Criminal Procedure

Topic 19: Sentencing

INTRODUCTION:
● Difficult part of the procedure and factors which courts take into account can often be
contradictory
● Judicial officer have discretion in the sentencing stage. In most cases judicial officer may pose
a sentence that he/she deems fit
● Every sentence must fit the criminal, crime and is fair to society
● There is also times where there are minimum sentence requirements - limits judicial officers
discretion
● General aims and principles of sentencing
○ 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 (Raabi case)
○ Three elements to sentencing (Zinn case)
■ The crime
■ The offender
■ Interest to society
● In certain circumstances, certain crimes will force a judicial officer to pose a minimum
sentence - Section 51 of the Criminal Law Amendment act

THE SENTENCE DISCRETION:

Not really consider victim’s interests
● The traditional position:
○ Court has wide-ranging powers to impose sentences – in deciding how to exercise this
power in a specific case, the court exercises a discretion, which involves making a
choice from various possibilities (various types of sentences, and the measure or
quantity of the type of sentence decided on)
○ Basic requirement is that the discretion must be exercised reasonably and judicially:
Discretion may not be exercised arbitrarily – a court is expected to act within the limits
prescribed by the legislature and in accordance with the guidelines laid down by higher
courts
○ Sentencing is an individualised exercise and the judicial officer looks at the personal
circumstances of an offender
○ Courts are hesitant to sentence someone to imprisonment where it can be avoid and if
that person is a first time offender
- Zinn triad
● The factors: S v Zinn 1969 (A)
○ “It then becomes the task of this court to impose the sentence which it thinks suitable
in the circumstances. What has to be considered is the triad consisting on the crime,
the offender and the interests of society”
● The seriousness of the offence is the predominant consideration in passing sentence, but that
does not mean that sentences for the same type of crime should always be the same.
● Consideration should also be given to the perpetrator’s personal circumstances. In this case
ZInn’s age and poor health resulted in his sentence of 15 years imprisonment being reduced

S v Matyityi 2011: “enlightened and just penal policy requires consideration of a broad range of sentencing factors” - VICTIM CENTRED
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 to 12 years. The courts do not often spell out what the sentence would have been without the
mitigating circumstances, and what it is after taking these circumstances into consideration

THEORIES OF PUNISHMENT:
● Theories of punishment effect the type of sentence
● Personalisation (individualisation) of punishment: 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
EFF and another v minister of justice and correctional services and another 2021 Restorative justice is favoured

1. Retribution “Eye for an eye” type of punishment, offender should be punished as they punished the victim - fallen out of favour
S12(1)(c) of Constitution - obligation on state to protect citizens from all forms of violence, by deterring crime this goal is partially
2. Deterrence achieved. Ensure that offenders know they will be punished.
3. Prevention
4. Rehabilitation Post 1994 saw function of rehabbing people to rejoin society. Recidivism: people reoffending after being released
5. Reconciliation Ubuntu - restorative justice
Focus is not to punish/deter, but to restore relationship between victim and offender
Not popular in SA and cannot always be achieved. Also not appropriate in many crimes.
Common law crimes: no legislation guiding what sentence to opposed unless
Advantages of judicial discretion: specific circumstances, in which case court will look at previous cases
● Courts can adapt their sentences to provide for the slightest differences between cases
● Independence Guided by legislation, may propose minimum sentence; can be aggravating and mitigating circumstances
Courts = Independent to do what they want, within legislative bounds
● Differences of fact (merits of the case) Can consider individual facts and circumstances = such as self defence v murder
● General principles (part of our legal culture/ tradition to create general legal principles in court)
Zin triad; mitigating and aggravating circumstances
S v M (Centre for Child Law as amicus curiae) per Sachs: How a court imposing a sentence on the
primary caregiver of children should give effect to the best interests of those children

Disadvantage of a wide discretion:

● Should the same case be heard by 2 different judicial officers there may be a vast difference in
the sentences that are imposed (conflict with Sec 9 Constitution: Equality before the law)
● Inconsistency is unjust – therefore inconsistent sentences are not consonant with justice and
fairness * see next page

Will be asked!!!
MINIMUM SENTENCES:
● Forces the judicial officer under certain circumstances to impose minimum sentences (usually
between 5-25 years) for crimes that were committed under certain circumstances
● Regulated by the criminal law amendment act Courts will need to impose minimum sentence in certain crimes: such
as raping a minor
● The CLAA compels a judicial officer to impose mandatory minimum sentences unless there
are substantial and compelling reasons to divate
● Not applicable to people under the age of 18 At the time of the commission of the crime
● Only HC and regional courts may impose minimum sentences. District courts don’t impose
minimum sentence legislation
● Important to point out in the charge sheet that mandatory minimum sentences will be
applicable

If prosecuted under formal justice system: minimum sentence does not appy

Centre for child law case: juvenile centre for children who smoked dagga
• children should be dealt with for social programs if found in possession of dagga
• Court did not condone the use of dagga, but there are better ways to deal with children
• What about other drugs then?

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Accused and sentencing
DPP Limpopo v Motloutsi 2018 para 19
• courts must strike judicial balance between elements in Zinn to ensure that one element is not unduly accentuated at the
expense of and to the exclusion of other elements
• Courts might overemphasise youth and first time offenders
• Problem with youth: courts don’t agree what youthful is, for example 29 is not necessarily young when it comes to
sentencing

SS Terblanche Guide to Sentencing in SA para 3.1: attaching “correct amount of weight… to each factor”
• one aggravating factor might outweigh 4 mitigating factors

Usually separate hearing altogether, especially in complex cases, there would be time set out to hear mitigating and
aggravating factors.
• provide factual basis for these factors

S v Jimenez 2003 1 SACR 507 (SCA) paras 9, 31 (S v Nkomo 2007 2 SACR 198 (SCA) - para 28)
• “public policy and public interest”
- gender-based violence - SN para 17
• No overemphasis on public interest and general deterrence S v Van de Venter 2011 paras 9-15

Factuality basis!
 Potential of minimum sentence has to be mentioned in charge sheet and could be an irregularity if not mentioned
• determined on case-by-case basis

Crime: Under which circumstances: POD: must be imposed if factual circumstances give rise to it

Not a Rape: - Gang rape

complete
list, but
- In the execution of common purpose
most of - Perpetrator knowing he has HIV LIFE SENTENCE
them - Victim under116/above 60
- Mental/physical or other vulnerable person

Murder: - Planned or premeditated Victim under 18

- Victim: Law enforcement officer/planning to give material evidence in Schedule
1 trial
- Died in the commission of roebbery with aggaraving circumstances, rape or
compelled raoe
- Killed in order to unlawfully remove body part

Deviance from minimum sentence: Heated debate

● Can only deviate from mandatory minimum sentences if there is substantial and compelling
reasons to do so Must be truly compelling reasons
● If the sentencing court is satisfied that there are ‘substantial and compelling’
circumstances justifying a lesser sentence than that prescribed in a particular case, it must
impose such lesser sentences
● “Substantial and compelling circumstances means truly convincing reasons. There must not
be marginal differences in personal circumstances or degrees of involvement” - S v Mahlangu

Ms 2001 - step by step procedure POD AND DEVIATION

S v Maglas Warned that it must not be flimsy reasons
● This decision represents the SCA’s first attempt to interpret the phrase ‘substantial and
compelling circumstances’. Locus classicus in deviating from the minimum sentence. Despite the feelings of a judge, you MUST impose it
[para 74] ● A phrase such as ‘substantial and compelling circumstances’ invited different interpretations,
but after the Malgas decision it has at least been clear that these circumstances need not be
exceptional and that all the factors and fundamental principles of sentencing should be taken
into consideration. Must impose, but only deviate under very specific circumstances

● The court has been criticised for having made no attempt to define more precisely the
meaning of the phrase substantial and compelling circumstances. Nevertheless, after Maglas
the courts have generally abided by the views expressed in that case, and this approach has
been followed in HC decisions almost without exception. Look at the cumulative effect of the mitigating factors to
determine if you can deviate from the minimum sentence

S v Dodo 2001 Para [9]-[11]

1. Follow Maglas Confirmed malgas judgment approach:

2. Step by step procedure in working out minimum sentences
● In Malgas the words “substantial and compelling circumstances” were interpreted by, amongst
other things, detailing a step-by-step procedure to be followed in applying the test to the actual
sentencing situation. Difference between “substantial and compelling circumstances” and disproportionate sentence
○ 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).
○ 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.
Only unconstitutional to impose a sentence that is contrary to BoR s12(e): proportionate to the nature of the crime
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 ○ 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.
○ 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.
○ 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 crime and the
need for effective sanctions against it, this does not mean that all other considerations
are to be ignored.
○ 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.
○ 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.
○ In applying the statutory provisions, it is inappropriately constricting to use the
concepts developed in dealing with appeals against sentence as the sole criterion.
○ 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.”

3. Difference between “substantial and compelling circumstances”

● Minimum sentencing legislation brought into the legal vocabulary the concept of compelling
and substantial circumstances – it was a development from the grey areas of discretion for
disproportionate sentencing in Common Law

4. Separation of powers
● Para 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.”
No perfect SoP

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 Opposed to minimum sentence regime Delano: find a middle ground

Former Justice Cameron:

“The minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of
punishing criminals and dealing with crime. It has been an extravagant mistake of science,
*policy
understanding and police and social response”
● Suggests that there is not necessarily a causal link between minimum sentences and a
reduction in crime
● Its costly because prisoners are required to stay in prison for longer
Move away from minimum sentences - as w whole they are not a good idea, rather focus on the process of ensuring
And also: prosecution takes place
“There are solutions. They are not easy. None of them offers a quick fix. The major response to the
crime wave in our country should be to recognise that the sole inhibiting institutional response to
*detection
criminal conduct is the certainty of detention, the certainty to follow up, the certainty of arraignment,
the certainty of prosecution - and the certainty of punishment. In this certainty, the length of sentences
plays no role. In other words, whether a potential rapist faces a sentence of 2,5,10 or life, it is not the
length of sentence but the certainty of sentencing that will make them stop. This means that we must
look away from minimum sentences”
Aggravating circumstances:
• seriousness of the crime
See slides for table!! • No remorse
THE ACCUSED AND SENTENCING: • After effects: victim
• Previous convictions
● Mitigating factors are also taken into account with minimum sentence legislation • Abuse of trust
Will be in test!!
● Mitigating factors include: • Premeditation
• Vulnerable victims
○ Youth • Prevalence of the crime (GBV,
murder, rape, organised crime)
○ First offence
○ Lack of premeditation
■ If it is premeditated then it will be a aggravating circumstance
○ Abuse of trust
○ Remorse Belief in witchcraft/religion
■ Lack of remorse is aggravating
○ Employed - especially if person is the sole breadwinner
● Other factors include for example: “battered wife syndrome”
○ If you have been the victim to systematic abuse by your spouse over a prolonged
period of time and you eventually kill him. This might be a mitigating circumstance
Emotional stress, provocation, mental illness, health

Sentencing of children:
● General principle established in S v B 2006 (SCA):
○ Young persons have always been sentenced more leniently than adults and cannot be
expected to act with the same level of maturity as adults. They are prone to commit
thoughtless acts
● This case was decided when minimum sentences were applicable to children but the remarks
made in S v B are still relevant.
○ Declared application of minimum sentence regime to minors unconstitutional in Centre
for Child Law v Minister of Justice 2009
● In S v B, B was a minor when the crime was committed (17 years and 7 months) and was a
member of a satanic group.
○ He wanted to kill his parents according to his “religious beliefs” to derive a benefit.
○ He couldn’t bring himself to do it so instead he killed his neighbor by stabbing her in
the neck as he thought.
Minimum sentence applied because it was someone above 60

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*see after mitigating and
aggravating factors
Mitigating and aggravating factors - slides
Youth
• Nkomo SCA case
- majority v minority
- majority: emphasised relative youth (29 y/o), also raped someone and violence involved
- minority: disagree that he was of relative youth in relation to this offence
• S v SN - prescribed
- courts said that 47 year old uncle was still relatively youthful
- he raped his young niece
• Younger offender, court will be more lenient in sentencing
• child-offenders

First offence
• crime free life before this - in your favour

Remorse
• S v SN
- accused did plead guilty to the offence after crime was reported to the police
- he did admit to raping his niece and alluded in plea of guilt that there was no evidence incriminating him and linking
him to the crime if he had not cooperated
- cooperating with the investigation = mitigating factor
- sharing why you did what you did - counts in your favour
• P du Toit ‘Role of remorse in sentencing’ 2013 Obiter 558
• S v Thole 2012 2 SACR 306 (FB) - genuine contrition must be demonstrated
• Matyiyi - contextualising the crime for the court - change of heart
• S v de Sousa 2008 JDR 1141 (SCA) and S v SN = assisting with the investigation = in your benefit
• Powerful factor - genuine contrition
- must be demonstrated, not just assumed
- “gnawing feeling”
- recognising how your actions caused another harm
• lot of value on accused taking stand and recognising their crime affected someone, how it affected someone and that it has
caused after effects
• If they indicate that they had a change of heart/attitude
• Pleading guilty may have its benefits
Employment and dependants
• Nkomo
- employment of accused was taken into account, but not weighted heavily
• Shows stability to the court, will continue life well-behaved and maybe you just had an error in judgment
• Breadwinner: if you are sent to prison, your family will suffer = this is where employment will serve as a useful mitigating
factor
• Greed in financial crimes could serve as an aggravating factors, where if you are unemployed, it could serve in your favour
as a mitigating factor if you stole food

Belief in witchcraft
• eg. Murder was committed associated with witchcraft
- like someone killing an alleged witch
- Muti killing
- court can and will take into account if witchcraft was the motivating factor
• look at genuine belief in witchcraft?
• Genuine belief/depth of belief?
• If you killed the witch, what is your inherent belief against the badness/evilness of witch
• The immediancy of the perceived threat at the time you killed the witch
- e.g. witch curses you today and you kill her tomorrow
- e.g. the Tokolosh cases
• exorcisms
• People perform it based on belief
• You can consent to this = difficult for convictions

Socio-economic circumstances
• S v Jordaan 2018 (7 feb 2018) and others paras 6-9
- emphasised fact that many members join gangs out of survival and economic pressures, evasive poverty and
unemployment
- cannot place too much weight on this though
• E.g. stole a bread because of hunger
• Greed = aggravating

Other factors
• battered wife syndrome S v Ferreira 2004
• Cyclical cycle of abuse, and at some point the partner snaps
• Kills spouse or partner
• How close is the crime to the last instance of abuse
• Health: older and of ill general health = either not go to prison, or go for a shorter period
Aggravating factors
Seriousness of the crime
• children - SN
• Organised crime - Jordaan
-Gang members in Jordaan: the fact that they are forced into life of crime must be weighed against the seriousness of
gang violence
• Crimes of dishonesty - S v Ntozini
- amount involved could be an aggravating factor
- malware installed on municipality systems
- R19 17 200
- public money intended to be used for public good
• GBV
• some of these can in certain circumstances attract a minimum sentence

Vulnerable victims
• older people/children
• S v SN
- victim was 12 years old, vulnerable
• person suffers from a mental illness

No remorse
• lack of remorse = aggravating
• Offender laughing/smirking at victim/judge
• During testimony shows no remorse/acknowledges that what they did was wrong
• Passiveness = could also be aggravating

After effects: victim

• S v SN:
- court made therapy order for victim at state expense
• deviated from minimum sentence, but was a great leap towards victim rights
• Expert was unsure whether victim would ever recover
• Victim displayed behavioural issues: aggression at school; blamed herself for what happened and angry at uncle
• If victim was assaulted, could be paralysed

Abuse of trust
• instances of familial rape
• S v SN
- uncle raped niece while she was in his care
• unequal power relationship is abused - for e.g. an employer-employee relationship
Previous convictions
• could be aggravating factor
• Court must not consider previous convictions not related to the crime for sentencing convictions
• S v SN : 15/20 years passed between convictions, unrelated offence
• POD: courts do generally not consider previous convictions older than 10 years.
• S v Noordien 25 July 2022
- person was convicted of stealing R187 worth of chewing gum
- sentenced to 18 months imprisonment
- court a quo placed too much emphasis on the fact that person had previously been convicted of theft
- appeal: court acknowledges that an appropriate sentence is necessary and has to consider previous convictions, but it
must not be disproportionate
- 15 previous convictions for theft
- on review: replaced with 36 days
• S v Du Plessis 11 October 2022
- court a quo over emphasised the importance of previous convictions
- older than 10 years
- court on appeal: court a quo failed to consider the time passed since previous convictions
- sexually assualted a young boy, and was previously convicted of the same thing
- courts usually do not consider older than 10 years crimes, BUT this is a repeat offence of quite a serious crime
- length between this conviction and previous conviction will impact the weight of the aggravating factor will have in
sentencing
- reduced from 15 years to 8 years
- is it correct to attach so little weight to previous convictions?
- our prison system has the purpose of rehabilitation
- but in cases like this, how do you justify it ( with for example a child molester)
• Courts do not consider previous convictions of a similar sort after 10 years

Premeditation
• things could happen in the heat of the moment meaing you have to defend yourself
• Emotional stress/provocation
• S v Moses = mitigating factor, because it was not planned
• If you plan someone’s death over a long time/poison them
• More morally repugnant/blameworthy
• can attract minimum sentence for the said crime

Prevalence of the crime

• If it is a crime that happens a lot, it can be an aggravating factor: GBV/rape
• will be weighed in relation to other factors: such as abused spouse planning murder of abuser
- not a mathematical exercise, have to attach appropriate weight to each factor
Minimum sentences do not apply to children anymore (children = under 18 AT THE TIME OF THE COMMISSION OF THE CRIME)

○ The court made important observations on sentencing children

○ Although the crime was quite heinous in nature, the court looked at the personal
circumstances of the offender
Substance abuse early on in life
■ He was quite young
Court did deviate ■ He did show remorse
■ Grew up in quite difficult circumstances - parents neglectful
Parents: low functioning individuals
○ Therefore the deviated from the minimum sentence requirements
-
test
Different sentencing options:
● Don’t need to know in detail
● Just know the different options available

Suspended and postponed sentences:

● Postponing or suspending a sentence is possible
● Postponement = the court can postpone an accused sentencing up until a further date.
● Suspended = accused will receive a suspended sentence and unless he commits a similar or
the same or any other type of offence, then ordinal sentence will not kick into effect
○ Will not go to prison at all unless conditions are violated

Cumulative effect of multiple sentences:

● Accused may be charged with multiple offences at a time
● All offence carry their own individual sentences
● A court retains its full sentencing jurisdiction for every separate crime an accused has been
convicted of.
● Court retains its general sentencing discretion and general principles of sentencing apply in
principle to each and every crime committed.
● For example: if an accused is accused of theft, arson and assault. They may face 3 years for
each of those counts, therefore 9 years imprisonment in total
● But if this is considered in totality it may become too severe if these sentences were to run
one after the other. The court is then empowered to reduce the cumulative effect of all these
sentences
● How is this done?
○ The preferred method is for the sentences to run concurrently - all at the same time
○ POD found in S208(2) of CPA - all of the sentences of imprisonment shall run on after
the other in the order in which they are imposed unless the court orders that they
should run concurrently.
○ A court may suspend portions or whole sentences of any or multiple offences
○ A court may consider two or more of the crimes together
■ Problem is that if this case were to go on appeal it will pose difficulties to the
appeal courts to distinguish how many years you got for what offence

Compensation & restitution:

● Compensation is regulated by S300 of CPA
○ This is only applicable to property related crimes where damage or lose has been
caused to the property
○ They accused may then be ordered to pay compensation to the victim that has
suffered the loss
○ Has the effect of a civil judgement
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 ○ The HC jurisdiction for the amount of compensation is unlimited while the Regional
Court is 1 million and Magistrate Court is R300 000.
○ Compensation order would be inappropriate where the accused is sentenced to prison
for long periods of time or where he has no assets/finances to furnish the
compensation.
○ A court may not impose imprisonment as an alternative for non-payment.

● Restitution is regulated by S301 of CPA:

○ Deals with property and an innocent buyer.
○ Innocent buyer can ask for restitution on the condition they return the stolen item to its
lawful possessor

Section 286A & 286B - “Dangerous criminal”

● A court can declare someone as a dangerous offender
● These sentences are indeterminate meaning that a court will in theory sentence someone to 5
years and after 5 years the court will call the accused back to determine whether the accused
has improved and if not can be sentenced to further 5 years. This process and repeat
● May only be imposed by regional and high court
● May only impose these provisions if the court is satisfied that the state person represents a
danger to the mental or physical well being of themselves or the community and that other
persons and the community should be protected from them.
● PRESCRIBED CASE: S v Bull