An evaluation of the effect of mandatory minimum sentencing legislation on judicial discretion in South Africa.

Abstract

This research project deals with the effect of mandatory minimum sentencing legislation on judicial discretion in South Africa, where courts have historically had carte blanche to exercise their considerably broad judicial discretion when sentencing offenders. This judicial discretion was significantly curtailed by the advent of the Criminal Law Amendment Act 51 of 1997, and subsequent amendments thereto. The legislation commenced on 1 May 1998 and is still currently in effect. The legislation was enacted in response to an increase in violent crime at that time, and prescribes mandatory sentences for murder, aggravated robbery, rape, as well as for serious financial crimes and others. The courts are thought to be contemptuous and repugnant towards this legislation as it significantly curtails their judicial discretion. Whilst the general public were initially appeased by the impact of this legislation, many detractors felt this amounted to a harsh sentencing regime, calling for these laws to be abolished during the 23 years of its operation. This is a qualitative study and is based largely on a critical analysis of information gathered from the source material in order to identify gaps and trends in the field of interest. The questions, arguments and debates arising from the chosen focus area are located in both the literature and case law. The research design utilised is desktop research, which relies on secondary data, which are already in existence, including government publications, published or unpublished information available from either within or outside an organization, data available from previous research, online data, case studies, library research, and the Internet in general. The research will clearly enunciate the current legislative and judicial positions and advance convincing arguments and viewpoints from an array of distinguished writers and commentators. Various writers agree that South Africa is in dire need of reforming its sentencing system and believe that mandatory minimum sentencing has failed to adequately address sentencing problems in South Africa, deter violent crime or reduce sentencing disparities. They opine that many individuals within the judicial and criminal justice systems are disgruntled with the current regime, resulting in attempts to circumvent and thus undermine the entire mandatory minimum sentencing scheme.