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EXAMINING SECTION 51 (1) OF THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997 AND ITS APPLICATION IN THE SENTENCING OF PERPETRATORS OF CHILD RAPE IN SOUTH AFRICA
"N CHETTY"
(B.Proc, LLB, LLM)
Lecturer of Law, University of KwaZulu-Natal, Durban, South Africa
INTRODUCTION
The public at large is outraged at the high incidence of serious crimes in South Africa and is demanding that the perpetrators of violent crimes have harsher sentences imposed upon them, to deter potential offenders. In light of the high incidence of rape, specifically child rape, the public has singled out sentences imposed upon rapists for special attention. According to the South African Police, Child Protection Unit, between October 2000 and March 2001, 87% of alleged child rapists in the greater Cape Town area had escaped conviction. In February 2003, the Government Information System revealed that of the 18737 cases of child rape investigated by the Family Violence, Child Protection and Sexual Offences Units, only 52 life sentences were imposed in 1013 convictions. In light of these statistics the writer will analyze section 51 of the Criminal Law Amendment Act to determine the possible reasons why South African courts may not be imposing the mandatory minimum sentence of life imprisonment for crimes of rape as stipulated in Part 1 of Schedule 2 of the Act. The term 'substantial and compelling circumstances' as contained in section 51 (3) of the Act and the role that it plays in separating the powers between the judiciary and the legislature.
THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997
When the legislature introduced mandatory sentences in section 51 of the Criminal Law Amendment Act, the intention was for mandatory sentences to be imposed upon perpetrators of certain serious offences. Together with sections 52 and 53 of the Act, section 51 came into operation on 1 May 1998 and placed an obligation on the Regional and High Courts to impose specified sentences. The Act itself was
intended to have had a short term existence, and should have terminated operating on 30 April 2000. However its application was extended for a two year period, terminating on April 2003 and a further two year period from 2003 to 2005. It was thereafter extended again from 2005 to 2007 and reluctantly renewed in May 2007 ‘to give Parliament enough time ‘to approve a new draft which will make significant inroads into the discretion of a judge when sentencing rapists . The imposition of mandatory minimum sentences was based on the public outcry from the community for offenders of serious crimes to receive heavier penalties and to serve realistic terms of imprisonment.
Section 51 (1) (b) of the Act provides that if a perpetrator has been convicted in terms of Part 1 of Schedule 2 of the Act, the court must sentence him or her to life imprisonment.
Part 1 of Schedule 2 of the Act provides the following that is relevant to the crime of child rape:
‘Rape-
- when committed-
- in circumstances where the victim was raped more than once whether by the accused, or by any co-perpetrator or accomplice;
- by more than one person, where such person acted in the execution or furtherance of a common purpose or conspiracy;
- 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;
- by a person, knowing that he has acquired the immune deficiency syndrome or the human immuno deficiency virus;
(b) where the victim-
- is a girl under the age of 16 years;
- is a physically disabled women who, due to her physical disability, is rendered particularly vulnerable; or
- is a mentally ill woman as contemplated in s 1 of the Mental Health Act ,1973 (Act 18 of 1973); or
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