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

    (c) involving the infliction of grievous bodily harm.'…

The most relevant section of the aforementioned schedule, for the purposes of this article is b (i). The crux of this section is that if the victim of rape is below the age of sixteen, the legislature places a legal obligation upon the judiciary, in terms of section 51 (1) (b), to sentence that offender to life imprisonment, unless there are ‘substantial and compelling circumstances’ which exist to justify imposing a lesser sentence upon the offender. In S v Snyders, Justice Booyens stated that by incorporating section 51 (1) into the Criminal Law Amendment Act, it is clear that the legislature intended for perpetrators of such crimes to be harshly dealt with.  He further stated that it was clear that the retributive aspect of punishment comes to the fore in this section. In other words, the legislature intended to deprive the perpetrator of his freedom for the crime that he has committed by taking him out of society to which he poses a risk of harm, hence taking back from him that which is equivalent to what he took from society. However the legislature intended to impose life imprisonment upon the perpetrator only upon being satisfied that there are ‘substantial and compelling’ circumstances to do so.

In S v Ndlovu,the court found that when the legislature included the crime of rape in Part 1 of Schedule 2 of the Act and prescribed the minimum sentence of life imprisonment unless substantial and compelling circumstances exist, the legislature had intended that the crime of rape committed in the circumstances as stipulated in Part 1 of Schedule 2, be treated by the public prosecutor's office and the criminal courts as being in the same category and subject to the same prescribed minimum sentences as the most serious crimes.

This is further echoed in the case of S v Dzukudu, where Justice Hodes stated that ‘every criminal offence is a serious matter.  Some are more serious than others.  The legislature regards rape in circumstances such as this as being as serious as a violent murderous act by stating that unless there are substantial and compelling circumstances, the accused should be sentenced to life imprisonment.’

The term ‘substantial and compelling circumstances’ is central to the ‘application and effect of the Act’.  This is based on section 51 (3) (a) which provides that a court may impose a lesser sentence if it is satisfied that there are substantial and compelling circumstances to justify doing so. The legislature has placed the burden of deciphering this term upon the courts, resulting in different interpretations of these words in each individual case.

In the case of S v Jansen, Justice Davis stated that ‘the term “substantial and compelling” appears to have been borrowed from the State of Minnesota in the United States of America’. The learned judge went on to explain that the Minnesota Sentencing Guidelines Grid which was adopted in 1981, enables a court to find a presumed sentence for each individual case by placing the offence within the appropriate category.  For instance, the crime of rape, in terms of the Criminal Law Amendment Act is categorized in Part 1 of Schedule 2 of the Act. The court will then calculate the offender's criminal history score and then locate the cell where the two intersect. The court will determine whether the accused is a first time offender or a second time offender and so on, of that particular crime that he or she is being accused of. The court is thereafter under an obligation to 'impose a sentence within the range of presumed sentences, unless there are substantial and compelling circumstances in the individual case for departing from that range.'

Justice Davis went on to explain that the Minnesota Guidelines Grid provides that a court may depart from the range of presumed sentences upon providing reasons for doing so. The Guidelines however provide a list of those reasons that may not be used to depart from the range. These reasons include the following:

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