Mandatory minimum sentencing and the operation of the so-called “Departure Clause”
Mandatory minimum sentencing legislation was introduced in South Africa, namely The Criminal Law Amendment Act 105 of 1997 (“the Act”), as a tool of deterrence against rising rates of violent crimes on 1 May 1998.
Definition: Mandatory Minimum Sentences
The concept of mandatory minimum sentences entails the imposition by Courts of certain sentences in respect of crimes listed in section 51 of the Act. Examples of such minimum sentences and accompanying crimes include life sentences for offences such as premeditated murder, murder of a law enforcement officer or a potential state witness and various forms of rape.
The Act further prescribes, a 15-year imprisonment sentence for a first-time offender for crimes such as murder, robbery, and drug related crimes. Furthermore, in respect of a repeat offender and further-time offender, the Act mandates that the offender is not to be sentenced for fewer than 20 and 25 years respectively.
The so called “departure clause”
The Act sets out a so called “departure clause” – which grants a judicial discretion to the Court to impose a lighter sentence where such a departure is justified by the existence of “substantial and compelling circumstances”.
In the landmark case of S v Malgas 2001 (1) SACR 469 (SCA) (“Malgas case”), the Supreme Court of Appeal, held that the minimum sentences prescribed by the Act should be used as a point of departure – one which should not easily be deviated from. The purpose of the minimum sentence regime exists as a means of deterrence to the commission of a crime. The minimum sentence regime dictates which offences carry which sentences. It is therefore regarded that when an Accused, knows which sentence may be passed for a specific offence, continues to Act and commits the crime, such Accused should receive the minimum prescribed sentence unless substantial and compelling circumstances justify a deviation from the minimum prescribed sentence.
The Court should be cognisant of the fact that the legislature had prescribed a specific sentence for a specific crime. However, in circumstances where the prescribed sentence would be disproportionate to the crime, the Accused and the interests of society – the sentencing Court should intervene by ordering a deviation from the minimum sentence to avoid any possible injustice that could be suffered by the offender.
In the S v Vilakazi 2009 (1) SACR 552 (SCA), the Court elaborated and stated that when a Court considers all the aggravating and mitigating factors it would traditionally take into account in sentencing an accused – these factors should not be considered in isolation but should rather be viewed as a whole and the cumulative effect thereof should be the determining factor as to whether substantial and compelling circumstances exist.
Constitutionality of the departure clause
After the Malgas case, it became common cause that it was never the intention of the legislature to completely deprive the Court of its discretion in sentencing offenders.
In the case of S v Dodo 2001 (1) SACR 594 (CC), the Constitutional Court questioned the constitutionality of these provisions and whether it was an infringement of the doctrine of separation of powers. The Court concluded that a Court’s discretion in determining an appropriate sentence by taking into account the crime, the Accused and the interests of society, is inherent to the functioning of an independent judiciary. Section 12 of the Constitution of the Republic of South Africa – prescribes that the sentence needs to fit the crime – proportionality being the key here.
The departure clause allows for departure from the mandatory prescribed minimum sentences where “substantial and compelling circumstances” exist – in which case in order to steer clear from injustice and gross disproportionality the Court will have to exercise its discretion to adjust the sentence to a sentence which in the view of Court is fitting in the circumstances.
Written by Faure & Faure Inc. Benedict Asia and candidate attorney Nicola Pentz.
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