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 

it was stated that ‘some rapes are worse than others and the life sentence ordained by the legislature should be reserved for cases devoid of substantial factors compelling the conclusion that such a sentence is inappropriate and unjust.’

In the case of S v Malgas Justice Marais stated that when a court feels a great sense of uneasiness in imposing a prescribed mandatory sentence, it may feel more anxious that it is perpetrating an injustice. Once this unease has hardened into a conviction that an injustice would prevail, the prescribed sentence would be disproportionate to the crime, the criminal and the legitimate needs of society. The court would therefore be entitled to consider these circumstances as substantial enough to compel the imposition of a lesser sentence.

The principles adopted in the Mahomotsaand Abrahamscases are compatible with those of the Malgas case, since Justice Marais stated in the Malgas case that if it is found that the prescribed sentence would be unjust, it should be departed from. This indicates that it is of paramount importance that the type of sentence that is imposed is in proportion to the crime.  This proportionality can only be established if the courts rely on what would have been appropriate had the Act not been enacted.

With regard to mandatory sentences being applicable to children, the writer concurs with  Skelton in her article on Juvenile Justice, where she states that when non-governmental organizations made submissions on the draft Bill to the Portfolio Committee on Justice, they argued that imposing mandatory sentences on children would be a contravention of Art 31 (a) and (b) of the United Nations Convention on the Rights of the Child and section 28 (1) (g) of the South African Constitution both of which provide that a child offender should be detained as a measure of last resort. She further states that imposing mandatory minimum sentences would make imprisonment a measure of first resort, ‘notwithstanding the “escape clause” which would allow the courts, in their discretion, to deviate from the minimum sentence’. Skelton is of the opinion that as a result of these submissions, the Bill was changed to exclude children below the age of 16 from falling within the ambit of the Criminal Law Amendment Act and further for 16- and-17 year olds to be treated differently because ‘the onus is on the State to show that there are substantial and compelling reasons why the minimum sentences should be imposed’.

In fact, section 51 (3) (b) provides that courts are not obliged to impose mandatory minimum sentences upon children between the ages of 16 to 18. However if they choose to do so, they must enter the reasons for their decision on the record of the proceedings.

The above viewpoints have been enforced in the cases S v Mofokeng and S v Blaauwwhere it was found that section 51 (1) of the Act  does not apply to children below the age of 16.

In the case of S v Kwalase Justice Van Heerden also recognized the importance of the above, by holding that the court’s approach to sentencing juvenile offenders has to be revisited and developed ‘in order to promote an individualized response which is not only in proportion to the nature and gravity of the offence and the needs of society, but is also appropriate to the needs and interests of the juvenile offender.’

CONCLUSION

Whilst the courts need to be mindful that victims of child rape are children and that the impact of such a crime upon the child victim is a psychological scar that lasts throughout the child's life and into adulthood, cognisance should also be had of the need to impose sentences that are not wholly disproportionate to the crime, especially in cases where the perpetrator is himself a child.

Prescribed sentences should be imposed upon second or third time offenders who are beyond rehabilitation. Conversely, society would not expect the courts to sentence, for example, a 16 year old first time offender to life imprisonment. Such an offender’s age as well as the fact that he is a first time offender may be considered as a ‘substantial and compelling circumstance’ which justify imposing a lesser sentence upon him. The consideration of ‘substantial and compelling circumstances’ is therefore an adequate mechanism of departure in ensuring that the minimum sentence requirement ‘does not produce a constitutionally unacceptable degree of disproportionality between the crime and the punishment’.

The writer is not suggesting that in imposing a lesser sentence upon the accused, that the impact of the crime upon the complainant should be ignored. The impact of the crime of rape upon the child is of paramount importance. The writer therefore agrees with Van de Merwe’s argument that it is vital that courts evaluate the ‘present and future impact of the crime on the victim’. This can be placed before court in the following ways:

‘If no evidence of harm is placed before the court there will be no understanding of the impact of the crime on the victim’. It may further lead to ‘inappropriate assumptions being made’.

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