The challenges posed by mandatory minimum sentence legislation and recommendations for improved implementation

Abstract

Towards the end of 1997 Parliament unanimously enacted legislation that prescribe severe mandatory sentences for a large number of serious offences. Sections 51, 52 and 53 of the Criminal Law Amendment Act1 (hereinafter referred to as the Act) came into effect. Sections 51 and 52 of the Act were to have effect for two years from the date, save that the operation could be extended for one year at a time by Proclamation of the President with the concurrence of Parliament (sections 53(1) and 53(2)). The operation of the sections has in fact been extended for one year.2 The legislation came in the wake of an outcry from the community for severe punitive and exemplary sentences to be imposed by our courts. Public dissatisfaction with the crime situation in the country and the lenient sentences imposed was reflected in various television and newspaper reports. The public outcry, coupled with the problems experienced in the sentencing process, compelled the lawmakers to take action. This unhealthy state of affairs prompted the Minister of Justice in 1996 to appoint a new project for the South African Law Commission's (SALC)3 investigation of all aspects of sentencing. The use of mandatory minimum sentences for certain serious crimes is one of the options being considered to address crime in this country. The main objectives of the minimum sentence legislation were to deter criminal activity, avoid disparities in sentencing and to deal harshly with perpetrators of serious offences. Since the promulgation of the Act, the meaning and implications of section 51 have been adjudicated upon in a variety of cases in different High Courts. These cases have been r alia, with the interpretation of Schedule 2 and the references to the circumstances under which certain offences attract a sentence of life imprisonment and the meaning of 'substantial and compelling circumstances'. The minimum sentence provision has been opposed and supported by two divergent views. This paper will analyse the provisions in the Criminal Law Amendment Act relating to the imposition of minimum sentences for certain serious offences. It will also, based on case law, establish the extent to which the Legislator allows a sentencing court to depart from the prescribed minimum sentencing provisions; and discuss the applicability of the minimum sentence provisions to juvenile offenders. Finally, it will establish whether the minimum sentence provisions bind the district magistrates' courts and discuss the implications of the provisions relating to referral on the jurisdiction of the courts as contained in section 52. Recommendations for the improved implementation of the Act are also made.