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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

These sentences imposed by the courts in the above cases are a reflection of their inconsistency in implementing uniform decisions for particular types of offences. The implication in section 51 (3), that a court should exercise its discretion in assessing if substantial and compelling circumstances exist which justify imposing a lesser sentence upon the accused, appears to contradict section 51 (1) wherein the legislature clearly expresses that offenders of crimes mentioned in Part 1 of Schedule 2 of the Act be sentenced to life imprisonment. It would further appear that the constant implementation of section 51 (3) has had the effect of reducing the liability of the accused which results in a lesser sentence being imposed upon him or her. With regard to cases of child rape, the writer concedes that the impact of this crime upon victims may well be severe however regard has to be had to the proportionality of sentences, especially where the rapist is himself a child and where the imposition of a life sentence may infringe the constitutional rights of the alleged offender.

Prescribed mandatory sentences have always been regarded as an imposition by the legislature upon the court’s jurisdiction when imposing sentences upon offenders.
This does not necessarily infer that the laws which prescribe minimum sentences are presumably unconstitutional.

The Canadian courts, in the cases of R v Smith , R v Goltz and the Namibian court in the case R v Vries have ruled that mandatory minimum sentences would be unconstitutional only if its imposition is grossly disproportionate to the crime in question. ‘An adequate departure mechanism is one way of ensuring that a mandatory minimum sentence requirement does not produce a constitutionally unacceptable degree of disproportionality between the crime and punishment’.
The punishment must therefore fit the criminal, the crime, and must consist of a measure of mercy by being fair to society.

In the case of S v Jansen Justice Davis stated that mandatory minimum sentences run the risk of being unconstitutional because their disregard of the individual context could be considered to be cruel, inhumane and degrading. He further stated that sentencing must be based on the principle that ‘curtails the evils of unbound discretion’ and ensures that sentencing is proportionate to the case.

In the case of S v Dodo , the constitutionality of section 51 (1) was challenged on the grounds that it infringed the accused’s right to a fair trial and that it violated the separation of powers principle. Justice Ackerman found that the legislature should not compel the judiciary to impose punishment which is ‘wholly lacking in proportionality to the crime because this would be inimical to the rule of law and the constitutional state’. This would be a contravention of the accused’s constitutional rights to a fair trial and not to be subject to cruel, inhumane or degrading punishment.

It follows that if the legislature compels the courts to impose sentences that are not proportionate to the gravity of the offences, such a sentence would be unconstitutional and would be of a cruel, inhumane and degrading nature. This would place an absolute limitation on the sentencing discretion of the courts, thereby compelling them to impose minimum mandatory sentences which could possibly conflict with the principle of proportionality. This would provide grounds to dispute its constitutionality. The Criminal Law Amendment Act, however, allows the court to deviate from the mandatory minimum sentences if there are ‘substantial and compelling’ circumstances, as a result of which its constitutionality cannot be questioned.

In the case of S v Mahomotsa Justice Mpathi found that if substantial and compelling circumstances are found to exist in a case, mandatory sentences should not be imposed. The sentence to be imposed should be left to the discretion of the trial court subject to the ‘cognisance of the legislature’s desire for firmer punishment than that which may have been thought to be appropriate in the past.’ He further stated that some categories delineated in the Act may contain a higher degree of seriousness than others. It is this difference which should be considered as substantial and compelling circumstances when imposing punishment. To substantiate this point the learned judge referred to the case of S v Abrahams where