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

Justice Borchers stated that he did not believe that in the above circumstances, 'a court will be substituting it's own discretion for that of the legislature' because he did not believe that the legislature had the intention that unfair or grossly disproportionate sentences should be imposed. The implication here is that the defence has a ‘clear duty to compel or convince the Court that circumstances exist which justify the imposition of a lesser sentence.’  If the defence is unable to achieve the above, the court will have to impose the prescribed minimum sentence of life imprisonment.

The South African Law Commission referred to the cases of S v Bernard Abrahams and S v Hendrik Jansen in its discussion paper on sexual offences in order to examine the effectiveness of section 51 of the Criminal Law Amendment Act. In the Abrahams case the accused had raped his 14-year-old daughter. The court, in using its discretionary powers imposed a sentence of seven years imprisonment upon the accused.  The basis for this decision was the fact that the accused was 54 years old and had had no previous convictions. The court justified the imposition of this sentence by finding these facts to constitute compelling and substantial circumstances not to impose life imprisonment.  The court further justified its decision by finding that ‘this offence was not one of the worst cases of rape’, as opposed to other cases where more physical violence was used.

In the Jansen case, Justice Davis found that because ‘the medical evidence revealed little violence', it was a compelling and substantial circumstance to justify the imposition of a lesser sentence of 18 years imprisonment.

In the case of S v Mahomotsa the accused had been convicted on two charges of rape. With regard to the first charge, the accused had grabbed the victim and pulled her to his parental home where he held her for more than a day and raped her four times. With regard to the second charge, the accused who had been arrested on the first charge of rape appeared in court and was released into the custody of his grandmother.  Within two months of his release he committed a similar offence. Both the victims were 15 years of age.

Justice Mpati found that the Court a quo had misdirected itself in finding that the accused’s repeated non-consensual sexual intercourse with both the victims was as a result of his virility, which constituted a substantial and compelling circumstance. The learned judge correctly stated that ‘a man’s virility, irrespective of his age, can never be a mitigating factor when he chooses to satisfy his lust by sexually violating a woman against her will’. He further stated that if a perpetrator’s virility were to play a role in cases of rape, ‘it would imply the grotesque result that the moral blameworthiness of an accused person convicted of rape would be assessed according to the strength of his libido’.  Yet the learned judge found that although the rapes were of a serious nature, they did not fall within the worst categories of rape because there was no serious violence perpetrated against the victims. It was this factor as well as the probation officer’s report that the victims did not suffer any after effects following their ordeals that he considered as being substantial and compelling circumstances to depart from the prescribed sentence

In the case of S v Malgas Justice Marais correctly stated that the central thrust of the term ‘substantial and compelling circumstances’ must not be departed from ‘lightly for flimsy reasons which could not withstand scrutiny’. He excluded the following as constituting a ‘substantial and compelling circumstance’:

The learned judge further stated that whilst substantial and compelling circumstances have been suggested to be those factors that reduce the moral guilt of the accused, they are not the only factors which do so.  When a court believes that it would be an injustice to impose a mandatory sentence in a particular case and is satisfied that the circumstances of that particular case would render a prescribed sentence disproportionate to the crime, the criminal and the legitimate needs of society, the court would be entitled to characterize those circumstances as substantial and compelling which justify the imposition of a lesser sentence.

       continue ....next page