Authored By: Tsholanang Zanele Seleka
North West University
Introduction
Despite Parliament’s almost three-decade-old determination to stamp out South Africa’s crime rate as a national emergency, section 51 of the Criminal Law Amendment Act 105 of 1997(“the Act”) still mandates the imposition of life imprisonment or lengthy fixed terms where “substantial and compelling circumstances” are not present1. What commenced as a two-year emergency, but quickly mutated into a permanent reality through successive extensions, the Act is now the ordinary means of disposing of serious crime2. This article contends that while the Constitutional Court has affirmed the Act’s basic constitutionality, the “substantial and compelling circumstances” test – as subsequently interpreted in S v Malgas and S v Vilakazi– has merely transplanted rather than eliminated judicial discretion. Instead, judicial discretion resides in a more confining and contentious sphere that has continuously generated inconsistent results.
We will demonstrate this first by exploring the framework and the pertinent case law, and will then proceed to analyse and critique the persistent tension between legislative standardisation and individualized justice that has resulted from these rulings.
The Legal Framework
Section 51(1) and (2) of the Act lays down stipulated minimum sentences, including life imprisonment for life crimes and lengthy fixed terms for serious crimes contained in Schedule 2 of the Act3. For all such crimes, section 51(3)(a) limits a departure from such prescribed sentence only to where “substantial and compelling circumstances exist” which must then be stated by the court before a lesser sentence can be imposed4. Intended as a two-year emergency to address what had been labelled “burgeoning alarmingly” by Parliament, repeated extensions and the eventual amendment of this section by the Criminal Law (Sentencing) Amendment Act 38 of 2007 5 have rendered the section an enduring fixture of the sentencing landscape. The immediate concern is of a constitutional nature; where sections 12 and 35 of the Constitution guarantee freedom from arbitrary and disproportionate punishment, whilst section 165 vested the powers of the judiciary in the courts, the question arose as to whether the mandatory minimum set by the Legislature is an unconstitutional limitation on the latter.
Key Case Law Analysis
The Constitutional Court had an occasion to deal with the constitutionality of the framework in S v Dodo, where it determined that the Act does not offend separation of powers: the court retains the power of sentencing and the Act in fact merely limits the discretionary power the court was traditionally accustomed to when sentencing-it does not abolish it6. In S v Malgas, the Supreme Court of Appeal set out the framework’s practical import. According to Malgas, sentencing courts must be conscious that the prescribed sentence prescribed by the Legislature is the ordinary and applicable punishment for the offence, and it is only where imposing such sentence would be excessively unjust in the specific case-proportioned to the crime, offender and the community-that departure is justified7.
While courts should not depart “for flimsy reasons”, speculative sympathy or marginal differences between co-perpetrators cannot serve as justification for deviation8.
Moreover, it was reiterated that all traditional mitigating and aggravating factors must always play a role; however, the overall impact of such factors must be measured against the “composite yardstick of substantial and compellingness”9.
The Supreme Court of Appeal in S v Vilakazi. Further elaborated this test; here, it was clarified that factors could no longer be examined in isolation but must always be considered in their cumulative effect and personal circumstances must always be subservient to objective crime severity10. The judgment also pointedly commented on the awkwardness of the “blunt, monolithic nature of section 51” in relation to the infinitely variable circumstances associated with crime11. This was followed by S v Matyityi where a sentence of a High Court that deemed youthfulness and remorse as substantial and compelling circumstances was set aside, with an admonition that only truly convincing reasons could justify a departure from the Act12.
The most prominent case where the Act met its constitutional limits was Centre for Child Law v Minister of Justice and Constitutional Development13, which addressed the extension of minimum sentences to children aged sixteen and seventeen years. The majority found that section 28(1)(g) of the Constitution compels an individualized judicial consideration of the specific child and sentencing principles. The blunt minimum sentence logic of section 51 could not coexist with these constitutionally dictated individualized circumstances14. This case thus stands as proof of where standardisation at the expense of individualisation meets judicial constitutional objection: the individualised enquiry must take precedent over legislative standardisation.
Critical Analysis and Argument
What the foregoing cases together establish is a highly conditional form of judicial discretion rather than the abolished discretion, if any, sought by the framers of the Act. Combined, Malgas and Vilakazi simply reintroduce, with somewhat more stringent limitations, all traditional mitigating and aggravating factors.15 The problem with this approach is two-fold. First, the concept of ‘substantial and compelling’ remains subjective in so far as it is a standard that any judge can interpret differently depending on their particular disposition or even resources. Second, where sentences are required to be judged by a cumulative approach as upheld in Vilakazi, appellate courts are afforded greater liberty to reject first-instance findings, thereby entrenching inconsistent sentencing patterns rather than addressing them16.
The first problem, that of subjectivity, does not, of itself, present a constitutional challenge (as is correctly stated by Dodo) but it does undermine the intended consistency of minimum sentencing17. The second, where an appellate court will refuse to interfere with a sentence found to have properly weighed all factors, further perpetuates this inconsistency. The judiciary is tasked with dispensing justice, a goal that is undermined where justice is measured by different standards by different adjudicators and for different offenders.
If consistency is, as has been argued earlier, not a constitutional requirement, it must be argued that the Act fails on a purposive level: it was envisaged to standardise sentencing of serious crimes, yet it has opened it to individual discretion without a set of formal sentencing guidelines for each offence, unlike other jurisdictions18.
The Centre for Child Law shows where such inconsistency is unconstitutional; where the class of offenders (children) simply cannot be legislatively grouped, even the strictest judicial discretion cannot save the Act from unconstitutionality. For adult offenders, however, it seems the judiciary has found middle ground, perhaps owing more to judicial prudence in over-ruling each other than an inherent flawlessness in the compromise[1]9.
Conclusion
The Act has thus far withstood constitutional challenges because judicial discretion was never wholly abolished and has, through the developments in Malgas and Vilakazi, been given a fluid, though now slightly more rigid framework. The limits of this compromise has now been illustrated in Centre for Child Law, whereby legislative standardisation that cannot be reconciled with an individualised inquiry has been declared unconstitutional. It is submitted that the present framework does not resolve the issues the Act set out to combat. In this regard, Parliament should revisit the idea of the Law Reform Commission’s comprehensive guidelines which may provide a useful avenue for achieving proportionality and consistency in sentencing.
Bibliography
Legislation
Criminal Law Amendment Act 105 of 1997
Criminal Law (Sentencing) Amendment Act 38 of 2007
Constitution of the Republic of South Africa, 1996
Cases
Centre for Child Law v Minister of Justice and Constitutional Development [2009] ZACC 18, 2009 (6) SA 632 (CC)
S v Dodo 2001 (3) SA 382 (CC)
S v Malgas 2001 (1) SACR 469 (SCA)
S v Matyityi [2010] ZASCA 127, 2011 (1) SACR 40 (SCA)
S v Vilakazi [2008] ZASCA 87, 2009 (1) SACR 552 (SCA)
[1] Criminal Law Amendment Act 105 of 1997, s 51(1)–(3)(a).
2 S v Vilakazi [2008] ZASCA 87, 2009 (1) SACR 552 (SCA) para 11.
3 Criminal Law Amendment Act 105 of 1997, schedule 2, pts I–IV.
4 Criminal Law Amendment Act 105 of 1997, s 51(3)(a).
5 Criminal Law (Sentencing) Amendment Act 38 of 2007; Centre for Child Law v Minister of Justice and Constitutional Development [2009] ZACC 18, 2009 (6) SA 632 (CC) paras 12–14.
6 S v Dodo 2001 (3) SA 382 (CC) [11], paras 38–40.
7 S v Malgas 2001 (1) SACR 469 (SCA) para 25.
8 S v Malgas 2001 (1) SACR 469 (SCA) para 25D.
9 S v Malgas 2001 (1) SACR 469 (SCA) para 25G.
10 S v Vilakazi [2008] ZASCA 87, 2009 (1) SACR 552 (SCA) para 15.
11 S v Vilakazi [2008] ZASCA 87, 2009 (1) SACR 552 (SCA) paras 11–12.
12 S v Matyityi [2010] ZASCA 127, 2011 (1) SACR 40 (SCA) paras 13–14, 23.
13 Centre for Child Law v Minister of Justice and Constitutional Development [2009] ZACC 18, 2009 (6) SA 632 (CC).
14 Centre for Child Law v Minister of Justice and Constitutional Development [2009] ZACC 18, 2009 (6) SA 632 (CC) (Cameron J for the majority).
15 S v Malgas 2001 (1) SACR 469 (SCA) [25]D; S v Vilakazi [2008] ZASCA 87, 2009 (1) SACR 552 (SCA) para 15.
16 N Whitear-Nel, ‘Recent Case Law’ (2012) De Jure (discussing appellate deference following S v Matyityi).
S v Dodo 2001 (3) SA 382 (CC) paras 38–40.
17S v Vilakazi [2008] ZASCA 87, 2009 (1) SACR 552 (SCA) [11] (noting the South African Law Commission’s unadopted guideline proposal).
18 N Whitear-Nel, ‘Recent Case Law’ (2012) De Jure.
