigh the 

consequences of the court’s decision on children. 36 Accordingly, the fact that the best 

interests of the child are paramount does not mean that they are absolute. Like all 

rights in the Bill of Rights their operation has to take account of their relationship to 

other rights, which might require that their ambit be limited. 

[27] Given the significance of section 28, what then is the proper approach to 

sentencing where the person convicted is the primary caregiver? 

(c) The proper approach of a sentencing court where the convicted person is the 

primary caregiver of minor children 

34 Id at para 55. 


36 Id at paras 33 and 35. 



SACHS J 

[28] The directions in this matter referred to sentencing of primary caregivers, not to 

the wider class of breadwinners. Simply put, a primary caregiver is the person with 

whom the child lives and who performs everyday tasks like ensuring that the child is 

fed and looked after and that the child attends school regularly. This is consonant 

with the expressly protected right of a child to parental care under section 28(1)(b). 

We are accordingly not called upon in this judgment to deal with delineating the 

duties of the sentencing court where the breadwinner is not also the primary caregiver. 

Suffice it to say that, as in all matters concerning children, everything will depend on 

the facts of the particular case in which the issue might arise. 

[29] Counsel for the State submitted that sentencing practices in our courts already 

took account of the impact on children through applying the Zinn triad, that is, through 

looking at the crime, the criminal and the community. She contended that sentencing 

courts as a matter of routine consider the personal circumstances of the criminal, 

including their parental obligations, and weigh them against the gravity of the crime 

and its impact on the community. Hence, it was said, no change in present sentencing 

practice is called for, and the sentence imposed by the High Court should not be 

interfered with. 

[30] The tart reply of the amicus was that a child of a primary caregiver is not a 

“circumstance”, but an individual whose interests needed to be considered 

independently. The weight to be given to those interests and the manner in which they 

were to be protected would depend on the particular circumstances. But, she 



SACHS J 

contended, these interests were not to be swallowed up by and subsumed into the 

consideration of the culpability and circumstances of the primary caregiver. 

[31] The curator and the amicus also pointed out that South Africa’s obligations 

under international law underscored the special requirement to protect the child’s 

interests as far as possible. Article 30(1) of the African Charter on the Rights and 

Welfare of the Child, expressly dealing with “Children of Imprisoned Mothers”, 

provides that: 

“States Parties to the present Charter shall undertake to provide special treatment of 

expectant mothers and to mothers of infants and young children who have been 

accused or found guilty of infringing the penal law and shall in particular: 

(a) ensure that a non-custodial sentence will always be first considered when 

sentencing such mothers; 

(b) establish and promote measures alternative to institutional confinement for 

the treatment of such mothers; 

(c) establish special alternative institutions for holding such mothers; 

(d) ensure that a mother shall not be imprisoned with her child; 

(e) ensure that a death sentence shall not be imposed on such mothers; 

(f) the essential aim of the penitentiary system will be the reformation, the 

integration of the mother to the family and social rehabilitation.” (Emphasis 

added.) 

[32] The curator emphasised that section 28(2) of the Constitution should be read 

with section 28(1)(b) which provides that every child has a right to family or parental 

care, or appropriate alternative care when removed from the family environment. 

Taken together, he contended, these provisions impose four responsibilities on a 



SACHS J 

sentencing court when a custodial sentence for a primary caregiver is in issue. They 

are: 

• To establish whether there will be an impact on a child. 

• To consider independently the child’s best interests. 

• To attach appropriate weight to the child’s best interests. 

• To ensure that the child will be taken care of if the primary caregiver is 

sent to prison. 

[33] These appear to me to be practical modes of ensuring that section 28(2) read 

with section 28(1)(b), is applied in a sensible way. They take appropriate account of 

the pressures under which the courts work, without allowing systemic problems to 

snuff out their constitutional responsibilities. 37 Focused and informed attention needs 

to be given to the interests of children at appropriate moments in the sentencing 

process. The objective is to ensure that the sentencing court is in a position 

adequately to balance all the varied interests involved, including those of the children 

37 See Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) at 

para 35 where this Court held in relation to systemic delays in the criminal justice system that 

“there must come a time when systemic causes can no longer be regarded as exculpatory. The 

Bill of Rights is not a set of (aspirational) directive principles of State policy — it is intended 

that the State should make whatever arrangements are necessary to avoid rights violations.” 

In S v Jaipal 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC); 2005 (1) SACR 215 (CC) at paras 55-6 this 

Court stated: 

“For the State to respect, protect, promote and fulfil the rights in the Bill of Rights, resources 

are required. The same applies to the State’s obligation to assist and protect the courts to 

ensure their independence, impartiality, dignity, accessibility and effectiveness. The right to a 

fair trial requires considerable resources in order to provide for buildings with court rooms, 

offices and libraries, recording facilities and security measures and for adequately trained and 

salaried judicial officers, prosecutors, interpreters and administrative staff. 

. . . Furthermore, all those concerned with and involved in the administration of justice — 

including administrative officials, judges, magistrates, assessors and prosecutors — must 

purposefully take all reasonable steps to ensure maximum compliance with constitutional 

obligations, even under difficult circumstances.” (Footnotes omitted.) 



SACHS J 

placed at risk. This should become a standard preoccupation of all sentencing courts. 

To the extent that the current practice of sentencing courts may fall short in this 

respect, proper regard for constitutional requirements necessitates a degree of change 

in judicial mindset. Specific and well-informed attention will always have to be given 

to ensuring that the form of punishment imposed is the one that is least damaging to 

the interests of the children, given the legitimate range of choices in the circumstances 

available to the sentencing court. 

[34] In this respect it is important to be mindful that the issue is not whether parents 

should be allowed to use their children as a pretext for escaping the otherwise just 

consequences of their own misconduct. This would be a mischaracterisation of the 

interests at stake. Indeed, one of the purposes of section 28(1)(b) is to ensure that 

parents serve as the most immediate moral exemplars for their offspring. Their 

responsibility is not just to be with their children and look after their daily needs. It is 

certainly not simply to secure money to buy the accoutrements of the consumer 

society, such as cellphones and expensive shoes. It is to show their children how to 

look problems in the eye. It is to provide them with guidance on how to deal with 

setbacks and make difficult decisions. Children have a need and a right to learn from 

their primary caregivers that individuals make moral choices for which they can be 

held accountable. 

[35] Thus, it is not the sentencing of the primary caregiver in and of itself that 

threatens to violate the interests of the children. It is the imposition of the sentence 



SACHS J 

without paying appropriate attention to the need to have special regard for the 

children’s interests that threatens to do so. The purpose of emphasising the duty of the 

sentencing court to acknowledge the interests of the children, then, is not to permit 

errant parents unreasonably to avoid appropriate punishment. Rather, it is to protect 

the innocent children as much as is reasonably possible in the circumstances from 

avoidable harm. 

[36] There is no formula that can guarantee right results. However, the guidelines 

that follow would, I believe, promote uniformity of principle, consistency of treatment 

and individualisation of outcome. 

(a) A sentencing court should find out whether a convicted person is a 

primary caregiver whenever there are indications that this might be so. 

(b) A probation officer’s report is not needed to determine this in each case. 

The convicted person can be asked for the information and if the 

presiding officer has reason to doubt the answer, he or she can ask the 

convicted person to lead evidence to establish the fact. The prosecution 

should also contribute what information it can; its normal adversarial 

posture should be relaxed when the interests of children are involved. 

The court should also ascertain the effect on the children of a custodial 

sentence if such a sentence is being considered. 

(c) If on the Zinn triad approach the appropriate sentence is clearly 

custodial and the convicted person is a primary caregiver, the court must 



SACHS J 

apply its mind to whether it is necessary to take steps to ensure that the 

children will be adequately cared for while the caregiver is incarcerated. 

(d) If the appropriate sentence is clearly non-custodial, the court must 

determine the appropriate sentence, bearing in mind the interests of the 

children. 

(e) Finally, if there is a range of appropriate sentences on the Zinn 

(d) Competing rights 

approach, then the court must use the paramountcy principle concerning 

the interests of the child as an important guide in deciding which 

sentence to impose. 

[37] These guidelines are consistent with the State’s constitutional duty to protect 

life, limb and property by diligently prosecuting crime. A balancing exercise has to be 

undertaken on a case-by-case basis. It becomes a matter of context and 

proportionality. Two competing considerations have to be weighed by the sentencing 

court. 

[38] The first is the importance of maintaining the integrity of family care. The 

White Paper for Social Welfare underlines that 

“[t]he well-being of children depends on the ability of families to function effectively. 

Because children are vulnerable they need to grow up in a nurturing and secure 

family that can ensure their survival, development, protection and participation 38 in 

family and social life. Not only do families give their members a sense of belonging, 

38 It will be noted that these are the four principles said to underlie the CRC, see above para 17. 



they are also responsible for imparting values and life skills. Families create security; 

they set limits on behaviour; and together with the spiritual foundation they provide, 

instill notions of discipline. All these factors are essential for the healthy 

development of the family and of any society.” 39 

SACHS J 

[39] The second consideration is the duty on the State to punish criminal 

misconduct. The approach recommended in paragraph 36 makes plain that a court 

must sentence an offender, albeit a primary caregiver, to prison if on the ordinary 

approach adopted in Zinn a custodial sentence is the proper punishment. The children 

will weigh as an independent factor to be placed on the sentencing scale only if there 

could be more than one appropriate sentence on the Zinn approach, one of which is a 

non-custodial sentence. For the rest, the approach merely requires a sentencing court 

to consider the situation of children when a custodial sentence is imposed and not to 

ignore them. 

[40] The tension lies between maintaining family care wherever possible, on the one 

hand, and the duty on the State to deal firmly with criminal misconduct, on the other. 

As the Zinn triad recognises, the community has a great interest in seeing that its laws 

are obeyed and that criminal conduct is appropriately prosecuted, denounced and 

penalised. Indeed, it is profoundly in the interests of children that they grow up in a 

world of moral accountability where self-centred and anti-social criminality is 

appropriately and publicly repudiated. In practical terms, then, the difficulty is how 

appropriately and on a case-by-case basis to balance the three interests as required by 

39 Ministry for Welfare and Population Development White Paper for Social Welfare: Principles, Guidelines, 

Recommendations, Proposed Policies and Programmes for Developmental Social Welfare in South Africa 

(August 1997) ch 8 s 1 at para 15. 



SACHS J 

Zinn, without disregarding the peremptory provisions of section 28. This requires a 

nuanced weighing of all the interlinked factors in each sentencing process. The 

normative setting for the balancing will be the intricate inter-relationship between 

sections 28(1)(b) and 28(2) of the Constitution, on the one hand, and section 276(1) of 

the CPA on the other. 

[41] The Zinn triad postulates that an element of the circumstances of the primary 

caregivers that will be taken into account is the special severity for the caregivers of 

being torn from their children. This, however, is a consequence of their misconduct 

for which the law, in the light of all the circumstances, will require that they take 

appropriate responsibility. Section 28(1)(b) is concerned with something different, 

namely, the indirect but potentially very powerful impact on the children. 

[42] The children are innocent of the crime. Yet, as the amicus points out, 

children’s needs and rights tend to receive relatively scant consideration when a 

primary caregiver is sent to prison. The amicus asserts that in practice the Zinn triad 

is usually applied in a manner that focuses on the offender and pays little attention to 

the children. Yet, separation from a primary caregiver is a collateral consequence of 

imprisonment that affects children profoundly and at every level. Parenting from a 

distance and a lack of day-to-day physical contact places serious limitations on the 

parent-child relationship and may have severe negative consequences. The children of 

the caregiver lose the daily care of a supportive and loving parent, and suffer a 



SACHS J 

deleterious change in their lifestyle. 40 Sentencing officers cannot always protect the 

children from these consequences. They can, however, pay appropriate attention to 

them and take reasonable steps to minimise damage. The paramountcy principle, read 

with the right to family care, requires that the interests of children who stand to be 

affected receive due consideration. It does not necessitate overriding all other 

considerations. Rather, it calls for appropriate weight to be given in each case to a 

consideration to which the law attaches the highest value, namely, the interests of 

children who may be concerned. 

[43] Howells 41 is an example of a case where attention was carefully given to the 

interests of children. The appellant had been convicted in the Regional Court of 

having defrauded her employer to the extent of approximately R100 000. She had 

been sentenced by the Regional Court to four years’ imprisonment in terms of section 

276(1)(i) of the CPA. The appellant was divorced and had three dependent children. 

Two factors counted strongly against her: she had spent most of the proceeds of her 

40 A study conducted by the Centre for the Study of Violence and Reconciliation in the three female prisons in 

Gauteng found that 37% of children of imprisoned mothers are cared for by grandparents, 28% by other family 

members and 22% are placed in alternative care by the Department of Social Development. Only 13% of 

children with mothers in prison are cared for by their fathers (see Haffejee et al “Minority Report: The 

imprisonment of women and girls in Gauteng” (2006) Centre for the Study of Violence and Reconciliation, 

Research Brief 4, February 3). According to the annual report of the Inspecting Judge of Prisons, women 

account for only 2% of the South African prison population (Annual Report by the Inspecting Judge of Prisons 

for the period 1 April 2005 to 31 March 2006). The South African Human Rights Commission has recently 

reported that 84% of imprisoned women are mothers (South African Human Rights Commission The impact of 

imprisonment on women and children: Are we acting in children’s best interest? SAHRC Briefing to 

Correctional Services Portfolio Committee, 25 August 2006). Thus, given that only a small percentage of the 

prison population is made up of women, the effects of requiring investigation prior to sentence would not be 

unduly onerous for our already over-burdened courts. At the same time the process must be gender-neutral, so 

that the children of those men who are primary caregivers should also receive the protection of the Constitution. 

41 S v Howells 1999 (1) SACR 675 (C); [1999] 2 All SA 233 (C) affirmed on appeal by the Supreme Court of 

Appeal in Howells v S [2000] JOL 6577 (SCA). 



SACHS J 

crime on gambling, and she had a previous conviction for fraud. Van Heerden AJ 

introduced the constitutional dimension in the following manner: 

“I have anxiously considered the effect on the minor children of the sentence imposed 

by the magistrate, bearing in mind the constitutional injunction that ‘a child’s best 

interests are of paramount importance in every matter concerning the child’, as also 

the constitutionally entrenched right of every child ‘to family or parental care, or to 

appropriate alternative care when removed from the family environment’”. 42 

(Reference omitted.) 

Van Heerden AJ observed further that the best interests of the child principle, which 

formed part of our common law as developed by the courts, had been given 

international significance by the ratification by South Africa of the CRC, which 

provides in article 3(1) that 

“[i]n all actions concerning children, whether undertaken by public or private social 

welfare institutions, courts of law, administrative authorities or legislative bodies, the 

best interests of the child shall be a primary consideration.” 43 

[44] She then went on to hold that there was a real risk that should the appellant be 

imprisoned the children would have to be taken into care. Although this was highly 

regrettable and made her reluctant to condemn the appellant to imprisonment, van 

Heerden AJ nevertheless decided to uphold the sentence on the basis that it was 

necessary to serve the interests of society and the element of deterrence. Emphasising 

the need simultaneously to protect the interests of the appellant’s children, however, 

she made special provision in the order to ensure that the Department of Welfare and 

42 Id at 681e/f-g. 

43 Id at 681g-h/i. 



SACHS J 

Population Development would be requested to see to it that the children were 

properly cared for during their mother’s imprisonment and kept in touch with her. 44 

[45] Howells and P 45 illustrate that there is scope for a balancing analysis involving 

section 28 within the current sentencing framework. The courts in these matters relied 

on the Zinn triad; both had regard to the CRC; and both explained why on the facts of 

the case correctional supervision alone would be insufficient. 46 What distinguishes 

Howells from the approach of the sentencing courts in the present matter is not the 

outcome so much as the character of the analysis. In Howells the implications of 

section 28 were expressly weighed. In the present matter, as will be seen, they were 

barely touched upon. The required balancing exercise was not properly conducted. 

II. Whether the duties were observed in this case 

[46] A rather perfunctory question put to M by the Regional Magistrate and by the 

prosecutor at her trial centred around whether, if she went to prison, the children 

44 The order included the following: 

“The Registrar of this Court is requested immediately to approach the Department of Welfare 

and Population Development with the following request: 

3.1 That the Department of Welfare and Population Development investigate the 

circumstances of appellant’s three minor children without delay and take all 

appropriate steps to ensure that 

45 Discussed above at paras 10-1. 

3.1.1 the children are properly cared for in all respects during the appellant’s 

period of imprisonment; 

3.1.2 the children remain in contact with the appellant during her period of 

imprisonment and see her on a frequent and regular basis, insofar as prison 

regulations permit; and 

3.1.3 everything reasonably possible is done to ensure the reunification of the 

appellant with her children on appellant’s release from prison and the 

promotion of the interests of the family unit thereafter.” (Id at 683c-f.) 

46 See also Brandt above n 11 at paras 15-6 (sentencing a minor and applying constitutional and international 

human rights principles). 



SACHS J 

would not be on the street. 47 That enquiry was inadequate. The quality of alternative 

care should have been more fully investigated, as well as the potential impact that 

splitting the children up and moving them would have had on their schooling and 

other activities. Similarly, attention should have been paid as to who would maintain 

the children in M’s absence. It might well be that the Regional Magistrate would have 

decided that the behaviour of M was so bad that even if the effect on the children 

would be drastic, a custodial sentence could not be avoided. In these circumstances, 

however, the Court should have ensured through an appropriate order that the negative 

impact on the children was reduced as much as possible. 48 Yet, no social worker’s 

report was called for. Nor was any other method used for acquiring adequate 

information. The Regional Magistrate when imposing the sentence simply stated: 

47 The record at 356 of the proceedings before the trial Court reads as follows: 

“Prosecutor: How long did you spend in custody? — Five weeks. In total? — I was for five 

weeks and four days because I was four days in hospital. And who looked after your children 

in that time? — My mom. Is she staying in the same house you are staying in? — No. Where 

is she staying? — With my sister. And she’s there and she looks after the sister’s children 

there? — That’s correct. So she can then, there is at least a place for your children to go? — 

No, at the time my sister took leave so that she could look after her own kids and mom came 

to stay with me, stayed at my place. 

Court: Is she still staying at your place? — No, Your Worship, she comes on a weekend but 

she doesn’t stay at my place, she stays with my sister but at the time I was arrested my sister 

took leave from work, so she looked after her kids and my mom came to stay in my house. 

Prosecutor: But they won’t be on the street, that’s what I’m saying? — No they won’t be on 

the street. And steps can be taken for the fathers to try and ensure maintenance? — They’re 

not working. Yes but steps can be taken with them, not so? — I presume so. 

Court: I think what he’s also saying to you is, if the Court would send you to jail the children 

will be accommodated either by your mother or your family or the fathers of the children? — 

They’re not in a position to accommodate, Your Worship. 

Prosecutor: Meaning what? — My eldest son’s father stays in a room and my two kids’ father 

stays all over the show. I’m never able to get a physical address on him. Okay, but your 

family or your mother would be able to look after them . . . (intervention) — Financially my 

mother won’t be able to look after them. But they will have a house to go to? — Yes, Your 

Worship.” 

48 As had been done in Howells above n 41, discussed above at paras 43-4. 



“You are a mother of minor children. The Court has had regard to that but I am 

satisfied that if the Court at the end of the day would impose imprisonment here that 

they will be accommodated as such.” 49 

SACHS J 

[47] There was virtually nothing in the Regional Magistrate’s reasons for sentence to 

show that she applied a properly informed mind to the duties flowing from section 

28(2) read with section 28(1)(b). It appears from the argument advanced on behalf of 

the State that the Regional Magistrate was acting in a manner largely consistent with 

current practice. If, however, paramountcy of the children’s interests is to be taken 

seriously, and this is present sentencing practice, this practice needs to be reviewed so 

as to bring it in line with constitutional requirements. 

[48] I conclude therefore that the Regional Magistrate passed sentence without 

giving sufficient independent and informed attention as required by section 28(2) read 

with section 28(1)(b), to the impact on the children of sending M to prison. This 

failure carried through into the approach adopted by the High Court. Though the High 

Court was not unsympathetic to the plight of M and her children, and noted that 

imprisonment would be hard both for her and the children, it should have gone further 

and itself made the enquiries and weighed the information gained. In these 

circumstances the sentencing Courts misdirected themselves by not paying sufficient 

attention to constitutional requirements. This Court is therefore entitled to reconsider 

the appropriateness of the sentence imposed by the High Court. 

49 Record at 363. 



III. What order, if any, should this Court make? 

(a) Should this Court decide the sentence? 

SACHS J 

[49] The first question to be decided is whether this Court should itself resolve the 

issue of sentence or else remit it to the Regional Court or the High Court. Appeal 

courts are generally reluctant themselves to determine what an appropriate sentence 

should be. Accordingly, having found a misdirection to have existed, this Court 

would ordinarily remit the matter either to the Regional Court or to the High Court to 

pass sentence afresh in the light of this judgment. In the present matter, however, 

there are two special features that point away from remitting the matter. Both flow 

from the fact that this has become something of a test case. 

[50] In the first place, this Court has received comprehensive, carefully researched 

and well-drafted reports from different sources concerning the interests of the 

children. 50 In addition we have heard argument from counsel on both sides, as well as 

from the curator and the amicus, on what the appropriate sentence should be. 

Secondly, the delays involved in pursuing the initial prosecution followed by appeals 

first to the High Court, then to the Supreme Court of Appeal and finally to this Court, 

together with the need to ensure that a curator was appointed to protect the interests of 

the children, has meant that many years have elapsed since the offences were 

committed. It is clearly in the interests of the children and of all concerned that the 

matter achieves finality. In these special circumstances the interests of justice require 

50 The curator submitted a social work report prepared by Ms Cawood, as well as his own report, and the 

Department of Social Development submitted reports prepared by a team of social workers. 



SACHS J 

that this Court itself bring the matter to a close by determining the appropriate 

sentence. I accordingly consider the question of what the sentence should be. 

[51] I turn to the extensive information provided by the curator and the Department 

of Social Development. Though in argument some differences in the respective 

reports are acknowledged, they were said to relate essentially to evaluations as to how 

well the children could adapt to being placed under alternative family care, rather than 

to questions of fact. On the basis that it would not be in the interests of the children 

for the matter to be unduly prolonged, we were urged to follow the recommendations 

of the curator that an appropriate correctional supervision order be imposed. 

[52] On the other hand, as counsel for the State pointed out, the starting point must 

be that M has defrauded members of the community not once, not twice, but three 

times, and done so over a period of years, apparently having been unable to control 

her dishonest impulses while under a suspended sentence and then later while released 

on bail. When refusing her request for correctional supervision the High Court stated: 

“It . . . appears, as found by the magistrate, that the present offences were committed 

over a period of time while she had ample time to reflect and to desist from such 

criminal conduct. If one takes as an example the charges relating to the fraudulent 

use of a third party’s credit card, it appears that appellant had used the credit card for 

payment of her purchases on no less than 32 occasions at various retailers over a 

period of more than three months. This shows careful and deliberate planning on the 

part of the appellant. As I have already mentioned, the appellant is a suitable 

candidate for a sentence of correctional supervision. She is a divorcee with three 

minor children and has a fixed address and regular source of income through her 

cleaning business. A sentence of imprisonment will no doubt cause her and her 



children great hardship. However, one has to take the interests of the community into 

account.” 51 

SACHS J 

The State submitted that this Court should confirm the sentence imposed by the High 

Court. 

[53] M’s counsel, with the support of the curator, responded that she had already 

spent three months in prison, one month while awaiting trial before having been 

granted bail, and three months serving her sentence before being released on bail. 

Furthermore, the delay in finalising the matter had in fact provided M with the 

opportunity to demonstrate her capacity to develop business activities and increase her 

income, apparently through honest endeavour. For seven years she had manifested an 

ability and a will to function actively in society, apparently without breaking the law. 

[54] He added that all the reports indicate that she is a good parent in her dealings 

with her children and that they are devoted to her; even though some alternative 

family care could be arranged if she were to go to prison, this could involve splitting 

up the children and placing them in homes far away from the schools they presently 

attend and the community in which they live. As the curator pointed out, they live in 

a socially fragile environment and are at an age where major disruptions to their lives 

could have seriously deleterious consequences. Further imprisonment would in all 

probability impose more strain than the family could bear, with potentially devastating 

effects on the children. 

51 At 3 line 21 to 4 line 9 of the judgment. 



SACHS J 

[55] It was further contended that M had indicated in the correctional supervision 

report that she would pay back her victims, starting with the R4 000 of her bail money 

and putting aside R1 500 per month to cover the rest of the R19 000 she derived from 

her fraudulent conduct. Such repayments would contribute positively towards 

achieving the objectives of restorative justice in a most direct way. M could be 

required to work out a schedule of repayments and then repay the amounts through 

direct encounter with the persons she defrauded. It was stated that such payment to 

the victims would be far more meaningful from a community point of view than 

payment of a fine to the State. 

[56] The argument in favour of correctional supervision concluded by proposing that 

M could be obliged to do work in the community that is manifestly of a socially 

beneficial character. This would simultaneously and in a practical way reconcile the 

personal interests of M and her children with those of the community. 

(b) Correctional supervision or custodial sentence? 

[57] The second question which arises is whether paying due regard to the interests 

of the children requires imposing a correctional supervision order on conditions which 

do not necessitate further imprisonment. Alternatively, are the facts of the case so 

compelling that the sentence of the High Court should be confirmed with a Howells 

type order ensuring that the interests of the children receive particular attention from 

the authorities? The answer requires a close examination of the purposes of 



SACHS J 

correctional supervision, giving special attention to the manner in which it relates to 

the interests of the children in this matter. 

[58] The Legislature, by the introduction of correctional supervision, has sought to 

distinguish between two types of offenders: those who ought to be removed from 

society and imprisoned and those who, although deserving of punishment, should not 

be so removed. 52 This Court has held that: 

“The introduction of correctional supervision with its prime focus on rehabilitation, 

through section 276 of the Act, was a milestone in the process of ‘humanising’ the 

criminal justice system. It brought along with it the possibility of several imaginative 

sentencing measures including, but not limited to, house arrest, monitoring, 

community service and placement in employment. This assisted in the shift of 

emphasis from retribution to rehabilitation. This development was recognised and 

hailed by Kriegler AJA in S v R as being the introduction of a new phase in our 

criminal justice system allowing for the imposition of finely-tuned sentences without 

resorting to imprisonment with all its known disadvantages for both the prisoner and 

the broader community. 

The development of this process must not be seen as a weakness, as the justice 

system having ‘gone soft’. What it entails is the application of appropriate and 

effective sentences. An enlightened society will punish offenders, but will do so 

without sacrificing decency and human dignity.” 53 (Footnote omitted.) 

[59] Correctional supervision is a multifaceted approach to sentencing comprising 

elements of rehabilitation, reparation 54 and restorative justice. The South African Law 

52 S v R 1993 (1) SA 476 (A) at 488G; 1993 (1) SACR 209 (A) at 221h. 

53 S v Williams and Others 1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC) at paras 67-8 (per Langa J). 

54 In the SALC Report on a New Sentencing Framework above n 3 at para 2.31 it was recognised that this is a 

sentencing option that needs to be developed vigorously. The SALC submits that increased emphasis should be 

placed on reparation for victims of crime in any new sentencing arrangement. Reparation has gained great 



SACHS J 

Commission (the SALC) has underlined the importance of correctional supervision, 

observing: 

“There is increasing recognition that community sentences, of which reparation and 

service to others are prominent components, form part of an African tradition and can 

be invoked in a unique modern form to deal with many crimes that are currently 

sanctioned by expensive and unproductive terms of imprisonment.” 55 (Footnote 

omitted.) 

The SALC reports that specific legislative provision has been made in other 

jurisdictions for a wide range of community-based sentences, including participation 

in victim-offender mediation and family group conferencing, 56 which are prominent 

forms of restorative justice. 57 The imprisonment of offenders for less serious offences 

and for impracticably short periods was identified by the SALC as a shortcoming of 

the existing sentencing system. 58 

acceptance in England, subject to section 104 of the Criminal Justice Act 1988 which requires a court to 

consider making a compensation order in every case involving death, injury, loss or damage. 

55 Id at para 1.4. 

56 This order is available in terms of section 52(1)(g) of the Correctional Services Act 111 of 1998. 

57 SALC Report above n 3 at para 3.3.30. 

58 Id at para 1.8.c: 

“[I]maginative restitutive alternatives could provide solutions more satisfactory to all parties, 

while at the same time saving valuable prison resources for those offenders deserving harsher 

punishment.” 

Correctional supervision is provided for by the CPA. Section 276(1)(h) of the Act provides that “[s]ubject to the 

provisions of this Act and any other law and of the common law, the following sentences may be passed upon a 

person convicted of an offence, namely . . . correctional supervision”. This sentence option was introduced into 

the CPA by the Correctional Services and Supervision Matters Amendment Act 122 of 1991. The Act also 

introduced section 84 into what was then the Prisons Act 8 of 1959 (now the Correctional Services Act). 

Section 84 provided that: 

“Every probationer shall be subject to such monitoring, community service, house arrest, 

placement in employment, performance of service, payment of compensation to the victim 

and rehabilitation or other programmes as may be determined by the court, the Commissioner 

or prescribed by or under this Act, and to any other such form of treatment, control or 

supervision, including supervision by a probation officer, as the Commissioner may determine 

after consultation with the social welfare authority concerned in order to realise the objects of 

correctional supervision.” 

The greater part of the Prisons Act was repealed by section 137 of the Correctional Services Act but section 84F 

is still operational and governs the limitation on correctional supervision. Correctional supervision is defined in 

section 1 of the CPA as 



SACHS J 

[60] In S v R Kriegler AJA noted that correctional supervision does not so much 

describe a specific sentence but is a collective term for a wide range of measures 

which share one common feature, namely, that they are executed within the 

community. 59 It is aimed at enabling offenders to lead a socially responsible and 

crime-free life during the period of their sentence and thereafter. 60 A sentence of 

correctional supervision endeavours to ensure that offenders abide by the conditions 

imposed upon them so as to protect the community from offences which such persons 

may commit. 61 A requirement for the imposition of a sentence of correctional 

supervision is that the offender agrees not only to such sentence, but also to the 

stipulated conditions ordered 62 and undertakes to co-operate in meeting them. 

“. . . a community based sentence to which a person is subject in accordance with Chapter V 

and VI of the Correctional Services Act, 1998, and the regulations made under that Act if— 

. . . 

(b) it has been imposed on him under section 276(1)(h) . . .” 

59 Above n 52 at 220H. The essential penal elements of correctional supervision were identified in Roman v 

Williams NO 1998 (1) SA 270 (C); 1997 (9) BCLR 1267 (C); 1997 (2) SACR 754 (C) at 282I-283A as 

“house arrest during specific hours each day, rehabilitational, educational or 

psychotherapeutic programmes, regular community service in various forms, abstinence from 

criminal or improper conduct and from use or abuse of alcohol and drugs . . . [as well as] 

constant monitoring.” 

Section 276A(1) of the CPA further provides: 

“Punishment shall only be imposed under section 276(1)(h)— 

(a) after a report of a probation officer or a correctional official has been placed before 

the court; and 

(b) for a fixed period not exceeding three years.” 

60 Section 50(1) of the Correctional Services Act. Chapter VI of this Act (which commenced on 31 July 2004) 

deals extensively with correctional supervision (or “community corrections”, in the wording of the chapter). 

61 Section 50(2) of the Correctional Services Act. 

62 Section 51(2) of the Correctional Services Act. 



SACHS J 

[61] It is an innovative form of sentence, which if used in appropriate cases and if 

applied to those who are likely to respond positively to its regimen, can serve to 

protect society without the destructive impact incarceration can have on a convicted 

criminal’s innocent family members. 63 Thus, it creates a greater chance for 

rehabilitation than does prison, given the conditions in our overcrowded prisons. The 

SALC cautioned in 2000 that “South African prisons are suffering from overcrowding 

that has reached levels where the conditions of detention may not meet the minimum 

standards set in the Constitution.” 64 

[62] Another advantage of correctional supervision is that it keeps open the option 

of restorative justice 65 in a way that imprisonment cannot do. Central to the notion of 

restorative justice is the recognition of the community rather than the criminal justice 

agencies as the prime site of crime control. 66 Thus, our courts have observed that one 

of its strengths is that it rehabilitates the offender within the community, 67 without the 

63 S v Schutte 1995 (1) SACR 344 (C) at 350c-d. 

64 SALC Report above n 3 at para 1.37. In S v Lebuku 2006 JOL 17622 (T) at 13-5 Webster J refers to the 

2003/2004 Annual Report of the Judicial Inspectorate of Prisons in which Justice Fagan recommends at 

para 16.2 the use of non-custodial sentences to help reduce the overcrowding in our prisons. He also provides a 

helpful discussion encouraging judges to actively explore all available sentencing options and to choose the 

sentence best suited to the crime. See also S v Siebert 1998 (1) SACR 554 (SCA) at 559c-d. 

65 For a discussion of restorative justice see the minority judgments of Mokgoro J and Sachs J in Dikoko v 

Mokhatla 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) especially at paras 68 and 114, respectively. 

66 SALC Report above n 3 at para 3.3.34. 

67 See too Pinnock What Kind of Justice? University of Cape Town, Institute of Criminology Occasional Paper 

Series 4-95 (1995), http://web.uct.ac.za/depts/sjrp/publicat/whatknd.htm, accessed on 16 August 2007; Maepa 

(ed) Beyond Retribution: Prospects for Restorative Justice in South Africa Institute for Security Studies 

Monograph No 111 (February 2005), http://www.iss.co.za/pubs/Monographs/No111/Chap2.htm at ch 2 where 

Batley points out that although there are a number of definitions of restorative justice, they all contain the 

following three principles: (1) crime is seen as something that causes injuries to victims, offenders and 

communities and it is in the spirit of ubuntu that the criminal justice process should seek the healing of breaches, 

(2) the redressing of imbalances and the restoration of broken relationships; and (3) not only government, but 

victims, offenders and their communities should be actively involved in the criminal justice process at the 

earliest point and to the maximum extent possible; and in promoting justice, the government is responsible for 

preserving order and the community is responsible for establishing peace. 



SACHS J 

negative impact of prison and destruction of the family. It is geared to punish and 

rehabilitate the offender within the community leaving his or her work and domestic 

routines intact, and without the negative influences of prison. 68 

[63] As Kriegler AJA has observed, it should not be categorised as a lenient 

alternative to direct imprisonment. 69 It can, depending on the circumstances, involve 

an exacting regime, even house arrest. 70 In similar vein Conradie J has emphasised 

that 

“[i]n some ways it is harder than imprisonment. A cynic once said that the easiest life 

on earth is being a soldier or a nun: you only have to obey orders. Prison is like that. 

A model prisoner is the one who best obeys orders. These are not ideal 

circumstances, generally, for the regrowth of character. Correctional supervision 

gives an offender greater scope for regrowth of character. It involves a good deal of 

psychological strain, it takes a great deal of restraint and determination on the part of 

a probationer. It can be very stressful. A probationer does not have his freedom — 

far from it — but he is not cut off from the community altogether. His support 

systems are not destroyed and in this way his rehabilitation prospects are enhanced. 

Moreover, there is the benefit that society does not lose the skills of someone who is 

able to maintain himself and his dependants, as well as the family unit. Community 

service, which goes hand in hand with correctional supervision, is beneficial.” 71 

68 S v E 1992 (2) SACR 625 (A) at 633a-b. 

69 S v R above n 53 at 488C-D. See also S v Williams above n 53 at para 67; S v Schutte above n 63 at 349c-i 

quoting with approval the unreported judgment of Conradie J in The State v Margaret Gladys Harding SS61/92, 

23 September 1992, unreported. In S v Ingram 1995 (1) SACR 1 (SCA) at 9e-f it was held that coupled with the 

correct conditions, correctional supervision could, in appropriate cases, even be suitable for serious offenders. 

70 S v E above n 69 at 633a-b. 

71 Margaret Gladys Harding above n 69 at 1749 of the record of that case. 



SACHS J 

[64] I now turn to the forms that correctional supervision can take. A great plus is 

its adaptability. 72 Conditions are flexible 73 and can be fashioned to meet the specific 

circumstances of each offender’s case. It has ushered in a new sentencing phase 

because it is so strikingly diverse. 74 The sentencing courts must themselves identify 

the specifics of the correctional supervision sentence, 75 but not necessarily the manner 

in which it is to be implemented. In Govender it was held that while the court should 

clearly indicate the duration and extent of the specific components of the sentence, it 

72 Section 52(1) of the Correctional Services Act entitles a court when ordering correctional supervision to 

impose any of the following stipulations to the sentence regime: 

(a) Placement under house detention; 

(b) imposition of community service; 

(c) an order to seek employment; 

(d) an order to take up and remain in employment; 

(e) an order to pay compensation or damages to victims; 

(f) an order to take part in treatment, development and support programmes; 

(g) an order to participate in mediation between victim and offender or in family group 

conferencing; 

(h) an order to contribute financially towards the cost of the community corrections to 

which he or she has been subjected; 

(i) a restriction to one or more magisterial districts; 

(j) an order to live at a fixed address; 

(k) an order to refrain from using or abusing alcohol or drugs; 

(l) an order to refrain from committing a criminal offence; 

(m) an order to refrain from visiting a particular place; 

(n) an order to refrain from making contact with a particular person or persons; 

(o) an order to refrain from threatening a particular person or persons by word or action; 

and 

(p) subjecting the offender to monitoring. 

73 The SALC in its report above n 3 at para 3.3.35 is calling for a more flexible process for imposing sentences. 

It is not always feasible to obtain comprehensive pre-sentencing reports, particularly in rural areas. They 

propose that the court should have a discretion to dispense with some of the requirements. In addition, reports 

should be capable of being provided for by a wider group of competent people. But see the discussion in 

Schutte above n 63 at 351b-c. 

74 S v R above n 53 at 487E-F. 

75 Appellate courts have been reluctant to impose conditions for correctional supervision and have generally 

referred such cases back to lower courts to work out the conditions. In S v R above n 52 at 492A-B, despite the 

existence of a probation report the Court deemed it unwise to compose a sentence itself. The Court of first 

instance was considered the most appropriate forum. See also S v Sibuyi 1993 (1) SACR 235 (A) at 251e-f and 

Koopman v S [2005] 1 All SA 539 (SCA) at para 63. 



SACHS J 

was not desirable for it to specify the manner in which the sentence is to be carried 

out. 76 It was held that the court must retain effective control over the sentence without 

compromising flexibility. 77 This appears to be a sound principle. 

(c) The appropriate sentence in this matter 

[65] M is a repeat offender and committed the offences over a period of time and 

during the suspension period of her previous sentence. The offences were deliberate 

and calculated, involving deception of people who trusted her. She was driven by 

greed rather than need. Given the seriousness of her misconduct, the sentence of four 

years’ imprisonment must stand. M has already spent three months in prison, one 

awaiting trial, and two after the sentence was imposed. The question before us is 

whether this Court should backdate the three months already served, 78 suspend the rest 

of the sentence, and itself now place her under correctional supervision on terms that 

this Court prescribes, or whether she should be sent back to prison, allowing 

correctional supervision to be considered by the Commissioner after a further five 

months. 

[66] Sentencing is always difficult. Nevertheless, I have come to the conclusion 

that, with the extra evidence made available to us, what is called for is backdating the 

sentence already served, suspending the rest of the sentence so that she need not go 

76 S v Govender 1995 (1) SACR 492 (N) at 497c-d. 

77 Id at 497e-g. 

78 Section 282 of the CPA provides for antedating of a sentence of imprisonment to a specific date not earlier 

than the date on which the sentence of imprisonment was imposed. 



SACHS J 

back to prison after this order is issued, and adding a correctional supervision order 

made by this Court under section 276(1)(h) of the CPA. 

[67] In coming to this conclusion I am influenced by the fact that, as the reports 

indicate, it is clearly in the interests of the children that they continue to receive 

primary care from their mother. This Court has not one but three reports. For this 

reason this Court is more favourably placed than the Regional Court and the High 

Court were. The custodial sentences they imposed were by no means incongruent 

with the evidence they had before them. What was lacking was a report concerning 

the manner in which the children stood to be affected. It is clear that M is a single 

parent who is almost totally responsible for the care and upbringing of her sons. Ms 

Cawood’s report indicates that all three boys rely on M as their primary source of 

emotional security, and that imprisonment of M would be emotionally, 

developmentally, physically, materially, educationally and socially disadvantageous to 

them. In Ms Cawood’s view, should M be incarcerated, the children would suffer: 

loss of their source of maternal and emotional support; loss of their home and familiar 

neighbourhood; disruption in school routines, possible problems in transporting to and 

from school; impact on their healthy developmental process; and separation of the 

siblings. 



SACHS J 

[68] The curator notes further that M appears to be a devoted mother whose life 

revolves around her three children, 79 that she has a loving, nurturing and caring 

relationship with all three boys, and that all of the children’s basic needs are currently 

being met by M. 80 He points out that the sustained viability of M’s most lucrative 

business is threatened if she goes to jail, leaving her without an income. The business 

concerned with ensuring collection of child maintenance, of which she is the heart and 

soul, provides the vast bulk of her income. 81 It would no longer be operative if she is 

incarcerated. 82 Without an income M would be unable to afford paying for the upkeep 

of the household and she would default on her bond repayments, resulting in the bank 

attaching her house and evicting her children and whoever lives with them. Nor 

would M be able to afford maintaining her children while in prison. 

[69] The social report submitted on behalf of the State does not contradict any of 

these factual averments. Indeed, it accepts that should she return to prison her main 

business would collapse. The effective thrust of the report is to establish that the 

children will not be abandoned should M’s sentence be upheld, because alternative 

family care could be arranged. Whether or not some form of alternative family care 

could be provided is the one issue that cannot be determined on the papers. Suffice it 

to say that the proposal that M’s sister and her family take care of the three children or 

79 For example, she serves on the governing body of the school of the youngest two children, she takes the 

children to school and fetches them in the afternoon and takes them to extra-mural activities (from about 13:00 

to 15:00 every weekday) and supervises their homework in the evenings. 

80 She receives only an amount of R250 per month from the father of the eldest son as contribution to his 

maintenance. 

81 It yields an income of R9 500 per month. Her catering business, which brings in an amount ranging from 

R1 000 to R3 000 per month, on the other hand, would continue to be managed by her business partner. 

82 Indeed, her previous spell of imprisonment had led to the demise of the enterprises she carried on at that time. 



SACHS J 

only the younger two while the older one moves to stay with his father, or arranging 

alternative non-family care, cannot be in the best interests of the children. 83 

[70] The evidence made available to us establishes that, despite the bad example M 

has set, she is in a better position than anyone else to see to it that the children 

continue with their schooling and resist the pressures and temptations that would be 

intensified by the deprivation of her care in a socially fragile environment. It is not 

just a question of whether they would be out on the street. And it is not just M and the 

children who have an interest in the continuity of her guidance. It is to the benefit of 

the community, as well as of her children and herself, that their links with her not be 

severed if at all possible. 

[71] Important though this factor is, I do not believe that on its own it should be 

decisive in this case. It takes on special significance because it is allied to other 

considerations pointing towards the advantages for all concerned of M receiving 

correctional supervision without further imprisonment. 

[72] To start with, her offer to repay the persons she defrauded appears to be 

genuine and realistic. It would have special significance if she is required to make the 

repayments on a face-to-face basis. This could be hard for her, but restorative justice 

83 The report of the curator and Ms Cawood concluded that all alternative care scenarios presented to the Court 

are undesirable in light of what is contemplated in section 28 of the Constitution. In particular non-family care 

has been described as most unsuitable. It has been established that these alternative care scenarios may result in 

dividing the children at an age and time where they need one another most. To remove them from their home 

and familiar environment is likely to cause them enormous physical and psychological upheaval. This would 

also produce major disruptions in their school routines and there may inevitably be a need to change schools. It 

may also mean a huge turn-around in their comfortable and disciplined lifestyle. 



SACHS J 

ideally requires looking the victim in the eye and acknowledging wrongdoing. There 

might be practical problems in this case in ensuring that M meets individually with 

each of the many persons she defrauded. The Commissioner will accordingly be 

called upon to determine precisely how the repayments are to be effected. 84 What 

matters is that in both a practical and symbolical way M begins to restore a 

relationship that would otherwise remain ruptured. For M herself this process of 

acknowledgement and reconciliation removes the silent brand of criminality that 

imprisonment would bring, and facilitates restoration of trust and her reintegration 

into the community. 

[73] At the same time, simply paying back the fruits of her crime would not be 

sufficient. M should be required to do a substantial amount of community service to 

mark and respond to the extent of her depredations on the community. Credit card 

fraud destroys trust. The whole community loses. Bearing in mind the amount of 

time she needs to spend on her business activities and on looking after the children, 

she should be required to devote ten hours a week for three years to doing community 

service. The Commissioner should determine precisely what form the sentence should 

take, together with the manner in which it is to be supervised. The objective should be 

for her to do truly useful work so that both she and the community feel rewarded. 

[74] Furthermore, M displayed a degree of compulsive deception in circumstances 

where she was bound to be caught sooner or later. She is clearly a person of 

84 It is understood that the Commissioner may delegate this and other tasks referred to in this order to an 

appropriate official. 



SACHS J 

considerable drive and capacity. The work she does not only brings her an income, it 

fulfils a community need. Yet, all this stands to be ruined if a compulsion to cheat 

reasserts itself in her. Counselling is called for. She, society and her children can 

only benefit if she gains insight into what led her to prey deceitfully and recklessly on 

store after store. Here too the Commissioner should establish an appropriate regimen 

for counselling, and monitor compliance. 

[75] Finally, it is necessary to place in the balance the following facts. M has shown 

a meritorious aptitude to organise her life productively and pursue successful 

entrepreneurial activities during the past seven years. There is no suggestion on the 

papers that she has behaved dishonestly during this period. She has a fixed address 

and has been stated to be a suitable candidate for correctional supervision. It is in the 

public interest to reduce the prison population wherever possible. To compel her to 

undergo further imprisonment would be to indicate that community resources are 

incapable of dealing with her moral failures. I do not believe that they necessarily are. 

Nor do I believe that the community should be seen simply as a vengeful mass 

uninterested in the moral and social recuperation of one of its members. M has 

manifested a will to conduct herself correctly. As the courts have pointed out, persons 

should not be excluded from correctional supervision simply because they are repeat 

offenders. 85 

85 See for example S v Scheepers 2006 (1) SACR 72 (SCA); S v Flanagan 1995 (1) SACR 13 (SCA); S v Van 

der Westhuizen 1994 (1) SACR 191 (O); S v R above n 52. 



SACHS J 

[76] None of the above should be seen as diminishing the seriousness of the offences 

for which she was properly convicted. Nor should it be construed as disregarding the 

hurt and prejudice to the victims of her fraud. Nevertheless, I conclude that in the 

light of all the circumstances of this case M, her children, the community and the 

victims who will be repaid from her earnings, stand to benefit more from her being 

placed under correctional supervision 86 than from her being sent back to prison. 

Order 

[77] The following order is made: 

1. Leave to appeal against the sentence imposed by the Cape High Court is 

granted. 

2. The appeal is upheld. 

3. The sentence imposed by the High Court is set aside and replaced by the 

following: 

(a) The accused is sentenced to four years’ imprisonment with effect 

from 29 May 2003. 

(b) The 45 months of her imprisonment still to be served is 

suspended for four years on condition that she is not convicted of 

an offence which is committed during the period of suspension 

and of which dishonesty is an element, and further on condition 

that she complies fully with the order set out in paragraph (d) 

below. 

86 Her agreement under section 50(2) of the Correctional Services Act may be assumed from the information 

placed before us by her counsel. 



SACHS J 

(c) The accused is placed under correctional supervision in terms of 

section 276(1)(h) of the Criminal Procedure Act 51 of 1977 for 

three years, which correctional supervision must include the 

following: 

(i) She performs service to the benefit of the community for 

ten hours per week for three years, the form of such 

service and the mode of supervision to be determined by 

the Commissioner for Correctional Services; and 

(ii) she undergoes counselling on a regular basis with such 

person or persons and at such times as is determined by 

the Commissioner for Correctional Services. 

(d) The accused must repay to each of the persons or entities that she 

defrauded, as identified in the charges on which she was 

convicted, an amount equal to the value of goods she obtained. 

This must be done in the manner specified in a schedule to be 

determined by the Commissioner for Correctional Services on the 

basis of R4 000 bail money being immediately available and 

payment of the balance at a rate of no less than R1 500 per 

month. 



MADALA J 

Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan J, Skweyiya J, Van der Westhuizen J 

concur in the judgment of Sachs J. 

MADALA J: 

Introduction 

[78] I have had the benefit of reading the judgment of Sachs J. While I agree with 

him on certain aspects of the judgment, I am unable to support his approach 

particularly on his assessment of the evidence for the purpose of determining an 

appropriate sentence and the sentence he proposes. In the circumstances, I have 

decided to set out my views separately. 

Background 

[79] This is an application for leave to appeal against the decision of Fourie J and 

Van Riet AJ in the Cape High Court on 14 September 2005. 

[80] The Centre for Child Law (the Centre) applied to be admitted as amicus curiae. 

A curator ad litem (the curator) was also appointed to represent the interests of the 

children. We are indeed indebted to the Centre and to the curator for the assistance 

rendered in this matter and for submitting heads of argument and presenting oral 

submissions. 



MADALA J 

[81] In the interests of protecting the identity of the children concerned, this Court 

ordered that the applicant’s name be made anonymous and that henceforth she be 

referred to as “M”. 

[82] M is a 35 year old single mother of three minor boys aged approximately 16, 12 

and 8 respectively. She lives with the children in a three bedroom house. She is 

presently on bail pending the outcome of her application for leave to appeal in this 

Court. 

[83] On 25 May 2003, after pleading guilty to several charges of fraud and theft in 

the Wynberg Regional Court (the Regional Court), the applicant was sentenced to a 

period of four years’ imprisonment. On 29 May 2003, her application for bail was 

also dismissed. The applicant approached the High Court for bail and on 27 July 2003 

it was fixed at R4 000, by which time she had already served an effective period of 

three months’ imprisonment. 

[84] The applicant noted an appeal against the severity of the sentence on 22 March 

2005 and the Regional Court’s sentence of four years’ imprisonment was altered to a 

sentence of four years in terms of section 276(1)(i) of the Criminal Procedure Act 

(CPA) 51 of 1977. 1 The applicant subsequently appealed and the High Court turned 

1 Section 276 provides: 

“(1) Subject to the provisions of this Act and any other law and of the common law, the following 

sentences may be passed upon a person convicted of an offence, namely— 

. . . 



MADALA J 

down her application for leave to appeal. The Court did however extend her bail 

whilst her application for leave to appeal to the Supreme Court of Appeal was 

pending. The Supreme Court of Appeal dismissed her application for leave to appeal. 

The applicant then approached this Court for leave to appeal against the sentence 

imposed by the High Court. 

[85] M has now approached this Court on the basis that the Regional Court did not 

take into account the paramountcy of the interests of the children before imposing a 

term of effective imprisonment against a primary caregiver. In the directions issued 

by the Chief Justice, the parties were called upon to address, among others, the 

following matters: 

Issues 

(a) What are the duties of a sentencing court in the light of section 28(2) 2 of the 

Constitution and any relevant statutory provisions when the person being 

sentenced is the primary caregiver of minor children; 

(b) were these duties observed in this case; and 

(c) if it is held that those duties were not observed, what order should this Court 

make in this case, if any? 

[86] As I see the matter, the real issues that need to be considered in this case are: 

2 Section 28(2) provides: 

(i) imprisonment from which such a person may be placed under correctional 

supervision in his discretion by the Commissioner.” 

“A child’s best interests are of paramount importance in every matter concerning the child.” 



MADALA J 

(a) The considerations, duties and approaches of sentencing courts in respect of the 

best interests of children; 

(b) to what extent a recidivist primary caregiver of minor children can avoid a 

custodial sentence; and 

(c) whether in this particular case this Court should interfere with the sentence 

imposed by the High Court on the applicant? 

I provide a brief factual analysis before proceeding to answer the questions as 

articulated above. 

Record of previous convictions 

[87] On 24 February 1996, M was convicted of one count of fraud and was 

sentenced to three years’ imprisonment, the whole of which was suspended for a 

period of five years on condition that she would not be convicted of fraud, theft, 

forgery, uttering or any attempt to commit any of such offences during the period of 

suspension. She was also ordered to pay compensation in the sum of R10 000. 

[88] While on suspension, she breached the conditions of the suspended sentence 

imposed on 24 February 1996. Both counts were taken as one for purposes of 

sentence. She was sentenced in terms of section 276(1)(h) of the CPA 3 and a sentence 

of three years correctional supervision and 576 hours of community service was 

imposed. The convictions and sentences were later set aside. In June 1999, M was 

3 Section 276 provides: 

“(1) Subject to the provisions of this Act and any other law and of the common law, the 

following sentences may be passed upon a person convicted of an offence, namely— 

. . . 

(h) correctional supervision”. 



MADALA J 

again arrested on a fraud charge and released on R4 000 bail in August 1999. 

Between 12 November 1999 and 13 February 2000, whilst on bail, M committed 

further fraud offences. In 2003, she was charged with eighty four counts of fraud and 

theft but was convicted in the Regional Court of having committed thirty eight counts 

of fraud and four counts of theft. She had pleaded guilty to thirty four counts of fraud 

and three counts of theft, but was also convicted of theft in respect of count 83 after 

entering a plea of not guilty. All counts were taken together for purposes of sentence. 

The total prejudice was R29 158, 69. 

[89] In May 2003, M was sentenced by the Regional Magistrate (the Magistrate) to 

four years’ direct imprisonment. The three year suspended sentence of 24 February 

1996 was ordered to run concurrently with the four year term of imprisonment. On 

appeal to the High Court, the theft conviction in respect of count 83 was set aside thus 

reducing the total prejudice from R29 158, 69 to R19 158, 69. The Magistrate’s 

sentence was set aside and replaced with a correctional supervision sentence of four 

years imprisonment in terms of section 276(1)(i) of the CPA. 4 

[90] M challenges the decision in the High Court on the ground that it had failed to 

give sufficient weight to the fact that she had children in need that depended on her 

and the impact that incarceration would have on them. The failure to take into 

account the best interests of the children, in her submission, resulted in the imposition 

of a custodial sentence rather than one of correctional supervision. 

4 See above n 1. 



MADALA J 

[91] Before I consider the arguments advanced by M, it is appropriate to review the 

findings made by both the Regional Court and the High Court against the background 

of evidence on this issue and the submissions made by the parties in this case. 

Magistrate’s findings 

[92] It is clear from the reading of the proceedings in the Regional Court that the 

Magistrate considered: (a) the applicant’s personal circumstances; (b) the interests of 

society and (c) the seriousness of the offence. The Magistrate sought to achieve a 

balance by weighing all the aforementioned factors during sentencing in accordance 

with the requirements in S v Zinn. 5 The Magistrate took into account the fact that M 

was a repeat offender as well as her personal circumstances. The record shows that 

the Magistrate was alive to the fact that M was a “mother of minor children” and the 

impact incarceration would have on her children. These are apparent from the 

following exchange captured in the record: 

“Prosecutor: How long did you spend in custody? — Five weeks. In total? — I was 

for five weeks and four days because I was four days in hospital. And who looked 

after your children in that time? — My mom. Is she staying in the same house you’re 

staying in? — No. Where is she staying? — With my sister. And she’s there and she 

looks after the sister’s children there? — That’s correct. So she can then, there is at 

least a place for your children to go? — No, at the time my sister took leave so that 

she could look after her own kids and mom came to stay with me, stayed at my place. 

Court: Is she still staying at your place? — No Your Worship, she comes on a 

weekend but she doesn’t stay at my place, she stays with my sister but at the time that 

5 1969 (2) SA 537 (A) at 540G-H where it was held that judicial officers must take into consideration “the triad 

consisting of the crime, the offender and the interests of society.” 



I was arrested my sister took leave from work, so she looked after her kids and my 

mom came to stay in my house 

Prosecutor: But they won’t be on the street, that’s what I’m saying? ― No, they 

won’t be on the street. 

. . . 

Prosecutor: It is so that you were aware of the suspended sentence, not so? — That’s 

correct. And yet despite that you on numerous occasions and you were convicted on 

42 charges in this case which occurred over a period of time, you kept on committing 

further offences well knowing that this sentence was hanging over your head, not so? 

― That’s correct. A similar offence to be specific, not so? ― That’s correct. 

And that didn’t deter you. In fact when you were arrested on this case that didn’t 

deter you from committing further offences, is it not so? — On which case? In this 

case, even after you were arrested on this case and released on bail, you committed 

further offences? ― That’s correct.” 

MADALA J 

[93] The Magistrate emphasised that M was not a first offender in the sentencing 

judgment. Of particular concern to the Magistrate was the fact that M continued to 

commit fraud while on bail and in full knowledge of her suspended sentence. 

High Court’s findings 

[94] The High Court was of the opinion that in deciding the issue of sentencing, 

each case should be examined on its own facts. In deciding whether M was entitled to 

a suspended sentence, the High Court took into consideration that M committed the 

offences of fraud during the period of her suspended sentence. Moreover “even after 

she had been . . . released on bail, she continued committing the balance of the 

offences”. The High Court also took into account that many of the “offences were 

committed over a period of time while she had ample time to reflect and to desist from 

such criminal conduct”. 



MADALA J 

[95] In deciding whether correctional supervision was an appropriate sentence, the 

High Court held that although M was a suitable candidate for a sentence of 

correctional supervision because she was a divorcee with three minor children, there 

were other considerations such as the interests of the community that needed to be 

balanced in determining the appropriate sentence. The Court held that although a 

sentence of imprisonment would no doubt cause M and her children great hardship, a 

sentence of correctional supervision was not appropriate in these circumstances. It 

said: 

In this Court 

“[H]aving regard to the nature and extent of the offences of dishonesty committed by 

the appellant, as well as her previous conviction and the fact that she committed the 

present offences well knowing that she has a suspended sentence hanging over her 

head, the magistrate correctly concluded that to impose a sentence of correctional 

supervision in terms of section 276(1)(h) of the Criminal Procedure Act, and not a 

period of imprisonment, would over-emphasise the appellant’s personal 

circumstances at the expense of the interests of the community. I may add that had 

the appellant been a first offender, I probably would have inclined to the view that a 

sentence of correctional supervision in terms of section 276(1)(h) of the Criminal 

Procedure Act would suffice.” 

[96] In this Court the applicant’s legal representative submitted that the Magistrate 

and the High Court had very little regard for the rights of the applicant’s three minor 

children and dealt very superficially, if at all, with their rights. He submitted that the 

failure to consider the interests of the minor children was a “glaring misdirection” as 



MADALA J 

the interests of the children concerned had not been adequately addressed as 

contemplated in section 28(2) of the Constitution. 

[97] It was also further submitted that the potential period of imprisonment of eight 

months, even though it may be shorter than that imposed by the Magistrate, would 

still have a major impact on the lives of the three minor children. It was further 

contended that the negative aspects of this period of imprisonment (albeit a short 

period) would be as devastating as a period of four years’ direct imprisonment 

because any time that the applicant spends in prison would have adverse effects on her 

family and that it would infringe the children’s constitutional rights in terms of section 

28(2). 

[98] The views of the amicus were that the Regional Court and the High Court paid 

scant attention to the fact that the applicant was a primary caregiver of three children. 

Moreover, no probation officer’s report was elicited by the High Court in this regard. 

The amicus submitted that the Magistrate therefore embarked on the process of 

sentencing with virtually no regard for the well-being of the children should the 

applicant be sent to prison. The amicus contended that both courts failed to consider 

the best interests of the children and that it would not be reasonable and justifiable to 

limit their rights in terms of section 36 of the Constitution to sentence a primary 

caregiver to imprisonment. The failure to pay proper consideration to the interests of 

the three minor children resulted in a material misdirection. 



MADALA J 

[99] The respondents contended that although neither the Regional Court nor the 

High Court made an order regarding the minor children of the applicant, neither court 

erred in the consideration of a proper sentence. 6 

[100] Given all the aforesaid submissions, it is now appropriate to consider whether 

the Regional Court and the High Court adequately considered the children’s interests 

during the sentencing proceedings. 

6 The High Court had the benefit of a correctional report as well as the testimony of the applicant and after all 

sentencing options were considered, it still found that given the circumstances of the case, direct imprisonment 

was the only suitable sentence. 



MADALA J 

[101] The amicus 7 and the curator 8 give detailed information on the substantive 

duties of a court when sentencing a primary caregiver. Although the information is in 

no way conclusive, they provide factors which may be considered in determining 

whether the provisions of section 28(2) of the Constitution were complied with. 

These factors appear in the judgment of Sachs J and I am in general agreement with 

his findings in this regard. I now examine the sentence imposed on M in light of the 

information provided by the parties to this application. The question then remains 

whether the High Court and the Regional Court misdirected themselves when 

imposing punishment on the applicant. 

7 The amicus made the following submissions in this regard: 

“(a) Ask questions to elicit whether the offender is a primary care-giver; 

(b) If imprisonment is being considered as a sentence for a primary care-giver the court 

must have sufficient information; 

(c) This triggers the need for a pre-sentence report by a probation officer which should 

be called for by the court; 

(d) The pre-sentence report must fully consider the possible effects on the child or 

children that will be caused by imprisonment and consider a range of alternatives; 

(e) Once the report is before the court, the court must consider if the rights of the 

children in terms of s28(2) and 28(1)(b) will be infringed by the imprisonment of a 

primary care-giver; 

(f) If the rights will be infringed, the court must decide if it is reasonable and justifiable 

to limit the rights; 

(g) If the court decides that it is reasonable and justifiable to limit the child’s rights by 

sentencing the primary caregiver to imprisonment, the court must satisfy itself that 

there are adequate arrangements in place for the child, and where necessary must 

ensure such arrangements through the granting of additional orders relating to the 

opening of children’s court inquiries and other matters.” 

8 The curator made the following submissions: 

“(a) The sentencing court must consider the child’s best interest independently of other 

sentence considerations. 

(b) Sufficient weight must be given to a consideration of the impact of the sentence on 

the minor children and the best interests of the minor children must be accorded 

‘paramount importance’. 

(c) An appeal court must not defer to the trial court or regard the matter as falling within 

the latter’s discretion where the trial court has either not considered the impact of the 

sentence on the minor children or has attached insufficient weight to such 

consideration.” 



MADALA J 

[102] A probation officer’s report was not submitted to the Regional Court before the 

imposition of the sentence, this failure clearly falls short of the factors recommended 

by the amicus and the curator. The two-line reasoning by the Magistrate is not an 

analysis in the true sense of the word and is indeed a derisory application of the 

constitutional requirements provided for by section 28(2). 

[103] In the High Court a correctional supervision report was available. However, 

the High Court merely referred to it cursorily when analysing the impact 

imprisonment would have on the minor children: 

“As I have already mentioned, the appellant is a suitable candidate for a sentence of 

correctional supervision. She is a divorcee with three minor children and has a fixed 

address and a regular source of income through her cleaning business. A sentence of 

imprisonment will in no doubt cause her and her children great hardship. However, 

one has to take the interests of the community into account.” (Emphasis added.) 

[104] It is remarkable that a probation officer’s report was also not submitted in the 

High Court. Such a report should have been made available to the High Court before 

sentencing. Such failure, in my view, constitutes a material misdirection which 

warrants interference by this Court. 

[105] The precedents set in S v Kika 9 and Howells v S 10 clearly demonstrates the stark 

difference employed in the reasoning of the lower courts in this matter and that which 

is required in cases where the primary caregiver is to be sentenced. In Howells, Van 

9 1998 (2) SACR 428 (W) at 430a-f. 

10 [1999] 2 All SA 233 (C); 1999 (1) SACR 675 (C). 



MADALA J 

Heerden AJ probes the polarised interests involved weighing them against the 

interests of the children and the interests articulated in Zinn. This was clearly 

demonstrated in the court order in Howells which dealt specifically with the rights of 

the children concerned and the steps taken by the court to mitigate those factors. 11 

[106] The failure to consider the interests of the applicant’s children in the Regional 

Court and in the High Court fell short of the constitutional requirements as envisaged 

in section 28(2) of the Constitution. That failure to employ a reasonable and 

comprehensive analysis may well stem from the high influx of cases in the lower 

courts and the short time-frames judicial officers have to contend with in those courts. 

Nevertheless, courts sentencing primary caregivers are obliged to apply a child- 

centred approach and not to merely treat children as a circumstance of an accused. 

Such an approach would undoubtedly meet the constitutional requirements 

necessitated by section 28(2) of the Constitution. 

[107] Apart from the detailed report by the curator and social worker, the Department 

of Social Development also filed a report. The latter report shows that many relatives 

of the children concerned indicated that they are prepared to take care of the children’s 

financial needs and to assist with their daily care. M herself informed the Department 

of Social Development that her relatives had looked after her children during the 

previous time she was in prison. A primary caregiver does not necessarily escape 

imprisonment because of the children. There must be other factors precipitating such 

11 Id at 241c-g. 



MADALA J 

an outcome. In a situation where the children will not suffer hardship, a primary 

caregiver may have to be incarcerated if there are aggravating factors justifying such 

an eventuality. 12 Whilst the best interests of the children may be paramount, they 

should not be the overriding consideration in determining whether or not a primary 

caregiver should be sent to prison. 

[108] In light of these reports as well as the recommended guidelines advanced by 

the amicus and the curator, I will now embark on a balancing exercise taking into 

account all the competing interests in light of section 28(2) of the Constitution. 

(a) To what extent can a recidivist primary caregiver of minor children avoid a 

custodial sentence 

[109] The general objectives of sentencing are retribution, deterrence, prevention and 

rehabilitation. In assessing the most appropriate sentence a judicial officer should be 

guided by the guidelines proposed in the Zinn triad. However, the process does not 

stop there. In a case where a primary caregiver’s sentence is being considered, the 

sentencing officer must go beyond the Zinn triad requirements. It would be proper, in 

deserving cases, to take into account the impact of imprisonment on dependants. This, 

however, does not imply that the primary caregiver will always escape imprisonment 

12 See Howells above n 10 at 240f-h where Van Heerden AJ held that on the facts in that case although there 

was a real risk, that should the appellant be imprisoned, her children would have to be taken into care, the nature 

and the magnitude of the appellant’s offence and the interests of society outweighed the interests of the 

appellant and her children. She stated that: 

“[T]his is obviously highly regrettable and makes this Court reluctant to condemn appellant to 

imprisonment. But it is undoubtedly true that ‘detection, apprehension and punishment in the 

way of imprisonment are prospects which a person embarking on this sort of crime must 

always foresee’.” (Reference omitted.) 



MADALA J 

so as to protect the rights and best interests of the minor children. There must be 

circumstances justifying an alternative before the sentencing officer may decide to 

reduce the otherwise appropriate sentence. Such circumstances should be considered 

cumulatively and an objective evaluation of all the relevant factors is required. 

[110] The factors to be considered include the ages and special needs of the minor 

children, the nature and character of the primary caregiver, the seriousness and 

prevalence of the offence committed and the degree of moral blameworthiness on the 

part of the accused. In a case where the primary caregiver is a first offender, has 

committed a relatively minor offence, has shown remorse and contrition and the 

children are of a tender age requiring special attention, the sentencing officer will be 

wary to send such a person to prison. Where, as is the situation with M, the primary 

caregiver is a recidivist who continues to commit crimes of a similar nature even 

whilst on bail and the children are relatively closer to their teens, it would be folly and 

a show of “maudlin sympathy” 13 to impose a non-custodial sentence. In such 

circumstances the primary caregiver may not escape a custodial sentence. 

[111] In Hodder v The Queen 14 Murray J held: 

“Where serious offences are committed, it is inevitable that more severe punishment 

will be involved and that will be expected in almost every case to cause hardship to 

innocent persons associated with the offender and the commission of the offence, as 

victims or otherwise. It is right then that only in an exceptional case, quite out of the 

ordinary, should the hardship which a proper sentencing disposition will occasion to 

13 S v Rabie 1975 (4) SA 855 (A) at 861C-D. 

14 (1995) 15 WAR 264 at 287 as quoted in S v The Queen 2003 WL 23002572 (WASC), [2003] WASCA 309. 



innocent third parties be allowed to substantially mitigate the court’s sentencing 

disposition. The court should not lose sight of the fact that the hardship occasioned 

by the sentencing process is, in truth, caused by the offender who commits the 

offences and visits upon himself or herself the punishment of the court. Even so, the 

court should, as it was put by Wells J in Wirth, be prepared to drawback in mercy 

where it would, in effect, be inhuman to refuse to do so.” 

MADALA J 

[112] Whilst it must be borne in mind that the best interests of the child are of 

paramount importance, 15 section 28(2) like other rights enshrined in the Bill of Rights 

is subject to limitations that are reasonable and justifiable in compliance with the 

provisions of section 36 of the Constitution. 16 In my view, section 28(2) of the 

Constitution provides that a child’s best interests must prevail unless the infringement 

of those rights can be justified in terms of section 36 of the Constitution. In Howells, 

Van Heerden AJ approached the limitation of the child’s best interest by holding that 

although imprisoning a convicted criminal who is a primary caregiver would 

undoubtedly result in the children being taken into care, society’s interest in 

15 This right creates an independent right that goes beyond the scope of the rights enumerated in section 28(1) of 

the Constitution. See Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 

422 (CC); 2000 (7) BCLR 713 (CC) at paras 17-18; Laerskool Middelburg en ’n Ander v Departementshoof, 

Mpumalanga Departement van Onderwys, en Andere 2003 (4) SA 160 (T) at 176G-J; Fraser v Naude and 

Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) at para 9; Belo v Commissioner of Child Welfare, 

Johannesburg, and Others: Belo v Chapelle and Another [2002] 3 All SA 286 (W) at para 19; Du Toit and 

Another v Minister of Welfare and Population Development and Others 2003 (2) SA 198 (CC); 2002 (10) 

BCLR 1006 (CC) at paras 20-22; Magewu v Zozo and Others 2004 (4) SA 578 (C) at para 18. 

16 Section 36 (1) reads: 

“The rights in the Bill of Rights may be limited only in terms of law of general application to 

the extent that the limitation is reasonable and justifiable in an open and democratic society 

based on human dignity, equality and freedom, taking into account all relevant factors, 

including— 

(a) the nature of the right; 

(b) the importance of the purpose of the limitation; 

(c) the nature and extent of the limitation; 

(d) the relation between the limitation and its purpose; and 

(e) less restrictive means to achieve the purpose.” 



MADALA J 

sentencing her to imprisonment outweighed the children’s interests. 17 In this regard, 

rendering the child’s best interests paramount does not necessitate that other 

competing constitutional rights may be simply ignored or that a limitation of the 

child’s best interest is impermissible. 18 

(b) Whether in this particular case this Court should interfere with the sentence 

imposed by the High Court on the applicant 

[113] I am in general agreement with the reasoning of Sachs J that ordinarily, appeal 

courts should not interfere with sentences imposed by the lower courts unless a clear 

misdirection can be established. This was held in Malgas v S 19 where Marais JA held 

that: 

“A court exercising appellate jurisdiction cannot, in the absence of a material 

misdirection by the trial court, approach the question of sentence as if it were the trial 

court and then substitute the sentence arrived at by it simply because it prefers it. To 

do so would be to usurp the sentencing discretion of the trial court. . . .However even 

in the absence of a material misdirection, an appellate court may yet be justified in 

interfering with the sentence imposed by the trial court. It may do so when the 

disparity between the sentence of the trial court and the sentence which the appellate 

court would have imposed had it been the trial court is so marked that it can properly 

be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’.” 

17 See above n 10 and 12. 

18 See Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) also reported as LS v AT and Another 2001 (2) 

BCLR 152 (CC) at paras 29-37; Petersen v Maintenance Officer and Others 2004 (2) SA 56 (C); 2004 (2) 

BCLR 205 (C) at para 20. See also the obiter statement in De Reuck v Director of Public Prosecutions, 

Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC); 2003 (2) SACR 

445 (CC) at para 55. 

19 [2001] 3 All SA 220 (A) at 229b-e. 



MADALA J 

Courts have reinforced this principle in many judgments. 20 However, given the 

protracted history of this case, the interests of the applicant’s children and the fact that 

this Court has been furnished with the necessary information, this Court is mandated 

to review the sentence of the High Court in order to ascertain whether any 

misdirection has occurred. I now consider the appropriateness or otherwise of the 

sentence imposed. In doing so, I have regard to the factors stated hereunder. 

(i) Previous convictions 

[114] An accused’s previous convictions are recognised in both local and foreign 

jurisdictions as being a determinative factor in the sentencing process. 21 In the case of 

R v Hamilton, 22 the Ontario Superior Court of Justice considered the fact that the 

accused had no previous convictions as a highly relevant factor in imposing a 

conditional sentence. In my view, M has not learnt from her previous brushes with 

the law. 

(ii) Remorse 

20 See S v Fazzie and Others 1964 (4) SA 673 (A) at 684A-B cited in S v Pillay 1977 (4) SA 531 (A) at 535A: 

“It is trite law that the determination of a sentence in a criminal matter ‘is pre-eminently a 

matter for the discretion of the trial court’. In the exercise of this function the trial Judge has a 

wide discretion in deciding which factors – I here refer to matters of fact and not of law – he 

should in his opinion allow to influence him in determining the measure of the punishment.” 

See also S v Anderson 1964 (3) SA 494 (A) at 495F-H where the court held that: 

“A court that interferes with a sentence imposed by a lower court, itself exercises a discretion 

when it imposes a new sentence and there cannot, therefore, be a ready-made test in the strict 

sense of the word. Nor is it advisable to attempt to lay down a general rule as to when the 

Court’s discretion to alter a sentence will be exercised.” 

21 Section 271(4) of the CPA requires the courts to take proved previous convictions into account. 

22 (2003) 172 CCC (3d) 114. 



MADALA J 

[115] The level of remorse of an accused has been recognised as one of the many 

factors to be considered by a sentencing court. The court in Hamilton looked at the 

manner in which the accused demonstrated real remorse when deciding upon a 

sentence. 23 Notably this can be compared to the case before us where the applicant 

has adopted a supercilious attitude without any sign of remorse whatsoever and 

continued to commit further offences whilst on bail with the full knowledge of the 

impact that such callous action would have on her children. It is remarkable that even 

when she was in prison, the applicant continued to plan further acts of fraud. The 

applicant’s lack of remorse in this case arises from her recidivism. 

(iii) Interests of society 

[116] The interests of society play a significant role as one of underlying principles in 

the Zinn triad. The interests of society in this case involve a broad interest in 

maintaining societal confidence in the criminal justice system. 24 The crime statistics 

report prepared by the Department of Safety and Security reveal that commercial 

crime in South Africa has increased by 5, 5 per cent from 2001 to 2007. 25 This 

increase is unacceptable and it reveals the importance of reinforcing the need for strict 

standards of punishment and encouraging methods of deterrence in our country. It is 

incumbent upon courts to foster conditions that allow for the police and the judiciary 

to function effectively and to have the ability to reprimand and penalise those who 

23 Id. 

24 See above n 22 at 159 where Hill J quoted from R v Wust (2000) 143 CCC (3d) 129 (SCC) at 139: 

“A legal system that condones excessively harsh, or for that matter, lenient sentences, will 

eventually lose the support of many members of the community.” 

25 http://www.saps.gov.za/statistics/reports/crimestats/2007/categories.htm, accessed on 4 September 2007. 



MADALA J 

show a disregard for the very laws that are designed to protect both our country’s 

economy and the private interests of individuals. 26 

[117] This Court should be wary of setting a precedent that creates a perception that 

courts will give primary caregivers a sentence that is disproportionate to what they 

deserve and which encourages them to use the interests of children as a tool in the 

judicial process. Higher courts have a responsibility not to send wrong messages to 

judicial officers. As stated earlier there can be no doubt that the children’s interests 

must be considered, but this enquiry becomes tainted once those interests are elevated 

at the expense of other important relevant considerations such as those I have alluded 

to, including the seriousness and gravity of the offence. 

(iv) Seriousness of the offence 

[118] It can admit of no doubt that fraud of any nature and theft is a serious offence 

within our criminal justice system. 27 Van Heerden AJ held in Howells: 

“In a number of recent cases, courts have taken judicial notice of the disturbing 

increase in the incidence of the type of white-collar crime committed by the 

appellant, namely fraud and theft committed by people in positions of trust, and have 

taken this into account in imposing sentence. . . .” 28 

26 In Burchell and Milton Principles of Criminal Law 3 ed (Juta, Landsdowne 2005) at 833 the following 

remarks are made: 

“The effect of admitting both proprietary and non-proprietary prejudice as a basis for charges 

of fraud is that the crime, in South African law, protects not only the individual’s proprietary 

interests, but also the State’s interest in the integrity of the administration’s public affairs.” 

(Footnote omitted.) 

27 See S v Sadler 2000 (1) SACR 331 (SCA) at 335g-j. 

28 See Howells n 10 above at 239c-d where the following cases are quoted: S v Blank 1995 (1) SACR 62 (A) at 

79d-e; S v Brand 1998 (1) SASV 296 (C) at 306f-g; S v Erasmus 1998 (2) SACR 466 (SEC) at 472c-d. 



MADALA J 

[119] As a court of final instance in all constitutional matters, it is imperative that this 

Court does not set a precedent which creates the impression that primary caregivers 

must be given a slap on the back of their wrists in spite of the seriousness of the 

offences they have committed. In The State v Govender, 29 an unreported decision of 

the Natal Provincial Division delivered on 23 November 1976, Didcott J held: 

“A sentence for fraud would serve a very limited deterrent purpose on other members 

of the public. If people got the idea that they could commit fraud and that the worst 

that would happen to them if they were caught was that they would have to repay the 

money which they have unlawfully misappropriated. If that idea set abroad, fraud 

would be a worthwhile gamble in the minds of many people because the worst that 

would happen to them if they were caught would be that they would have to repay the 

money that they unlawfully obtained.” 

(v) Personal circumstances 

[120] In the present case we are concerned with an individual who is self-employed, 

with a steady income from her own stable businesses. The applicant claims to have a 

regular source of income from her cleaning business. Furthermore, she has a partner 

who can, in my view, continue to operate the business even in her absence. It should 

also not be overlooked that the applicant is a repeat offender who committed further 

offences during the currency of her suspended sentence. She carefully planned the 

execution of the offences and it is reasonable to conclude that she was motivated by 

greed rather than need as she was gainfully employed at the time the offences were 

29 Case No AR869/1976, judgment delivered on 23 November 1976. 



MADALA J 

perpetrated. 30 It must furthermore be borne in mind in this case that we are dealing 

not with juvenile offenders who are about to be sentenced, but with the mother. 

(c) The duties and approaches of sentencing courts in respect of the best interests of 

children 

[121] Sachs J has responded well to the first question regarding the duties of a 

sentencing court when the person facing sentence is a primary caregiver of minor 

children. I am in agreement with his philosophical analysis of these duties namely the 

importance of maintaining the integrity of family care on one hand, and “the duty on 

the State to punish criminal misconduct” on the other. 31 His analysis is a confirmation 

of the fact that constitutional rights are to be scrupulously observed. However, courts 

have long understood that the everyday practical problems of satisfying these 

competing rights are not easily resolved. 32 

[122] I accept without reservation that the best interests of the child need to be 

considered by every judicial officer when considering the sentence to be imposed on a 

primary caregiver. The rationale for such an approach has been set out in length by 

30 S v Sinden 1995 (2) SACR 704 (A) at 709a-b where Van den Heever JA held that “the applicant persistently 

and deliberately betrayed the trust placed in her and did so from greed, not need.” 

31 See above judgment of Sachs J at paras 38 and 39 respectively. 

32 In S v Banda and Others 1991 (2) SA 352 (B) at 355A-C, Friedman J identifies these practical difficulties: 

“The elements of the triad contain an equilibrium and a tension. A Court should, when 

determining sentence, strive to accomplish and arrive at a judicious counterbalance between 

these elements in order to ensure that one element is not unduly accentuated at the expense of 

and to the exclusion of the others. This is not merely a formula, nor a judicial incantation, the 

mere stating whereof satisfies the requirements. What is necessary is that the Court shall 

consider, and try to balance evenly, the nature and circumstances of the offence, the 

characteristics of the offender and his circumstances and the impact of the crime on the 

community, its welfare and concern.” 



MADALA J 

Sachs J in his judgment and requires no repetition. What remains is to say that the 

duties of the courts are to be imbued with a child centred approach and the courts must 

as a rule, judiciously consider a child’s interests. My point of departure, however, is 

that the specific case before us involves highly competitive interests and that despite 

having taken into account the best interests of the children, I nevertheless arrive at the 

same outcome as the High Court. I am fortified in my view by the report of the 

Department of Social Development, 33 from which it is clear that the children are in 

fact not at risk of severe prejudice if their mother is incarcerated. The time of 

incarceration is likely to be eight months, a drastically reduced sentence and 

considering the repeated fraudulent conduct of the applicant, one cannot completely 

sacrifice the interests of society which is served by the criminal justice system for the 

interests of the children. 34 

[123] The High Court has effectively minimised the impact on the children as far as 

possible as set out in the preceding paragraph by sentencing the applicant under 

section 276(1)(i) of the CPA which requires M to do a shortened term of 

imprisonment. However, if she exhibits signs of rehabilitation, she may effectively 

only serve a term of eight months imprisonment. In my view, the approach adopted 

by the High Court reveals a great degree of mercy as the judge had due regard to the 

accused’s circumstances, thereby giving her yet another chance to modify her 

behaviour knowing that failure to do so would result in a term of four years’ 

imprisonment which would detrimentally impact on her children. 

33 See above para 30. 

34 See above n 12. 



Conclusion 

MADALA J 

[124] Although a custodial sentence may seem harsh, the fact is that the applicant 

was shown mercy by the High Courts on a prior occasion but misused the opportunity 

of proving how repentant she was instead; she would not walk on a straight and 

narrow path for the benefit of the children during the period of suspension. She 

continued as if nothing had ever happened. 

[125] I have had the benefit of many reports, recommendations and extensive oral 

argument and have endeavoured to balance all the competing interests. However, I 

find no compelling justifications why the applicant should not serve her custodial 

sentence. 

[126] For all the reasons articulated in this judgment, I am not persuaded that the 

sentence imposed by the High Court should be interfered with in this matter. In the 

circumstances I would grant leave to appeal and dismiss the appeal. 

Navsa AJ and Nkabinde J concur in the judgment of Madala J. 



For the Applicant: Mr W Booth instructed by William 

Booth Inc. 

For the Respondent: Advocate PJ Coetzee and Advocate 

SM Galloway instructed by The State 

Attorney, Pretoria. 

For the Amicus Curiae: Advocate A Skelton instructed by the 

Centre for Child Law. 

Curator ad Litem: Advocate R Paschke. 


5 

10 

15 

20 

25 

IN THE HIGH COURT OF SOUTH AFRICA 

(EASTERN CAPE DIVISION) 

GRAHAMSTOWN 

1 

SENTENCE 

CASE NO. : CC12/2007 DATE : 26 SEPTEMBER 2007 

THE STATE versus: MLANDELI DAYIMANI 

MATTHEE AJ : 

SENTENCE 

Given time constraints and the need for finality in this matter I 

have decided to give an ex tempore judgment. 

In the present case the Accused has been convicted of raping 

a 7 year old girl and I am faced with the difficult task of 

deciding what an appropriate sentence is. In this regard, 

because the victim was 7 years old at the time of the rape, I 

am compelled to impose a life sentence on the Accused unless 

I find substantial and compelling circumstances which justify 

the imposition of a lesser sentence. 

In arriving at a conclusion on whether or not a lesser sentence 

is justified I need to be mindful of the following extract from 

the matter of S v MALGAS 2001(2) SA 1222 SCA at page 1235 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

opposite G: 

2 

SENTENCE 

“Courts are required to approach the imposition of sentence 

conscious that the Legislature has ordained life imprisonment 

…as the sentence that should ordinarily and in the absence 

of weighty justification be imposed for the list of crimes in the 

specified circumstances.” 

Furthermore, in deciding whether or not there is weighty 

justification for a lesser sentence I also must be mindful of a 

further extract from MALGAS supra at page 1231 opposite C : 

“But for the rest I can see no warrant for deducing that the 

Legislature intended a court to exclude from consideration … 

any or all of the many factors traditionally and rightly taken 

into account by courts when sentencing offenders. The use 

of the epithets ‘substantial’ and ‘compelling’ cannot be 

interpreted as excluding even from consideration any of those 

factors…. What they are apt to convey is that the ultimate 

cumulative impact of those circumstances must be such as to 

justify a departure. It is axiomatic in the normal process of 

sentencing that, while each of a number of mitigating factors 

when viewed in isolation may have little persuasive force, 

their combined impact may be considerable. Parliament 

cannot have been ignorant of that. There is no indication in 

the language it has employed that it intended the enquiry into 

the possible existence of substantial and compelling 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

3 

SENTENCE 

circumstances justifying a departure, to proceed in a radically 

different way, namely by eliminating at the very threshold of 

the enquiry one or more factors traditionally and rightly taken 

into consideration when assessing a sentence. None of 

those factors have been singled out either expressly or 

impliedly for exclusion from consideration.” 

With this in mind I turn now to the personal circumstances of 

the Accused, the nature of the crime and the interest of the 

community. 

The personal circumstances of the Accused 

He is 35 years old. He obtained a Standard 2 at school. He 

grew up in a poor family. Since he left school he has had a 

range of jobs including that of being a taxi driver, a builder 

and a motor mechanic. Despite his impoverished background 

and limited education he has always been able to support 

himself and of late two of his children and his mother. At this 

stage he has three children aged 9, 7 and 1 and a half years 

old. In the past 10 years or so he has on a reasonably 

consistent basis lived with the mother of two of his children. 

He has always tried to take care of his family. He is deeply 

concerned about the future of his children if he went to prison, 

especially as to who would pay their school fees. He is a 

member of the Apostolic Church and attends church regularly. 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

4 

SENTENCE 

Mr Renaud argued that if one has regard to his background 

and his employment record and his commitment to his children, 

this all suggests a certain strength of character which Mr 

Renaud argued increased the chances of his rehabilitation. 

Although the Accused has a number of previous convictions 

the State did not ask me to take these previous convictions 

into consideration given the nature of the present offence. I 

am of the opinion that this was a correct concession by the 

State and for purposes of sentence in the present matter I will 

treat the Accused as a first offender. 

Finally, as regards remorse, the Accused has shown no 

remorse. 

I now turn to the nature of the crime. 

The victim was 7 years old when she was raped by the 

Accused. Given that fact on its own, it is difficult to imagine a 

more heinous crime. Added to this is the evidence that the 

Accused lured the victim into his house under the guise of 

asking her and her friend to help him carry a bag of potatoes 

into the house where he raped her. Thereafter the Accused 

pulled her into a bedroom where he raped her. 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

5 

SENTENCE 

The Accused persisted with his actions notwithstanding the 

victim’s friend of 11 on two occasions trying to help her. 

Firstly, she tried to pull the victim away from the Accused 

when the Accused pulled her into the bedroom. Secondly, the 

victim’s friend knocked on the door of the house saying that 

the victim’s mother was looking for her. The Accused was 

unmoved by these attempts to help the victim and continued 

with his behaviour. 

The victim also testified that she cried from pain when the 

Accused was raping her. Once again the Accused was 

unmoved. After he had raped her he threatened to stab her if 

she told anyone about the rape. He then cynically gave her 

money to go and buy cooldrink. 

Mr Renaud highlighted that that there was evidence of some 

alcohol consumption on the day by the Accused. 

Mr Renaud also argued that although rape is always serious, in 

the light of various court decisions, including decisions of the 

Supreme Court of Appeal, I have to take cognisance of the 

severity of the physical damage to the victim when deciding on 

an appropriate sentence. He argued that the medical evidence 

was that the victim’s physical injuries relatively speaking were 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

6 

SENTENCE 

not serious. Such injuries were limited to some bruising and 

swelling and the penetration was relatively superficial. 

Elaborating on his evidence in this regard, the doctor testified 

that in the case of a virgin contact with the hymen by a penis 

will be painful and would result in bruising and swelling and 

also a spasm which would make full penetration more difficult. 

The same authorities referred to by Mr Renaud also state that I 

must have regard to the long-term emotional and psychological 

effects on the victim when deciding whether or not there are 

substantial and compelling circumstances present which justify 

a sentence less than life. 

In this regard the State called a Clinical Psychologist, Ms 

Karen Andrews. At the end of her assessment she arrived at 

the following conclusions. 

Her first conclusion was that it “appears that currently 

Nolusindiso is coping with the impact of the sexual abuse by 

consciously trying to avoid that it occurred. She is unable to 

tolerate thinking about the sexual abuse. This indicates that 

she is uncomfortable experiencing herself in the victim role 

and that she is at a loss as to how to deal with the 

experience.” 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

7 

SENTENCE 

Secondly, “while the vegetative symptoms of depression have 

lifted since the last assessment she appears to be attempting 

to control her depression by unconsciously masking/hiding 

them. As such, these symptoms have become repressed from 

consciousness. However, they remain unresolved.” 

Thirdly, “she has become increasingly aggressive and she is 

now self - destructive, typical long-term maladaptive responses 

to sexual abuse.” 

I then move on to the fourth conclusion that she highlighted in 

her report marked “I” which was handed in by the State. “As a 

consequence of the sexual abuse, Nolusindiso is paying the 

price of being sexually abused by becoming a bully herself. 

However, underlying her aggression, are strong feelings of 

hurt and sadness, and a sense of self that is tenuous at best. 

Fifthly, “the above coping mechanisms preoccupy her 

psychology to the extent that cognitive functioning and age - 

related maturation are problematic.” 

Sixthly, “moreover, a strong sign that all is not well with 

Nolusindiso and that a trauma has occurred is evidenced in her 

consistent hysterical overreaction to normal disciplinary 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

measures.” 

8 

SENTENCE 

Seventhly, “in terms of the above Nolusindiso’s emotional and 

psychological state has worsened since her assessment of 17 th 

of October 2006 and 6 th of February 2007.” 

In addition to these conclusions, Ms Andrews expressed the 

opinion that if the victim did not receive appropriate treatment, 

by the age of 18 certain behavioural patterns could have 

become so entrenched that it could become a personality 

disorder. She also testified that given the victim’s response to 

her rape, more particularly her failure to appreciate danger, for 

example by coming home late at night and not telling people 

where she has been, she is in danger of being raped again. In 

this regard she testified that people with evil intent could pick 

up the victim’s vulnerability and exploit it. 

In summary she testified that if untreated the long-term 

prognosis for the victim was very poor. 

Under cross-examination she testified that if the victim 

received intensive psychotherapy for 2 to 3 years the 

prognosis in effect would be more positive. However, there 

would always be a scar as a result of the rape. 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

9 

SENTENCE 

There was no evidence before me to indicate what the chances 

of the victim were of in fact receiving such intensive 

psychotherapy. In arriving at these conclusions she amongst 

other things had regard to two earlier assessments which were 

conducted by another psychologist 

At this juncture I would note that as regards the need for this 

Court to have regard to the consequences of a rape on a victim 

I am in respectful agreement with the sentiments expressed by 

Satchwell J in the matter of S v M 2007(2) SA Criminal Law 

Reports, page 60, more specifically at page 88 paragraphs 98 

through to 102. I read some extracts from paragraphs 98, 99 

and 101 : 

“As enjoined to do by the Supreme Court of Appeal I have 

paid careful regard to the ‘impact’ of the rapes upon N. 

However, I have some concern that it is not possible at the 

time of and in the course of a criminal trial to fully ascertain 

the after- effects of these experiences.” 

The learned Judge continues at paragraph 99 : 

“Furthermore, the responses of rape survivors are surely as 

complex and multi - layered as are the individuals who 

experience rape. We must therefore expect the 

manifestations of the impact of rape to be varied in every 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

10 

SENTENCE 

respect. Some responses will be publicly displayed and 

others privately endured. Some rape survivors will collapse 

while others will bravely soldier on.” 

And then finally at paragraph 101 : 

“It would seem that sentencing courts are expected to view 

rape as ‘more serious’ where a rape survivor cannot sleep, 

fears men and sex, is unable to concentrate and cannot 

complete school, or has a career or relationships destroyed. 

If this is so, then other rape survivors may question why their 

rapes are viewed as ‘less serious’ because they may have 

been fortunate or privileged enough to receive professional 

assistance, be endowed with different personalities and 

psyches, exhibit fewer post-traumatic effects, and so on. The 

Legislature does not seem to have intended the rapist to be 

less morally and legally blameworthy because the rape 

survivor appears to or actually does survive, or continues life 

with less apparent trauma.” 

I now turn to the needs of the community. 

At the request of the Court the evidence of Senior 

Superintendent Krause from the Criminal Crime Information 

Analysis Centre was placed before the Court. 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

11 

SENTENCE 

From this Court’s own experience of presiding at rape trials I 

was of the opinion that rape, not least of all the rape of girls, 

had become a problem in our community. Superintendent 

Krause’s evidence conclusively revealed that this Court’s 

opinion that rape had become a problem was a grave 

understatement of the situation and that a more appropriate 

word would be a plague. 

I will now highlight some of this evidence. Between 2001 and 

2006 there were 269 491 rape complaints submitted to the 

South African Police Services. This is an average of about 54 

000 per year. This figure represents only the cases where 

reports have actually been made to the South African Police 

Services. The national percentage increase of official reports 

to the South African Police Services from 2001 / 2002 year to 

the 2005 / 2006 year was 1.2 %. That is close on two more 

alleged rapes per day in 2005/2006 than in 2001/2002. 

More disturbing and indeed frightening for the community and 

particularly for the women of the Eastern Cape, and might I 

add also for all the fathers in the Eastern Cape, was that the 

increase in the same period in the Eastern Cape was 32.6 % 

as compared to the national increase of 1.2 %. 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

12 

SENTENCE 

I now turn to the Eastern Cape, more particularly the 

Grahamstown Policing area. The Grahamstown Policing area 

does not include the two biggest centres, population wise, in 

the Eastern Cape, namely the Nelson Mandela Metropole and 

the East London/Mdantsane/KWT/Zwelitsha area. The 

Grahamstown Policing area consists of Grahamstown and a 

number of surrounding towns. 

In this Grahamstown Policing area during the period January 

2005 to June 2007 there were 1 277 reports of rape. That 

is approaching two such reports a day on average. Of these 

308 involved girls younger than 15, nearly a quarter of the 

overall figure for the Grahamstown Policing area. Of these 

308, 182 were girls between 11 and 15. 72 were girls 

between 6 and 10 and 54 were girls younger than 5. 

Thus on average about every third day during the past 2 

and a half years in the Grahamstown Policing area there 

has been a report to the South African Police Services of 

the rape of a girl 15 and younger. Another frightening 

conclusion is that on average every about 16 days in this 

period there has been such a rape report involving a girl of 

5 years and younger. 

And here it must be emphasised that these figures only 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

13 

SENTENCE 

represent matters which were in fact reported to the South 

African Police Services. I accept that there would be a certain 

lie factor in these statistics but have no doubt that such lie 

factor would be outweighed by the many matters of rape which 

never are reported. 

In this regard a truly frightening piece of evidence given by 

Superintendent Krause was that in 2005 / 2006 in the 

Eastern Cape only 36 % of these reported matters reached 

the Courts and of those there was only a conviction rate of 

5.9 %. These figures were even worse for the period 

January through to June 2007 in that only just over 28 % of 

these matters came to Court and there was only a 3.6 % 

conviction rate. 

Given such statistics, it is easy to see why some women would 

not want to put themselves through the ordeal of reporting 

their rape and the ensuing trial. 

I have an aversion for adjectives and exaggeration, but in 

the light of the statistics highlighted above I can without 

fear of contradiction state that our Province and indeed 

our Country faces an evil of gigantic proportions 

especially when it comes to the barbaric dehumanisation 

and brutalisation of girl children by means of rape. 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

20 

25 

14 

SENTENCE 

Children and in the present case particularly girls, are one of 

the few groups of individuals targeted specifically for 

protection in the Bill of Rights. In assuming office as a Judge 

I have taken an oath to uphold this Bill of Rights. I thus have 

an obligation before God to protect all girls in this country and 

to play my role in making sure they are safe. 

Furthermore, if the courts are not seen by the community to be 

saying so far and no further as regards rape, particularly the 

rape of young girls, the Rule of Law itself will be brought into 

jeopardy as in such a scenario outraged communities will be 

tempted to take the law into their own hands. 

This obviously is not to say that at the end of the day the 

various considerations applicable to sentencing must not be 

balanced before a final decision is taken about an appropriate 

sentence. 

The decision to send a man to jail for life or to a very long 

term of imprisonment is not an easy one and has weighed 

heavily on me in this matter. I have carefully assessed all of 

the factors I have highlighted above and the arguments of Mr 

Renaud before arriving at a decision about whether or not in 

the present matter substantial and compelling circumstances 

CC12/2007/JC/26-09-2007 /… 


5 

10 

15 

exist which permit me to give a sentence less than life. 

15 

SENTENCE 

I am of the opinion that no such circumstances exist in the 

present matter. I might add that even if I was not faced with a 

minimum sentencing provision, in the present matter exercising 

my discretion I would still have imposed the maximum 

sentence on the Accused. 

In the result I sentence the Accused to life imprisonment. 

K MATTHEE 

ACTING JUDGE OF THE HIGH COURT 

CC12/2007/JC/26-09-2007 /… 






REPORTABLE 

Case number: 245/2001 

GEORGE RAMMOKO Appellant 

and 

DIRECTOR OF PUBLIC PROSECUTIONS Respondent 

CORAM: HOWIE, FARLAM and MPATI JJA 

HEARD: 19 SEPTEMBER 2002 

DELIVERED: 15 NOVEMBER 2002 

Rape – minimum sentencing legislation, Act 105 of 1997 – role of presiding officer in 

relation to finding of substantial and compelling circumstances. 

___________________________________________________________________ 

JUDGMENT 

__________________________________________________________________ 

MPATI JA: 


2 

[1] The appellant appeals against a sentence of life imprisonment imposed on him 

for the rape of a 13½ year old girl. He stood trial in the regional court sitting at 

Welkom and was convicted on 6 April 1999. The rape was perpetrated on 23 

September 1998, almost four months of the minimum sentencing provisions of the 

Criminal Law Amendment Act 105 of 1997 (‘the Act’) having come into force on 1 

May 1998. Since the complainant was under the age of 16 years a sentence of 

imprisonment for life had to be imposed on the appellant (s51(1)) unless substantial 

and compelling circumstances existed which justified the imposition of a lesser 

sentence (s51(3)). The regional magistrate accordingly committed the appellant for 

sentence in the High Court. 

[2] On 12 August 1999 Cillie J (in the Orange Free State Provincial Division), 

having satisfied himself that the appellant’s conviction was in order, confirmed it 

(s52(2)(b)). No evidence was led before him and after argument was presented by 


3 

counsel, both in mitigation and aggravation of sentence, Cillie J concluded that no 

substantial and compelling circumstances were present. He duly sentenced the 

appellant to imprisonment for life. The learned Judge subsequently (on 26 November 

1999) granted the appellant leave to appeal to this Court against the sentence, for the 

reason that ‘`n ander Hof tot `n ander bevinding , ten aansien van die vraag of the 

sogenaamde wesenlike en dringende omstandighede in die onderhawige geval 

aanwesig is, kan kom as dít waartoe ekself gekom het’. 

[3] In considering the question of the existence or otherwise of substantial and 

compelling circumstances Cillie J referred to his earlier judgment in S v Shongwe 1999 

(2) SACR 220 (O), in which he approved as being correct the interpretation given by 

Stegmann J to the concept of ‘substantial and compelling’ circumstances in S v 

Mofokeng 1999 (1) SACR 502 (W). In the latter case the learned Judge held that ‘for 

substantial and compelling circumstances to be found, the facts of the particular case 


4 

must present some circumstance that is so exceptional in its nature, and that so 

obviously exposes the injustice of the statutorily prescribed sentence in the particular 

case, that it can rightly be described “compelling” the conclusion that the imposition of 

a lesser sentence than that prescribed by Parliament is justified’ (at 523 c-d). Cillie J 

accordingly said, in the present matter, ‘dat wesenlike en dwingende omstandighede 

darem iets meer moet wees as die gewone versagtende omstandighede en werklik iets 

moet wees wat die oplegging van `n mindere vonnis inderdaad noodsaak ten einde `n 

onreg teenoor die beskuldigde te voorkom’. After a brief reference to the appellant’s 

personal circumstances and the circumstances under which the rape was committed the 

learned Judge said: 

‘Ek meen nie dat hierdie `n geval is waar gesê kan word dat elke 

regdenkende en ervare vonnisoplegger die oplegging van die 

voorgeskrewe vonnis as `n skokkende onreg teenoor die beskuldigde sal 

aanvoel nie.’ 

In this regard Cillie J had in mind what he said in S v Shongwe, supra, that ‘indien die 


5 

wetlik voorgeskrewe vonnis sodanig verskil van die vonnis wat andersins deur `n 

ervare en gebalanseerde vonnisoplegger as gepas beskou sou word dat die oplegging 

van die wetlik voorgeskrewe vonnis tot `n skokkende onreg teenoor die beskuldigde 

sou lei daardie feit wel wesenlik en dwingend die nie-oplegging van die wetlik 

voorgeskrewe vonnis regverdig’. 

[4] In S v Malgas 2001 (1) SA 1222 (SCA); 2001 (1) SACR 469 (SCA), this Court 

held that the imposition of the prescribed sentence need not amount to a shocking 

injustice (‘skokkende onreg’) before a departure from it is justified. That such a 

sentence would be an injustice is enough (para [23]). The suggestion that for 

circumstances to qualify as substantial and compelling they must be exceptional was 

also rejected (paras [10], [30] and [31]). It follows that the interpretation given by 

Cillie J to the concept ‘substantial and compelling’ circumstances is erroneous and 

amounts to a misdirection. This Court is thus at large to consider the question of 


sentence afresh. 

[5] The regional magistrate’s factual findings were not challenged on appeal. They 

are fairly straight forward. The complainant lived with her grandfather in Lusaka Park, 

Theunissen. After she had returned from school (she was in Grade 4) during the 

afternoon of 23 September 1998 she played outside her home with two young boys and 

a young girl. She was then called by the appellant, whose house was right behind her 

home. He was known to her. When she entered his house the appellant closed the 

door. There was no-one else inside. He grabbed hold of her hands and took off his 

leather belt from his waist while ordering her not to scream. Because she was shocked 

she screamed, whereupon he struck her a number of times on her back with the belt. 

He pushed her onto a bed so that she lay on her back. As she was still screaming he 

covered her mouth with one hand and with the other removed her panties completely. 

She was wearing a skirt and a blouse. The appellant opened the zip of his trousers and 


6

7 

thereafter had full sexual intercourse with her. After he had done his deed she put on 

her panties and went home. When her grandfather returned from work later that 

afternoon she reported to him that the appellant had raped her. Her grandfather 

requested a female visiting family friend to examine her. The family friend obliged 

and confirmed to him that there was semen on the complainant’s panties. She did not, 

however, conduct a physical examination on the person of the complainant. A 

complaint was thereafter made to the police. 

[6] On 24 September 1998 the complainant was examined by Dr Hendrik Willem 

Storm, who testified that the complainant had at least five weals on her back as though 

she had been struck with a sjambok. Because of her age he examined her superficially. 

He did not examine her internally, but found that she had a bruise (‘velbars’) on her 

genitalia, externally. From this he concluded that it was probable that there had been 

penetration. He also found that the hymen had been perforated previously and 


8 

concluded from this that the complainant had been penetrated before, but not within the 

two weeks preceding his examination of her. When it was put to him that the 

complainant had testified that she bled from her genitalia as a result of the rape Dr 

Storm said that she would have bled from the bruise. 

[7] Except for the regional magistrate’s observation that the complainant ‘`n 

skraalgeboude en anatomies onderontwikkelde dogter is’ and that she was ‘nog pure 

kind in houding en in voorkoms’, as well as the complainant’s testimony that she felt 

pain inside her vagina during the rape, there was no further investigation pertaining to 

the after-effects the ordeal has had or will have on the complainant in the future. 

[8] As to the appellant, he was 34 years old at the time of the trial. He testified that 

he lived with the complainant’s maternal aunt as his wife, but that they had separated at 

the time of the commission of the offence. He had no fixed employment. He had 

progressed only to standard one at school. He had one previous conviction of theft for 


which he was sentenced, in 1991, to a fine of R100 or two months’ imprisonment. 

[9] From a perusal of the record in this matter one cannot but conclude that the case 

for the State was presented casually, both in the regional court and in the court a quo. 

As I have already stated no evidence was led before Cillie J. The evidence reveals that 

following the rape the complainant’s grandfather sent the complainant away to live 

with her mother. Her mother was called as a witness but was never asked how and to 

what extent the complainant had been affected by the rape. Dr Storm was never 

invited to comment on the likely effect the ordeal will have on the complainant as she 

grew older. As to her post-rape condition the sum total of the complainant’s evidence 

is the following: 

‘Q [H]ierdie voorval wat die beskuldigde of dit wat die beskuldigde 

aan jou gedoen het. Hoe ervaar jy dit, ek sien jy het netnou begin 

huil, hoe ervaar jy dit, kan jy vir ons dit in woorde uitdruk, is dit 

reg wat hy gedoen het? 

A Nee, dit is nie reg nie. 

Q Maar, kom ek vra vir jou so, slaap jy gemaklik, beweeg jy maklik 


9

10 

tussen maatjies, seuns na hierdie voorval of hoe ervaar jy dit, of 

gaan jy normal voort? 

A Ek slaap normaal, ek kon nog met my vriende kommunikeer.’ 

[10] Apart from the fact that these are multiple questions directed at a 14 year old girl 

(she was 14 at the time of the trial) the answers illicited are not surprising. What more 

could have been expected? 

[11] Prior to the Act coming into force the High Courts were free, in the exercise of 

their discretion, to impose sentences of life imprisonment. But the very fact that the 

legislation has been enacted indicates that Parliament was not content with that and that 

it was no longer to be ‘business as usual’ when sentencing for the commission of the 

specified crimes (here rape) (Malgas, supra, para [7]). 

‘[A] Court was not to be given a clean slate on which to inscribe 

whatever sentence it thought fit. Instead, it was required to approach that 

question conscious of the fact that the legislature has ordained life 

imprisonment or the particular prescribed period of imprisonment as the 

sentence which should ordinarily be imposed for the commission of the 

listed crimes in the specified circumstances. In short, the Legislature 


11 

aimed at ensuring a severe, standardized, and consistent response from 

the courts to the commission of such crimes unless there were and could 

be seen to be, truly convincing reasons for a different response. When 

considering sentence the emphasis was to be shifted to the objective 

gravity of the type of crime and the public’s need for effective sanctions 

against it.’ 

(Per Marais JA in Malgas, para [8].) 

[12] For the rape of a girl under the age of 16 years (as in the present case) the 

prescribed sentence is life imprisonment. However, the court’s discretion to impose a 

different sentence has not been eliminated by the Act, but in the absence of weighty 

justification the prescribed sentence must be imposed (Malgas, para [25]). In the 

matter of The State v Boesman Mahomotsa (case number 85/2001, 31 May 2002, yet to 

be reported), a case where the respondent, a 23 year old man, had raped two 15 year 

old girls, I had occasion to say the following: 

‘[17] The rapes that we are concerned with here, though very serious, 

cannot be classified as falling within the worst category of rape. 

Although what appeared to be a firearm was used to threaten the 


12 

complainant in the first count and a knife in the second, no serious 

violence was perpetrated against them. Except for a bruise to the second 

complainant’s genitalia no subsequently visible injuries were inflicted on 

them. According to the probation officer – she interviewed both 

complainants – they do not suffer from any after-effects following their 

ordeals. I am sceptical of that but the fact remains that there is no 

positive evidence to the contrary. These factors need to be taken into 

account in the process of considering whether substantial and compelling 

circumstances are present justifying a departure from the prescribed 

sentence.’ 

What emerges from this is that the fact that a victim may be under the age of 16 years 

is not the only criterion necessary for the imposition of a sentence of life 

imprisonment. Further in the Boesman Mahomotsa case: 

‘Even in cases falling within the categories [of rape] delineated in the Act 

there are bound to be differences in the degree of their seriousness. There 

should be no misunderstanding about this: they will all be serious but 

some will be more serious than others and, subject to the caveat that 

follows, it is only right that the differences in seriousness should receive 

recognition when it comes to the meting out of punishment. As this Court 

observed in S v Abrahams 2002 (1) SACR 116 (SCA) “some rapes are 

worse than others and the life sentence ordained by the Legislature should 

be reserved for cases devoid of substantial factors compelling the 


13 

conclusion that such a sentence is inappropriate and unjust” (para 29).’ 

The objective gravity of the crime, therefore, plays a role, indeed an important role. 

[13] Life imprisonment is the heaviest sentence a person can be legally obliged to 

serve. Accordingly, where s51(1) applies, an accused must not be subjected to the risk 

that substantial and compelling circumstances are, on inadequate evidence, held to be 

absent. At the same time the community is entitled to expect that an offender will not 

escape life imprisonment – which has been prescribed for a very specific reason – 

simply because such circumstances are, unwarrantedly, held to be present. In the 

present matter evidence relating to the extent to which the complainant has been 

affected by the rape and will be affected in future is relevant, and indeed important. 

Such evidence could have been led from the complainant’s mother, her school teacher 

or a psychologist. No attempt was made to do so. 

[14] And the placing of this important information before the sentencing court is not 


14 

the responsibility of State counsel alone. The presiding officer, who must satisfy 

himself before imposing the prescribed sentence that no substantial and compelling 

circumstances are present, also bears some responsibility. Van der Walt J, in S v 

Dlamini 2000 (2) SACR 266 (T), correctly sums up the position, when he says (at 268 

d-e): 

‘Die Hof wat vonnis oplê in `n strafsaak neem `n aktiewe rol in die 

verhoor en sit nie net passief by waar getuienis gelei word nie. Inderdaad 

bepaal art 186 van die Strafproseswet 51 van 1977 dat die hof kan op 

enige stadium van strafregtelike verrigtinge iemand as `n getuie by 

daardie verrigtinge dagvaar of laat dagvaar en die hof moet `n getuie 

aldus laat dagvaar indien die getuienis van so `n getuie vir die hof blyk 

noodsaaklik te wees vir die regverdige beregting van die saak.’ 

In the present case nothing prevented the court a quo from directing, for example, 

that the complainant be interviewed by a psychologist or other appropriately qualified 

or trained person to establish the effects of the rape on her, present and future. 

[15] Although this Court is at large, by reason of the misdirections mentioned earlier 


15 

in this judgment, to consider sentence afresh, it cannot be in the interests of justice to 

do so in this matter in view of what has been discussed above. It would be proper, in 

my view, to remit the matter to the court a quo for reconsideration of the sentence. 

The following order is made: 

1. The appeal succeeds to the extent that the sentence of life imprisonment imposed 

on the appellant is set aside. 

2. The matter is remitted to the court a quo for re-consideration of the question of 

sentence and to do so in line with what has been set out above. 

HOWIE JA) 

FARLAM JA) 

CONCUR: 

…………………... 

L MPATI JA 


CONSTITUTIONAL COURT OF SOUTH AFRICA 

Case CCT 1/01 

BUZANI DODO Applicant 

versus 


Heard on : 22 March 2001 

Decided on : 5 April 2001 

ACKERMANN J: 

Introduction 

JUDGMENT 

[1] This case concerns the constitutional validity of the provisions of section 51(1) 

of the Criminal Law Amendment Act, 105 of 1997 (the Act). This section in effect 

makes it obligatory for a High Court to sentence an accused, convicted of offences 

specified in the Act, to imprisonment for life unless, under section 51(3)(a), the court is 

satisfied that “substantial and compelling circumstances” exist which justify the 

imposition of a lesser sentence. 


2 

ACKERMANN J 

[2] The Eastern Cape High Court (the High Court) declared the section in question 

to be constitutionally invalid, because it was inconsistent with section 35(3)(c) of the 

Constitution, which guarantees to every accused person “a public trial before an ordinary 

court” and was also inconsistent with the separation of powers required by the 

Constitution. This order serves before this Court for confirmation under the provisions 

of section 172(2) of the Constitution. The applicant, who had been convicted in the High 

Court of murder, under circumstances which made the provisions of section 51(1) of the 

Act applicable to him, supports confirmation. The State, through the office of the 

National Director of Public Prosecutions, opposes confirmation. 

[3] Section 51(1) of the Act provides that – 

“[n]otwithstanding any other law but subject to subsections (3) and (6), a High Court shall, 

if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the 

person to imprisonment for life.” 

Subsection 3(a) provides that – 

“[i]f any court referred to in subsection (1) or (2) is satisfied that substantial and 

compelling circumstances exist which justify the imposition of a lesser sentence than the 

sentence prescribed in those subsections, it shall enter those circumstances on the record 

of the proceedings and may thereupon impose such lesser sentence.” 

Under subsection 5 the operation of a sentence imposed in terms of the section may not 

be suspended as contemplated in section 297(4) of the Criminal Procedure Act 51 of 


3 

ACKERMANN J 

1977 (the CPA). Subsections 3(b) and 6 are not presently relevant. One of the offences 

referred to in Part I of Schedule 2 to the Act is: 

“Murder, when – 


(b) the victim was – 

(i) a law enforcement officer performing his or her functions as 

such, whether on duty or not; or 

(ii) a person who has given or was likely to give material evidence 

with reference to any offence referred to in Schedule 1 to the 

Criminal Procedure Act, 1977 (Act 51 of 1977), at criminal 

proceedings in any court; 

(c) the death of the victim was caused by the accused in committing or 

attempting to commit or after having committed or attempted to commit 

one of the following offences: 

(i) Rape; or 

(ii) robbery with aggravating circumstances; or 

(d) the offence was committed by a person, group of persons or syndicate 

acting in the execution or furtherance of a common purpose or 

conspiracy.” 

The High Court Judgment 

[4] Smuts AJ, in the course of his careful judgment in the High Court, came to the 

conclusion that he was obliged to consider the constitutionality of section 51(1) because 

- 

4.1 the offence of murder, being one of the offences of which he had convicted the 

applicant, had been committed under circumstances which brought it within the 

provisions of Part I of Schedule 2, namely murder committed under the 


circumstances detailed in paragraph (c)(i) thereof; 

4 

ACKERMANN J 

4.2 if he were not bound by the provisions of section 51(1) he would have imposed 

a sentence other than life imprisonment; 

4.3 on his construction of the phrase “substantial and compelling circumstances” – 

“the discretion to depart from the imposition of a mandatory life sentence arises 

when such sentence would occasion a shocking injustice ... would be ‘grossly 

disproportionate’ to the crime committed or ‘startlingly inappropriate’ or the Court 

forms the view that such sentence is ‘offensive to its sense of justice’ ... or when 

such sentence is ‘disturbingly inappropriate’” (citations omitted); 

4.4 if he were bound by the provisions he “would be obliged to impose a sentence of 

life imprisonment”, it being implicit in the phrase quoted, and expressly stated 

elsewhere in the judgment that he did not consider the circumstances relating to 

the murder count on which the applicant had been convicted to be “substantial 

and compelling” so as, on his construction of section 51(3)(a), to warrant the 

imposition of a lesser punishment. 

[5] The finding referred to in paragraph 4.1 above was not challenged or questioned 

in this Court and for purposes of the present judgment it must be accepted as correct. 

There is a close link between the judge a quo’s reasons for finding that the section is 

inconsistent with the constitutional separation of powers and his finding that it constitutes 

an unjustifiable limitation of section 35(3)(c) of the Constitution. 


5 

ACKERMANN J 

[6] Dealing with the latter provision of the Constitution he observed, in the course of 

his judgment, that “[s]entencing is pre-eminently the prerogative of the courts”, that the 

section of the Act in question “constitutes an invasion of the domain of the Judiciary not 

by the Executive, but by the Legislature”, and that a criminal trial before an ordinary 

court requires, among other things, “an independent court which is empowered ... in the 

event of a conviction, to weigh and balance all factors relevant to the crime, the accused 

and the interests of society before the imposition of sentence.” What was new about the 

“trial envisaged by s 51(1) of the Act,” Smuts AJ held, is that “an accused convicted of 

a serious charge before the High Court, unless the Court is satisfied that substantial and 

compelling circumstances exist which justify the imposition of a lesser sentence, faces 

a life sentence which was decided upon before the commencement of the trial, not by the 

Court itself, but by the Legislature.” This, the learned judge further found, in truth 

directs the High Court “to consider principles more relevant to the functions of a court 

of appeal when dealing with the issue of sentence.” He concluded that this – 

“... is not a trial before an ordinary court ... [but] ... a trial before a court in which, at the 

imposition of the prescribed sentence, the robes are the robes of the judge, but the voice 

is the voice of the Legislature.” 

The judge consequently found that “[s]uch a trial ... constitutes a limitation of ... [t]he 

fair trial envisaged in section 35(3)(c) of the Constitution” which could not be justified 

under section 36 thereof. 


1 

ACKERMANN J 

[7] In dealing with the separation of powers, the High Court reviewed the major 

judgments of this Court on the issue and referred to the First Certification Judgment, 1 

and the judgments in Bernstein, 2 De Lange v Smuts, 3 and Heath, 4 relying upon the 

following passages from the last-mentioned case: 

2 

3 

4 

“[23] [ ... T]here is a clear though not absolute separation between the legislature and the 

executive on the one hand, and the courts on the other ... . 

[25] [...] Parliament and the provincial legislatures make the laws but do not implement 

them. The national and provincial executives prepare and initiate laws to be placed before 

the legislatures, implement the laws thus made, but have no law-making power other than 

that vested in them by the legislatures. [...] Under our Constitution it is the duty of the 

courts to ensure that the limits to the exercise of public power are not transgressed. 

Crucial to the discharge of this duty is that the courts be and be seen to be independent. 

[26] The separation required by the Constitution between the legislature and executive on 

the one hand, and the courts on the other, must be upheld otherwise the role of the courts 

as an independent arbiter of issues involving the division of powers between the various 

spheres of government, and the legality of legislative and executive action measured against 

the Bill of Rights, and other provisions of the Constitution, will be undermined. The 

Constitution recognises this and imposes a positive obligation on the State to ensure that 

this is done. It provides that courts are independent and subject only to the Constitution 

and the law which they must apply impartially without fear, favour or prejudice. No organ 

of State or other person may interfere with the functioning of the courts, and all organs of 

In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 

(CC); 1996 (4) SA 744 (CC) paras 106-13 and 123. 

Bernstein and Others v Bester NO and Others 1996 (4) BCLR 449 (CC); 1996 (2) SA 751 (CC) para 

105. 

De Lange v Smuts NO and Others 1998 (7) BCLR 779 (CC); 1998 (3) SA 785 (CC) paras 60-1. 

South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) BCLR 77 (CC); 

2001 (1) SA 883 (CC) paras 23-6. 

6 


5 

Above n 3 para 61. 

7 

ACKERMANN J 

State, through legislative and other measures, must assist and protect the courts to ensure 

their independence, impartiality, dignity, accessibility and effectiveness.” (footnotes 

omitted) 

[8] The High Court’s reasons for coming to the conclusion that the provisions of 

section 51(1) of the Act “undermine the doctrine of separation of powers and the 

independence of the judiciary” and are inconsistent therewith are summarised in the 

judgment, borrowing the terminology used in De Lange v Smuts, 5 as follows: 

“A sentence of imprisonment for life, irrespective of the policies and procedures to which 

such sentence may be subjected by the Department of Correctional Services, must be 

regarded by the Court imposing it as having the potential consequence, at the very least, 

that the accused so sentenced will indeed be incarcerated until his death. It is an extreme 

sentence. It is the most severe sentence which may lawfully be imposed on an accused 

such as the one now before Court. It is a sentence which, in the ordinary course, requires 

a meticulous weighing of all relevant factors before a decision to impose it can be justified. 

[... W]hatever the boundaries of separation of powers are eventually determined to be, the 

imposition of the most severe penalty open to the High Court must fall within the exclusive 

prerogative and discretion of that Court. It falls within the heartland of the judicial power, 

and is not to be usurped by the Legislature.” 

[9] Although expressly limiting the grounds for the High Court’s declaration of 

invalidity to the two referred to in paragraph 2 above, the learned judge made certain 

comments concerning the inconsistency of the section with the right to dignity, 

guaranteed by section 10 of the Constitution, to the effect that the operation of the 


6 

ACKERMANN J 

section was “inimical to a society in which human dignity is cherished” and “constitutes 

an affront to the human dignity not only of those who may suffer because of its 

application ... [but also] ... to the dignity of those in whose name this procedure is 

sanctioned.” I will revert to the matter of dignity later in this judgment. 

The construction of section 51(1) read with section 51(3)(a) of the Act 

[10] The construction of the phrase “substantial and compelling circumstances” in 

section 51(3)(a) goes to the heart of these issues. The existence of these circumstances 

permits the imposition of a lesser sentence than the one prescribed. Establishing its true 

meaning has proved to be intractably difficult and has led to a series of widely divergent 

constructions in the High Courts. Some have severely limited the sentencing discretion 

to “unusual and exceptional” factors, 6 others to cases of “gross disproportionality” 7 

while others have left the normal sentencing discretion virtually unaffected. 8 

7 

8 

For example, S v Mofokeng and Another 1999 (1) SACR 502 (W) 522i-523c; S v Segole and Another 

1999 (2) SACR 115 (W) 122h-123h; S v Zitha and Others 1999 (2) SACR 404 (W) 407i-411h; S v 

Budaza 1999 (2) SACR 491 (E) 503g-504e; S v Boer en Andere 2000 (2) SACR 114 (NC) 121d-122a. 

For example, S v Shongwe 1999 (2) SACR 220 (O) 223a-224c; S v Blaauw 1999 (2) SACR 295 (W) 

311e-312h; S v Dithotze 1999 (2) SACR 314 (W) 317h-318h; S v Homareda 1999 (2) SACR 319 (W) 

325g-326d; S v Khanjwayo; S v Mihlali 1999 (2) SACR 651 (O) 656f-659c; S v Montgomery 2000 (2) 

SACR 318 (N) 324c-e; S v Madondo (NPD) Case No: CC 22/99, 30 March 1999, unreported, 8 of the 

typescript judgment; S v Ngubane (NPD) Case No: CC 31/99, 30 March 1999, unreported, 3-4 of the 

typescript judgment. 

For example, S v Majalefa (WLD) Case No: 365/98, 22 October 1998, unreported 6 of the typescript 

judgment; S v Mangesi 1999 (2) SACR 570 (E) 586d. 

8 


9 

10 

(SCA) Case No: 117/2000, 19 March 2001, unreported. 

Id para 25 of the typescript judgment. 

9 

ACKERMANN J 

[11] In the light of the recent judgment of the Supreme Court of Appeal in S v Malgas 9 

it is unnecessary to review these decisions. In Malgas the words “substantial and 

compelling circumstances” in section 51(3)(a) were interpreted by, amongst other things, 

detailing a step-by-step procedure to be followed in applying the test to the actual 

sentencing situation. This operational construction is summarised in the judgment 10 as 

follows: 

“A Section 51 has limited but not eliminated the courts’ discretion in imposing 

sentence in respect of offences referred to in Part 1 of Schedule 2 (or 

imprisonment for other specified periods for offences listed in other parts of 

Schedule 2). 

B Courts are required to approach the imposition of sentence conscious that the 

legislature has ordained life imprisonment (or the particular prescribed period of 

imprisonment) as the sentence that should ordinarily and in the absence of 

weighty justification be imposed for the listed crimes in the specified 

circumstances. 

C Unless there are, and can be seen to be, truly convincing reasons for a different 

response, the crimes in question are therefore required to elicit a severe, 

standardised and consistent response from the courts. 

D The specified sentences are not to be departed from lightly and for flimsy reasons. 

Speculative hypotheses favourable to the offender, undue sympathy, aversion to 

imprisoning first offenders, personal doubts as to the efficacy of the policy 

underlying the legislation, and marginal differences in personal circumstances or 

degrees of participation between co-offenders are to be excluded. 

E The legislature has however deliberately left it to the courts to decide whether the 

circumstances of any particular case call for a departure from the prescribed 

sentence. While the emphasis has shifted to the objective gravity of the type of 


11 

Section 39(2) of the Constitution. 

10 

ACKERMANN J 

crime and the need for effective sanctions against it, this does not mean that all 

other considerations are to be ignored. 

F All factors (other than those set out in D above) traditionally taken into account 

in sentencing (whether or not they diminish moral guilt) thus continue to play a 

role; none is excluded at the outset from consideration in the sentencing process. 

G The ultimate impact of all the circumstances relevant to sentencing must be 

measured against the composite yardstick (“substantial and compelling”) and must 

be such as cumulatively justify a departure from the standardised response that 

the legislature has ordained. 

H In applying the statutory provisions, it is inappropriately constricting to use the 

concepts developed in dealing with appeals against sentence as the sole criterion. 

I If the sentencing court on consideration of the circumstances of the particular case 

is satisfied that they render the prescribed sentence unjust in that it would be 

disproportionate to the crime, the criminal and the needs of society, so that an 

injustice would be done by imposing that sentence, it is entitled to impose a lesser 

sentence. 

J In so doing, account must be taken of the fact that crime of that particular kind 

has been singled out for severe punishment and that the sentence to be imposed 

in lieu of the prescribed sentence should be assessed paying due regard to the 

bench mark which the legislature has provided.” 

This interpretation, as an overarching guideline, is one that this Court endorses as a 

practical method to be employed by all judicial officers faced with the application of 

section 51. It will no doubt be refined and particularised on a case by case basis, as the 

need arises. It steers an appropriate path, which the legislature doubtless intended, 

respecting the legislature’s decision to ensure that consistently heavier sentences are 

imposed in relation to the serious crimes covered by section 51 and at the same time 

promoting “the spirit, purport and objects of the Bill of Rights.” 11 


Separation of Powers 

11 

ACKERMANN J 

[12] I deal with the separation of powers issue first. Closely linked to this issue, as 

I hope presently to demonstrate, is the right of an accused under section 12(1)(e) of the 

Constitution “not to be ... punished in a cruel, inhuman or degrading way.” This right 

did not form the basis of attack in the High Court. Although alluded to in passing, it was 

not further dealt with in the High Court judgment. It is impossible to address the 

separation of powers issue meaningfully without dealing with this right. 

[13] The statement in the High Court judgment quoted in paragraph 8 above that the 

imposition of the most severe punishment falls within the “exclusive prerogative and 

discretion” of a High Court does not, I believe, correctly reflect the law, either as it 

exists now or as it existed prior to the interim Constitution. The history, for example, 

of the death penalty for murder up to 1994, makes this plain. Prior to its amendment by 

section 61 of the General Law Amendment Act, 46 of 1935, section 338 of the Criminal 

Procedure and Evidence Act, 31 of 1917 prescribed the mandatory imposition of the 

death penalty for the crime of murder, save in the case where the accused was under 

sixteen years of age or where the accused had murdered her newly born child. Even 

after the amendment which permitted the trial court to impose a sentence other than death 

if there were extenuating circumstances, the trial court did not enjoy an unfettered 

discretion. On an even more fundamental basis, the nature and range of any punishment, 

whether determinate or indeterminate, has to be founded in the common or statute law; 


12 

ACKERMANN J 

the principle of legality “nulla poena sine lege” requires this. 12 This principle was in fact 

endorsed in Malgas. 13 Even the exercise of the court’s “normative judgment” 14 in 

determining the nature and severity of the sentence within the options permitted by law 

has to be judicially exercised; it is not unfettered. 15 This was and is true of all 

sentencing, not merely in the case of the most severe sentences. Statutes abound which 

limit court powers, even those of a High Court, to impose sentences relating to, for 

example, the extent of the punishment, the circumstances under which it may be imposed 

or when execution thereof may be suspended. 

[14] Constitutional Principle VI, contained in schedule 4 of the interim Constitution, 

provides that – 

13 

14 

15 

“[t]here shall be a separation of powers between the legislature, executive and judiciary, 

with appropriate checks and balances to ensure accountability, responsiveness and 

openness.” 

In the First Certification Judgment this Court, in dismissing a challenge that the new text 

No punishment without a law. Compare Dig. 50.16.131. See also, for example, De Wet en Swanepoel 

Die Suid-Afrikaanse Strafreg 2 ed (Butterworths, Durban 1960) 43-5; Du Toit Straf in Suid-Afrika 

(Juta, Cape Town 1981) xxiv and Burchell et al South African Criminal Law and Procedures Volume 

I: General Principles of Criminal Law 3 ed (Juta, Cape Town 1997) 28-30; Van Zyl Smit “Sentencing and 

Punishment” in Chaskalson et al (eds) Constitutional Law of South Africa (Juta, Cape Town 1996, 

revision service 2 1998) 28-2. 


See S v Dzukuda and Others; S v Tshilo 2000(11) BCLR 1252 (CC); 2000 (4) SA 1078 (CC) para 35. 

Id. 

12 


16 

17 

18 

19 

Above n 1 para 109, footnotes omitted. 

Id para 112, footnotes omitted. 



13 

ACKERMANN J 

of the Constitution (NT) did not comply with this Constitutional Principle (CP), said the 

following: 

“The principle of separation of powers, on the one hand, recognises the functional 

independence of branches of government. On the other hand, the principle of checks and 

balances focuses on the desirability of ensuring that the constitutional order, as a totality, 

prevents the branches of government from usurping power from one another. In this 

sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of 

another. No constitutional scheme can reflect a complete separation of powers: the 

scheme is always one of partial separation. In Justice Frankfurter’s words, ‘[t]he areas are 

partly interacting, not wholly disjointed’. 16 

.... 

The model adopted reflects the historical circumstances of our constitutional development. 

We find in the NT checks and balances that evidence a concern for both the over- 

concentration of power and the requirement of an energetic and effective, yet answerable, 

executive. A strict separation of powers has not always been maintained; but there is 

nothing to suggest that the CPs imposed upon the [Constitutional Assembly] an obligation 

to adopt a particular form of strict separation, such as that found in the United States of 

America, France or the Netherlands.” 17 

[15] In De Lange v Smuts, in a passage 18 subsequently endorsed by a unanimous Court 

in Heath, 19 it was stated that the distinctly South African model of separation of powers 

to be developed over time by our Courts would reflect – 


14 

ACKERMANN J 

“... a delicate balancing, informed both by South Africa’s history and its new dispensation, 

between the need, on the one hand, to control government by separating powers and 

enforcing checks and balances and, on the other, to avoid diffusing power so completely 

that the government is unable to take timely measures in the public interest.” 

[16] This Court has therefore clearly enunciated that the separation of powers under 

our Constitution – 

16.1 although intended as a means of controlling government by separating or diffusing 

power, is not strict; 

16.2 embodies a system of checks and balances designed to prevent an over- 

concentration of power in any one arm of government; it anticipates the necessary 

or unavoidable intrusion of one branch on the terrain of another; this engenders 

interaction, but does so in a way which avoids diffusing power so completely that 

government is unable to take timely measures in the public interest. 

[17] It is salutary to bear in mind the following cautionary remarks of Professor Tribe 

which, although made in relation to the US Constitution, are of general relevance when 

considering separation of powers issues: 

“We must therefore seek an understanding of the Constitution’s separation of powers not 

primarily in what the Framers thought, nor in what Enlightenment political philosophers 

wrote, but in what the Constitution itself says and does. What counts is not any abstract 

theory of separation of powers, but the actual separation of powers ‘operationally defined 

by the Constitution.’ Therefore, where constitutional text is informative with respect to 

a separation of powers issue, it is important not to leap over that text in favor of abstract 


20 

21 

22 

23 

ACKERMANN J 

principles that one might wish to see embodied in our regime of separated powers, but that 

might not in fact have found their way into our Constitution’s structure.” 20 

“... [E]ven when a constitution contains a provision explicitly mandating strict separation 

of powers, it behooves us to read the rest of the document to ascertain what sort of 

separation that particular charter actually imposes.” 21 

“At times, text will be sufficient, without necessarily developing an overarching vision of 

the structure, to decide major cases. ... Sometimes, however, it will be necessary to 

extrapolate what amounts to a blueprint of organizational relationships from the 

fundamental structural postulates one sees as informing the Constitution as a whole ...”. 22 

[18] Both the judgment of the court a quo and the argument presented in this Court by 

Mr Eksteen who, together with Mr Boswell, appeared on behalf of the applicant for 

confirmation at the request of the Court (and to whom we are indebted for their 

assistance), contended for a virtually exclusive and limitless sentencing discretion of the 

courts. Considerable reliance was in this regard placed on the following passage from 

the judgment of the Appellate Division of the Supreme Court in S v Toms; S v Bruce, 

per Smalberger JA: 23 

“The first principle is that the infliction of punishment is pre-eminently a matter for the 

discretion of the trial court (cf R v Mapumulo and Others 1920 AD 56 at 57). That courts 

Tribe American Constitutional Law Volume One 3 ed (Foundation Press, New York 2000) 127, 

footnotes omitted. 

Id 128 fn 16. 

Id 130. 

1990 (2) SA 802 (A) 806H-I (citation omitted). 

15 


24 

25 

Id 806J-807A. 

Id 807A-C (citation omitted). 

16 

ACKERMANN J 

should, as far as possible, have an unfettered discretion in relation to sentence is a 

cherished principle which calls for constant recognition. Such a discretion permits of 

balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The 

second, and somewhat related principle, is that of the individualisation of punishment, 

which requires proper consideration of the individual circumstances of each accused 

person. This principle too is firmly entrenched in our law”. 

[19] Three observations are necessary. First, the Appellate Division did not suggest 

that punishment fell within the exclusive domain of the trial court. 

[20] Second, the Court directed its above observations to a mandatory sentence – 

“in the sense of sentence prescribed by the Legislature which leaves the court with no 

discretion at all – either in respect of the kind of sentence to be imposed or, in the case of 

imprisonment, the period thereof.” 24 

It was such a totally restrictive form of mandatory sentence that the Court criticised in 

the following terms: 

“It reduces the court’s normal sentencing function to the level of a rubber stamp. It 

negates the ideal of individualisation. The morally just and the morally reprehensible are 

treated alike. Extenuating and aggravating factors both count for nothing. No 

consideration, no matter how valid or compelling, can affect the question of sentence. ... 

Harsh and inequitable results inevitably flow from such a situation. Consequently judicial 

policy is opposed to mandatory sentences ... as they are detrimental to the proper 

administration of justice and the image and standing of the courts.” 25 


26 

27 

Id 807E-F (citation omitted). 

ACKERMANN J 

[21] In the third place it is necessary to see the above dicta within the constitutional 

context in which they were made, namely, prior to South Africa becoming a 

constitutional state with a justiciable bill of rights. The doctrine of parliamentary 

sovereignty was still the guiding constitutional norm as Smalberger JA himself 

emphasised when he remarked: 

“The Legislature is of course at liberty to subjugate these principles [relating to the 

infliction of punishment by the courts] to its sovereign will and decree a mandatory 

sentence which the courts in turn will be obliged to impose. To do so, however, the 

Legislature must express itself in clear and unmistakable terms. ... Courts will not be 

astute to find that a mandatory sentence has been prescribed.” 26 

Save in the most exceptional circumstances it was difficult, if not impossible, to rely on 

the separation of powers doctrine. 27 It was quite impossible to invoke a constitutionally 

entrenched right of an accused not to be punished in a cruel, inhuman or degrading way 

against legislative incursion into the judicial sentencing function. The courts were 

restricted to using the fairly limited means at their disposal. In order to do justice under 

a system of parliamentary sovereignty, where the Court could not review the 

constitutionality of a parliamentary statutory provision in the absence of a Bill of Rights, 

it is not surprising that the Court vigorously asserted its sentencing power, even one 

which, in its extent, might have gone beyond that considered necessary or appropriate 

See, for example, Minister of the Interior and Another v Harris and Another 1952 (4) SA 769 (A), the 

so-called High Court of Parliament case. 

17 


18 

ACKERMANN J 

under a constitution such as our present one. No disagreement with, or criticism of, 

Toms is implied. I merely stress that the question before this Court is to be decided in 

a radically different constitutional setting, where proper regard can and must be had to 

the separation of powers doctrine and, in conjunction therewith, to the accused’s right 

not to be punished in a cruel, inhuman or degrading way. In these circumstances little 

is to be gained from our pre-1994 jurisprudence. 

[22] There is under our Constitution no absolute separation of powers between the 

judicial function, on the one hand, and the legislative and executive on the other. When 

the nature and process of punishment is considered in its totality, it is apparent that all 

three branches of the state play a functional role and must necessarily do so. No 

judicial punishment can take place unless the person to be punished has been convicted 

of an offence which either under the common law or statute carries with it a punishment. 

It is pre-eminently the function of the legislature to determine what conduct should be 

criminalised and punished. Even here the separation is not complete, because this 

function of the legislature is checked by the Constitution in general and by the Bill of 

Rights in particular, and such checks are enforced through the courts. 

[23] Both the legislature and executive share an interest in the punishment to be 


28 

29 

See section 276 of the CPA. 

See section 297 of the CPA. 

19 

ACKERMANN J 

imposed by courts, both in regard to its nature 28 and its severity. They have a general 

interest in sentencing policy, penology and the extent to which correctional institutions 

are used to further the various objectives of punishment. The availability and cost of 

prisons, as well as the views of these arms of government on custodial sentences, 

legitimately inform policy on alternative forms of non-custodial sentences and the 

legislative implementation thereof. Examples that come to mind are the conditions on, 

and maximum periods for which sentences may be postponed or suspended. 29 

[24] The executive and legislative branches of state have a very real interest in the 

severity of sentences. The executive has a general obligation to ensure that law-abiding 

persons are protected, if needs be through the criminal laws, from persons who are bent 

on breaking the law. This obligation weighs particularly heavily in regard to crimes of 

violence against bodily integrity and increases with the severity of the crime. 

[25] In order to discharge this obligation, which is an integral part of constitutionalism, 

the executive and legislative branches must have the power under the Constitution to 

carry out these obligations. They must have the power, through legislative means, of 

ensuring that sufficiently severe penalties are imposed on dangerous criminals in order 

to protect society. The legislature’s objective of ensuring greater consistency in 


20 

ACKERMANN J 

sentencing is also a legitimate aim and the legislature must have the power to legislate 

in this area. The legislature’s interest in penal sentences is implicitly recognised by the 

Constitution. Section 35(3)(n) thereof provides: 

“Every accused person has ... the right – 

(n) to the benefit of the least severe of the prescribed punishments if the 

prescribed punishment for the offence has been changed between the 

time that the offence was committed and the time of sentencing”. 

[26] The legislature’s powers are decidedly not unlimited. Legislation is by its nature 

general. It cannot provide for each individually determined case. Accordingly such 

power ought not, on general constitutional principles, wholly to exclude the important 

function and power of a court to apply and adapt a general principle to the individual 

case. This power must be appropriately balanced with that of the judiciary. What an 

appropriate balance ought to be is incapable of comprehensive abstract formulation, but 

must be decided as specific challenges arise. In the field of sentencing, however, it can 

be stated as a matter of principle, that the legislature ought not to oblige the judiciary to 

impose a punishment which is wholly lacking in proportionality to the crime. This would 

be inimical to the rule of law and the constitutional state. It would a fortiori be so if the 

legislature obliged the judiciary to pass a sentence which was inconsistent with the 

Constitution and in particular with the Bill of Rights. The clearest example of this would 

be a statutory provision that obliged a court to impose a sentence which was inconsistent 

with an accused’s right not to be sentenced to a punishment which was cruel, inhuman 


30 

ACKERMANN J 

or degrading as envisaged by section 12(1)(e) of the Constitution, or to a fair trial under 

section 35(3). 30 

Foreign jurisprudence 

[27] There are many examples of other open and democratic societies which permit 

the legislature to limit the judiciary’s power to impose punishments. The United States 

of America and Canada are striking instances. 

[28] The power of the legislatures in the United States to define crimes and their 

punishment is not considered to be in breach of the separation of powers principle and 

the courts will not interfere with the exercise of that power unless it has been exercised 

in a manner which breaches the Constitution. 31 Full recognition is granted to the – 

31 

32 

“power that the legislature possesses to adapt its penal laws to conditions as they may exist 

and punish the crimes of men according to their forms and frequency.” 32 

It is accepted that the separation of powers doctrine imposes on the coordinate 

branches– 

“... a degree of overlapping responsibility, a duty of interdependence as well as 

Or a provision which was inconsistent with the right under section 12(1)(a) not to be deprived of freedom 

arbitrarily or without just cause. 

Weems v United States 217 US 349, 378 (1910). 

Id 379. 

21 


33 

34 

35 

ACKERMANN J 

independence the absence of which ‘would preclude the establishment of a Nation capable 

of governing itself effectively.’” 33 

Historically, federal sentencing (the function of determining the scope and extent of 

punishment for crimes with a federal subject matter) – 

“never has been thought to be assigned by the Constitution to the exclusive jurisdiction of 

any one of the three Branches of Government. Congress, of course, has the power to fix 

the sentence for a federal crime ... and the scope of judicial discretion with respect to 

sentence is subject to congressional control.” 34 

Indeed, the tripartite division of sentencing responsibility is regarded as an important 

check-and-balance feature: 

“[I]f a given policy can be implemented only by a combination of legislative enactment, 

judicial application, and executive implementation, no man or group of men will be able 

to impose its unchecked will”. 35 

[29] The Eighth Amendment of the US Constitution prohibits the infliction of “cruel 

and unusual punishments.” The prohibition is directed not only against a punishment 

which constitutes torture or is barbaric, but against any punishment which by its 

Mistretta v United States 488 US 361, 381 (1989) per Blackmun J citing Buckley v Valeo 424 US 1, 

121 (1976). 

Id 364, internal citations omitted. The historical overview at 364-6, shows that this tripartite division of 

sentencing responsibility has never been disturbed. 

Id 365, citing from United States v Brown 381 US 437, 443 (1965). 

22 


36 

ACKERMANN J 

excessive length or severity is “grossly out of proportion to the severity of the crime.” 36 

The Court has also held that federal courts should be deferential in their review of 

legislatively mandated terms of imprisonment. 37 The case of Rummel 38 illustrates how 

deferential the test is. The petitioner Rummel had on two separate occasions been 

convicted in Texas state courts and sentenced to imprisonment for relatively minor 

offences. 39 On conviction of a third fairly minor offence, 40 he received a mandatory life 

sentence pursuant to the Texas statute. The Supreme Court held that the mandatory life 

sentence did not constitute cruel and unusual punishment under the Eighth Amendment. 

[30] It is implicit in the jurisprudence of the Supreme Court of Canada that mandatory 

minimum sentences are not regarded as being inconsistent with any separation of powers 

doctrine. 41 In R v Latimer it was stated: 42 

37 

38 

39 

40 

41 

42 

O’Neil v Vermont 144 US 323 (1892) as quoted with approval in Weems above n 31, 371. See also 

Robinson v California 370 US 660, 676 (1962) Douglas J concurring; Coker v Georgia 433 US 584, 

592 (1977); Rummel v Estelle 445 US 263, 271-2, 290 (1980); Solem v Helm 463 US 277, 288 (1983); 

and Harmelin v Michigan 501 US 957, 996-8, 1009-21 (1991). 

Rummel above n 36, 274; Hutto v Davis 454 US 370, 374, 383 (1982). 

Above n 36. 

Fraudulent use of a credit card to obtain $80 worth of goods and services, and passing a forged cheque 

in the amount of $28.36, respectively. 

Obtaining $120.75 by false pretences. 

See R v Smith (1987) 34 CCC (3d) 97 and R v Latimer 2001 SCC 1. File No.: 26980, 18 January 2001, 

unreported. 

Id para 77, quoting R v Guiller (1985) 48 CR (3d) 226, 238 (Ontario Dist Ct). 

23 


43 

44 

Smith above n 41 144-6 and Latimer id paras 73-4. 

Latimer id para 73 (citations omitted). 

24 

ACKERMANN J 

“It is not for the court to pass on the wisdom of Parliament with respect to the gravity of 

various offences and the range of penalties which may be imposed upon those found guilty 

of committing the offences. Parliament has broad discretion in proscribing conduct as 

criminal and in determining proper punishment.” 

In Canada the issue is dealt with on the basis of whether the statutory provision enacting 

the mandatory minimum sentence unjustifiably infringes the right guaranteed by section 

12 of the Canadian Charter of Rights and Freedoms “not to be subjected to any cruel and 

unusual treatment or punishment.” 43 The criterion which is applied to determine whether 

a mandatory minimum punishment is cruel and unusual is “whether the punishment 

prescribed is so excessive as to outrage standards of decency;” the “effect of that 

punishment must not be grossly disproportionate to what would have been 

appropriate.” 44 

[31] The nature and elements of the gross disproportionality analysis under section 12 

of the Charter have been formulated as follows: 

“[T]he court must first consider the gravity of the offence, the personal characteristics of 

the offender and the particular circumstances of the case in order to determine what range 

of sentences would have been appropriate to punish, rehabilitate or deter this particular 

offender ... . The other purposes which may be pursued by the imposition of punishment, 

in particular the deterrence of other potential offenders, are thus not relevant at this stage 

of the inquiry. This does not mean that the judge or the legislator can no longer consider 

general deterrence or other penological purposes that go beyond the particular offender in 


45 

46 

47 

Smith above n 41 139 as confirmed in Latimer id para 73-6. 

Smith id 139. 

ACKERMANN J 

determining a sentence, but only that the resulting sentence must not be grossly 

disproportionate to what the offender deserves.” 45 

In R v Smith the Court pointed out that gross disproportionality is aimed at punishments 

that are more than merely excessive and correctly warned that one – 

“Should be careful not to stigmatize every disproportionate or excessive sentence as being 

a constitutional violation, and should leave to the usual sentencing appeal process the task 

of reviewing the fitness of a sentence.” 46 

In Latimer the Supreme Court also observed that the test for determining whether a 

sentence is disproportionately long is “very properly stringent and demanding ... [for] 

... [a] lesser test would tend to trivialize the Charter”(emphasis in the original). 47 In this 

case the accused was convicted of second degree murder after killing his severely 

disabled 12-year-old daughter. The Canadian Criminal Code, in the case of second 

degree murder, provides for the mandatory imposition of a life sentence with no chance 

of parole for ten years. The Supreme Court found that the mandatory minimum sentence 

was not grossly disproportionate in the case at hand and that there was no violation of 

Mr Latimer’s section 12 right. 

Latimer above n 41 para 76, quoting Steele v Mountain Institution (1990) 2 SCR 1385, 1417. 

25 


48 

ACKERMANN J 

[32] Other democratic countries such as Australia, 48 Germany, 49 India, 50 New Zealand 51 

49 

50 

51 

Under Australian law, no violation of the separation of powers doctrine occurs when compulsory 

minimum sentences are set by the legislature leaving little or no discretion to the sentencing judge. In 

the leading case, Palling v Corfield (1970) 123 CLR 52, 58-9, it is made clear that prescribing penalties 

is solely in the prerogative of the legislature, and no judicial discretion need be given. See also Leask 

v Commonwealth of Australia (1996) 140 ALR 1, 15. In Wynbyne v Marshall (1997) 117 NTR 11, 26 

(Sup Ct of the Northern Territory) it was assumed that there was a restriction on the ability of the 

Legislative Assembly to pass laws which require courts to impose punishments which are cruel or 

unusual, but that there was nothing cruel or unusual in the requirement, imposed by the legislature, to 

record a conviction upon a finding of guilt and impose a mandatory minimum sentence of the nature dealt 

with in that case. 

In Germany the independence of the judiciary and its separation from the other branches is well 

established under articles 92 and 97 of the German Basic Law and includes the principle that “judicial 

power may be exercised only by judges.” See Currie “Separation of Powers in the Federal Republic of 

Germany” in (1993) 41 The American Journal of Comparative Law 201, 249. Article 104(2) of the 

Basic Law further states that “only a judge may decide on the admissibility or continuation of detention”. 

Sentencing authority is thus central to the judicial function. At the same time, the “Special Part” of the 

Strafgesetzbuch (StGB) contains fairly detailed maximum and minimum sentences for various offences. 

Thus the crimes of murder (as defined in article 211) and genocide (as defined in article 220a) carry 

mandatory life sentences. In the case of manslaughter, which does not constitute murder, article 212 

prescribes a mandatory minimum sentence of five years imprisonment. Similar mandatory minimum 

sentences are prescribed, for example, in certain circumstances for theft (article 242), fraud (article 263) 

and receiving stolen property (article 259). 

Although Indian courts generally enjoy a wide discretion in imposing sentence, this is “canalised and 

guided by law”. See Kelkar Criminal Procedure 3 ed (Eastern Book Company, Lucknow 1993, with 

supplement), 430. The permissible range of sentence may be very narrow. For instance, section 302 of 

the Penal Code provides a minimum of a life sentence and the maximum of the death penalty in cases 

of murder. In Jagmohan Singh v State of Utar Pradesh (1973) 1 SCC 20 and Bachan Singh v State 

of Punjab (1980) 2 SCC 684, it was argued, inter alia, that the lack of legislative guidelines to direct 

courts in choosing between the two alternative punishments in section 302 amounted to an unlawful 

delegation of a legislative function to the judiciary. While this argument was rejected in both cases, all 

the justices in the Bachan Singh case agreed that the imposition of standards tailoring the judicial 

discretion as to sentence was a legitimate legislative function. See paras 74-5 and para 77 of Bhagwati 

J’s dissent (separately reported at (1982) 3 SCC 24). 

In New Zealand, “[t]he general discretion of the court in regard to imprisonment is limited somewhat by 

various statutory provisions”. See Hodge Doyle and Hodge’s Criminal Procedure in New Zealand 3 

ed (The Law Book Company Limited, Sydney 1991) 183. Most notably, the Criminal Justice Act 1985 

contains a set of comprehensive principles that “govern[ ] sentencing practice in New Zealand.” See 

Casey “Sentencing” in Thorndon et al (eds) The Laws of New Zealand Volume 25 (Butterworths, 

Wellington 1999), para 1. In essence, these principles emphasise the imposition of custodial sentences 

for violent crimes, while favouring alternative punishments for non-violent crimes. See Doyle and Hodge 

187. Furthermore, statutes creating other offences always specify the maximum sentence and may also 

contain other legislative guidelines. Section 172 of the Crimes Act 1961 prescribes a mandatory life 

sentence for murder. 

26 


52 

ACKERMANN J 

and the United Kingdom, 52 have sentencing statutes which mandate minimum sentences 

under circumstances that are, in certain instances, more intrusive of the judicial 

sentencing function than section 51(1) in the present case. The Namibian High Court has 

also used the “grossly disproportionate test” for determining whether a mandatory 

minimum sentence constitutes “cruel, inhuman or degrading treatment or punishment” 

under article 8(2)(b) of the Namibian Constitution. 53 It has never, so far as I have been 

able to determine, been decided in any of these jurisdictions that mere involvement by 

the legislature in the sentencing field conflicts with the separation of powers principle. 

[33] On this part of the case I accordingly conclude as follows: 

33.1 While our Constitution recognises a separation of powers between the different 

53 

The Criminal Justice Act 1991 (as amended by the Criminal Justice Act 1993) contains the most 

comprehensive attempt to influence judicial sentencing policy. The Act steers clear of imposing strict 

guidelines, but attempts to introduce broad principles to influence courts’ choices of sentence. See 

Henham Criminal Justice and Sentencing Policy (Dartmouth, Aldershot 1996) 9-10 and 131. Sections 

109-11 of the Powers of Criminal Courts (Sentencing) Act 2000 contains more specific provisions. 

“Section 109 of the Act requires a court to pass a life sentence on an offender 

who meets the conditions set out in section 109(1). These are that he was 18 

years or older when he committed the offence for which he is to be 

sentenced, that this offence is a ‘serious offence’ as defined in subsection (5) 

committed after September 30, 1997, and that he had been convicted of a 

‘serious offence’ before he committed the offence for which he is to be 

sentenced.” 

See Archbold Criminal Pleading, Evidence and Practice 2001, (Sweet & Maxwell, London 2001) 586. 

Under section 109(2) the court is relieved from passing the mandatory life sentence only where it “is of 

the opinion that there are exceptional circumstances relating to either of the offences or to the offender 

which justify its not doing so.” (emphasis supplied) Section 110 obliges a court sentencing an offender 

for a class A drug trafficking offence to pass a minimum sentence of seven years if the offender is aged 

18 or over and has been convicted on at least two separate occasions of such an offence. Section 111 

mandates a minimum sentence of three years for a third domestic burglary conviction. Under sections 

110 and 111 the mandatory sentence can only be avoided where the court is of the opinion that there are 

“particular circumstances which – (a) relate to any of the offences or to the offender; and (b) would 

make it unjust to do so in all the circumstances.” (emphasis supplied) 

S v Vries 1996 (12) BCLR 1666 (Nm) 1676G and 1702J-1703A. 

27 


28 

ACKERMANN J 

branches of the state and a system of appropriate checks and balances on the 

exercise of the respective functions and powers of these branches, such 

separation does not confer on the courts the sole authority to determine the nature 

and severity of sentences to be imposed on convicted persons. 

33.2 Both the legislature and the executive have a legitimate interest, role and duty, in 

regard to the imposition and subsequent administration of penal sentences. 

33.3 The concomitant authority of the other branches in the field of sentencing must 

not, however, infringe the authority of the courts in this regard. 

33.4 It is neither possible nor, in any event, desirable to attempt a comprehensive 

delineation of the legitimate authority of the courts in this regard. 

33.5 For purposes of this case it is sufficient to hold that the legislature is not 

empowered to compel any court to pass a sentence which is inconsistent with the 

Constitution. 

[34] Accordingly the only relevant inquiry in this regard is whether section 51(1) read 

with section 51(3)(a) of the Act compels the High Court to pass a sentence which is 

inconsistent with the accused’s right under section 12(1)(e) of the Constitution “not to 

be ... punished in a cruel, inhuman or degrading way.” I deal later with the High Court’s 

finding in regard to section 35(3)(c) of the Constitution. 

The construction of section 12(1)(e) of the Constitution 


[35] Section 12(1)(e) provides: 

54 

55 

ACKERMANN J 

“(1) Everyone has the right to freedom and security of the person, which includes the 

right – 

See, for example, sections 1(a) and 74(1) of the Constitution and Chaskalson “Human Dignity as a 

Foundational Value of our Constitutional Order” (2000) 16 SA Journal of Human Rights 193. 

See, for example, sections 7(1), 36(1), 37(5)(c) and 39(1)(a) of the Constitution. 

.... 

(e) not to be treated or punished in a cruel, inhuman or degrading 

way.” 

I propose saying no more on the ambit of this right than is required for the resolution of 

the issue in the present case. In the phrase “cruel, inhuman or degrading” the three 

adjectival concepts are employed disjunctively and it follows that a limitation of the 

right occurs if a punishment has any one of these three characteristics. This imports 

notions of human dignity as was correctly recognised, although in another context, by the 

High Court in this case. The human dignity of all persons is independently recognised 

as both an attribute and a right in section 10 of the Constitution, which proclaims that 

“[e]veryone has inherent dignity and the right to have their dignity respected and 

protected.” It is also one of the foundational values of the Constitution 54 and is woven, 

in a variety of other ways, into the fabric of our Bill of Rights. 55 While it is not easy to 

distinguish between the three concepts “cruel”, “inhuman” and “degrading”, the 

impairment of human dignity, in some form and to some degree, must be involved in all 

three. One should not lose sight of the fact that the right relates, in part at least, to 

29 


freedom. 

56 

57 

Above n 41 139-40 per Lamer J. 

ACKERMANN J 

[36] It should also be emphasised, as was pointed out by the Canadian Supreme Court 

in Smith, 56 that the effect of a sentence imposed must be measured and that such effect 

is often a composite of many factors; it is not limited to the length of the sentence but 

includes its nature and the conditions under which it is served. In the instant case, 

however, one is concerned chiefly with the effect of the duration of a sentence of life 

imprisonment. Consequently the freedom aspect of the right in question and its relation 

to human dignity looms large. 

[37] The concept of proportionality goes to the heart of the inquiry as to whether 

punishment is cruel, inhuman or degrading, particularly where, as here, it is almost 

exclusively the length of time for which an offender is sentenced that is in issue. This 

was recognised in S v Makwanyane. 57 Section 12(1)(a) guarantees, amongst others, the 

right “not to be deprived of freedom ... without just cause”. The “cause” justifying 

penal incarceration and thus the deprivation of the offender’s freedom, is the offence 

committed. ‘Offence’, as used throughout in the present context, consists of all factors 

relevant to the nature and seriousness of the criminal act itself, as well as all relevant 

S v Makwanyane and Another 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC) paras 94, 197 and 352- 

6. 

30 


58 

ACKERMANN J 

personal and other circumstances relating to the offender which could have a bearing on 

the seriousness of the offence and the culpability of the offender. In order to justify the 

deprivation of an offender’s freedom it must be shown that it is reasonably necessary to 

curb the offence and punish the offender. Thus the length of punishment must be 

proportionate to the offence. 

[38] To attempt to justify any period of penal incarceration, let alone imprisonment for 

life as in the present case, without inquiring into the proportionality between the offence 

and the period of imprisonment, is to ignore, if not to deny, that which lies at the very 

heart of human dignity. Human beings are not commodities to which a price can be 

attached; they are creatures with inherent and infinite worth; 58 they ought to be treated 

as ends in themselves, never merely as means to an end. Where the length of a sentence, 

which has been imposed because of its general deterrent effect on others, bears no 

relation to the gravity of the offence (in the sense defined in paragraph 37 above) the 

offender is being used essentially as a means to another end and the offender’s dignity 

assailed. So too where the reformative effect of the punishment is predominant and the 

offender sentenced to lengthy imprisonment, principally because he cannot be reformed 

in a shorter period, but the length of imprisonment bears no relationship to what the 

committed offence merits. Even in the absence of such features, mere disproportionality 

See Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC); 1997 (3) SA 1012 (CC) para 31. 

31 


59 


32 

ACKERMANN J 

between the offence and the period of imprisonment would also tend to treat the offender 

as a means to an end, thereby denying the offender’s humanity. 

[39] In my view the gross proportionality approach adopted by the US and Canadian 

Supreme Courts is compatible with and supportive of the above analysis, can properly 

be employed and should be employed under our Constitution. For the reasons advanced 

in the Canadian cases, it would not be mere disproportionality between the sentence 

legislated and the sentence merited by the offence which would lead to a limitation of 

the section 12(1)(e) right, but only gross disproportionality. I wish pertinently to stress, 

however, that it is not to be inferred from the reference in this judgment to any foreign 

decision, that agreement is being expressed with the application of the gross 

disproportionality test to the legislation or facts in such decision. 

[40] On the construction that Malgas places on the concept “substantial and 

compelling circumstances” in section 51(3)(a), which is undoubtedly correct, section 

51(1) does not require the High Court to impose a sentence of life imprisonment in 

circumstances where it would be inconsistent with the offender’s right guaranteed by 

section 12(1)(e) of the Constitution. The whole approach enunciated in Malgas, and in 

particular the determinative test articulated in paragraph I of the summary, 59 namely: 


33 

ACKERMANN J 

“If the sentencing court on consideration of the circumstances of the particular case is 

satisfied that they render the prescribed sentence unjust in that it would be disproportionate 

to the crime, the criminal and the needs of society, so that an injustice would be done by 

imposing that sentence, it is entitled to impose a lesser sentence”, 

makes plain that the power of the court to impose a lesser sentence than that prescribed 

can be exercised well before the disproportionality between the mandated sentence and 

the nature of the offence becomes so great that it can be typified as gross. Thus the 

sentencing court is not obliged to impose a sentence which would limit the offender’s 

section 12(1)(e) right. Accordingly section 51(1) does not compel the court to act 

inconsistently with the Constitution. It is necessary to emphasise the difference between 

the two tests, because they serve different purposes. The test in Malgas must be 

employed in order to determine when section 51(3)(a) can legitimately be invoked by 

a sentencing court to pass a lesser sentence than that prescribed by section 51(1) or (2). 

The test of gross disproportionality, on the other hand, must be applied in order to 

determine whether a sentence mandated by law is inconsistent with the offender’s section 

12(1)(e) right. It has not been suggested that section 51(1) compels the sentencing court 

to act inconsistently with the Constitution in any other way. 

[41] Checks and balances constitute an integral part of the separation of powers 

principle; they prevent one separate arm of the state from becoming too powerful in the 

exercise of the powers allocated to it. In modern constitutionalism a most important 


34 

ACKERMANN J 

check on the legislature in this regard is an entrenched bill of rights enforceable through 

an independent judiciary. A bill of rights protects individual rights by limiting the power 

of the legislature. Once it has been held, as this judgment does, that legislation in the 

field of penal sentencing does not, per se, infringe the separation of powers principle as 

between the legislature and the judiciary, section 51(1) read with section 51(3)(a) does 

not, on its proper construction, transgress the Bill of Rights check on the legislature and 

therefore does not infringe the separation of powers principle either. 

Section 35(3)(c) of the Constitution 

[42] It is now convenient to deal with the argument that section 51(1), read with section 

51(3)(a) of the Act, is inconsistent with section 35(3)(c) of the Constitution, which 

guarantees to every accused person the right “to a public trial before an ordinary court”, 

because a court, bound by section 51(1), is no longer an “ordinary” court. Mr Eksteen 

correctly appreciated that a consequence of the construction which the judgment in 

Malgas had placed on section 51(1) read with section 51(3)(a) of the Act, namely that 

it did not oblige a High Court to impose a penal sentence on a convicted person that was 

inconsistent with the Constitution, destroyed the basis of the argument founded on the 

infringement of the separation of powers principle. He accordingly limited, very 

properly, his oral argument before us to the attack based on section 35(3)(c) of the 

Constitution. 


60 

61 

Section 165(1) of the Constitution. 

ACKERMANN J 

[43] In the view I take of the matter, the failure of the separation of powers argument 

and the conclusion that section 51(1) is not inconsistent with the Constitution for any 

other reason, also has fatal consequences for this argument. Under section 165 of the 

Constitution, the judicial authority of the Republic is vested in “the courts” 60 and their 

independence is both established 61 and expressly protected. 62 What such judicial 

independence comprises was considered in De Lange v Smuts 63 and need not be 

repeated here. The High Courts constitute one such category of courts for purposes of 

section 165(1) of the Constitution. 64 Counsel did not suggest, nor could it properly have 

been suggested, that the High Courts, as actually established and functioning under the 

Constitution, in any way lack the independence or any other attribute required by the 

Constitution. A High Court is therefore self-evidently an “ordinary court” for purposes 

of section 35(3)(c) of the Constitution. 

[44] The argument is, however, that the provisions of section 51(1) of the Act have the 

62 

63 

64 

By section 165(2) of the Constitution, which declares them to be “independent and subject only to the 

Constitution and the law”. 

By subsections (3) and (4) of section 165 of the Constitution which state: 

“(3) No person or organ of state may interfere with the functioning of the courts. 

(4) Organs of state, through legislative and other measures, must assist and 

protect the courts to ensure the independence, impartiality, dignity, 

accessibility and effectiveness of the courts.” 

Above n 3 paras 69-73. 

Section 166(c) of the Constitution. 

35 


65 

66 

67 

68 

[1998] AC 407 (HL). 

(2000) 7 BHRC 659. 

Above n 65 at 526. 

Above n 66. 

36 

ACKERMANN J 

effect of depriving the High Courts of their sentencing powers in such a manner and to 

such a degree, that they can no longer rightly be classified as “ordinary” courts. This 

could only be so if section 51(1) has some material effect on their independence or if it 

deprives them of some judicial function of such a nature that they could no longer 

properly be classified as ordinary courts. 

[45] I have great difficulty in conceiving how this could be so. We were, however, 

pressed in argument on this score with the judgment of the House of Lords in R v 

Secretary of State for the Home Department, Ex Parte Venables 65 and the judgment of 

the European Court of Human Rights in T v United Kingdom, 66 which followed on the 

Venables judgment. Both cases are concerned with clearly distinguishable issues. In 

Venables it was decided that in fixing a detention tariff, the Secretary of State was 

carrying out, contrary to the constitutional principle of separation of powers, a classic 

judicial function and that, in doing so he ought, like a sentencing judge, not to act 

contrary to the fundamental principles governing the administration of justice. On the 

facts it was held that the Secretary of State had acted contrary to such principles and his 

determination was accordingly set aside. 67 In T v UK 68 the European Court of Human 


69 

70 

Id at paras 108 and 113. 

ACKERMANN J 

Rights held that the Home Secretary, who set the applicant’s detention tariff, was clearly 

not independent of the Executive, and that there had accordingly been a violation of 

article 6(1) of the European Convention for the protection of Human Rights and 

Fundamental Freedoms 1953 69 , which in relevant part states: 

“In the determination of any criminal charge against him ... everyone shall be entitled to 

a fair and public hearing by a competent, independent and impartial tribunal established by 

law.” 

[46] It was also contended that section 51(1) was, notwithstanding the provisions of 

section 51(3)(a), in conflict with article 14 of the International Covenant on Civil and 

Political Rights 1966 (ICCPR) and principle 3 of the United Nations Basic Principles on 

the Independence of the Judiciary (UN Basic Principles). 70 

[47] There is no merit in counsel’s submissions. The only part of article 14 of the 

ICCPR with any conceivable relevance to the present issue is the provision in article 

14.1 to the effect that – 

“... everyone shall be entitled to a fair and public hearing by a competent, independent and 

impartial tribunal established by law.” 

There is simply no warrant for reading article 14 of the ICCPR in such a way that any 

Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the 

Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, U.N. Doc. 

A/CONF.121/22/Rev.1 at 59 (1985). 

37 


38 

ACKERMANN J 

legislative provision on sentence, regardless of its nature and extent, would render the 

trial envisaged by the article unfair or subvert the independent nature of the tribunal 

contemplated. 

[48] For present purposes, the only relevant principles of the UN Basic Principles are 

2 to 4 which provide: 

“2. The judiciary shall decide matters before them impartially, on the basis of facts 

and in accordance with the law, without any restrictions, improper influences, 

inducements, pressures, threats or interferences, direct or indirect, from any 

quarter or for any reason. 

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall 

have exclusive authority to decide whether an issue submitted for its decision is 

within its competence as defined by law. 

4. There shall not be any inappropriate or unwarranted interference with the judicial 

process, nor shall judicial decisions by the courts be subject to revision. This 

principle is without prejudice to judicial review or to mitigation or commutation 

by competent authorities of sentences imposed by the judiciary, in accordance 

with the law.” 

The purpose and effect of these Basic Principles are to be gathered from the last 

paragraph of the introductory preamble where it is stated that the principles have been 

formulated – 

“to assist Member States in their task of securing and promoting the independence of the 

judiciary [and] should be taken into account and respected by Governments within the 


71 

framework of their national legislation and practice ...”. (emphasis supplied) 

The subsections provide: 

“(2) The courts are independent and subject only to the Constitution and 

the law, which they must apply impartially and without fear favour or 

prejudice. 

(3) No person or organ of state may interfere with the functioning of the 

courts. 

(4) Organs of state through legislative and other measures, must assist 

and protect the courts to ensure the independence, impartiality, 

dignity, accessibility and effectiveness of the courts.” 

39 

ACKERMANN J 

The Basic Principles are nothing more than guidelines relating, amongst other things, to 

the independence of judges. They are intended to assist member states in securing and 

promoting such independence. Such assistance is to take place within the framework of 

a state’s national legislation and law. They must be construed within the universally 

recognised separation of powers principles and its concomitant check-and-balance 

procedures. 

[49] Both the impartiality of the judiciary and its independence are fully and properly 

recognised and protected in the Constitution by section 165(2), (3) and (4) of the 

Constitution. 71 Principle 2 relates to the impartiality of the judiciary and enumerates 

conduct which might impinge on such impartiality. Principle 4 deals with inappropriate 

or unwarranted interference with the judicial process. It is has not been suggested that 

the Constitution in any way permits any conduct which would be inconsistent with 

Principles 2 or 4. Section 51(1) has in this judgment been found to be consistent with 

the separation of powers principle and an offender’s fair trial rights. Nothing in its 


40 

ACKERMANN J 

provisions detracts in any way from judicial impartiality or constitutes inappropriate or 

unwarranted interference with the judicial process under our Constitution, in a way which 

could, on any reasonable construction of their provisions, be incompatible with 

Principles 2 or 4. Nor does section 51 in any way deprive any court contemplated by 

the Constitution of its exclusive authority (as against the legislature or the executive) to 

decide whether an issue submitted for its decision is within “its competence as defined 

by law”. 

[50] No other authority is invoked for the submission that section 51(1) “impinge[s] 

upon international standards of judicial independence”. None has been cited to this 

Court and I know of none. On the contrary, the conclusion reached above that section 

51(1) does not trespass on the separation of powers principle, nor in any way limits an 

offender’s fair trial right, is in accord with the jurisprudence of leading democracies in 

the world. There is no other basis for finding that the application of section 51(1) in any 

way alters the character of the High Court or in any way detracts from it being an 

“ordinary” court as contemplated by section 35(3)(c) of the Constitution. 

[51] I accordingly hold that section 51(1) of the Act is not inconsistent with – 

51.1 the right of an offender under section 12(1)(e) of the Constitution not to be 

“punished in a cruel, inhuman or degrading way”, or, 

51.2 the separation of powers principle under the Constitution, or, 


51.3 the right of an accused under section 35(3)(c) “to a public trial before an ordinary 

court”. 

The Order 

[52] The following order is made: 

1. The Court declines to confirm the order made by the Eastern Cape High 

Court declaring section 51(1) of the Criminal Law Amendment Act, 105 

of 1997 to be constitutionally invalid. 

2. The case is referred back to the Eastern Cape High Court to be dealt with 

in accordance with this judgment. 

Chaskalson P, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, 

Yacoob J, Madlanga AJ and Somyalo AJ concur in the judgment of Ackermann J. 

For the applicant : JW Eksteen SC and BL Boswell, at the request of the Court. 

For the respondent : JA van S d’Oliveira SC, J Engelbrecht and T Matzke on 

behalf of the National Director of Public Prosecutions. 




CONFERENCE PRESENTATIONS 

& READING MATERIAL 


RECOGNISING THE VICTIM IN THE SENTENCING PHASE: THE 

USE OF VICTIM IMPACT STATEMENTS IN COURT 

KAREN MÜLLER 1 & ANNETTE VAN DER MERWE 2 

I INTRODUCTION 

South African victim empowerment is based on the concept of restorative justice, which 

advocates a victim-centred approach to criminal justice. 3 This follows an international 

trend over the past decade to promote a victim-centred approach to criminal justice. 4 The 

focus on a victim-centred approach arose in response to a number of issues raised by 

victims themselves, who questioned their neglected position in the criminal justice system. 

Issues included, amongst others, a lack of support, the absence of compensation for 

harm, the diminished role of the victim in criminal proceedings which are orientated 

toward the offender, and the absence of any constitutional rights for victims. 5 

Internationally the concerns of victims were recognised and addressed through a 

number of declarations, the most important of which was the adoption of the Declaration 

of Basic Principles of Justice for Victims of Crime and Abuse of Power by the General 

Assembly of the United Nations on 29 November 1985, to which South Africa is a 

signatory. 6 The Declaration is based on the philosophy that adequate recognition should 

be given to victims and that they should be treated with respect in the criminal justice 

process. 7 With the focus on restorative justice in South Africa, numerous reforms have 

been introduced to accommodate victims more effectively in the criminal justice process, 8 

and it is these reforms which the recent Service Charter for Victims of Crime in South 

Africa (hereafter referred to as the Victims’ Charter) aims to consolidate and elaborate 

upon. 9 

Although there are a number of ways in which victims can be integrated into the 

criminal justice system, the purpose of this article is to focus exclusively on the use of 

1 Professor, School of Law Nelson Mandela Metropolitan University 

2 Associate Professor, Department of Procedural Law University of Pretoria 

3 

Department of Social Development Integrated Victim Empowerment Policy: Fourth Draft (August 2004) 

3. 

4 

United Nations Office for Drug Control and Crime Prevention Handbook on Justice for Victims: On the 

Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of 

Power Centre for International Crime Prevention New York (1999) 3. 

5 

SA Law Commission Discussion Paper 102 Sexual Offences: Process and Procedure (December 2001) 

647. 

6 

Department of Social Development (note 1 above) 4. 

7 

Ibid. 

8 

Victims of sexual offences are now inter alia involved in bail and parole proceedings and must be 

informed of their rights and of the procedures in the criminal justice system that affect them (see the nonlegislative 

recommendations in South African Law Commission Report on Sexual Offences Project 107 

(2002) 355, 375 and the Criminal Law (Sexual Offences) Amendment Bill 2003, Schedule 1, guiding 

principles (d) and further, and Criminal Law (Sexual Offences and Related Matters) Amendment Bill 

2006, section 2(c)). 

9 

Department of Justice and Constitutional Development Service Charter for Victims of Crime in South 

Africa (2004) . 


1

victim impact statements as a method of accommodating victims of crime in the 

sentencing process, with the focus on victims of sexual abuse. In its issue paper on 

restorative justice, the Law Commission defined restorative justice as a process which 

seeks to redefine crime by interpreting it, not only as breaking the law or offending 

against the state, but also as an injury or a wrong done to another person. 10 Proposals 

recommended the enactment of legislation which would recognise victim impact 

statements as a method of impressing upon the court the seriousness of the offence. 

The draft Sentencing Framework Bill 2000 provided the first draft, statutory platform 

for the introduction of the concept of a formal victim impact statement. In terms of the 

Bill, the prosecutor must tender evidence of a victim impact statement where the victim is 

not called as a witness and such statement is available. 11 

In terms of the Criminal Law (Sexual Offences) Amendment Bill 2003, 12 evidence of 

the impact of any sexual offence upon the complainant may, for purposes of imposing an 

appropriate sentence, be adduced in order to prove the extent of the harm suffered by the 

victim. 13 The most recent platform for victim participation in sentencing procedures is to 

be found in the Victims’ Charter. This includes the right to participate in, and offer 

information during, sentencing proceedings in order to bring the impact of the crime to 

the court’s attention. 14 A prosecutor may submit a victim impact statement, or may lead 

further evidence in support of an appropriate sentence. 15 

There are a number of ways in which victims can be integrated into the sentencing 

process: they can testify as a witness with regard to sentence; they can provide 

information for a victim impact statement; or they can receive compensation from the 

offender. 16 The victim impact statement is thus one way of accommodating victims more 

effectively in the sentencing phase. In addition, presiding officers have themselves 

expressed a need to be better informed before sentencing about the after-effects of the 

crime, especially where child victims are concerned. 17 The purpose of this article is to 

investigate the formal victim impact statement as a method, not only for affording the 

victim a more prominent role in the sentencing process, but also for providing the 

sentencing officer with more relevant information. In this way, a more balanced approach 

to sentencing may be achieved in that presiding officers will have information relating to 

the both the accused and the victim. A comparative study is undertaken of definitions, 

rationales and practices with regard to the use of victim impact statements in some Anglo- 

American countries. Developments in England, which has been active with regard to 

10 

SA Law Commission Discussion Paper 7 Sentencing Restorative Justice (Compensation for Victims of 

Crime and Victim Empowerment) Project 82 (1997) 5. 

11 

Draft Sentencing Framework Bill 2000 clause 47(3) South African Law Commission Report on 

Sentencing (A New Sentencing Framework) Project 82 (2000) 100. 

12 

B50 2003 GG No 25282 of 30 July 2003. 

13 

Section 17(b). Compare s 61(2)(a)(vii) of the Criminal Law (Sexual Offences and Related Matters) 

Amendment Bill 2006, which places a duty on the National Director of Public Prosecutions to issue 

directives with regard, amongst other matters, to the information to be placed before a court during 

sentencing, including impact evidence of the sexual offence on the complainant. 

14 

Victims’ Charter (note 7 above), clause 2. Other rights available to victims relate to fair and dignified 

treatment, receipt of information, protection, assistance, compensation and restitution. 

15 

Department of Justice and Constitutional Development Minimum Standards on Services for Victims of 

Crime (2004) para 20, . 

16 

South African Law Commission Discussion Paper 102 Sexual Offences: Process and Procedure 

(December 2001) 668 – 689. 

17 

Rammoko v Director of Public Prosecutors 2003 (1) SACR 200 (SCA) 205E. 


2

victims’ matters over the past years, have proven to be a valuable source. Australia, the 

United States of America and Canada were selected based on their successful 

implementation of approaches that would be suitable to the legal tradition in South Africa. 

II DEFINING `VICTIM IMPACT STATEMENT’ AND `VICTIM’ 

The formal use of victim impact statements can be authorised either by legislation 18 or via 

a victims’ charter, 19 which will, in turn, determine the definition of both `victim impact 

statement’ and `victim’. In South Africa, only draft legislation relating to victim impact 

statements is presently on the table. However, the Victims’ Charter has recently been 

finalised, which provides explicitly for the presentation of impact evidence by an expert. 20 

According to Erez 21 , a victim impact statement is defined as a statement which would 

‘address the effects of the crime on the victim, in terms of the victim’s perceptions and 

expressions of the emotional, physical or economic harm he or she sustained as a result of 

the crime’. 22 Schmalleger defines such a statement as ‘the in-court use of victim or 

survivor-supplied information by sentencing authorities wishing to make an informed 

sentencing decision’. 23 The latter definition is very wide and does not describe what 

information would form part of such a statement, whereas the former definition focusses 

specifically on the victim’s feelings with regard to the emotional, physical and economic 

harm that has been suffered. 

A victim impact statement was first defined within the South African context in the SA 

Law Commission’s Discussion Paper on Restorative Justice: 

The victim impact statement is a statement made by a victim and 

addressed to the presiding officer to be considered in the sentencing 

decisions. The victim impact statement consists of a description of 

harm, in terms of the physical, psychological, social and economic 

effect that the crime had, and will have in future, on the victim. 

Sometimes this statement may include the victim’s statement of 

opinion on his feelings about the crime, the offender and the 

sentence that he feels is appropriate. 24 

18 Examples of countries with a legislative basis for victim impact statements include Canada, the United 

States of America and the Australian States of Southern Australia and New South Wales. 

19 In England, Wales and Scotland victim impact statements are authorised in terms of a Victims’ Charter. 

20 The Victims’ Charter was approved by Cabinet on 2 December 2004 (Ministry for Justice and 

Constitutional Development (2/12/2004) Press statements ‘Cabinet approves the South African Charter 

for Victims of Crime’ Press statement of 2/12/2004, http://www.doj.gov.za/2004dojsite/m_statements. At 

the time of writing, there was no clarity about its publication in the Government Gazette. 

21 E Erez ‘Who’s Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and 

Enhancement of Justice.’ (1999) Criminal LR 545. 

22 Ibid 546. 

23 F Schmalleger Criminal Justice Today: An Introductory Text for the 21 st Century. 4 ed (1997) 718. 

24 M Hinton. `Valuing the Victim: The Use of Victim Impact Statements in Sentencing’. Unpublished 

paper. 8 th International Symposium on Victimology. 22 – 26 August 1994 held in Adelaide Australia as 

referred to by SA Law Commission Issue Paper 7 Sentencing: Restorative Justice (Compensation for 

Victims of Crime and Victim Empowerment) (December 1997) para 2.30. 


3

The Project Committee on Sentencing later proposed another definition, which was more 

concise and which specifically defined the victim impact statement as a written statement: 

Victim impact statement means a written statement by the victim or 

someone authorised by the Act to make a statement on behalf of 

the victim which reflects the impact of the offence, including the 

physical, psychological, social and financial consequences of the 

offence for the victim. 25 

Although the new Victims’ Charter does not provide a definition of a victim impact 

statement, the Charter impliedly includes both written and oral forms. 26 From the above 

definitions it would appear that victim impact statements generally include a description of 

the harm suffered by the victim where harm is seen to include the emotional, physical and 

financial consequences of the crime. 

As far as the definition of the term `victim’ is concerned, the Project Committee on 

Sentencing suggested that the term be defined as: ‘the person against whom the offence 

was committed or who was a witness to the act of actual or threatened violence and who 

suffers injuries as a result of the offence’. 27 Here victim has been extended to include an 

eye-witness who experiences harm as a result of witnessing the offence. This would 

cover, for instance, the trauma experienced by a child who has witnessed the assault or 

murder of a parent. The definition in the Victims’ Charter is worded very widely and can 

be interpreted to include both the person against whom the crime has been committed as 

well as a witness to the act or omission. It also extends the definition to indirect victims, 

such as family and dependents. South African courts have received impact evidence from 

immediate family in murder cases. For example, in S v Vilakazi and Others 28 the mother 

of the murder victim gave a short description of her son, Peter, showed some 

photographs of him to the court and informed the court about the impact of his murder on 

herself and her family: 

On a personal note I need to let you know how this callous act has 

impacted on me and my family. It has severely traumatised all of us. 

The hell and despair we feel cannot ever be imagined by you. You 

killed Peter physically and us emotionally. The brutal murder of my 

only biological child will haunt us every day of our lives. My husband 

and I have become victims. My father who lived with us died soon 

after Peter’s murder. He was devastated after his only grandson was 

so brutally killed. I have no doubt that my father’s death was greatly 

accelerated by Peter’s murder. Peter’s wife remarried after his death 

and I no longer have the same access to seeing my only grandson, 

Peter’s child, whom I used to see frequently. We have all thus 

suffered three major losses within this short period of time, All 

precipitated by Peter’s having been murdered. Our lives have been 

destroyed by a mindless and senseless act. You took our future 

away. 

25 

Draft Sentencing Framework Bill (note 9 above) clause 1. 

26 

Ibid para 2.11. 

27 

SA Law Commission Issue Paper 7 Sentencing Restorative Justice (Compensation for Victims of Crime 

and Victim Empowerment) (December 1997) 38. 

28 

S v Vilakazi and Others (unreported) 29/07/1999. Case no: 81/104/97 (WLD). 


4

There is no provision made in these definitions for representatives of local communities 

and organisations to participate in sentencing procedures, but it is submitted that the local 

practice of amicus curiae in sentencing procedures makes provision for the participation of 

interested groups. In S v Abrahams 29 the Women’s Legal Centre entered as amicus curiae 

amidst public outcry about the lenient sentence imposed by the trial court in an incestuous 

rape case. 

III RATIONALE FOR VICTIM IMPACT STATEMENTS 

A number of reasons have been put forward for the use of formal victim impact 

statements. Edwards 30 categorises these into four different theories. The first three are 

viewed as instrumentalist in nature and comprise the following: 

• The improvement of sentencing outcomes, which includes both retributiveproportionate 

as well as restorative justice (reparation and compensation) arguments. 

• The enhancement of system efficiency and service quality in that the criminal justice 

system may become more sensitive to the needs of victims, and, in turn, victims are 

more satisfied with the system because of their participation. 

• The benefit for victims in that their contribution will be of therapeutic and cathartic 

value for themselves. 

The fourth theory focusses on process values, citizenship and victims’ rights, based on 

participatory democracy and respect for individual dignity and humaneness. Roberts 31 

identifies nine purposes observed in international literature, for which victim impact 

statements can be used. These include the following: 

• Providing the prosecution with information about the offence. 

• Providing presiding officers with information about the seriousness of the crime and, 

to a lesser extent, about the culpability of the offender in order to assist the court in 

imposing a sentence consistent with sentencing principles. 

• Providing the court with a direct source of information about the victims’ needs which 

may assist in the determination of a more appropriate, reparative sanction. 

• Providing the court with information about the appropriate conditions that might be 

imposed on the offender. 

• Providing the victim with a public forum in which to make a statement reflecting his or 

her suffering. 

• Providing the court with an opportunity to recognise the wrong committed against an 

individual victim. 

• Providing the victim with an opportunity to communicate the effects of the crime to 

the offender. 

• Allowing victims to participate in sentencing, albeit in a non-determinative way. 

• Providing the idea that, although crimes are committed against the state, crimes are 

also committed against individuals. 

29 

2002 (1) SACR 116 (SCA) 127F. 

30 

I Edwards `Victim Participation in Sentencing: The Problem of Incoherence’ (2001) 40 The Howard 

Journal. (2001) 39 at 41. 

31 

JV Roberts `Victim Impact Statements and the Sentencing Process: Recent Developments and Research 

Findings’ (2003) 47 Criminal LQ 365 at 371 – 372. 


5

He further suggests, 32 as secondary purposes derived from the above, that victims will not 

only be more satisfied with the judicial process, but will also be able to reach some form 

of closure, thus facilitating psychological healing. Further, public confidence in sentencing 

may increase, as well as the awareness by criminal justice professionals of the aftereffects 

of crime. Lastly, there may be an increase in awareness by offenders of the harm 

caused, while the possibility of reconciliation between victim and offender is promoted by 

encouraging offender empathy. 

Roberts 33 emphasises that the potential of the victim impact statement to serve as an 

additional communication between victim and offender should not be overlooked. In the 

light of the fact that there is a pre-existing relationship between the victim and the 

offender, the purpose would be to elicit remorse after a message of sensitisation. 

Research, however, indicates that imprisoned offenders generally have a very low capacity 

for showing empathy, which would appear to make the achievement of offender empathy 

largely an ideal. 34 

The South African Law Commission initially viewed the victim impact statement as an 

indirect way of giving the victim a voice during the sentencing stage. 35 Although the South 

African Victims’ Charter appears to follow the same multi-purpose approach as that 

adopted in England, with the focus being on both the rights of, and services provided to, 

victims of crime, the victim’s procedural right to provide information in the form of a 

victim impact statement is clear. Thus, in addition to providing the victim with a voice, the 

victim impact statement in South Africa is also used by the court for consideration in 

sentencing decisions and, therefore, also serves as a source of information for the court. 36 

It informs the court about the impact of the crime on the victim and requires the victim to 

give particulars of any harm, including physical or mental injury, emotional suffering and 

economic loss resulting from the offence. 37 

A sentencing discretion can only be exercised properly if all the facts relevant to a 

matter are presented to the court. The necessary information required by the court 

embraces much more than information on the elements of the case and the visible 

injuries. If a court is to exercise its sentencing discretion properly, it is necessary for the 

presiding officer to have access to the victim’s version as well. This is illustrated in the 

approach the courts have adopted towards cases involving sexual violence, where the 

courts have accepted that they do not have the necessary expertise to draw conclusions 

about the effect of an indecent assault or rape on a child victim. As Cloete J noted in S v 

Gerber 38 ‘[a] court does not have the necessary expertise to generalise about the 

consequences, if any, for the victim in a case like the present.’ 

32 

Ibid. 

33 

Note 29 above 376 – 377. 

34 

CSL Delport and A Vermeulen `Convicted Male Sexual Offenders: A Social Work Perspective’ (2004) 5 

Child Abuse Research in South Africa (CARSA) 41. 

35 

SA Law Commission Report on Sentencing (A New Sentencing Framework) Project 82 (2000) 88. 

36 

Par 2 of the Victims’ Charter reads: ‘You may also, where appropriate, make a statement to the court or 

give evidence during sentencing proceedings to bring the impact of the crime to the court’s attention’. 

37 

Draft Sentencing Framework Bill (note 9 above) clause 47(1)(a). 

38 

2001(1) SACR 621 (WLD) 624. The same finding was made by the Appeal Court in S v R 1993(1) 

SACR 209 (A) 219. 


6

It is extremely difficult for any individual, even a highly trained person such as a 

magistrate or a judge, to comprehend fully the range of emotions and suffering a 

particular victim of sexual violence may have experienced. 39 Each individual brings with 

himself or herself a different background, a different support system and, therefore, a 

different manner of coping with the trauma flowing from the abuse. This was emphasised 

by the court in Holtzhausen v Roodt: 40 

Rape is an experience so devastating in its consequences that it is 

rightly perceived as striking at the very fundament of human, 

particularly female, privacy, dignity and personhood. Yet, I 

acknowledge that the ability of a judicial officer such as myself to 

fully comprehend the kaleidoscope of emotion and experience, both 

of rapist and rape survivor is extremely limited. 

The presentation of a victim impact statement, in addition to contributing to fairness and 

offering certain therapeutic advantages, 41 ‘enhances proportionality rather than 

harshness’. 42 In order that judicial officers may exercise their sentencing discretion 

properly, it is necessary for them to have information placed before them, not only 

regarding the objective gravity of the crime, but also in respect of the present and future 

impact of the crime on the victim. 43 It is submitted that South Africa ascribes to the main 

rationale underlying victim impact statements, that is, they are seen as a means of 

achieving proportionality in sentencing, thereby taking the degree of harm inflicted into 

consideration in order to achieve a sense of balance. 

IV THE PRACTICE OF USING VICTIM IMPACT STATEMENTS 

(a) Present position in South Africa 

Despite the absence of any statutory obligation requiring the use of victim impact 

statements in South Africa and the recent introduction of a Victims’ Charter, presentations 

on harm have already been made in a number of sexual abuse cases. Impact evidence 

has been provided in the following ways: 

• Evidence on the impact of a crime has been given by experts, either after personal 

assessment of the victim or based on experience of similar cases. 

39 

SA Law Commission Discussion Paper 102 Sexual offences: Process and Procedure (December 2001) 

646. 

40 

1997(4) SA 766 (W). 

41 

See R Burr `Litigating with Victim Impact Testimony: The Serendipity That Has Come From Payne v 

Tennessee’ (2003) 88 Cornell LR 529. Burr presents evidence on the healing effect of victim impact 

statements for a murdered victim’s mother and daughter after defence-based outreach to the survivor. S 

Bandes. `When Victims Seek Closure: Forgiveness, Vengeance and the Role of the Government’ (2000) 

27 Fordham Urb LJ 1605 – 6, however, emphasises that, despite the fact that victims sometimes obtain 

closure from the legal system, the legal system in fact has goals and purposes that are necessarily distinct 

from meeting the needs of the victim. Notwithstanding this, victims and their responses are unique and it 

would be wrong to assume that all victims will benefit equally from the same kind of post-crime 

treatment. 

42 

Erez (note 19 above), 548. 

43 

Rammoko v Director of Public Prosecutors (note 15 above) 205E-F. 


7

• It has been held by the court 44 that it is possible for a mother or teacher to testify 

about the symptoms of trauma displayed in the child’s daily life, for example with 

regard to sleeping patterns, eating or socialising patterns, standard of schoolwork, 

ability to concentrate, attitude to discipline and a nervous or fearful state of mind. 

• It has been possible for the victim to give evidence on harm by testifying in person 

during the sentencing phase. 45 

• Where personal appearance is not possible or desirable, letters or poems written by 

the victim after the assault have also been used. In S v Van Wyk 46 , the court found a 

poem, written by the victim, to be very enlightening about the effect which the assault 

had upon her. 

However, the courts have approached pre-sentence presentation of harm experienced by 

victims in a haphazard way. This has given rise to a situation where, in the absence of any 

evidence on harm, the court is exposed to only half of the information necessary for 

sentencing. 

As a possible solution to the difficulties which arise from the lack of a uniform 

approach to the presentation of evidence on harm, the form and content of victim impact 

statements are examined below. Victims of crime will have a formal procedural right to 

make a victim impact statement in terms of the new Victims’ Charter. The present 

discussion will thus focus on this formal statement which can be used to place the victim’s 

version before court, thereby extending the traditional methods of introducing evidence to 

the court in sentencing. 

(b) Content of victim impact statements 

The content of a victim impact statement will be prescribed by the purpose assigned to 

such a statement, as well as by the definition of harm. 47 By defining the concept of harm 

in detail, courts are not only made aware of the potential impact that of sexual offences, 

but compilers of these statements are also guided as to the factors that should be 

included in the victim impact statement. 

In Australia, harm is defined as including physical and mental injury or emotion; 

suffering, including grief; pregnancy; economic loss; and substantial impairment of rights 

accorded by law. 48 In the United Kingdom, the concept of harm includes the fear of further 

victimisation, 49 while the American state of Florida provides for social harm as an element 

to be added. 50 Provision can also be made in the definition of harm for an open clause 

such as contained in the Florida statute, namely ‘ … and any matter relevant to an 

44 S v Abrahams 2002(1) SACR 116 (SCA) 124C. 

45 Rammoko v Director of Public Prosecutors (note 15 above). 

46 2000(1) SACR 45 (CPD) 51. 

47 The definition of `victim’ in the Victims’ Charter (note 7 above), describes a victim as a person who has 

suffered harm. Victim impact statements are defined as a description of the harm suffered by the victim. 

48 Australian Crimes Act 1994. 

49 In the United Kingdom, the victim can expect ‘the chance to explain how the crime has affected him’ and 

that his interests will be take into account; ‘the police will ask him about his fears about further 

victimisation and details of loss, damage or injury; the police, Crown Prosecutor, magistrates and judges 

will take this information into account when making their decisions’. See Inns of Court School of Law 

Criminal Litigations and Sentencing (2003/2004) 308. 

50 Florida per Fla.Stat.Ann. 921. 143 (2000) as referred to by NN Kittrie, EH Zenoff & VA Eng Sentencing, 

Sanctions and Corrections 2ed (2002) 292. 


8

appropriate disposition and sentence’, thus covering any matter relevant to the imposition 

of an appropriate sentence. 51 

Reference to future psychological harm seems to be contentious, and concern appears 

to revolve around the expert’s own training, knowledge and expertise, and the ongoing 

life experiences of the victim. 52 It seems to be clear though, that the victim impact 

statement should be updated prior to sentencing in order to describe the physical and 

emotional state of the victim at the time of sentencing. 53 In England and South Africa, the 

victim has the opportunity to update his or her victim impact statement 54 by making a 

second statement describing the medium and/or long term effects of the crime. 55 In the 

absence of such an update, the court will be left with an incomplete account of harm. 

The South African definition of harm does not introduce anything new. The definition 

of harm in the Victims’ Charter includes physical or mental injury; emotional suffering; 

economic loss; or substantial impairment of the victims’ fundamental rights. 

Notwithstanding the contents of the definition of harm, the definition appears to be 

wide enough to include a unique consequence, relevant to a particular victim, in his or her 

victim impact statement. 

(c) Opinion as to sentence 

Whether a victim impact statement should include the victim’s opinion as to sentence 

appears to be a thorny issue, and there is no consensus on the matter. 56 In the United 

Kingdom, this practice is prohibited, and the position is clarified as follows in the 

applicable guidelines: 

The judges and magistrates decide how an offender is punished when 

they pass sentence. You should not offer any opinion as to how the 

court should punish the offender. The court will not consider your 

opinion when they make a decision, but will take account of how the 

offence has affected you. 57 

A number of arguments have been forwarded against the practice of including a victim’s 

opinion about sentence in a victim impact statement. Firstly, it is argued that sexual 

offence cases, unlike civil cases, are public cases that are dealt with in the name of the 

state. 58 . Hoffmann, however, points out that victims now rightfully occupy a special place 

within the criminal justice system. 59 

51 

Ibid. 

52 

SA Law Commission Discussion Paper 102 Sexual Offences: Process and Procedure (December 2001) 

672. 

53 

Erez (note 19 above) 546. 

54 

Referred to as a victim personal statement in the United Kingdom. 

55 

Home Office Making a victim personal statement (26 July 2001) para 15. 

56 

SA Law Commission (note 51 above) 682. In contrast with the Draft Sentencing Framework Bill (note 9 

above) which opposes the idea, the Project Committee on Sexual Offences supports it. 

57 

Home Office (note 53 above) para 15. 

58 

SA Law Commission Project 107 Report on Sexual Offences (2002) 347. 

59 

JL Hoffmann `Revenge or Mercy? Some Thoughts About Survivor Opinion Evidence in Death Penalty 

Cases’ (2003) 88 Cornell LR 541. 


9

Secondly, it has been argued that victims may find it distressing to have their 

recommendations ignored by the presiding officer. 60 Finally, recommendations regarding a 

specific sentence may be seen by a presiding officer to be inappropriate, because the 

victim has no legal background and may simply be seeking revenge. 61 

In response to the above, it should be noted that, as a result of the sexual assault, 

victims often experience a severe and ongoing sense of loss of control. 62 By providing 

them with even a small degree of control over the accused’s fate ‘it may be possible to 

help them to regain their sense of agency in general’. 63 In fact, research has shown that a 

victim’s need may relate mainly to telling the offender that what he did was wrong 64 or 

asking for assistance for counselling and therapy, rather than prescribing what his 

punishment should be. It may also be that, through the recommendation of a lenient 

sentence, the victim is afforded an opportunity of showing mercy to the perpetrator. 

It is submitted that the practice of allowing a victim to make recommendations to the 

presiding officer regarding an appropriate sentence should only be considered if such a 

practice is qualified by the provision that the presiding officer is under no obligation to 

follow the recommendation. 65 This will make the victim aware that it is the responsibility 

of the court to decide on sentence, as well as contribute towards minimising the 

perception that there is interference in the presiding officers’ sentencing discretion. 

The South African Victims’ Charter does not make explicit provision for the victim to 

comment on a specific sentence. Rather, in outlining the prosecution’s option to submit a 

victim impact statement, the phrase ‘in support of an appropriate sentence’ is used to 

describe the evidence that can be led. This could be interpreted to include a suggestion by 

the victim regarding sentence. 66 

The Charter also informs victims of the steps that can be taken where a sentence is 

too lenient, thereby illustrating that a court need not follow a sentence recommendation. 

However, it is submitted that the position is formulated too vaguely in the Charter and 

should have been addressed more directly. It is further submitted that a victim impact 

statement should preferably not include a reference to the victim’s sentence 

recommendation, as this may tend to tarnish or neutralise the value of the victim impact 

statement, should the recommendation be overly emotional. 

(d) The preparation and submission of victim impact statements 

60 

DJ Hall `Victims’ Voices in Criminal Court: The Need for Restraint’ in M Wasik The Sentencing Process 

(1977) 266. 

61 

Hoffmann (note 57 above) 530. 

62 

N Henderson `The Wrongs of Victim’s Rights’ (1985) 37 Stan LR 937 as referred to by Hoffmann (note 

57 above) 358. 

63 

Hoffmann (note 57 above) 541. Although this argument is presented with regard to survivor impact 

evidence in capital cases in the United States of America, it is also applicable to victims of sexual 

offences. See also Erez (note 19 above) 551 who argues that one of the major driving forces behind the 

victim movement was the aim of helping them overcome their sense of powerlessness and reducing the 

feeling that the system is uncaring. 

64 

Rammoko v Director of Public Prosecutors (note 15 above). 

65 

SA Law Commission (note 50 above) 682. 

66 

Department of Justice (note 13 above) Part 2 para 19. The Law Commission earlier recommended that 

victims should be allowed to give their opinions on the appropriate sentence, provided that it is well 

understood tht the court is under no obligation to follow such opinions. See SA Law Commission (note 

56 above) 372. 


10

Internationally the position with regard to the collection of information for the compilation 

of victim impact statements does not appear to be uniform. Depending on the country 

concerned, such collection is carried out either by justice agents, such as the police (in 

England, Wales, Scotland, Canada and Australia) or by probation officers, victim 

assistance staff or prosecution staff (in the United States of America and New Zealand). 67 

The South African Law Commission initially opted to follow the latter course and 

proposed that the responsibility fall on the prosecution, who would have the ultimate duty 

of ensuring that the victim impact statement be available for submission to court. 68 

Edwards 69 , however, warns that by placing the responsibility on the prosecution, the roles 

of victim advocacy, on the one hand, and prosecution in the name of the state, on the 

other, are confused. The South African Victims’ Charter 70 seems to follow a hybrid 

approach and refers, in addition to the victim’s statement to the police, to the possibility 

that either the presiding officer or prosecutor, or even the defence, may request that a 

probation officer or other expert prepare a report that may include an assessment of the 

effect of the crime on the victim. 

According to Edwards, the involvement of the probation in services ‘liasing with victims 

and detailing the effects of offences, is possibly at odds with its history and ethos’. 71 

Internationally there would also appear to be agreement that the preparation of victim 

impact statements should not be performed by agencies associated with offenders. 72 The 

practice in South Africa has, however, always been that the same probation officer often 

compiles a report on both the offender and the impact of the crime on the victim. 

Nevertheless, the ideal is that prosecutors should, as a matter of principle, be assisted by 

NGOs which provide specialised services for victims of sexual assault. 73 

Where the victim is a young child, any party to the proceedings or even the court itself 

may, and where possible should, request the services of a child psychologist or other 

relevant expert to assist in explaining and describing the impact of the harm and trauma 

experienced by the child as a result of the offence. 74 The reason it is considered 

inappropriate for parents or family members to assist the child in making the victim impact 

statement, relates to the fact that a crime of a sexual nature perpetrated against a child 

has a traumatising effect on the parents or family members as well. Owing to their 

emotional involvement with the child and also the fact that they do not have any 

professional training, parents are not able to explain comprehensively the extent of harm 

suffered by the child. However, financial constraints may also make the employment of a 

child psychologist more of an ideal than a reality. 

(e) Evidentiary aspects of victim impact statements 

Although there seems to be agreement that victim impact statements should always be 

voluntary, victims can be encouraged, facilitated, entitled or even required to participate 

in this process. 75 However, it appears that, where the victim objects to making a victim 

67 


68 


69 

Note 28 above 49. 

70 

Department of Justice and Constitutional Development (note 13 above) Part 2 para 20. 

71 

Note 29 above, 49. 

72 


73 


74 

SA Law Commission (note 56 above) 372, 378. 

75 

Edwards (note 28 above) 44. 


11

impact statement, nobody should be allowed to make a statement on his or her behalf. 76 

In most jurisdictions, the victim impact statement must be made under oath 77 and a copy 

must be given to the defence. 78 

Despite proposals to the effect that the absence of a victim impact statement should 

not lead to any negative inference being drawn or to the conclusion that no harm, loss or 

emotional suffering has been caused by the crime, the contrary approach was adopted in 

S v O. 79 Here, a finding of no harm was made by the court in the absence of any evidence 

on the impact of the indecent assault on the boys concerned. 80 

Uncontested victim impact statements should be admissible evidence on production 

thereof. If the contents of a victim impact statement are disputed, the author and/or the 

victim must unfortunately be called as a witness. It is submitted that the witness should 

then be given the choice whether or not to withdraw the statement. 81 

There are no guidelines as to how victim impact statements should be incorporated by 

sentencing courts ‘into the complex determination of sentence’. 82 According to Roberts, 83 

statutory statements of purpose and principle appear to be of little use, and greater 

direction is needed without infringing upon the courts’ discretion. Guidelines from superior 

courts would be required in this regard in order to provide clarity about the weight that 

should be accorded to the victim impact statement. In this regard, the Supreme Court of 

Appeal has indicated that a finding of serious harm should be given substantial weight. 84 

There is, however, always the reality of prevailing perceptions amongst judicial officers 

about harm and the use of victim impact statements that will influence their 

understanding and interpretation of evidence in this regard. 85 

The position in England is that a judicial officer would require supporting evidence 

before an assumption could be made regarding the effect of the offence on the victim, 86 

unless the surrounding circumstances warrant an inference being properly drawn. 87 The 

76 AE van der Hoven Forensic Criminology (Tutorial Letter 501/2004) Department of Criminology Unisa 

(2004) 202. Section 29(b) of the New South Wales Crimes (Sentencing Procedure) Act 1999 provides, 

for example, that a victim impact statement may not be received or considered by a court if the victim, or 

any of the victims to whom the statement relates, objects to the statement being given to the court. 

77 SA Law Commission (note 56 above) 348. 

78 R v Hobstaff (1993) 14 CR AppR (S) 60. In New South Wales, the Crimes (Sentencing) Procedure Act 

1999 s 28(5) provides, however, that care must be taken to ensure that the offender does not retain a copy 

for himself. 

79 2003(2) SACR 147 (C). 

80 Ibid 162A-C. 

81 It should be noted that research has shown that, for various reasons, defence counsel very seldom embark 

on cross-examination of the victim (Erez (note 19 above) 549). 

82 Note 30 above, 370. 

83 Ibid. 

84 S v Abrahams (note 42 above) 142D. In this case the sentence was, based inter alia on a finding of 

grievous harm, increased from 7 to 12 years. This finding was in contrast with the trial court’s finding 

that the trauma symptoums simply indicated normal teenage rebelliousness. 

85 See A Van der Merwe Aspects of the Sentencing Process in Child Sexual Abuse Cases (2005) 

Unpublished doctoral thesis (Rhodes), 256-273 for an investigation into prevailing perceptions about 

when, and what kind of harm is caused by sexual offences against children and a warning that biased 

perceptions will simply continue to negate any recognition of the victim. 

86 R v Perks [2000] Crim LR 606. Propostion 1. 

87 Lord Chief Justice (16/10/01) Practice Direction (Victim Impact Statements) par 3(b), 

. 


12

evidence of the victim alone should further be approached with care 88 and only particularly 

damaging or distressing effects of the crime upon the victim should be taken into account 

by the court when passing sentence. 89 

Judicial training is further envisaged with regard to the potential impact of sexual 

crimes on victims generally as well as with regard to the offender’s knowledge, use and 

manipulation of the child’s vulnerability as factors to be considered in sentencing. 90 

(f) Forms and guidelines 

The victim impact statement may be presented to the court in various formats, depending 

on the underlying rationale for victim participation in sentencing. 91 The victim impact 

statement will normally be made in addition to the witness’ statement with regard to the 

offence, and it must at least be signed. In England, the document is presently called a 

victim personal statement, and is made in addition to the witness’ normal statement 

regarding the crime. The victim is allowed to say whatever he or she wants to say, with 

the emphasis being on the fact that the statement is made in his or her own words. The 

statement is, however, attached to the police docket as an affidavit and is made available 

to the court only in its written format before sentencing, or forms part of a pre-sentence 

report. 92 

On the other hand, both Southern Australia 93 and Canada 94 gives victims the right to 

read the previously prepared victim impact statement aloud in court if they want to. The 

interpretation of the Canadian section has, however, given rise to conflicting decisions, in 

that some judges have refused an oral victim impact statement in order to prevent victims 

from departing from the prepared victim impact statement and extemporising about the 

offender and the offence. 95 The position as to whether judicial officers are permitted or 

obliged to allow the oral presentation of previously prepared victim impact statements has 

still not been clarified. 96 In addition to the possibility of reading out a written statement, 

the American option of making an oral statement can be offered to victims, thereby 

allowing them to speak directly to the court. 97 It would thus appear that some jurisdictions 

prefer a previously prepared, written format, either just attached to the record or with a 

possibility of being read out by the victim. Others allow the victim to make an oral 

presentation in court, guided by provisions such as that the presentation should relate 

only to the case and should explain the various forms of harm. 

88 R v Perks (note 84 above) proposition 4. 

89 Ibid proposition 2. (Similarly, only substantial emotional harm can be taken into account as an 

aggravating factor in New South Wales (s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 at 92. 

90 SA Law Commission (note 56 above) 372. 

91 Edwards (note 28 above) 48. 

92 

Ibid. 

93 

Supreme Court Criminal Rules 1992 Amendment 8. Also note that s 7A(1) of the Criminal Law 

(Sentencing) (Victim Impact Statements) Amendment Act 1998 precludes victims from reading out their 

statements in magistrates’ courts. 

94 

Roberts (note 29 above) 367-369. 

95 

Ibid. 

96 

Ibid. 

97 

Section 4(a)(1)(a) Fla. Stat.Ann. 921. 143 (2000) as referred to by Kittrie et al (note 48 above) 292. 

Edwards (note 29 above, 48) points out that the rights discourse in America and the belief in the cathartic 

value of expression leads courts to allow victims to express o the court anything they wish. 


13

With regard to children, it would appear that in England children’s statements could be 

made by means of a video recording, as this is the accepted manner for dealing with 

witness statements. 98 In the Canadian province of Saskatchewan, the victim impact 

statements of children below the age of 13 are made on a form that differs from that 

provided for adults. Depending on their developmental age, children over 13 can choose 

which form they want to complete. 99 Recent Scottish developments allow children over 14 

years to make a victim impact statement, while children below that age are entitled to 

have another person make a statement on their behalf. 100 In contrast, the state of New 

Jersey in the United States of America prohibits children from testifying about harm. 101 

According to the South African Victims’ Charter, the court may be informed about the 

effect of the crime on the victim either by way of a report prepared by a probation officer, 

or by an expert, compiled from the information in the police docket, or by way of an 

interview with the victim, or the victim himself or herself may testify. 102 

V CONCLUSION 

Only a draft statutory platform for victim impact statements exists in South Africa. 103 

However, the recent, final Victims’ Charter, which consolidated the legislative framework 

with regard to existing victim rights in South Africa, provides some clarity as to the 

platform for formal victim impact statements in South Africa. In line with the victimcentred, 

restorative justice movement that has led to the paradigm shift, victims are now 

more formally acknowledged as unique and have the right, at least in theory, to offer or 

present information to professionals involved in the case and to participate in criminal 

justice proceedings. 104 

In addition, statements on the after-effects of a crime have also been found to be 

essential in arriving at a decision that is fair both to the offender and the public. Victim 

impact statements thus serve a greater purpose than contributing only to the 

determination of quantum of punishment. 105 They provide the judicial officer with the 

other side of the story in order that a balanced approach to sentencing may be adopted. 

98 

Home Office The Victim Personal Statement Scheme: A guide for investigators (undated) 10, 

. 

99 

Saskatchewan Justice `Victim impact statement program guidelines manual’ (2002) Victim Services 

Branch para B3-4. 

100 

C Boyd `Youth Justice and the Protection of Children and Youth’ Paper Electronic Conference 

Proceedings 18 th International Conference of the International Society for the Reform of Criminal Law, 8 

-12 August 2004. Keeping Justice Systems Just and Accountable: A Principled Approach in Challenging 

Times. Montreal. 

101 

State v Muhammed 678 A2d 164 (1996). 

102 

Department of Justice and Constitutional Development (note 13 above) para 20. 

103 

Draft Sentencing Framework Bill (note 9 above) clause 47; s 17(b) of the Criminal Law (Sexual 

Offences) Amendment Bill 2003. See also the most recent version available since the writing of this note, 

namely, the Criminal Law (Sexual Offences and Related Matters) Amendment Bill 2006, section 2(c) 

(note 11 above). 

104 

B Naude, J Prinsloo and A Ladikas `Restorative Justice: A Global Overview of its Functioning and 

Effectiveness’ (2003) 16 Acta Criminologica. 7. 

105 

Roberts (note 29 above) 396. 


14

Chris Giffard, Independent Consultant 

chrisgiffard@gmail.com 

Lukas Muntingh, Project Coordinator 

Civil Society Prison Reform Initiative (CSPRI) 

Community Law Centre, University of the Western Cape 

lmuntingh@uwc.ac.za 

Between 1995 and 2004 the South African 

prison population grew from 116 846 to 

187 036, while available accommodation 

remained the same at approximately 113 000. But 

this is not simply the result of more people being 

imprisoned, or even, as is often argued, the large 

number of unsentenced prisoners. It is a widely 

accepted fact that South Africa’s prisons are 

overcrowded and that this is unacceptable from a 

human rights perspective. However, there is far less 

agreement among Correctional Services 

stakeholders on the reasons for prison 

overcrowding. 

This analysis focuses on the effect of sentencing on 

the size and profile of the sentenced prison 

population. This focus was motivated, at least in 

part, by important legislative amendments made in 

1997 and 1998; namely the introduction of 

mandatory minimum sentences (Criminal Law 

Amendment Act 1997) and the expansion of the 

sentencing jurisdiction of the district and regional 

courts. (Magistrates’ Court Amendment Act 1998) 

It is accepted that the size of the total prison 

THE NUMBERING 

OF DAYS 

Sentencing and prison 

population growth 

On 30 May 2007 the Criminal Law Amendment Bill (15 of 2007) was tabled in Parliament, proposing 

amendments to what has become known as the ‘minimum sentences’ legislation. The proposed amendments 

herald another chapter in the prison overcrowding debate in South Africa and will focus attention on the 

impact of sentencing on the size of the prison population. 

population is influenced by a number of factors or 

‘prison population drivers’, for example macroscale 

population trends, trends in crime, law 

enforcement, and sentencing. Sentencing emerges 

from this analysis as a critical driver of the prison 

population. 

Using quantitative data (made available by the 

Department of Correctional Services) on the size 

and profile of the prison population over an elevenyear 

period, 1995 to 2005, the relationship 

between sentencing and the size of the prison 

population is explored. On closer inspection it 

appears that fewer offenders are sentenced to 

imprisonment, but for longer. It was also found that, 

apart from the dramatic change in the profile of 

sentence lengths, the offence profile of the prison 

population has changed significantly, and this has 

had a material impact on services rendered to 

prisoners, security issues in prisons, and 

infrastructural requirements. It is concluded that 

these three factors, working in tandem, resulted in 

the rapid change in size and profile of the 

sentenced prison population, especially after 1998. 

SA CRIME QUARTERLY No 20 • JUNE 2007 21 


Using basic mathematical projections, a projection 

is made of the size of the prison population by 

2015. 

This article is a summary of a more detailed 

research report commissioned by the Open Society 

Foundation (SA) and only the key findings are 

highlighted here. 

No. of prisoners 

200 000 

180 000 

160 000 

140 000 

120 000 

100 000 

80 000 

60 000 

40 000 

20 000 

0 

1995/01 

Overview of the prisoner population 

Figure 1 provides an overview of the total South 

African prison population for the period 1995 to 

2005, and three trends are discernable. The first is 

the overall increase, as noted above, from less than 

120 000 in 1995, to more than 180 000 by 2004. 

The second is the fairly rapid increase in the 

unsentenced prison population from 1995 to 2000, 

Figure 1: Total, sentenced and unsentenced prisons population, 1995 to 2005 

1995/07 

1996/01 

1996/07 

1997/01 

1997/07 

1998/01 

1998/07 

1999/01 

Source: DCS Management Information System 

Table 1: Overview of the South African prison population 

Average for January of each year % increase 

Sentence category 1995 2000 2005 1995-2000 2000-2005 1995-2005 

Unsentenced 24 265 61 563 52 313 154 -15 116 

0-6 months 5 831 5 717 5 674 -2 -1 -3 

>6-12 months 6 374 6 598 5 416 4 -18 -15 

>12-3-5 years 21 066 16 162 16 731 -23 4 -21 

>5-7 years 15 068 13 882 12 137 -8 -13 -19 

>7-10 years 12 193 18 418 21 233 51 15 74 

>10-15 years 6 168 10 442 23 139 69 122 275 

>15-20 years 2 660 4 603 10 586 73 130 298 

>20 years 1 885 4 919 9 197 161 87 388 

Life sentence 443 1 086 5 745 145 429 1 197 

Other sentences 1 4 274 3 031 1 706 -29 -44 -60 

Total sentenced 92 581 104 860 135 143 13 29 46 

Total prisoners 116 846 166 423 187 456 42 13 60 


Unsentenced Sentenced Total 

1999/07 

2000/01 

2000/07 

2001/01 

2001/07 

2002/01 

2002/07 

2003/01 

2003/07 

2004/01 

2004/07 

2005/01 

2005/07 

22 GIFFARD AND MUNTINGH SA CRIME QUARTERLY No 20 • JUNE 2007 


that thereafter levelled and declined steadily until 

2005. The third is the steady increase in the 

sentenced population that started in 1995, dropped 

as a result of two amnesties in 1995 and 1998, but 

then accelerated until 2005, when the Department 

of Correctional Services (DCS) implemented a 

remission of sentence programme. It is evident that 

post-2000, the sentenced prison population became 

the main driver of the increase in the total 

population, taking over from the unsentenced prison 

population. 

From 1995 to 2005 the profile of the sentenced 

prison population showed remarkable changes, as 

presented in Table 1. The most significant trend was 

the rapid increase in the number of prisoners serving 

sentences of longer than seven years. For example, 

the number of prisoners serving sentences of 10-15 

years increased by 275%, the 15-20 year category 

by 298%, and life sentences by a phenomenal 

1 197%. The general trend was that the longer the 

sentence, the greater the increase. On the other 

hand, prisoners serving sentences of less than 12 

months showed a decline, as well as prisoners 

% of sentenced prisoners 

Figure 2: Proportion of prisoners serving 

sentences of shorter and longer than 7 years 

80 

70 

60 

50 

40 

30 

20 

10 

74 

26 

1995 


61 

39 

2000 

48 

0-7 years >7 years 

52 

2005 

serving sentences of between three and seven years. 

Figure 2 shows very clearly how the proportion of 

prisoners serving sentences of less than seven years 

declined, while those serving sentences of longer 

than seven years increased from just less than 26% 

in 1995 to 52% at the end of 2005. 

Legislative changes and their effect 

Two key legislative changes were introduced in the 

late 1990s. The first was the Magistrates’ Court 

Amendment Act (1998) that extended the 

sentencing jurisdiction of the magistrates’ courts at 

both district and regional levels. In the case of the 

district courts, the maximum penalty that they may 

impose was increased from twelve months to three 

years’ imprisonment, while the jurisdiction of the 

regional courts was increased from 10 years to 15 

years’ imprisonment. 

The second was the Criminal Law Amendment Act 

(1997) that provided for mandatory minimum 

sentences for specific offences, and came into force 

in May 1998. The minimum sentencing legislation 

has a number of features to ensure that the 

intended severity of the prescribed sentences is not 

undermined by sentencing officers or by the 

executive. No part of the sentence can be 

suspended (Criminal Law Amendment Act 1997:S 

51 (5)). Nor can the time spent in prison awaiting 

trial be deducted from the prescribed sentence 

(Criminal Law Amendment Act 1997: S 51 (4)). An 

offender sentenced in terms of the minimum 

sentencing legislation must also serve four fifths of 

the sentence before s/he can be considered for 

parole, whereas the majority of other offenders can 

be considered after serving half of their sentence 

(Correctional Services Act 1998:S73(6)(b)(v)). 2 

Judicial officers may impose a lesser sentence than 

the prescribed minimum only if they find 

‘substantial and compelling circumstances’ which 

justify a departure from the mandatory sentence. 

(Criminal Law Amendment Act 1997:S 51(3)(a). See 

Ehlers L & Sloth-Nielsen 2005:12-13) 

As will be shown below, this legislation made a 

substantial contribution to changing the profile of 

South Africa’s sentenced prison population. But 

while the impact of the legislation on prisoner 

numbers is likely to be felt for decades to come; its 

SA CRIME QUARTERLY No 20 • JUNE 2007 GIFFARD AND MUNTINGH 23 


effects were not immediate. For the first two years 

of its operation, there was no impact at all, due to 

the time lag from the date of implementation of 

the minimum sentencing legislation, the 

commission of offences after that date and 

detection, prosecution, conviction and 

sentencing. 

From 2000 onwards the combination of the 

Magistrates Court Amendment Act (1998) and the 

24 


10 000 

9 000 

8 000 

7 000 

6 000 

5 000 

4 000 

3 000 

2 000 

1 000 

0 

1995/01 

GIFFARD AND MUNTINGH 

minimum sentencing legislation had a 

consolidation effect on trends that started pre- 

1998. A closer inspection of the data shows that 

sentence lengths started increasing prior to 1998; 

a trend that was interpreted as a more punitive 

attitude from sentencing officers. This is 

demonstrated in Figures 3 and 4, that show the 

increase in the number of sentences longer than 

ten years prior to 1998, and the acceleration from 

2000 onwards. 

Figure 3: Prisoners serving sentences of life and >20 years 1995-2005 

1995/07 

1996/01 

1996/07 

1997/01 

1997/07 

1998/01 

1998/07 

1999/01 



25 000 

20 000 

15 000 

10 000 

5 000 

0 

Figure 4: Prisoners serving sentences of >10-20 years 1995-2005 


1999/07 

2000/01 

Life >20 years 

2000/07 

2001/01 

2001/07 

2002/01 

2002/07 

2003/01 

2003/07 

2004/01 

2004/07 

2005/01 

2005/07 

1995/01 

1995/07 

1996/01 

1996/07 

1997/01 

1997/07 

1998/01 

1998/07 

1999/01 

1999/07 

2000/01 

2000/07 

2001/01 

2001/07 

2002/01 

2002/07 

2003/01 

2003/07 

2004/01 

2004/07 

2005/01 

2005/07 

>15-20 years >10-15 years 

SA CRIME QUARTERLY No 20 • JUNE 2007 


An analysis of the data reveals that in early 2000 

the number of prisoners serving life sentences 

began to increase dramatically. It is also apparent 

that the longer than 20-year category did not have 

as sharp an increase at that time. The increases look 

similar in the >10- 20 year sentences (see Figure 4). 

The >10-15 year category showed a far sharper 

increase, starting in May 1999. There are two 

probable reasons for the increase in this latter 

category. The first is the extension of the sentencing 

jurisdiction of the regional courts to a maximum of 

15 years from the end of 1998. Secondly, a fifteen 

year sentence is mandatory for first offenders 

convicted of ‘less severe’ instances of murder, and 

robbery when aggravating circumstances are 

involved, or the taking of a motor vehicle (vehicle 

hijacking). Given the increase in these types of 

offences in the 1990s, 3 it is probable that these 

offenders make up a significant proportion of the 

increasing numbers in this sentence category. 

Figure 5 shows that offenders serving prison 

sentences of three to seven years decreased in terms 

of real numbers and proportional share. 

From the late 1990s to 2005, it is more specifically 

the increase in the general sentencing tariff that 

played the major role in increasing the size of the 

prison population. In general, the number of 

prisoners serving long sentences increased, while 


25 000 

20 000 

15 000 

10 000 

5 000 

0 


the number of those serving shorter sentences 

decreased. The turnover of prisoners thus slowed 

down, and regardless of the fact that fewer 

offenders were being sentenced to imprisonment; 

they were staying there for longer. 

It is also concluded that, at this stage, the 

increasing size of the sentenced prison population 

was not caused by the minimum sentencing 

legislation. The increase in the number of prisoners 

serving longer sentences preceded the 

promulgation of the minimum sentencing 

legislation and thus also its delayed impact from 

2000 onwards. It is possible that this increase was 

facilitated and consolidated by the minimum 

sentencing legislation and the increase in sentence 

jurisdiction, but the initial impetus came from 

elsewhere. A combination of public and political 

pressure on the courts to increase the severity of 

sentences, and the increase in the jurisdiction of 

the magistrates’ courts provided this impetus. 

The increase in the number of prisoners serving 

two- to three-year sentences due to the increased 

jurisdiction of the district courts is clearly visible in 

the data. It is however the >10-15 year sentence 

category that made a greater contribution than any 

other to the rise in the prison population, and this is 

attributed to the increase in jurisdiction of the 

regional courts. 

Figure 5: Number of prisoners serving sentences of >3-10 years, 1995-2005 


1995/01 

1995/08 

1996/03 

1996/10 

1997/05 

1997/12 

1998/07 

1999/02 

1999/09 

2000/04 

2000/11 

2001/06 

2002/01 

2002/08 

2003/03 

2003/10 

2004/05 

2004/12 

2005/07 

>3-5 years >5-7 years >7-10 years 

GIFFARD AND MUNTINGH 


25

Changes in the offence profile 

A study of the offence categories for particular 

sentence groups also indicates changing trends. The 

DCS currently uses five offence categories: the three 

major categories being economic, sexual, and 

aggressive, while the remaining two categories – 

narcotics and ‘other’ – are relatively insignificant. 

The minimum sentencing legislation is aimed 

primarily, but not solely, at sexual and violent 

offences. 


60 

50 

40 

30 

20 

10 

42 

47 

58 

10 12 

Aggressive Sexual 



2 000 

1 800 

1 600 

1 400 

1 200 

1 000 

800 

600 

400 

200 

0 

26 GIFFARD AND MUNTINGH 

16 

The first important trend is that while the number of 

offenders serving sentences for economic offences 

fell, the number of both aggressive and sexual 

offenders rapidly increased. In 1995, offenders 

serving sentences for economic offences made up 

42% of the sentenced prison population, and sexual 

and aggressive offences 46%. By 2005, the figure for 

economic offences had fallen to 20%, while that for 

sexual and aggressive offences had increased to 

75%. (see Figure 6) 

Figure 7: Sexual offenders serving sentences of >15 years, 1995-2005 


Figure 6: Percentage shares of crime categories 

40 

32 

20 

Economic 

1995 2000 2005 

4 4 

Narcotics Other 

1995/01 

1995/07 

1996/01 

1996/07 

1997/01 

1997/07 

1998/01 

1998/07 

1999/01 

1999/07 

2000/01 

2000/07 

2001/01 

2001/07 

2002/01 

2002/07 

2003/01 

2003/07 

2004/01 

2004/07 

2005/01 

2005/07 

2005/12 

>15-20 years >20 years Life sentence 

2 



3 

6 

3

In particular, the number of offenders serving 

sentences for aggressive and sexual offences 

significantly impacted on the numbers in the longer 

sentence categories. The increase in both categories 

is directly related to the minimum sentencing 

legislation. Figure 7 shows that the increase in the 

total number of sexual offenders serving life 

sentences began in August 1999, 15 months after 

the introduction of the minimum sentencing 

legislation. This is as expected. But there is a 

significant difference in the timing of the increase in 

numbers of those serving life sentences for 

aggressive offences and those serving life sentences 

for sexual offences. 

The numbers serving life for aggressive offences 

began to increase slowly from 1995, due to political 

and public pressure, and then increased more 

rapidly from 1999, as a result of the minimum 

sentencing legislation. The number of sexual 

offenders serving life, on the other hand, did not 

increase until in late 1999, when the legislation 

forced the hands of sentencing officers. 

The impact on prisons 

Such increases in prisoner numbers impact on 

prisons in a variety of ways. Prisoners themselves 

are of course most directly affected. The total 

number and proportion of prisoners living in prisons 

that are overcrowded have increased substantially 

% of total prisoners 

90 

80 

70 

60 

50 

40 

30 

20 

10 

0 

since 1995. Only the special remissions of 2005 

brought some respite. Figure 8 shows that even 

though the proportion of prisoners living in 

conditions of between 100% and 200% 

occupancy 4 slowly decreased from 1996 to 2004 (a 

trend ended by the remission), this decrease has 

been at the expense of others. The number of 

prisoners in prisons with occupancy rates of more 

than 200%, increased from just 1% in 1995 to 36% 

in 2004. 

Of equal concern is the proportion of prisoners 

detained in institutions in which there are three 

times as many prisoners than capacity allows. There 

were no prisoners in this category until 1997, but 

by 2004 as many as 5% of all prisoners (a total of 

over 9 000) were held in such facilities. The special 

remissions reduced this number only slightly, to just 

less than 8 500. This is because it is largely longterm 

prisoners and unsentenced prisoners who 

experience these conditions, and neither of these 

categories benefited from the remissions. 

Staff and prison management are also adversely 

affected by the increase in numbers of long-term 

prisoners – but it goes further than that. An 

increasing proportion of offenders are classified as 

maximum security prisoners, due to the length of 

their sentences being based on the formula used by 

DCS. The result was a sharp increase in the number 

Figure 8: Prisoners living in different overcrowding conditions, 1995-2005 

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 


0-100 101-200 >200 



of maximum security prisoners, from 14 229 in 

1995 to 38 663 in 2005 (see Figure 9). 

However, for the first five years, until 2000, the 

increase merely kept pace with the total number of 

sentenced offenders: in fact, until 1997, the total 

number of maximum security prisoners declined, as 

did this category as a proportion of total sentenced 

prisoners (11% for 1997). From 1998 maximum 

security prisoners as a category increased in 


90 000 

80 000 

70 000 

60 000 

50 000 

40 000 

30 000 

20 000 

10 000 

0 

Figure 9: Major security classifications 1995-2005 

proportion by 2-3% each year, and by 2005, 30% 

of all sentenced prisoners were in this category (see 

Figure 10). 

Projecting the prison population 

Projecting the size of the South African prison 

population is fraught with difficulties (Giffard and 

Muntingh 2006:39). The projection entails basic 

mathematical forecasting. Firstly, it assumes that all 

social, political, health and other variables are to 

Maximum 


Medium Non-board 


80 

70 

60 

50 

40 

30 

20 

10 

0 

Figure 10: Percentage share of major security classifications, 1995-2005 



1995/01 

1995/07 

1996/01 

1996/07 

1997/01 

1997/07 

1998/01 

1998/07 

1999/01 

1999/07 

2000/01 

2000/07 

2001/01 

2001/07 

2002/01 

1995/01 

2002/07 

2003/01 

1995/08 

2003/07 

1996/03 

2004/01 

1996/10 

2004/07 

1997/05 

2005/01 

1997/12 

2005/07 

1998/07 

2005/12 

1999/02 

1999/09 

2000/04 

2000/11 

2001/06 

2002/01 

2002/08 

2003/03 

2003/10 

2004/05 

2004/12 

2005/07 

2005/12 

Maximum Medium 



emain constant for the projection period. Secondly, 

only sentences longer than seven years have been 

forecast. Shorter sentences tend to be more variable 

over time, and thus projections are less reliable. 

Thirdly, the final projection assumes that sentences 

of seven years and less remain the same over the 

entire forecast period, as well as the unsentenced 

prison population. 

Table 2 shows the projections for the entire prison 

population. The three columns on the left show the 

projection, if it is assumed that these totals are 

frozen from December 2005, after the special 

remissions. The three columns on the right show the 

projection based on the assumption that these 

sentence categories return to their pre-remission 

levels and then hold stable. 

The difference is substantial, and reflects the total 

number of prisoners released during the special 

remissions. It would be extremely optimistic to 

expect that, in the absence of systemic solutions 

involving the entire criminal justice system, the total 

number of these short-term prisoners will not 

Table 2: Projection of the total prison population 2005 to 2015, two scenarios 

Sentences of 7 years and less stable as 

from December 2005 

Current Projected totals Current Projected totals 

Dec 2005 Dec 2010 Dec 2015 Jan 2005 Dec 2010 Dec 2015 

Unsentenced 46 327 46 327 46 327 46 327 46 327 46 327 

0-6 months 4 189 4 189 4 189 5 674 5 674 5 674 

>6-12 months 3 812 3 812 3 812 5 416 5 416 5 416 

>12-3-5 years 10 675 10 675 10 675 16 731 16 731 16 731 

>5-7 years 9 089 9 089 9 089 12 137 12 137 12 137 

>7-10 years 18 298 18 478 21 462 18 298 18 478 21 462 

>10-15 years 23 740 33 743 43 489 23 740 33 743 43 489 

>15-20 years 11 122 15 996 20 627 11 122 15 996 20 627 

>20 years 9 486 13 103 16 884 9 486 13 103 16 884 

Life sentence 6 615 10 441 14 050 6 615 10 441 14 050 

Total 156 096 178 595 203 348 179 125 201 624 226 377 


increase again, as they have done after previous 

executive releases. 

While the very long sentence categories seem to 

have experienced the most spectacular increases 

(with the total of those serving life more than 

doubling over a ten year period, for example), it is 

the >10-15 year sentence category that is providing 

the bulk of the increase. The projections suggest an 

increase of nearly 20 000 offenders serving >10-15 

year sentences between 2005 and 2015. 

The increases in all the sentence categories of 

longer than seven years have serious implications 

for prison overcrowding. The projections suggest 

that, assuming 9 000 new prison places by 2010 

and a further 9 000 by 2015, the proportion of 

prison places taken up by prisoners serving 

sentences of longer than seven years will increase 

from 61% currently to 75% in 2010 and 88% in 

2015. In 1995, this sentence category took up only 

26% of the available capacity, and in 2000, the 

corresponding figure was 45%, as shown in Figure 

11. 

Sentences of 7 years and less stable as 

from January 2005 (pre-remission 

figures) 



Figure 11: Projected percentage of total national 

capacity used by prisoners serving sentences of 

longer than 7 years 

% of total capacity 

80 

90 

80 

70 

60 

50 

40 

30 

20 

10 

26 

1995 

45 

2000 


Conclusion 

The Criminal Law Amendment Act (1997) has thus 

far had some impact on the nature of the prison 

population, but has not yet impacted on total 

prisoner numbers. The full impact of the longer 

sentences brought about by the minimum 

sentencing legislation is likely to be felt only in five 

to ten years from now, as these prisoners need to 

serve four-fifths of their sentence before being 

considered for parole. The Magistrates Amendment 

Act (1998), which extended the jurisdiction of the 

regional courts from 10 to 15 years, had a more 

immediate effect. Projections suggest that it is this 

category of prisoners, many of whom were 

sentenced in the regional courts, that is likely to 

provide an increasing proportion of the projected 

increase of over 40 000 sentenced prisoners over 

the next ten years. 

Acknowledgements 

This article is based on research that was 

commissioned by the Open Society Foundation of 

South Africa into the impact of the Criminal Law 

Amendment Act 105 of 1997. The relevant OSF-SA 

61 

2005 

75 

2010 

88 

2015 

publication was launched on 28 February 2007 and 

is available on the OSF-SA website at 

www.osf.org.za. The opinions expressed in this 

article are those of the authors and not those of 

OSF-SA. The authors would like to express their 

sincere gratitude to the Department of Correctional 

Services for their assistance in making the 

quantitative data available. 

References 

Correctional Services Act 1998 (Act 111 of 1998). 

Criminal Law Amendment Act 1997 (Act 105 of 1997). 

Ehlers, L and Sloth-Nielsen, J 2005. A pyrrhic victory? 

Mandatory and minimum sentences in South Africa. 

Occasional Paper 111. Pretoria: Institute for Security 

Studies. 

Giffard, C and Muntingh, L 2006. The Effect of Sentencing 

on the Size of the South African Prison Population. Open 

Society Foundation for South Africa. Available at 

http://www.osf.org.za/home 

Magistrates’ Court Amendment Act 1998 (Act 66 of 1998). 

Masuka, S 2002. Prevention is better than cure: 

Addressing violent crime in South Africa’. SA Crime 

Quarterly (2). Pretoria: Institute for Security Studies. 

Endnotes 

1 Over 80% of the category ‘Other Sentences’ consists of 

indeterminate sentences for ‘habitual criminals’. Others 

include death sentences, day parole, periodic 

imprisonment, ‘Other mental instability’ and prevention 

of crime. 

2 There are numerous provisions for different parole 

consideration dates, but for the majority of offenders not 

sentenced under Act 105 of 1997, the minimum period 

to be served is half of the sentence. 

3 For detailed data see http://www.issafrica.org 

index.php?link_id=24&slink_id 

=2797&link_type=12&slink_type=12&tmpl_id=3. See 

also Masuka, S 2002. ‘Prevention is better than cure: 

Addressing violent crime in South Africa’. SA Crime 


4 An occupancy rate of 100% refers to an institution that 

is operating at its intended capacity. An occupancy rate 

of 200% means that there is double the number of 

prisoners than originally intended (400 in a prison 

intended for 200 prisoners). In Figure 8, the category 0- 

100 refers to the number of prisoners living in 

institutions in which there is no overcrowding. 




Michael Tonry 

Professor of Law and Public Policy, University of Minnesota 

tonry001@umn.edu 

CRIME DOES NOT 

CAUSE 

PUNISHMENT 

The impact of 

sentencing policy on 

levels of crime1 If countries can learn from one another, South Africa can learn from the experiences of other countries that 

have re-organised their sentencing systems in recent decades. South Africa’s correctional system has many 

similarities to America’s – seriously overcrowded prisons, sentences that are too long, stark disparities, and 

therefore injustices, in sentences received for comparable crimes. American solutions – mandatory minimums, 

prison terms measured in decades not years – have neither reduced crime rates nor made streets safer. Nor 

will they in South Africa. Comparisons of countries with very different sentencing policies and punishment 

practices – Canada versus the United States, Finland versus the rest of Scandinavia, England versus Scotland – 

show that sentencing and punishment have little discernible effect on crime trends and patterns. Crime trends 

and patterns in most developed countries move in broad parallel, irrespective of national punishment policies. 

Crime and imprisonment statistics from a 

number of First World countries over a 30year 

period support Mark Mauer’s (2006) 

proposition that ‘crime does not cause 

punishment’ – that incarceration rates are a matter 

of policy, and do not have significant effects on 

levels of crime. 

Over the period 1960–1993, violent crime in the 

US went up four to five times and the incarceration 

rate went up three to four times, but the murder 

rate stayed fairly static (Figure 1). In Germany over 

a similar period (1961–1992), violent crime went 

up 3.5 times, the murder rate stayed at the same 

level, but imprisonment went down in the 1960s 

and stayed flat for 30 years (Figure 2). In Finland 

over the period 1965–1994, violent crime went 

up, murder rose substantially, but imprisonment 

went down (Figure 3). In France (Figure 4), the 

number of people in prison per 100 000 

population zigzagged because there is a 

fundamentally different political culture and 

philosophy about crime and punishment. In that 

country, you are primarily a citizen. Everybody 

celebrates national events, and large numbers of 

prisoners are released every time there is a French 

presidential inauguration or a significant national 

event. 

During the period 1950–2000, the incarceration 

rates in Denmark, Norway and Sweden were 

similar, and the imprisonment rate in Finland 

dramatically dropped over the period to a level 

similar to that of its neighbours (Figure 5). This is 

SA CRIME QUARTERLY No 20 • JUNE 2007 13 


Prisoners per 100 000 inhabitants 

Figure 1: Imprisonment, violent crime and murder rates in the US per 100 000 population 1960–1993 2 

800 

700 

600 

500 

400 

300 

200 

100 

1960 1965 1970 1975 1980 1985 1990 1993 

Violent crime Prisoners Murder (x 10) 

Figure 2: Imprisonment, violent crime and murder rates in Germany per 100 000 population 1961–1992 


250 

200 

150 

100 

50 

14 TONRY 

0 

1961 1964 1968 1972 1976 1980 1984 1988 1992 




what the Finns wanted. They had been under 

Russian domination from the early 1800s to the 

mid-1900s, and had similar incarceration rates to 

the Soviet Union. By 1950, Finland decided it did 

not want to be eastern; it decided to look west 

instead, and wanted to demonstrate how 

Scandinavian it was by taking a deliberate policy 

decision to reduce the rate at which it incarcerated 

people. There was an enormous outbreak of crime 

in Finland when this decision was taken. 

However, if you look at comparative crime statistics 

across the four Nordic countries for the period 

1960–2000 (assuming these are actual crime rates – 

crime definitions vary from one country to another), 

the curves are almost exactly the same. 

Figure 3: Imprisonment, violent crime and murder rates in Finland per 100 000 population 1965–1994 



450 

400 

350 

300 

250 

200 

150 

100 

50 

0 

1965 1970 1975 1980 1985 1990 1994 

100 

90 

80 

70 

60 

50 

40 

30 


Figure 4: Incarceration rates in France per 100 000 population 1965–2005 

Presidential pardon 

20 

1965 1970 1975 1980 1985 1990 1995 2000 2005 

SA CRIME QUARTERLY No 20 • JUNE 2007 TONRY 15 

Bastille Fall pardon 


Presidential pardon

Figure 5: Incarceration rates in four Scandinavian countries 1950–2000 per 100 000 population 

200 

180 

160 

140 

120 

100 

80 

60 

40 

20 

14 000 

12 000 

10 000 

8 000 

6 000 

4 000 

2 000 

0 

1950 

1954 1958 1962 1966 1970 1974 1978 1982 1986 1990 1994 1998 

Denmark Finland Norway Sweden 

Figure 6: Offences against the criminal code in four Scandinavian countries 1960–2000 

per 100 000 population 

0 

1950 

1954 1958 1962 1966 1970 1974 1978 1982 1986 1990 1994 1998 

Denmark Finland Norway Sweden 

16 TONRY SA CRIME QUARTERLY No 20 • JUNE 2007 


The US imprisonment rate has skyrocketed to about 

4.5 times the Canadian rate, which has remained at 

about 100 per 100 000 since the 1950s (Figure 7). 

The homicide rates in the US over 40 years are far 

higher than those of Canada (Figure 8). But if one 

looks at the relative change in homicide rates in the 

US and Canada (with the rates standardised at 1), it 

is clear that the trends are very similar (Figure 9). 

Again, this backs up the assertion that countries 

choose the rate at which their residents are 

incarcerated. France chooses from year to year what 

proportion of its people should be in prison. The US 

chose to increase its incarceration rate, but this has 

not affected its crime levels. The experience of 

Norway, Denmark, Sweden and Finland shows the 

level of imprisonment makes no difference to the 

Figure 7: Violent crime and imprisonment rates for the US and Canada 1980–2000 per 100 000 population 

800 

700 

600 

500 

400 

300 

200 

100 

0 

12 

10 

1980 

8 

6 

4 

2 

0 

1961 

1981 

1982 

US 

homicide 

rate (x5) 

1983 

1984 

US 

robbery 

rate 

1985 

1986 

1987 

US 

imprisonment 

rate 

Figure 8: Homicide rates in the US and Canada 1961–2003 per 100 000 population 

1963 

1965 

1967 

1969 

1971 

1973 

1975 

1977 

1979 

1988 

1989 

1990 

1991 

1981 

Canada USA 

1983 

1985 

1987 

1989 

1991 

1993 

1995 

1997 

1999 

2001 

2003 


1992 

Canadian 

homicide rate 

(x5) 

1993 

1994 

1995 

1996 

Canadian 

robbery 

rate 

1997 

1998 

1999 

2000 

Canadian 

imprisonment 

rate 


level of crime – the Finns decided to stabilise their 

imprisonment rate and steadily drop it to the level 

of their neighbours as a matter of policy, but their 

crime rate curves were the same as those of their 

neighbours. 

Are minimum and mandatory penalties doing the 

job? 

The advocates of minimum and mandatory 

sentences claim that they act as a deterrent, and that 

they promote consistency in sentencing, but this is 

not supported by available evidence. Studies show 

judges and juries tend to avoid having to impose 

minimum/ mandatory sentences, that such penalties 

have no deterrent effect (or a temporary one), and 

that sentences are not consistently applied. There 

are also cases where these sentences have led to 

profound injustices. 

In 18th and 19th century England the death penalty 

was mandatory for about 150 crimes in the belief 

that this would reduce crime. Pick-pocketing was 

one such crime, but no deterrent effect was 

apparent – rampant pick-pocketing was reported at 

public executions of pick-pockets. Anybody found 

guilty of the theft of property worth more than £20 

had to be executed. This was later reduced to theft 

of only £5. In practice, when judges and juries felt 

uncomfortable about having to impose such a harsh 

Relative change from 1961 

2.5 

2 

1.5 

1 

0.5 

0 

1961 

18 TONRY 

1963 

1965 

1967 

1969 

1971 

1973 

sentence, they worked hard to evade minimum 

sentencing by finding thieves guilty of stealing only 

£4 and 19 shillings. Some thieves were pardoned. 

The pleading rules for a valid prosecution became 

increasingly technical to make it more difficult for 

this kind of whole-scale evasion to take place, but 

with little effect. The belief that minimum/ 

mandatory sentencing would promote consistency 

in sentencing was also shown to be false. There was 

enormous inconsistency in what happened to 

individual thieves at that time. Some were 

convicted of stealing £4 and 19 shillings, some 

were executed, some were convicted and 

pardoned, and some convictions were overturned 

on technical grounds. 

Mandatory penalties proliferated in the US over a 

long period of time for such offences as drug 

crimes, also motivated by the belief that this would 

act as a deterrent. The US experience indicates that 

these measures have no deterrent effect, and that 

large-scale evasion of having to impose such 

penalties has taken place. There have been cases 

where offenders have been imprisoned for 20 years 

on drug charges in circumstances where judges did 

not believe these sentences were appropriate. 

Several judges resigned in protest, including two 

from the Federal Bench. 

Figure 9: Change in homicide rates in the US and Canada per 100 000 population 

1975 

1977 

1979 

1981 

1983 

1985 

1987 

1989 

1991 

1993 

Canada rate: base 1961=1.00 US rate: base 1961=1 

1995 

1997 

1999 

2001 

2003 



The evasion finding is pretty consistent, as is the 

finding that minimum sentencing has no deterrent 

effect, or that any short-term deterrent effect tends 

to wither away over time. Reducing particular 

crimes is a valid public objective, but minimum 

sentencing is not the way to achieve this goal. 

Sentencing policy: a need for consistency, 

accountability and transparency 

There have been five or six ways that countries have 

reorganised their sentencing systems over the last 30 

years to achieve systems that are more just – 

consistent, accountable and transparent. Some 

work, some do not. The best evidence points in one 

direction for South Africa. 

Finland and Sweden have radically changed their 

sentencing laws in the last 30 years. They have 

sentencing principles that provide judges with 

guidance on most of the questions they are likely to 

be faced with, including the weight that should be 

accorded to a prior record; the extent to which a 

person is dangerous or can be changed through 

rehabilitation; and what difference it makes if a 

person is not really an adult (in Sweden anyone 

below 15 is legally incapable of committing a 

crime). Verbal statements of principle seem to 

produce a system that is highly consistent and they 

provoke stimulating debates about exactly how to 

apply a principle in a certain kind of case. In those 

countries, sentencing guidelines seem to make a 

difference. 

In the UK, and to some extent in Canada and 

Australia, high courts may issue guideline 

judgments, but the jury is still out on whether this 

makes any difference to sentencing practice. There 

is no empirical evidence that this has an influence 

on what judges actually do in the UK. 

In some US states there are very detailed voluntary 

guidelines that tend to indicate sentences for every 

crime and every combination of prior record. 

Conscientious judges will look at these when 

considering a sentence. The evidence is that these 

have no demonstrable effect, although a major 

exception is in Delaware, where there are only 14 

felony court judges, most of whom were involved in 

drafting the guidelines. Judges who disagreed with 

the guidelines left the bench, and sitting judges 

influenced new judges. Presumptive guidelines, as 

applied in Minnesota, Washington, and Oregon, 

seem to increase the consistency of sentencing in 

general, and particularly in relation to race, gender, 

and geographical disparities. 

Mandatory guidelines for sentencing have been part 

of the US Federal Court system for about 20 years. 

For example, robbery would receive more and 

more serious penalties if, for instance, there was a 

firearm involved, if the firearm was fired, and so on. 

The official policy of the US Sentencing 

Commission was that judges ought to impose a very 

specific sentence. This meant that a number of 

potentially mitigating circumstances, such as a 

convicted person having family responsibilities, 

being a drug user, having a deprived childhood or 

making a contribution to the community, were not 

ordinarily regarded as factors in sentencing. 

Sentencing became progressively harsher, 

frequently driven by the prosecution. The judiciary 

resisted this set of guidelines for the entire period 

that they were in force, until 2004, when they were 

declared unconstitutional. The guidelines are now 

voluntary. Judges may impose what they consider to 

be an appropriate sentence, provided they give 

reasons for their decision. 

The Finnish and Swedish systems of sentencing 

principles tend to recommend very short periods of 

imprisonment – rarely more than a year, and often 

only for a week or two. The number of prisoners in 

those countries sentenced to more than three years 

is a fraction of 1%. The maximum sentence for 

most crimes is 14 years. This means the potential 

for inconsistency and disparity is very small. 

Those countries have a high-prestige career 

judiciary – a cadre of highly talented professionals 

with a strong ethos about their duty to exercise 

justice. Students who want to be prosecutors or 

judges select their direction in law school (although 

they may move back and forth between the two 

professions). 

The prosecution sees itself as a semi-judicial 

institution. The judiciary therefore puts strong 

professional and cultural norms into practice to 



preserve just sentencing principles. No US state 

could adopt Scandinavian principles because the 

political character of the US courts is so strong. But 

voluntary guidelines in US state courts can make a 

huge difference when there is a professional cadre 

of prosecutors and judges who share a professional 

ethos. 

Conclusion 

Crime does not cause punishment. There is nothing 

inherent in South Africa that suggests its 

incarceration rate should be 350–400 people per 

100 000. Imprisonment rates are chosen by 

politicians, they are not the result of increased 

crime. The transitional character of South African 

politics makes it different from Sweden or Finland, 

but there is no reason to think that it is any different 

to any one of the countries where it has been 

shown that the level of imprisonment makes no 

difference to crime. 

There is no evidence for the claim that mandatory/ 

minimum sentencing has any impact on consistency 

of sentencing or levels of crime. The primary 

function of such sentences is for governments to 

symbolically say ‘we are doing something about 

crime’. This does not seem to fool anybody. The 

percentage of people who say they are fearful to go 

out at night before and after the imposition of 

mandatory sentencing does not seem to change. 

The proposal of the South African Law Reform 

Commission for a structured approach is probably 

the only way to achieve reasonable consistency, 

predictability and transparency in sentencing. This 

also provides a potential mechanism for holding 

judges accountable i.e. to ensure they apply a 

sentence appropriate to the offender rather than 

reflecting the personal attitudes of the judge. 

It is suggested that South Africa should decide to 

reduce imprisonment rates by 50%, persuade 

Parliament not to renew the minimum sentencing 

legislation, and follow Dirk van Zyl Smit’s (2006) 

lead on a structured approach to sentencing. 

Acknowledgement 

This article is based on a keynote address delivered 

by the author at the Open Society Foundation SA’s 

conference on sentencing in South Africa held from 

20 

TONRY 

25-26 October 2006 in Cape Town. The address 

was first published by the OSF-SA in 2006 in the 

conference report entitled Sentencing in South 

Africa: Conference Report, available at 

www.osf.org.za. The opinions expressed in this 

article are those of the author and not those of OSF- 

SA. 

References 

Mauer, M 2006. Sentencing in South Africa: Lessons from 

the United States. Sentencing in SA: Conference Report. 

Cape Town: Open Society Foundation. 

Van Zyl Smit, D 2006. Notes on a new sentencing 

framework for South. Sentencing in SA: Conference 

Report. Cape Town: Open Society Foundation. 

Endnote 

1 This is the second article in a series on sentencing 

published by the SACQ. See Redpath, J & O’Donovan, 

M 2007. The impact of minimum sentencing. SA Crime 


2 All graphs taken from M Tonry 2006. ‘Conference on 

Sentencing in South Africa: Keynote Address,’ in 

Sentencing in South Africa: Conference Report. 

Newlands, South Africa: Open Society Foundation: 4-9. 



The Criminal Law 

Sentencing Amendment Act 

The Impact and Consequences for 

the Regional Court 

Motivation for Changes 

� Expedition of finalization of serious cases 

� Appropriate punishment for certain serious 

offences 

� Avoiding secondary victimization of 

complainants 

Penal Jurisdiction: Regional Courts 

� Part 1 Schedule 2 Offences 

� LIFE Imprisonment 

� S 51 (1) 

� If a lesser sentence than LIFE is imposed, 

imprisonment NOT EXCEEDING 30 years may be 

imposed 

� S 51 (3) 

� NO OTHER CHANGES to GENERAL 

JURISDICTION in terms of Act 105 of 1997 

� S 51(5)(a): operation of a MINIMUM sentence 

imposed in terms of Act shall not be suspended 


1

Referral to High Court 

� No cases CAN or MUST be referred to 

High Court for sentencing 

� S 52, 52A & 52B repealed 

� Transitional arrangements: s 53A 

� Cases already referred BEFORE DATE of 

PROMULGATION, remained referred 

� S 53A(a) 

� Any case not yet referred by date of 

promulgation, MUST be finalized in Regional 

Court 

� S 53A(b) 

Leave to Appeal 

� S 309(1) CPA amended: Does not have to 

apply for leave to appeal 

� If LIFE imprisonment is imposed 

� Accused at time of COMMISSION of 

offence was: 

� Below the age of 16 years 

� 16 but below 18 years and NOT legal 

representation 

� AND sentenced to imprisonment NOT 

WHOLLY SUSPENDED 

Amendments: Part 1 Schedule 2 

� Include following categories of MURDER: 

� (e) the victim was killed in order to 

unlawfully remove any body part of the 

victim, or as a result of such unlawful 

removal of a body part of the victim 

� (f) the death of the victim resulted from, or 

is directly related to, any offence 

contemplated in section 1(a) to (e) of the 

Witchcraft Suppression Act, 1957 (Act no 3 of 

1957) 


2

Amendments: Part 1V Schedule 2 

� Reference to offences in Schedule 1 of 

CPA, other than offence referred to in Part 

1, II or III repealed 

� Refer now only to: 

� Any of the following offences, if the accused 

had with him or her at the time a firearm, 

which was intended for use as such, in the 

commission of the offence 

� Offences listed now also include: 

� escaping from lawful custody 

Exclusion of certain circumstances as 

compelling and substantive: Rape 

� S 51(3)(aA): When imposing a sentence in 

respect of the offence of RAPE the following 

SHALL NOT constitute substantial and 

compelling circumstances justifying the 

imposition of a lesser sentence: 

� (i) the complainant’s previous sexual history 

� (ii) an apparent lack of physical injury to the 

complainant 

� (iii) an accused person’s cultural or religious beliefs 

about rape, or 

� (iv) any relationship between the accused person 

and the complainant prior to the offence being 

committed. 

Impact: Sexual Offences Bill 

� Part 1 of Sch 2 to include: 

� Rape or compelled rape: s 3 & 4 

� Under circumstances – to include 

� girl changed to PERSON under 16 

� physically disabled woman changed to PERSON 

� mentally ill woman changed to PERSON WHO IS 

MENTALLY DISABLED (definition in Sex Offences 

Bill) 

� Trafficking in persons: s 71(1) or (2) 


3

Impact: Sexual Offences Bill 

� Part III of Sch 2: 

� Rape or compelled rape: s 3 & 4 – 

circumstances other than Part I 

� Indecent assault: repealed 

� Added: Sexual exploitation of a child or 

mentally disabled person: s 17 & 23, using 

child or mentally disabled person for 

pornographic purposes: s 20(1) & 23(1) 

� Any trafficking related offence: commercial 

carrier: s 71(6) 

Juvenile offenders: 16 – u/18 yrs 

� S 51(3)(b): repealed 

� S 51(5)(b) added 

� Not more than HALF of a minimum sentence 

may be suspended as contemplated in s 

297(4) CPA 

� IF the accused was 16 years but under 18 

years at the time of the COMMISSION of the 

offence 

� Does not apply to children under the age of 16 yrs 

Other changes 

� Amendment: s 21 NPA Act 32/98 

� S 21(3) added: Prosecution policy & directives 

� When High Court to be court of first instance 

� To be done within 3 months after commencement 

� Amendment: s 3 POCA (Act 121/98) 

� Deletion of s 3(2)(ii) 

� committal to High Court 

� Deletion of s 3(3) 

� application of s 52 Act 105/97 to committal to High Court 

� S 53 amended: deletion of ss(1), (2) & (2A) 

� Remove the 2 yearly renewal provision 


4

Presentation to Regional Magistrates: 

17 November 2007 

Introduction to Central Services Branch 

Building Dr Lorinda a caring B Bergh correctional system that truly belongs to all 

Director Psychological Services 

Department of Correctional Services 

OUTLINE OF THE PRESENTATION 

• Legal Mandate 

• Rehabilitation Philosophy of DCS 

• Basic Assumptions 

• Number of Incarcerated Offenders (1 July 2007) 

• Statistics: Sentenced Offenders (all crime categories) 

• Multi-disciplinary Team Approach 

• Establishment of professional staff 

• Ensuring psychological services 

• Sexual offender treatment programmes 

• Expectations regarding treatment programmes 

• Number of dangerous offenders in DCS (Criminal 

Procedures Act No 51 of 1977 (Art 286A) 

• Dealing with dangerous persons in terms of the Criminal 

Procedures Act No 51 of 1977 (Art 286A) 

• Challenges and recommendations 

LEGAL MANDATE 

• Constitution 

- Bill of Rights – Section 2 

- Equality – Section 9 

- Freedom and Security of the person – Section 12 

- Arrested, detained and accused persons - Section 35 

• Standard Minimum Rules for the Treatment of 

Prisoners. 

- Guides the provision of programmes and services to 

offenders. 

• White Paper on Corrections in South Africa. 

- Correction as a societal responsibility. 

- DCS as an Institution of Rehabilitation. 


1

LEGAL MANDATE (Cont.) 

• Correctional Services Act (Act III of 1998) 

- The purpose of the Correctional System is to contribute 

to maintaining and protecting a just, peaceful and safe 

society by (Section 2): 

* Enforcing sentences of the courts in the manner 

prescribed by this Act. 

* Detain all prisoners in safe custody whilst 

ensuring their human dignity, and 

* Promoting the social responsibility and human 

development of all prisoners and persons subject to 

community corrections. 

REHABILITATION PHILOSOPHY OF DCS 

• It is the policy and philosophy of the Department 

of Correctional Services (DCS) to place 

rehabilitation of offenders at the centre of all its 

activities as a long-term goal of crime 

prevention. 

• The objectives of rehabilitation in the 

Department of Correctional Services are to: 

– encourage offenders to own the main values as 

enshrined in the Constitution. 

– make them an asset to society as productive and lawabiding 

citizens. 

– address their offending behaviour in order to curb reoffending 

and eliminate recidivism. 

BASIC ASSUMPTIONS 

• The Branch Development and Care is premised 

on creating an enabling environment for the 

rehabilitation, basic human survival and the 

development of all offenders entrusted to the 

care of DCS 

• Believe that all persons when provided with 

appropriate resources and positive social 

circumstances have the potential to change 


2

NUMBER OF INCARCERATED OFFENDERS 

(1 July 2007) 

• According to the National Population Profile in the 

DCS (July 2007) the Department of Correctional 

Services incarcerated: 

– Total number offenders : 160,968 

– Sentenced offenders: 112,973 

– Unsentenced persons / ATD’s: 47,995 

STATISTICS: SENTENCED OFFENDERS 

(ALL CRIME CATEGORIES – 1 July 2007) 

Region Econ 

LMN 4 419 

NC/FC 3 210 

KZN 3 372 

ECape 2 504 

WCape 4 334 

Gaut 6 406 

TOTAL 24 245 

Agres 

10 838 

7 839 

11 397 

7 894 

9 146 

17 189 

64 303 

Sex 

4 499 

2 673 

2 229 

2 548 

2 805 

2 967 

17 721 

Narc 

228 

327 

326 

283 

701 

548 

2 413 

Other 

651 

467 

604 

428 

944 

1 172 

4 266 

STATISTICS: SENTENCED OFFENDERS 

(ALL CRIME CATEGORIES – 1 July 2007) Cont... 

– This statistical data also indicated that: 

• A number of 64,303 offenders of the total 

offender population (112, 973) were incarcerated 

for aggressive crimes (56,9%) 

• The majority of aggressive offenders committed 

murder (35,80%) 

• Of the 17,721 sexual offenders, 83.53 % of 

them are incarcerated for rape and 99 of these 

sentenced offenders are incarcerated for 

intercourse with a minor 

• The largest number of offenders in the 

correctional system are between the ages of 22 

and 30 and amounts to 44.49% and most of 

them are in Gauteng 


3

MULTI-DISCIPLINARY TEAM APPROACH 

• Total number of all personnel in DCS = 41,396 

• Because rehabilitation is a process, a 

multidisciplinary team offer offenders opportunities 

for development and growth by means of various 

care and development programmes/services. 

• These programmes and services include: 

–Health care 

–Spiritual care 

– Psychological services 

– HIV&AIDS 

–Social work 

– Formal education 

– Skills development 

– Sport, recreation, arts and culture (SRAC) 

–Agriculture 

– Production workshops 

ESTABLISHMENT OF PROFESSIONAL STAFF 

Directorate 

Health Care 

Nurses 

Medical doctors 

Spiritual Care Services 

Chaplains 

Spiritual Care Workers 

Psychological Services 

(including psychologists doing 

compulsory community service) 

Educationists 

Social Work Services 

Number of professionals 

677 

7 

33 

2100 

36 

427 

516 

ENSURING PSYCHOLOGICAL SERVICES 

Priorities 

– Suicide risks 

– Court referrals 

– Persons with emotional problems (DSM 1V) 

– Sexual and aggressive offenders 

– Youth 

– Other 

Methods to ensure psychological services 

– Departmental psychologists & psychologists doing compulsory 

community service 

– Utilize MA 11 (psychology students) from Universities 

– Medical practitioner to refer to private psychologist if no Dept 

psychologist is available at the Correctional Centre (then paid by 

DCS) 

– Offender to request for own private psychologist (at own cost) 


4

SEXUAL OFFENDER TREATMENT PROGRAMMES 

In general: 

– Any treatment programme for sexual offenders is 

controversial 

– Treatment programmes for sexual offenders are few and 

scarce (Somander, 1995) 

– Little has been written specifically on sexual offender 

treatment, particularly prison-based therapies, even in 

Western and European countries (Frenken, 1999). 

– Research on sexual offender treatment programmes, 

indicate that a combination of modalities and a holistic 

approach are necessary (Prendergast, 1999). 


(Cont..) 

– International research confirms cognitive behavioural 

programmes with sex offenders have the best long-term 

results - (Marshall et al. (1999), Marshall and Eccles (1991) 

and Somander (1995) 

– Clear and Cole (1994) argue that a programmeless prison is 

unthinkable despite the fact that most rehabilitative 

programmes have shortcomings and limited effectiveness. 

–Manyincarcerated sexual offenders will possibly not be 

exposed to a treatment programme during their sentence 

(not uncommon in other countries (Somander,1995 pointed 

out that there is no possibility of providing treatment for all 

the offenders who have been sentenced for a sexual offence 

at the moment in any case 


Sexual offender treatment programmes in DCS: 

• No uniform/standardized programme available on 

national basis 

• Professionals mainly provide treatment programmes 

to sexual offenders according to their own knowledge, 

training and experience. 

• Limited professional resources (available only where 

human resources are available) 

• Western Cape has structured group Sexual Offender 

Programme (social workers) that addresses incest, 

paedophilia and rape (behavioural and educational 

approach and consists of 5 Modules) 

• Psychological Services in DCS offer unstructured 

therapeutic interventions in individual and/or group 

contexts. 


5

EXPECTATIONS REGARDING TREATMENT 

PROGRAMMES 

• That offenders will participate in treatment or 

rehabilitation programmes (not all are motivated) 

• Most researchers agree that sex offenders, especially 

paedophiles, cannot be cured, but can learn to control 

their own offending behaviour and take responsibility 

for it (Evans and Gallichio,1991) 

• No guarantees can be given at the end of any 

treatment programme that it did lead to any change or 

changed behaviour in an offender 

• No guarantees can be given regarding re-offending 

(recidivism) unless the sexual offender/paedophile is 

able to control his sexual fantasies and behaviour 

(Cull, 1992). 

• Sexual offenders can only effectively be monitored 

after release 

NUMBER OF DANGEROUS OFFENDERS IN DCS 

(CRIMINAL PROCEDURES ACT NO 51 OF 1977 (ART 

286A) 

REGION 

NUMBER 

E Cape 

Gauteng 

KZN 

LMN 

Free/NC 

WC 

TOTAL 

19 

6 

DEALING WITH DANGEROUS PERSONS IN TERMS 

OF CRIMINAL PROCEDURES ACT NO 51 OF 1977 

(ART 286A) 

“In the case of a person whom the court has declared to be a 

dangerous person, the Case Management Committee is 

compelled to submit in terms of Section 286A of the Criminal 

Procedures Act, a report regarding such offender’s 

placement/release to the Correctional Supervision and Parole 

Board who in turn must submit a report to the court a quo on 

the date as determined by the court when sentence was 

imposed e.g. the court may sentence such person to serve forty 

(40) or fifty(50 years). For administrative purposes this Section 

of the Act implies that such person must be placed before the 

relevant court two (2) months prior to the date when the 

forty(40) or fifty(50) years expires or what the case may be. 

Amnesty/special remission of sentence can never be deducted 

from the prescribed period that is imposed in terms of Section 

286A of the Criminal Procedures Act “ (Correctional Services 

Orders, Order B 1, Chapter 26, 8 Oct 2004) 

2 

11 

7 

7 

55 


6

CHALLENGES AND RECOMMENDATIONS 

Challenges 

– Creating a common understanding (shared vision) and 

partnerships with other government departments, 

organizations, and communities 

– Lack of human resources (psychologists, social workers) 

–Overcrowding 

– Participation of offenders in programmes 

Recommendations 

– Written instruction by the Court (e.g. referral for evaluation 

to psychologists on warrant) – then receives priority 

– Court documents such as reports from professionals 

should be made available or included with the warrant to 

DCS (public documents) 

Thank you 

Renewing our Pledge, 

A National Partnership to Correct, Rehabilitate and Reintegrate 

Offenders for a safer and secure South Africa 


7

The impact of minimum 

sentencing in South Africa 

Jean Redpath, Hlakanaphila Analytics 

Conference on Sentencing Challenges 

in the Regional Court 

15 – 17 November 2007 

www.quanta.org.za 1 

Executive Summary 

Our research for Open Society Foundation – SA: 

1. Little impact on crime because incarceration rates 

and crime rates bear little relation to each other 

2. More long sentences increase the number and 

frequency of unconditional releases of prisoners 

serving long sentences 

3. Sentencing may have become less consistent 

within and among courts and divisions 

4. Public confidence undermined by delays, appeals, 

and early releases 


1. Incarceration and crime 

• Most studies show only small marginal 

benefit of incarceration 

• High social and financial costs of 

incarceration –should be viewed as a 

“scarce resource” 

• Key consideration in sentencing (in terms 

of crime prevention) should be likelihood 

of re-offending 



1

Provincial incarceration rates 

and murder rates 2005 

600 

500 

400 

300 

200 

100 

0 

FS NC WC GT EC MP KZ NW LM 

Incarceration rate per 100 000 Murder rate per 1000000 


2. Releases of prisoners 

• Pressure on prisons resulting from longer 

sentences results in periodic unconditional 

releases of prisoners – even those serving 

long sentences 

• Thus judicial officers’ sentences are 

subverted at the point of incarceration 

• Proportion of long sentence early releases 

showing an increasing trend 


Releases 7+ year sentence as a % 

of 1+ year sentence releases 

35% 

30% 

25% 

20% 

15% 

10% 

5% 

0% 

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 



2

Monthly unconditional releases by 

sentence group >3 yrs 1995 - 2005 

3000 

2500 

2000 

1500 

1000 

500 

0 

>3 - 5 Years >5 - 7 Years >7 - 10 Years >10 - 15 Years 

>15 - 20 Years >20 Years Life Sentence 


3. Consistency of Sentencing 

• Data shows a general increase in 

sentence length, but decrease in 

admissions 

• But also an increase in the range of 

sentences applied for similar crimes. 

– a result of the “maximum minimum” being 

applied in some instances, while sentences in 

line with previous practice are applied in 

others 


4. Public confidence 

• Any exposure to CJS negatively affects 

public confidence (1995 survey) 

• Negative perceptions generally related to 

slowness of CJS 

• Possible negative media impact 



3

Conclusion 

Magistrates have the power to: 

1. Choose heavy sentences carefully to 

maximise the impact on crime 

2. Choose heavy sentences carefully to reduce 

prison pressure and thus reduce subversion 

of their decisions via early releases 

3. Increase consistency via judicious 

sentencing 

4. Reduce possible negative impact on public 

confidence 



4

Victim Impact 

Statements 

Susan Kreston 

Fulbright Professor of Law 

& Research Fellow 

University of the Free State 

krestons.rd@ufs.ac.za 

DEFINITION 

An in-court statement 

on the effects of the crime on the victim 

emotional harm 

physical (includes sexual) harm 

economic harm 

sustained as a result of the crime 

used by sentencing authorities 

to make an informed sentencing decision 

Victim Impact Statement 

Increased recognition of V in 

sentencing phase 

“Squaring the triad” 

The crime 

The criminal 

The community 

Victim Impact 


1

Coverage 

Victim 

Substantial impairment 

of fundamental rights 

Human Rights Issue 

Immediate family or 

dependants of direct 

victim 

RATIONALE 

� Improve sentencing outcomes 

� provide magistrates with more relevant 

information 

� CJS more sensitive to needs of victims and 

victims are more satisfied with the system 

� Therapeutic and cathartic value for victims 

� Respect for individual dignity and 

humaneness 

� Equal Justice Under Law/Equal Protection 

INCREASED RECOGNITION 

OF THE VICTIM 

IN THE SENTENCING PHASE 

� Supreme Court of Appeal 

� Rammoko v DPP 2003 

� Victim impact statements essential – 

without VIS no fair decision is possible 


2

INCREASED RECOGNITION OF 

THE VICTIM 

IN THE SENTENCING PHASE 

Giving victims a voice 

in the 

criminal justice system 

Primary Purposes 

�Providing prosecution with 

information about the offence 

�Providing presiding officers 

with information about 

�seriousness of the crime 

�culpability of the offender 

Purposes 

�Providing the court with a 

direct source of information 

about the victim’s needs 

�Determination of a more 

appropriate sanction 

�Information about appropriate 

conditions that might be 

imposed on the offender 


3

Purposes 

� Public forum for a statement reflecting 

V’s suffering 

� Providing the court with an opportunity 

to recognise the wrong committed 

against an individual 

� Providing the victim with an 

opportunity to communicate the effects 

of the crime to the offender 

Primary Purposes 

�Allowing victims to participate in 

sentencing 

�Still non-determinative 

�Underscore the reality that, 

although crimes are committed 

against the state, crimes are also 

committed against individuals 

Secondary Purposes 

�Closure for victim 

� psychological healing 

�Increase: 

�Public confidence in sentencing 

�Awareness by criminal justice 

officials on after-effects of crime 

�Awareness by offenders of the 

harm caused 


4

EXPERT TESTIMONY 

on Long Term Effects 

Behavioural science experts 

acquire more prominent role 

during the sentencing phase 

Long term harm Examples 

Trust issues 

Bonding issues 

Confidence issues 

Self-esteem 

Physical/medical issues 

Especially with girls who have been 

targeted for intrusive abuse, 

reproductive abilities may be 

impaired later 

Other Examples 

Very young children DO have long term 

effects 

Children who have been groomed have 

just as much, if not more, psychological 

damage as those targeted by strangers 

Betrayal of trust = Problems with 

Relationships 

Intimacy 

Sexual adjustment 


5

CASE EXAMPLES 

�Courts do not have the necessary 

expertise to generalise about the 

consequences, if any, for a victim in a 

case like the present 

� S v Gerber 2001 (1) SACR 621 (WLD) 624 

�Extremely difficult for any individual, 

even a highly trained person like a 

magistrate or judge, to comprehend 

fully the range of emotions and 

suffering a particular victim of sexual 

violence may have experienced 

� Holtshauzen v Roodt 1997 (4) SA 766 (W) 

CONCLUSION 

Victim impact statements provide 

�Recognition of victim 

�The other side of the story 

�Proportionality/balance in sentencing 

Resources & References 

Annette van der Merwe, Professor of Law 

University of Pretoria 

annette.vandermerwe@up.ac.za 

Karen Müller, Professor of Law 

Nelson Mandela Metropolitan University & 

Institute for the Child Witness 

childwitness@mweb.co.za 

RECOGNISING THE VICTIM IN THE 

SENTENCING PHASE: THE USE OF 

VICTIM IMPACT STATEMENTS IN COURT 

– SAJHR 2006 (in materials) 


6

RESOURCE GUIDE - The Assosiation of Regional Magistrates of ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?