Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models
South African law provides minimum sentences of imprisonment for a relatively small range of serious offences, including murder, rape, robbery and serious economic crimes. The least severe mandatory sentence is 15 years imprisonment, rising to 20 and 25 years for offenders with previous convictions for the same offence. The legislation thus provides for progressively harsher penalties for repeat offenders. The mandatory sentencing provisions also contain a clause that allows for judicial discretion: courts may impose a lesser sentence in cases in which
"substantial and compelling circumstances exist that justify the imposition of a lesser sentence."; Judges must provide their reasons for imposing a sentence below the minimum. The mandatory sentences were created by the 1998 Criminal Law Amendment Act , initially for a period of two years, but remain in effect. Commentary on the mandatory sentencing legislation suggests that these penalties were introduced in large measure to placate public opinion as crime rates are high in South Africa (see discussion in Van Zyl Smit, 2000).
As with most other common law jurisdictions, South African courts have considerable discretion at the sentencing stage of the criminal process. The mandatory sentences introduced for a limited number of offences therefore run counter to the general ethos of sentencing in that country (see Van Zyl Smit, 2000). At present, South Africa does not have any codified sentencing purposes or principles or sentencing guidelines. However, that is likely to change within the next few years. In 2000, the South African Law Commission released a report containing an integrated package of proposals (South African Law Commission, 2000). Reviewing the entire report is beyond the scope of this summary; however, it may be useful to review the key proposals advanced by the Commission.
The Law Commission proposes an integrated approach to structuring judicial discretion, one comprised of three primary components: (i) statutory principles of sentencing; (ii) creation of an independent Sentencing Council, and (iii) development of comprehensive sentencing guidelines. The proposed statute carries a preamble that articulates its objective as
"establishing a comprehensive framework to deter criminal conduct and make society safer by providing for the consistent and just punishment of offenders with sentences that recognize the human dignity of offenders and victims of crime"; (p. 49). The proposals articulate a single sentencing purpose, namely
"to punish convicted offenders for the offences of which they have been convicted by limiting their rights or imposing obligations on them in accordance with the requirements of this Act "; (p. 50). While this provision thus omits other potential purposes of sentencing – such as restoration – it nevertheless has the advantage of clarity. The Commission's proposals assign an important role to proportionality in sentencing (South African Law Commission, 2000). The government has yet to respond officially to the Law Reform Commission's report and there is no indication that a response is forthcoming.
Mandatory sentences have been part of the South African penal landscape for many years. For example, mandatory sentences were prescribed for drug offences in 1971 ( Act 41 ), and mandatory corporal punishment was prescribed in limited circumstances in 1952 (Neser, 2001). These have been repealed. The only significant mandatory minimum sentences of imprisonment in this jurisdiction were created within the last few years in response to rising crime rates.
In 1998, the Criminal Law Amendment Act was passed. The Criminal Law Amendment Act enacted minimum sentences for a wide range of the more serious offences. The Act originally applied for a period of only two years, but it has subsequently been extended  and there is no indication of it being terminated in the near future, although a number of academics have been critical of the legislation (e.g., Terreblanche, 2003; Van Zyl Smit, 2000). In March 2005, consultations were underway with various agencies and the judiciary, with the purpose of determining whether the mandatory minimum legislation should be renewed. The best indication appears to be that it will be renewed.
Although the mandatory minimum sentences of imprisonment are harsher than those found in other jurisdictions, the Act specifically provides discretion for the sentencing judge. Thus, if
"substantial and compelling circumstances"; are present to justify a lesser sentence, the court is permitted to deviate from the prescribed sentence as long as the judge provides reasons for the deviation on the record. In S v Malgas, the Supreme Court of Appeal decided that, if the prescribed sentence would result in an injustice, this would amount to a substantial and compelling circumstance, and the sentencing court would then impose an appropriate sentence. This feature of the South African provisions – combined with the fact that the penalties are mandatory minimum sentences rather than mandatory sentences – provides courts with more discretion than might otherwise be the case. Systematic statistics are not yet available (they will be later in 2005), but anecdotal reports indicate that judges exercise their discretion to circumvent the mandatory sentence in a relatively high proportion of cases. Informal discussions with some members of the judiciary in South Africa suggest that judges are strongly opposed to the mandatory minima.
The state of sentencing and prison admission statistics in South Africa does not permit reliable inferences to be drawn about the impact of the mandatory sentences on crime rates or prison populations. A number of criminal justice professionals in the country have expressed apprehension that the mandatory sentences have contributed to the country's high (and rising) prison population. However, two reasons argue against the position that the mandatory sentences have played a role in this regard. First, as noted, most commentators agree (and the judiciary acknowledge) that courts frequently use their discretion to circumvent the prescribed sentence, and second, that the small number of offences included in the legislation (see Appendix E) could not account for the much larger number of admissions to custody. The Ministry responsible for prisons in South Africa is currently investigating the impact of the legislation, and a report, or at least more systematic statistics, should be available later in 2005. Research reveals that the introduction of these mandatory sentences does not appear to have promoted consistency in sentencing across regions of the country (see Paschke and Sherwin, 2000). Moreover, interviews with judges and counsel demonstrate that these professionals
"generally preferred the situation before the Act came into effect."; ( Schonteich, Mistry, and Struwig, 2000, p. 6). Judges have continued to criticize the Act for limiting their discretion (South African Law Commission, 2000).
It seems unlikely that the mandatory sentences of imprisonment created for serious crimes will be abandoned in the near future. Although no evidence has been adduced to suggest these penalties reduce crime rates, a number of politicians continue to support the sentences. In addition, anecdotal evidence suggests that the sentences are popular with the general public who are apprehensive about high crime rates. Finally, with the exception of the judiciary, and a small number of academics, no organization has taken a stand against the mandatory sentences in South Africa ; as such, the status quo is likely to remain for some time. On the other hand, there is no evidence to suggest that additional mandatory sentences are being contemplated.
- Neser, J.J. (2001). Mandatory minimum sentences in the South African context . Capetown: Department of Criminology, University of South Africa .
- Paschke, R. and Sherwin, H. (2000). Quantitative Research Report on Sentencing. An empirical quantitative study on sentencing practices in South African courts and an assessment of the impact of the Criminal Law Amendment Act No. 105 of 1997 on behalf of the South African Law Commission . Capetown: South African Law Commission. Available at: www.wits.ac.za/salc/salc.html .
- Schonteich, M., Mistry, D. and Struwig, J. (2000). Qualitative Research on Sentencing. An empirical qualitative study on the sentencing practices of the South African criminal courts, with particular emphasis on the Criminal Law Amendment Act no. 105 of 1997 . Pretoria : Institute for Security Studies. Available at: www.wits.ac.za/salc/salc.html .
- South African Law Commission (2000). Sentencing (A New Sentencing Framework) . Report of Project 82. Capetown: South African Law Commission.
- Terreblanche, S.S. (1997). Sentencing in South Africa . In: M. Tonry and K. Hatlestad (eds.) Sentencing Reform in Overcrowded Times . New York : Oxford University Press.
- Terreblanche, S. S. (1999). The Law of Sentencing inSouth Africa . Capetown: Butterworths.
- Terreblanche, S. S. (2003). Mandatory and minimum sentences: Considering s 51 of the Criminal Law Amendment Act, 1997. Acta Juridica, 248-283.
- Van Zyl Smit, D. (2000). Mandatory Sentences. A conundrum for the new South Africa ? Punishment and Society , 2(2): 197-212.
-  The President of South Africa is authorised, through s 53(2), to extend its operation in consultation with Parliament.
-  Sec 51(3)(a).
-  2001 (1) SACR 469 (SCA).
-  This comment reflects discussions with key informants in this jurisdiction .
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