A critical evaluation of some of the unintended consequences of the mandatory minimum sentencing legislation in South Africa.

Abstract

The Criminal Law Amendment Act 105 of 19971 (the Act) requires the imposition of mandatory minimum penalties for specific criminal offences. However, it also allows the presiding officer of the court to depart where is it determined that substantial and compelling circumstances are present. This research seeks to evaluate the diverging interpretations of substantial and compelling circumstances by our courts as an unintended consequence of the mandatory minimum sentencing scheme. Although the legislature has not defined substantial and compelling circumstances, the case of S v Malgas2 provided guidelines that can be used by courts whenever faced with the question of what are substantial and compelling circumstances. Despite the guidelines provided, some cases still show uncertainty regarding this phrase and some judgements tend to completely disregard the importance of the constitutional considerations of proportionality and the need to still consider the traditional sentencing principles, this is an unintended consequence of the Act owing to the lack of clarity regarding substantial and compelling circumstances. The Minimum sentences scheme contains unexplained inconsistencies which have resulted in the diverging interpretations of compelling and substantial circumstances by our courts, this inconsistency can be seen in the lack of gradation for increasing levels of offence severity (sentencing cliffs) that are evident in the prescribed sentences for rape, some courts have required a higher showing of violence in order to not depart from the prescribed sentences. Some cases have used the prospect of rehabilitation as justification for a departure. This is problematic because the latter factor is present in most cases, as a result, this would lead to unnecessary and unexplainable departures which would then circumvent the legislatures intention in ensuring consistent sentences. This raises questions of whether courts are paying attention to some of the inconsistencies that result from their judgements. This research also looks at prison overcrowding as an unintended consequence of the Act, this is because the Act limits the individualisation of cases thus leading to more offenders receiving lengthy sentences. Courts are expected to consider the relevant factors of each individual case however this is not properly adhered to because the act uses few sentences for different crimes without proper explanation thus affecting prison overcrowding.