S v Toms; S v Bruce (139/89, 289/89) [1990] ZASCA 38; 1990 (2) SA 802 (AD); [1990] 2 All SA 248 (A) (30 March 1990)

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[1990] ZASCA 38
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S v Toms; S v Bruce (139/89, 289/89) [1990] ZASCA 38; 1990 (2) SA 802 (AD); [1990] 2 All SA 248 (A) (30 March 1990)

N v H
In the
matters between:
139/89
IVAN
PETER TOMS
Appellant
and
THE
S
TATE
Respondent
and
289/89
ROBERT
DAVID BRUCE
Appellant
and
STEM
STATE
Respondent
SMALBERGER,
JA -
/N v H
IN THE SUPREME COURT OF
SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matters between:
139/89
IVAN PETER
TOMS
Appellant
and
THE STATE
Respondent
and
289/89
ROBERT DAVID BRUCE
Appellant
and
THE STATE
Respcndent
CORAM
:
CORBETT,
CJ, BOTHA, SMALBERGER,
KUMLEBEN, JJA, et NICHOLAS, AJA
HEARD: 27 FEBRUARY 1990
DELIVERED
: 30 MARCH 1990
JUDGMENT
/2
2 SMALBERGER,JA
This judgment concerns two
appeals, those of
Ivan Peter Toms ("Toms")
and Robert David Bruce
("Bruce"). They were
heard together for the sake of
convenience. Both appeals turn
upon the proper
interpretation of s 126 A(l)(a) of
the Defence Act 44
of 1957 ("the Act"). The
subsection reads:
"(1) Any person liable to
render service in terms of section 22 or 44 who when called up -
(a) refuses
to render such service in the South African
Defence Force, shall be guilty of an offence and liable " on
conviction to imprisonment
for a period one-and-a-half times as long
as the aggregate of the maximum of all periods of service mentioned
in
section 22(3) or 44(3), as the case
may
be, during which he could otherwise, in terms of those
sections,
still have been compelled
to render
service, or for a period of 18 months, whichever is the longer...."
/3
3
Toms was convicted on 1 March 1988
in the Regional Court at Wynberg of contravening the provisions of
the above section. He is a medical
doctor, having completed his
studies at the University of Cape Town in 1976. At the time of his
trial he was engaged full time in
community health work in the Black
townships of Khayelitsha and New Crossroads. He had some years
previously completed his basic
military training and had risen to the
rank of first lieutenant. His conviction arose from his steadfast
refusal to render any further
periods of service on the grounds of
conscience. Considerable evidence was led in mitigation of sentence.
The presiding magistrate
held, however, that he had no discretion in
regard to sentence. Applying what he conceived to be the mandatory
provisions of s 126
A(l)(a) he sentenced Toms to imprisonment for a
period of 630 days. An appeal
/4
4
to the Cape of Good Hope
Provincial Division was noted.
That court, on 17 November 1988,
upheld the
magistrate's finding that the
sentence to which Toms
was liable was a mandatory one. It
held further that
no portion of the sentence could
be suspended. It found, however, that the outstanding period of
service
Toms was still
compelled to render under
the Act had
been miscalculated. The upshot was
a reduction of
Toms' sentence to one of 18
months' imprisonment.
Leave to appeal was granted to
this Court. At about
the same time Toms was released on
bail pending the
hearing of the appeal. By that
time he had served
just more than 9 months of his
sentence. The judgment
of the court a
quo
is
reported in 1989(2) SA 567 (C).
Bruce was convicted on 20 July
1988 in the
Magistrate's Court, Johannesburg,
of the same offence
as Toms. He had graduated at the
end of 1987 with a
/5
5 BA degree from the University of
Witwatersrand. He had refused to do his basic period of training on
the grounds of conscience.
The presiding magistrate arrived at the
same conclusion as his counterpart in the
Toms
case, and
applying the formula laid down in s 126 A(l)(a) sentenced Bruce to 6
years imprisonment. Bruce appealed to the Witwatersrand
Local
Division. That Court upheld the magistrate's finding that the section
provided for the imposition of a mandatory sentence,
and that no
portion thereof could be suspended. It found, however, that there had
been an error in the computation of Bruce's sentence
in accordance
with the provisions of the section, and reduced the sentence from 6
years to 2176 days. It too granted leave to appeal
to this Court.
Bruce is currently serving the sentence imposed upon him.
/6
6 The issues in the present appeal
are two-fold: (1) does s 126 A(l)(a) provide for a mandatory sentence
on conviction and, if so,
(2) is the court competent to suspend the
whole or portion of such sentence? The answers to these questions lie
in the proper interpretation
of the relevant provisions of the Act.
Before considering those provisions, and the principles of
interpretation which govern their
meaning, it would be appropriate to
stress certain f.undamental principles of which cognisance must be
taken when assessing the respective
contentions of the parties - that
the provisions of s 126 A(l)(a) preserve a judicial discretion in
relation to sentence on the one
hand, and that they prescribe a
mandatory sentence on the other.
The first principle is that the
infliction of punishment is pre-eminently a matter for the discretion
of the trial court (cf.
R v Mapumulo and Others
1920
/7
7 AD 56
at 57). That courts
should, as far as possible, have an unfettered discretion in relation
to sentence is a cherished principle which
calls for constant
recognition. Such a discretion permits of balanced and fair
sentencing, which is a hallmark of enlightened criminal
justice. The
second, and somewhat related principle, is that of the
individualization of punishment, which requires proper consideration
of the individual circumstances of each accused person. This
principle
too is firmly entrenched in our law (S
v
Rabie
1975(4) SA 855 (A) at
861 D;
S v Scheepers
1977(2) SA 154 (A) at 158 F - G).
A mandatory
sentence runs counter to these principles.
(I
use the term "mandatory sentence"
in the sense of a sentence prescribed by the legislature
which
leaves the court with no discretion at all -
/8
8
either in respect of the kind of
sentence to be imposed
or, in the case of imprisonment,
the period thereof.)
It reduces the court's normal
sentencing function to
the level of a rubber stamp. It
negates the ideal of
individualization. The morally
just and the morally
reprehensible are treated alike.
Extenuating and
aggravating factors both count for
nothing. No
consideration, no matter how valid
or compelling, can
affect the question of sentence.
As HOLMES, JA,
pointed out in
S v Gibson
1974(4) SA 478 (A) at 482 A,
a mandatory sentence
"unduly puts all the emphasis
on the punitive and deterrent factors of sentence, and precludes the
traditional consideration
of subjective factors relating to the
convicted person".
Harsh and inequitable results
inevitably flow from
such a situation. Consequently
judicial policy is
opposed to mandatory sentences
(cf.
S v Mpetha
1985(3)
/9
9 SA 702
(A) at 710 E), as they
are detrimental to the proper administration of justice and the image
and standing of the courts.
The legislature must be presumed
to be aware of these principles, and would normally have regard to
them. There is a strong presumption
against legislatiye interference
with the Court's jurisdiction - see
Lenz Township Co (Pty) Ltd v
Lorentz N O en Andere
1961(2) SA 450 (A) at 455 B, Although this
was said in
Lenz's
case in a somewhat different context, the
principle would apply equally to the court's jurisdiction in relation
to the matter of
sentence. By the same token the legislature must be
presumed not to intend its enactments to have harsh and inequitable
results (cf.
S v Moroney
1978(4) SA 389 (A) at 405 C -D). The
legislature is of course at liberty to
/10
10
subjugate these principles to its
sovereign will and decree a mandatory sentence which the courts in
turn will be obliged to impose.
To do so, however, the legislature
must express itself in clear and unmistakable terms (
S v Nel
1987(4) SA 950 (W) at 961 B). Courts will not be astute to find that
a mandatory sentence has been prescribed. This, however, does
not
mean that they will disregard relevant
principles of statutory
interpretation. The warning
echoed in
Principal Immigration
Officer v Bhula
1931 AD 323
at 336 (quoting from Maxwell : 3rd Ed
p 299) that "a sense of the possible injustice of an
interpretation ought not to induce
judges to do violence to
well-settled rules of construction" must not go unheeded.
The primary rule in the
construction of statutory provisions is to ascertain the intention of
the legislature. One does so by attributing
to the
/11
11
words of a statute their ordinary,
literal, grammatical meaning. Where the language of a statute, so
viewed, is clear and unambiguous
effect must be given thereto, unless
to do so "would lead to absurdity so glaring that it could never
have been contemplated
by the legislature, or where it would lead to
a result contrary to the intention of the legislature, as shown by
the context or by
such other considerations as the
Court is justified in taking into
account " (per
INNES, CJ, in
Venter v R
1907 TS 910
at 915). (See also
Shenker v The Master and Another
1936 AD 136
at 142;
Summit Industrial Corporation v Claimants
Against the Fund Comprising the Proceeds of the Sale of the MV Jade
Transporter
1987(2) SA 583 (A) at 596 G - H.) The words used in
an Act must therefore be viewed in the broader context of such Act as
a whole
(
STEYN
: Die Uitleg van Wette : 5th Ed, p 137;
Jaga
v Donges NO and
/12
12
Another
1950(4) SA 653
(A) at 662 G). When the language of a statute is not clear and
unambiguous one may resort to other canons of construction
in order
to determine the legislature's intention. One such is that in the
case of penal provisions a strict construction is applicable
(
Steyn
op cit
at 111-112). The construction of criminal and penál
statutes was discussed in R
v Milne and Erleigh (7)
1951(1) SA
791 (A) at 823 B - E, in which was adopted the general rule of
construction recognised in England (see
Remmington v Larchin
1921(3) KB 404 (CA) at 408) that when dealing with a penal section,
if there are two reasonably possible meanings, the court should
adopt
the more lenient one.
The Act, according to its
preamble, provides for the defence of the Republic and for matters
incidental thereto. It makes provision,
inter alia
,
/13
13 for the conscription or
compulsory service in its
armed forces of
male citizens between the ages of 18 and 65. The South African
Defence Force consists of the Permanent Force, the
Citizen Force and
the Commandos. Every male citizen of prescribed age must, at the
times fixed by the Act, apply for registration
and, unless exempted
from military service cm one or other of the very limited grounds
recognised by the Act, he is allotted to either
the
C
itizen
Force or the Commandos, and required to render service or undergo
training therein.
Service in the Citizen Force is
regulated by s 22 of the Act; service in the Commandos by s 44.
Section 22(4) provides for liability
to serve over a period of 14
years from the date of commencement of service or training. Section
22(3) provides that service shall
be completed in:
/14
14
"(a) a first period of
service not exceeding 24 months; (b) subsequent periods of service
during six cycles of two years each
of which none shall exceed 90
days and which shall per cycle not exceed 120 days in the aggregate."
Any male citizen who refuses to
render service or fails
to report therefor becomes liable
to the penalties
prescribed by s 126 A(l) which
provides the teeth to
ensure the effectiveness of the
system of compulsory
military service. From the
proyisionsof the Act it
can safely be assumed that one of
the objects of the
Act is to compel male citizens
(between the prescribed
ages) to perform military service.
The Act recognises what it terms
"religious
objectors", who must fall
into one of thrée carefully
defined classes. Depending on
their respective
classifications, religious
objectors are required to
render service or undergo training
in a non-combatant
/15
15
capacity in the Defence Force; or
to render service by
performing prescribed maintenance
tasks of a non-
combatant nature; or to render
"community service" as
laid down in the Act. No provision
is made in the
Act for respecting the position of
"conscientious
objectors" other than those
classified as religious
objectors. A conscientious
objector has been defined
as
"One who opposes bearing arms
or who objects
to any type of military training
and service. Some conscientious objectors refuse to submit to any of
the procedures of compulsory
conscription. Although all objectors
take their position on the basis of conscience, they may have varying
religious, philosophical,
or political reasons for their belief"
(
The
New Encyclopaedia Britannica
(1980) Vol
III
p 923.)
The two appellants are both
conscientious objectors. Their refusal to render military service is
based not on religious principles
but on other principles
/16
16
principles they hold no less
sincerely, tenaciously and
resolutely. It was this attitude
which brought them
into collision with the State and
ultimately led to
their prosecution.
It will be convenient at this
stage to quote
s 126 A of the Act omitting only
subsections (4), (5)
and (8) which have no direct or
indirect bearing on the
issues in the present appeal.
Section 126 A(l)(a),
which
has previously been quoted
is repeated in
prder
to facilitate reading of the
section. The section
thus truncated, reads:-
"(1) Any person liable to
render service in terms of section 22 or 44 who when called up -
(a) refuses to render such service
in the South African Defence Force, shall be guilty of an offence and
liable on conviction to imprisonment
for a period one-and-a-half
times as long as the aggregate of the maximum of all periods of
service mentioned in section 22(3) or
44(3), as the case
/17
17
may be, during which he could
otherwise, in terms of those sections, still have been compelled to
render service, or for a period
of 18 months, whichever is the
longer; or
(b) fails to report therefor,
shall be guilty of an offence and liable on conviction only to
imprisonment or detention for a period
not exceeding eighteen months,
irrespective of his rank, or a fine as may be imposed upon him by a
court martial in terms of the
provisions of the First Schedule.
(2) Any person liable in terms of
any other
provision of
this Act to render service or undergo training, other than a
liability to render service in terms of
Chapter
X,
and who when
called up -
(a) refuses to render service or
to
undergo training in the South
African Defence Force, shall
be
guilty of an offence and liable on
conviction to
imprisonment for a
period of 18 months;
(b) fáils to report
therefor, shall be
guilty of an offence and liable on
conviction
only to imprisonment or
detention for a period not
exceeding
eighteen months,
irrespective of his rank, or such
fine as may
be imposed upon him by
/18.
18
a court martial in terms of the
provisions of the First Schedule.
(3) Notwithstanding anything to
the contrary
contained in any law -
(a). a magistrate's court and an
ordinary court martial shall, if
they otherwise have jurisdiction,
have jurisdiction to impose the
sentences provided for in this section; (b) at the imposition in
terms of this section of any sentence
of -(i) imprisonment or
detention which has not been suspended in full; or (ii) a fine by a
magistrate's court at, the non-payment
of which imprisonment must be
served, where, due to such non-payment, imprisonment is served, the
commission of an officer shall
be deemed to have been cancelled and a
warrant officer or a non-commissioned officer shall be deemed to have
been sentenced to reduction
to the ranks.
(6) Any person who has served the
full period
of imprisonment imposed upon him in terms
of
subsection (l)(a) or (2)(a), shall be exempt
/19
19
from his liability to render
service in terms of this Act.
(7) Any person convicted in terms
of
subsection (l)(a) or (2)(a) who, before the
expiry of the
term of imprisonment which he
is serving, in a notice signed by
him and
directed to the Adjutant-General states that
he is
willing to render service or to undergo
training in terms of the
Act, shall be
exempted from serving the remaining portion
of
his sentence of imprisonment provided he
renders the service or
undergoes the training
for which he is liable in terms of the
Act:
Provided that if that person should at any
time thereafter
refuse to render any service
or undergo any training for which
he is liable in terms of the Act, he shall serve the said remaining
portion of his term of imprisonment:
Provided further that the
Minister may determine that any part of the period of imprisonment
which that person has served shall be
regarded as service or training
which he has to render or to undergo.
(8) "
As, on the
arguments advanced on appeal, s 72I has relevance to the
interpretation of s 126 A(l)(a)
I
set
out its provisions as well, omitting subsections (4)
/20
20
and (6) which are not of any
present significance. The
section, with these omissions,
reads:
"(1) Any person referred to
in section 72E (2) who refuses or fails to render the service which
he is liable to render in terms
of that section, shall be guilty of
an offence and liable on conviction to imprisonment for a period
which is equal tó the
period of service which he is liable to
render in terms of that section.
(2) Any person referred to in
section
72E (3) who -
(a) refuses or fails to render
community
service shall be guilty of an
offence
and liable on conviction to
detention
for a period which is equal to the
period of community service which he still had to render at the time
of such refusal or failure;
(b) refuses or fails to comply
with or carry
out any order or duty in relation to
community
service shall be guilty of an
offence and liable on conviction to
a
fine not exceeding R500 or imprisonment
for a period not
exceeding six months or
to both such fine and such imprisonment.
(3) (a) Any person who has
served
imprisonment or detention pursuant to a
sentence in
terms of subsection (1) or (2)
(a) in full or who, after he has
been
/21
21
sentenced in terms of subsection
(2)(a) and has been released on parole, has complied with the
conditions of parole, shall be exempted
from his liability to render
the particular service or community service in terms of section 72E
(2) or 72E (3), as the case may
be.
(b) If any person who was released
on parole while serving a sentence of detention in
terms of subsection (2)(a), is
found by the court which imposed the sentence or another competent
court to have acted in conflict
with the conditions of parole, such
court . shall order that such person undergo imprisonment in a prison
referred to in section
1 of the Prisons Act, 1959 (Act No 8 of 1959),
for a period equal to the unexpired portion of such detention.
(4)
(5) Any court which sentences any
person to
imprisonment or detention in terms of
subsection (1)
or (2)(a), may suspend the
operation thereof only if the
conditions of
suspension provide that the service referred
to
in section 72E (2) or the community
service, as the case may be,
shall be
rendered by that person in accordance with
this Act:
Provided that the operation of a
sentence imposed in terms of
subsection
(2)(a) which is thus suspended shall,
notwithstanding
anything to the contrary in
/22
22
any law contained, not be
suspended f or a period which is shorter than the remaining period of
community service still to be rendered
by the person concerned.
(6) "
I
turn
now to consider the meaning of s 126 A(l)(a). In doing so
I
bear in mind the remarks of SCHREINER, JA,
in
Jaga v Donges NO and Another
(
supra
) at
662 G - 664 F with regard to the lines of approach that may be
followed in order to ascertain the intention of the legislature.
(See
also
Stellenbosch Farmer's Winery Ltd v
Distillers Corporation (SA) Ltd and Another
1962(1) SA 458 (A) at 474.) When considering the meaning of s 126
A(l)(a) in its
immediate context i e,
standing alone,
I
am
not closing
my eyes to the broader context
within which interpretation must, in the final result, take place.
Section 126 A(l)(a) is an unusual
penalty provision. Ordinarily when
a statute prescribes imprisonment as
/23
23
punishment for
an offence, it provides a stated period of imprisonment. Section 126
A(l)(a) provides not only that but also a formula
for the calculation
of an alternative period of imprisonment. Thus, a person who refuses
to render military service shall, in terms
of the subsection, be
"liable on conviction to" the longer of one of two
alternative periods of imprisonment - the one
such period being
stipulated in the subsection, the other calculable in terms of the
stated formula. If, applying the formula, a period
in excess of 18 months is arrived at, the person concerned is "liable
to"
imprisonment for such period. If _not, the upper limit of
imprisonment he is "liable to" is 18 months. There is, in
my
view, nothing in the wording of the subsection which compels the
conclusion, either from the words themselves or by necessary
implication,
that the legislature intended the imposition of a
mandatory
/24
24
sentence. On
the contrary, as
I
shall
endeavour in
due course to show, the provisions
of the subsection
are entirely consistent with an
intention on the part
of the legislature not to
interfere with the courts
discretion in regard to sentence.
In the
Bruce
matter the
court a
quo
, in
concluding that 126 A(l)(a)
provided for a mandatory
sentence, set great store by the
words "whichever is
the longer". In the course of
his judgment J H
COETZEE, J, (with whom M J
STRYDOM, J, concurred) said
the following:
"These words are clear and
unambiguous. In my view the language of this section clearly shows
that only one of two periods of
imprisonment can be imposed by a
court. Either 18 months when the computation of one-and-a-half times
the total periods as the case
may be is less than 18 months or that
longer computed period. These words make it absolutely clear that in
respect of sentence no
discretion whatsoever remains with the
presiding judicial officer."
/25
25 (See also the remarks of
FOXCROFT, J, in the
Toms
case at 570 C to E.)
With great
respect to the learned judges
I
am
constrained to disagree. The words
"whichever is the longer" are in my view only relevant to
determine, in any given case,
the upper limit of the court's punitive
jurisdiction - 18 months or, if the formula provides for a longer
period, such longer period.
The
moment alternative periods of
sentence were provided
there was need
for qualification in the
interests of
clarity; - was the person "liable to" be sentenced to the
greater or the lesser period? The words, however,
have no bearing on
the question whether the court is
compelled
to impose the higher of the two s
é
ntences.
In passing it should be mentioned
that if the legislature had intended a mandatory sentence it could,
with relative ease, have made
its intention entirely
/26
26
clear.
Instead of using the words "liable on
conviction
to" it could simply have used the words "shall be sentenced
to". Such usage would have permitted of no doubt
that the
legislature intended a mandatory sentence. In
Toms
case (at
570 D) the court a
quo
stated that if a maximum period of
imprisonment was intended and not a mandatory period it would have
been a simple matter for the
legislature to
have
added or inserted appropriate
words
to make its
intention
clear. This is not the correct approach. The converse is true. In the
absence of clear words that a mandatory sentence was
intended it must
be inferred that the legislature intended the court to retain its
discretion as to sentence. It is not without significance
that in
other instances where the legislature has intended to impose a
mandatory or a minimum sentence it has made its intention
quite clear
/27
27 by using appropriate language -
see e g the provisions of
s 277(1)(a)
of the
Criminal Procedure Act
51 of 1977
in relation to the sentence of death in the case of
murder;
s 329(2)(a)
of the now repealed Criminal Procedure Act 56 of
1955 which provided for a compulsory whipping upon conviction of
certain offences;
s 2(1) and s 3 of the old Terrorism Act 83 of 1967
(which provided for minimum sentences); and the
repealed sentence provisions (s
2(ii) and s 2(iv))of
the Abuse of Dependence -
Producing Substances and Rehabilitation Centres Act 41 of 1971 (which
also provided for mimimum sentences).
In the Act itself there are
instances of injunctions to the court being couched in clearly
imperative language - see e g s 72I (3)(b)
and (5). Interestingly
enough, if the respondent's argument that s 126 A(l)(a) prescribes a
mandatory sentence of imprisonment is
correct it would
/28
28
seem to be the
only instance of its kind - a prescriptive sentence of imprisonment
which provides no limits of punishment, and which
at one and the same
time is in effect both a minimum and a maximum sentence. Counsel were
not able to refer us to any other instances
of such a sentence, nor
am
I
aware of
any. (As appears more fully below, a mandatory sentence of
imprisonment appears to be something unknown in our law.) The
very
uniqueness of the situation if the sentence were mandatory may point
against its being so. At least in the case
of minimum
sentences there is a range
between the prescribed minimum sentence and the discretionary maximum
sentence which may provide for some,
alb
é
it
limited, degree of individualization.
The proper interpretation of s 126
A(l)(a) in its immediate context lies in the meaning of'the words
/29
29
"liable to" in the
phrase "liable on conviction to".
The word "liable" is
capable of various shades of
meaning. The meaning to be
attributed to it in any
particular case depends on the
context in which it is
used (cf.
Fairlands (Pty) Ltd v
Inter-Continental
Motors (Pty) Ltd
1972(2) SA
270 (A) at 276 A - B. )
The Afrikaans text uses the words
"strafbaar met".
The Afrikaans text is the signed
text. However, Act
34 of 1983, which substituted the
present s 126 A was
signed in English. Nothing would
seem to turn on
this, however, as the parties are
ad
idem
that the
words "liable to" and
"strafbaar met" are synonymous
with each other (cf.
S v
Nshanqase
1963(4) SA 345 (N)
at 347 A).
I
shall concern myself with the meaning
of the words "liable to",
but it is interesting to note
that in
S v Nel
(
supra
)
VAN DER WALT, J, said (at 958
E), with reference to the use of
the words "strafbaar
met" in a penal provision,
that
/30
30
"(n)a my mening, vir enigeen
met 'n aanvoeling vir Afrikaans is dit nie h gebiedende bepaling nie
maar slegs h magtigende bepaling".
The Shorter Oxford English
Dictionary
gives,
inter alia
, the
following meanings of the word
"liable":
"1
Law
. Bound or
obliged by law or equity; answerable (for, also to); legally subject
or amenable to. 2.a. Exposed or subject to or likely
to suffer from
(something prejudicial)
b. Const.
inf
. Subject to
the
possibility of (doing or
undergoing something undesirable)".
Wests
Legal
Thesaurus/Dictionary defines
"liable" (when not used
in relation to an obligation)
as,
inter alia
:
"2. Susceptible (liable
to
be burned).
Exposed, likely to
happen,
prone,
tending, in danger
of,
ripe for,
vulnerable "
In
Black's
Law Dictionary
its meaning is
given,
inter alia
, as:
/31
31
"Exposed or subject to a
given contingency, risk or casualty, which is
more or less probable Exposed,
as
to damage, penalty, expense,
burden or anything unpleasant or dangerous"
Having regard
to these definitions
I
agree
with the contention advanced on
behalf of the
appellants that the words "liable
to" in a provision
such as the one under
consideration would normally
denote a susceptibility to a
burden of punishment and
not that the burden in guestion is
mandatory or
compulsory : the actual incidence
and extent of the
burden must still be determined.
This is supported by
judicial authority. In Words and
Phrases Legally
Defined (2nd Ed, Vol 3, sv
"liable") reference is made
to the Australian case
(unfortunately not available to
me) of
O'Keefe v Calwell
(1949) A L R 381
, where at p
401 it was stated that:
/32
32
"The ordinary natural
grammatical meaning of a person being liable to some penalty or
prohibition is that the event has occurred
which will enable the
penalty or prohibition to be enforced, but that it still lies within
the discretion of some authorised person
to decide whether or not to
proceed with the enforcement". In
Squibb United Kingdom Staff
Association v Certification Officer
(1979) 2 All E R
452
(C A) the
court was
concerned with the meaning of
the words "liable to
interference"in s 30(1)(b) of the Trade Union and Labour
Relations Act 1974. Lord Denning, MR was of
the view that the word
"liable" is "a very vague and indefinite word"
(at 458 c) but held that the phrase referred
to meant "vulnerable
to interference" or "exposed to the risk of interference".
SHAW, LJ, expressed a more definite
view. According to him "(t)he
phrase 'liable to' when used otherwise than
...../33
33
in relation to legal obligations
has an ordinary and well-understood meaning, namely 'subject to the
possibility of'" (at 459
'n).
South African cases dealing with
the meaning and effect of the phrase "liable to" have not
been harmonious. Its meaning
has been considered mainly in the
context of s 37(1) of Act 62 of 1955. That section provides that any
person who receives into his
possession stolen goods without
having reasonable cause
for believing that such goods are
the prpperty of the person from whom he receives them "
shall
be
guilty of an offence and
liable on conviction to
the
penalties which may be imposed on a conviction of receiving stolen
property knowing it to have been stolen". (My underlining
- the
words used are identical with those in s 126 A(l)(a)). One of the
penalties previously prescribed in terms of s 329(2) of Act
56 of
1955 read
/34
34
with Part
II
of the Third Schedule thereto for receiving
stolen property was a compulsory whipping. The question arose whether
the words "liable
to" rendered the accused subject to such
compulsory whipping. In
R v Hlongwene
1956(4) SA 160 (T) it was held that s 37(1) prescribed only the
maximum penalty to which an offender is subject, and dfd not impose
upon a court the obligation of imposing the same penalty which it
would have had to impose in the case of a conviction for receiving.
Hlonqwene's
case was followed in the Orange Free State in
R.
v Jeje
1958(4) SA 662 (0) and in the
Cape Province in
R v Cupido
1961(1)
SA 200 (C). The Natal courts, however, came to a different conclusion
and held that a whipping was compulsory also in the
case of a
conviction for statutory receiving - see
R
v Ndhlovu
1956(4) 309 (N);
R
v Kalna
1958(3) SA 123 (N);
S
v Nshanqase
, (
supra
).
/35
35
It is not necessary to debate the
merits of the opposing views expressed in these judgments. Suffice it
to say that the line of reasoning
in
Hlongwene's
case, and
those cases that followed it, is in my view to be preferred to the
views adopted by the Natal courts.
Having regard
to the language used in s 126 A(l)(a), and the other considerations
to which
I
have
alluded,
I
am of
the view that in their immediate
context the words "shall be
liable on conviction
to " in s 126 A(l)(a) merely
denote a
susceptibility to the longer of
the two alternative periods of imprisonment provided for in the
section and do not preclude a court,
in the exercise of its
discretion, from imposing a lesser sentence.
Is there anything within the
broader context of the Act which could sufficiently disturb this
/36
36
conclusion so
as to lead to a different result? This brings me immediately to s 126
A(l)(b). This subsection, it will be recalled,
provides that where a
person liable to render service fails to report for such service he
shall be liable on conviction "only
to
imprisonment or detention for a period not
exceeding
eighteen months". The words
"not exceeding" postulate a maximum sentence, and exclude a
mandatory sentence. Their effect
is to build into the provision in
which they are used a judicial discretion to impose a lesser sentence
than the prescribed maximum.
Does the inclusion of these words in s
126 A(l)(b), and their omission from s 126 A(l)(a), necessarily
signify that whereas the court's
discretion in relation to punishment
has been retained in s 126 A(l)(b), it has been taken away in 126
A(l)(a)? Having regard at
this stage only to the provisions of s
/37
37
126
A(l)(a) and (b)
I
do
not believe this to be so. The omission of the words "not
exceeding" from s 126 A(l)(a) cannot
per
se
justify such a conclusion where the
subsection is
ó
therwise
couched in language which would normally permit of a discretion. In
addition, to have included the phrase "not exceeding"
in s
126 A(l)(a) would in my view have been inappropriate to the language
of the subsection. The phrase "not exceeding"
is a limiting
provision whereas the phrase "whichever is the longer" has
the opposite effect. There would be some incongruity
in language in
providing, in the same provision, for a sentence not exceeding 18
months yet at the same time authorising a maximum
sentence which
could, applying the formula laid down, be in excess thereof. For this
reason too the omission of the words "not
exceeding"
from
s 126 A(l)(a) cannot necessarily justify the
/38
38
inference that
its provisions are mandatory. There is a further consideration.
Section 126 A(l)(a) provides for two alternative maximum
sentences,
one of which bears a dir
é
ct
relationship to the period of service which the
offender
is still compelled to render. The period calculated according to the
prescribed formula, as has been
observed,
could be higher than 18 months. The words "only to imprisonment
or detention for a
period not exceeding eighteen
months" in s 126 A(l)(b),
if due
consideration is given to the word "only", may have been
intended to indicate that of the two alternative maximum
punishments
provided for in s.126 A(l)(a) only one, namely, imprisonment up to a
maximum of 18 months (and not the formula, the application
of which
might have provided for a longer period) would apply in the case
of
a
failure to report. In
this
/39
39
sense the words "not
exceeding" may merely have been intended to emphasize the
limitation imposed by the word "only".
The words "not exceeding"
appear in a number of penal provisions throughout the Act. Their
presence clearly signifies, in
respect of those provisions, a
discretion as to punishment. Their omission from s 126 A(l)(a), if
for other than linguistic reasons,
assumes significance, particularly
when one has regard to s 126 A(2). One finds, as between s 126
A(2)(a) and (b) the same essential
difference in wording apparent
between s 126 A(l)(a) and (b). The words "not exceeding"
appear in s 126 A(2)(b) which deals
with a failure to report for
service, but not in s 126 A(2)(a) which deals with a refusal to
render service. It was argued that when
s 126 A( 1) and (2) are read
together a pattern emerges indicative of the legislative intent. The
pattern is
/40
40 this :
The legislature has drawn a clear distinction between a refusal to
render service on the one hand, and a failure to report
therefor on
the other. For obvious reasons it regards the former (which involves
a wilful act) in a far more serious light than the
latter. (which
involves mere culpability). For this reason it has distinguished
between the sentences in the two types cf cases.
In the case of
failure, by providing for a period of imprisonment "not
exceeding" 18 months it has left the court's discretion
unfettered; in the case of refusal, by the omission of such words, it
has provided for a mandatory sentence.
The
argument that there exists such a discernible pattern indicative of
the legislative intent based on the distinction between refusal
and
failure loses its impact, however, when regard is had to certain of
the provisions of s 72I of the Act. No
/41
41 distinction is drawn, in
relation to the question of sentence, between a refusal and a failure
to render either service in terms
of s 72E (2) (s 72I (1)) or to
render community service (s 72I (2)(a)). Refusal and failure are
simply lumped together, and both
made punishable with the same
penalty - this notwithstanding that a wilful refusal would normally
be far more serious than a culpable
failure (which can cover a wide
range of culpability from minimal to gross). There is a significant
degree of correspondence between
the provisions of s 72I (1) and
(2)(a), and s 126 A(l)(a). In substance they are couched in the same
language. If the provisions
of s 126 A(l)(a) are mandatory in respect
of sentence, then those of s 72I (1) and (2)(a) must be as well. Yet
if the mandatory sentence
in s 126 A(l)(a) is premised on the clear
distinction drawn by the legislature between refusal and failure,
could
/42
42
the legislature
ever have intended that a mere failure to render the service ref
erred to in s 72I (1) and (2)(a) should be visited
with a mandatory
sentence?
I
believe
not. (In this respect
I
disagree
with the conclusion reached in
S v Lewis
en h Ander
1985(4) SA 26 (T) that s 72I
(2)(a) does provide for a mandatory sentence - a conclusion reached
in a review matter without the benefit
of full argument and without
apparent regard to the principles and considerations referred to in
this judgment.) This shows how difficult
it is to discern a logical
and clear pattern indicative of the legislative intent. One is left
in
doubt as to what the legislature
precisely had in mind,
and one cannot
necessarily infer that its intention was different from that which
the words of s 126 A(l)(a), in their primary sense,
signify. One must
heed the warning sounded by CORBETT, JA, in the
Summit
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43
Industrial Corporation
case
(
supra
) at 596 J - 597 B that "it is dangerous to
speculate on the intention of the Legislature (see eg the reference
in
Savage v Commissioner for Inland Revenue
1951(4) SA 400 (Á)
at 409 A) and the Court should be cautious about thus departing from
the literal meaning of the words of
a statute (see remarks of Solomon
JA in
Dadoo Ltd and Others v Krugersdorp Municipal Council
1920 AD 530
at 554-5). It should only do so where the contrary
legislative intent is clear and indubitable (see Du
Plessis v
Joubert
1968(1) SA 585 at 594-5)."
To sum up thus far. The provisions
of s 126 A(l)(a), taken on their own,
prima facie
do not
prescribe a mandatory sentence. The use of the words "not
exceeding" in s 126 A(l)(b) does not necessarily detract
from
this conclusion. Their use also in s 126 A(2)(b), and elsewhere in
the Act, is an indication
/44
44 that
the legislature may have intended that in the penal provisions in
which the words were used the court would retain a discretion
in
relation to punishment, whereas in the instances where they were
omitted it would not. The distinction in wording might suggest
that
the legislature intended that a refusal to perform military or other
prescribed service would be punishable with a mandatory
sentence,
whereas in the case of a failure to do so the court would retain its
discretion in relation to punishment (up to the stipulated
maximum).
Doubt, however, as to whether the legislature intended such a
distinction is created by the wording of s 72I (1) and (2)(a)
of the
Act. In the end result, whatever the legislature may have intended,
it has failed to make its intention sufficiently clear
to justify a
departure from the
prima facie
meaning of s 126 A(l)(a). In
arriving at
/45
45 this conclusion due regard has
been had to the fundamental principles and other relevant
considerations expounded earlier in this
judgment.
One of the
objects of the Act, as
I
have
previously mentioned, is to coerce male citizens between the ages of
18 to 65 to do military service.
To enforce
and effectively achieve this object adequate
sanctions
and penal provisions were introduced to
induce
such persons to opt for military service, and to
deter
would-be dissenters. The provision in s 126 A(l)(a) for a sentence of
up to one-and-a-half times the period of outstanding military
service
was no doubt intended to impress upon those who refuse to do military
service that the game may not be worth the candle.
In this respect
the legislature appears to have regarded it as appropriate that the
prospective period of imprisonment should bear
some correlation to
/46
46
the period of military service it
was sought to avoid. It was argued on behalf of the respondent that
this object would be thwarted
or defeated if s 126 A(l)(a) conferred
a discretion and inadequate sentences were passed. It was also
contended that it would be
contrary to the spirit and ambit of the
Act to confer such a discretion. The legislature must accordingly be
taken to have stipulated
a mandatory sentence to achieve its object.
Reliance was also placed on s 126 A(6) as being inconsistent with
anything other than
the imposition of a mandatory sentence,
inter
alia
because it exempts someone who has served his sentence in
full from further liability to render military service in terms of
the
Act. It was contended that unless there was a prescribed
mandatory sentence, the provisions of s 126 A(6) could operate
unfairly
and result in inequality of treatment if
/47
47
disparate sentences were imposed.
I
am
not impressed by these arguments. The potential punishment provided
for in s 126 A(l)(a) does not depend for its effectiveness
on whether
the sentence is mandatory or discretionary. The prospect of
imprisonment - for up to one-and-a-half times the period of
military
service outstanding (or 18 months) -is a sufficient deterrent in
itself. No matter how unpleasant the thought of military
service may
be, for most people the prospect of imprisonment would be worse. It
is not necessary or desirable for achieving the purpose
of the Act
that every person convicted under s 126 A(l)(a) should be subjected
to the full rigour of a draconian provision, without
individualisation or consideration by the court of the relevant
circumstances (which would be the case if the subsection prescribed
a
mandatory sentence). The
/48
48
system of compulsory military
service will not be undermined if a period of imprisonment is imposed
which is not equal to one-and-a-half
times the aggregate of all
periods of service such person is still obliged to render (or is less
than 18 months), but is otherwise
an adequately coercive sentence. It
is fallacious to assume that only a mandatory sentence can have the
required effect or achieve
the desired result. Rigorous and harsh
sentences do not necessarily effect their purpose and they are out of
tune with a just society.
Furthermore, it is undesirable to
substitute an arbitrary rule for the exercise of a balanced and
humane judgment. Nor is it proper
to take the view that unless
provision is made for a mandatory sentence lenient sentences may be
imposed which would defeat the object
of the legislature. This is
founded on the unjustified premise that the presiding judicial
officer
/49
49
will not properly exercise his
discretion as to punishment. In imposing sentence proper regard will
have to be had to,
inter alia
, the object of the legislation;
the penalties prescribed; that the sentence should bear some
correlation to the period of military
service it has been sought to
avoid; that if the sentence imposed is served in full the person
concerned will be exempt from liability
to render service in f uture
(s 126 A( 6) ) ; and the f act that the offender can at any time
thereafter elect to render military
service or undergo training in
which case he would be exempt from serving further imprisonment (s
126 A(7)). This will enable a proper
sentence to be arrived at, with
due regard as well to the individual circumstances of each offender.
No dóubt there is the
risk of an inadequate sentence being
passed, and the object of the legislature being thereby defeated, but
/50
50
such risk is no greater than in
any other case. And if this gives rise to ineguality of treatment, or
ineguities result therefrom,
they must inevitably be less than those
that flow from the imposition of mandatory sentences.
Dealing
specifically with s 126 A(6),
I
do
not find its provisions inconsistent with the notion that s 126
A(l)(a) permits of a discretion in relation to sentence. It is
worth
noting that the words "the full period of imprisonment imposed
upon him in terms of subsection (l)(a) or (2)(a)"
do not, at
least with reference to subsection (l)(a), necessarily exclude a
sentence of less than the two alternate maximum sentences
for which
provision is made. If s 126
A(l)(a)
prescribed a mandatory sentence, and ss 6
/51
51
intended
to refer thereto, one would have expected more
appropriate
language - such as the words "prescribed by" instead of
"imposed upon him". Nor does the fact that
the sentence
imposed, if served in full, will exempt the person concerned from
liability t
ó
render further service detract from a discretionary sentence.
I
find nothing illogical or untenable in the
notion that the legislature intended that once a court, after due
consideration of all
relevant considerations, including those
I
have mentioned, as well as personal
factors, arrives at an appropriate sentence, and such
sentence
is served in full, exemption from liability to
render
further service should follow.
It was also argued on behalf of
the respondent that, in effect, the Act requires that the correlation
between the maximum period of
imprisonment and the military service
which the convicted person is
/52
52
still liable to
render must be preserved at all times; if it is to be preserved then
ss (6) en (7) are unworkable unless the term
of imprisonment imposed
by the court is the maximumi . It must follow that such maximum is a
mandatory sentence.
I
can
see no reason in logic or policy why where should be imputed to the
legislature an intention to maintain the
correlation in
all circumstanes. A day in
the army is not at all comparable with one-and-a-half days in prison.
(If it
were, the coercive object of the Act
could ne'ver be
achieved.) Moreover
military service is performed at
intervals
over a period of 14 years, so.that there is a
reduced
interference with a man's domestic life, his social relations, and
his vocation. Service in prispn is over a continuous period
with
resulting disruption of his whole existence, including possible
destruction
of his domestic life and the
ruin of his career. And,
/53
53
as
I
have mentioned, there is no logical reason
why, if a convicted person has served his term of imprisonment
(provided it is adequate),
he should not be exempted under ss (6)
from his liability to render service in terms of the Act. Similarly
in regard to the proviso
to ss (7).
In argument
reference was also made to the history of s 126 A.
I
do not propose to traverse the history
thereof. Suffice it to say that such history (assuming that regard
may be had thereto) is not
in my view of material assistance in
arriving at a decision one way or another in this matter.
In the result
I
am of the view that s 126 A(l)(a) did not
prescribe a mandatory sentence,
and it was
open to the magistrates in both the
Toms
and
Bruce
cases to impose a sentence less than the higher of the two
alternative maximum sentences provided for
/54
54
in the section.
The same
conclusion can be reached by adopting a somewhat different approach.
I
have previously
mentioned that where a prescribed period of imprisonment is qualified
by words such as "not exceeding" the
effect is to build
into the provision a judicial discretion to impose a lesser sentence.
But even where the prescribed period is
not so qualified, the court
has a discretion under
s 283
of the
Criminal
Procedure
Act 51 of 1977
. This section provides:
"(1) A person liable to a
sentence of imprisonment for life or for any period, may be sentenced
to imprisonment for any shorter
period, and a person liable to a
sentence of a fine of any amount may be sentenced to a fine of any
lesser amount.
(2) The provisions of subsection
(1) shall not apply with reference to any offence for which a minimum
penalty is prescribed in the
law creating the offence or prescribing
a penalty therefor."
/55
55
The question arises whether
s
283(1)
is
inapplicable because "a
minimum penalty is prescribed"
in
s 126
A(l)(a)? The subsection
does not in terms
prescribe a minimum penalty. Its
effect is certainly
to prescribe a maximum penalty,
but does it prescribe a
mandatory one? This expression (or
a similar one) is
not used in the
Criminal Procedure
Act.
Hiemstra
:
Suid Afrikaanse Strafproses; 3rd
Ed, p 650 states:
"Die verskil tussen die
minimum straf en 'n voorgeskrewe straf wat verpligtend is, is soos
volg: By 'n minimum straf is net die
minimum verpligtend. Die hof kan
na goeddunke ook meer oplê. In die geval van h verpligte
voorgeskrewe straf kan die hof nie
meer of minder as die voorgeskrewe
straf oplê nie."
The learned author quotes no
authority for the use of the expression, and gives no examples of
such a punishment.
Du Toit
: Straf in Suid-Afrika states (at
384):
/56
56
"(a) In die geval van h
voorgeskrewe
,
verpligte
straf, mag die verhoorhof
slegs
daardie straf en niks anders nie, oplê."
In a footnote he says
"Soos bv in oortredings van
die Drankwet waar bepaal word dat tweede oortreders bepaalde,
uitdruklik - voorgeskrewe strawwe opgelê
moet
word.
Slegs daardie straf - en geen ander nie - mag opgelê word"
but givés no reference to
the Liquor Act to which he
refers (Act 87 of 1977 - now Act
27 of 1989) and no
other examples.
(I
am not
satisfied from a perusal of
the Liguor Act that it makes
provision for mandatory
sentences in
the sense in which
I
have
used that term.
Nor,
as
I
have
indicated, were counsel able to direct
our intention to any.) Neither
Snyman and Morkel
:
Strafprosesreg, nor
Ferreira
:
Strafprosesreg in die
Laer Howe: 2nd Ed, make any
mention of a mandatory
sentence of imprisonment as
distinct from a minimum
sentence. And the fact that s
283(2) of the Criminal
/57
57 Procedure Act does not mention
such a sentence suggests that it is unknown to the legislature.
Plainly if it is not mythical, it
is
avis rarissima
.
There is no reason why the
legislature should not impose such a sentence if it wishes to do so.
The sentence would be at the same
time a maximum and minimum - no
greater and no lesser sentence would be imposable. However, such a
sentence is not to be found
expresse et totidem verbis
in s
126 A(l)(a). If then it is to be found at all, it can only be by way
of implication.
Craies on Statute Law
: 7th
Ed, deals at pp
109-122 with "construction by
implication". The
learned author says (at p 109):
"If the meaning of the
statute is not plain, it is permissible in certain cases to have
recourse to a construction by implication,
and to draw inference or
supply obvious omissions. But the general rule is 'not to import into
statutes words which are not to
/58
58
be found there', and there are
particular purposes for which express language is absolutely
indispensable. 'Words plainly should not
be added by implication into
the language of statute unless it is necessary to do so to give the
paragraph sense and meaning
in its context.'"
(See also
Steyn op cit
at
60, 64.)
In the
Toms
case the court
found support in s
126 A (2)(a) and (b) for the
conclusion that the
sentence prescribed by s 126
A(l)(a) was a mandatory
sentence. It will be recalled that
ss (2)(a)
provides for "imprisonment
for a period of 18 months",
while ss (2)(b) provides for
"imprisonment or detention
for a period not exceeding 18
months". FOXCROFT, J,
considered (at 570 C - E) that the
phrase "not
exceeding 18 months" was used
to cover a situation
where some lesser period of
sentence was permitted.
Aliter
where the expression
used was "a period of 18
months" without
qualification. The inference was that
/59
59 the latter was a fixed period.
Similarly, ss (l)(b) provides for imprisonment and detention for a
period not exceeding 18 months,
while ss (l)(a) provides for a period
of imprisonment without qualification. The inference it was
considered should be drawn was
that the period in ss (l)(a) was
compulsory and the trial court had no discretion.
The legislature, it may be
presumed, had something in contemplation when it used different
wording in ss (2)(a) and (b), but it is
by no means clear that one
should infer that the intention in ss (l)(a) was to prescribe a
mandatory sentence. In the first place,
this would be an extremely
obscure and obligue way of indicating an intention which, affecting
as it does the liberty of the subject
one could legitimately expect
to be stated in clear and unmistakable terms. In the second place, it
is
/60
60
unlikely that the legislature
could have intended in this indirect way to specify a type of
sentence which, if it was not without
precedent, would be extremely
unusual. Moreover an intention to circumscribe the discretion of the
court in a matter of punishment
is not readily to be inferred. For
reasons which have already been mentioned, the words "whichever
is the longer" in s
126 A(l)(a) do not support the conclusion
that the subsection prescribes a mandatory sentence. In the result,
while s 126 A(l)(a)
prescribes a maximum period of imprisonment,
there is no sufficiently cogent reason to infer that it was the
intention of the legislature
that that should also be the minimum
period. There being no prescribed minimum sentence the provisions of
s 283(1)
of the
Criminal Procedure Act are
of application. It follows
that
s 126
A(l)(a) of the Act has not deprived the court of its
discretion
/61
61
to impose an appropriate sentence.
In terms of
s
297
(l)(b) of the
Criminal Procedure Act, where
a court convicts a
person of any offence, other than an offence in respect of which any
law prescribes a minimum punishment, the
court may in its discretion
suspend the whole or any part of any sentence imposed by it. As
s 126
A(l)(a) of the Act does not, in my view, prescribe a minimum sentence
the
provisions of
s 297(1)(b)
of the
Criminal Procedure Act
are
applicable to
both matters under consideration. There are no provisions in the Act
which either expressly or by necessary implication
(assuming this to
be possible) exclude the provisions of s 297(1)(b). In determining
whether or not it would be appropriate to suspend
the whole or any
portion of a sentence the court would need to have regard,
inter
alia
, to the relevant considerations
affecting sentence to which
I
/62
62 have already referred, save
that s 126 A(6). would not apply. That section is only of application
where the full period of any,
sentence of imprisonment which has been
imposed, has been served. A wholly or partially suspended sentence
will not exempt the person
concerned from liability to render service
in terms of the Act. There is nothing in the wording of s 126 A(7)
which precludes suspension.
That section presupposes that the person
concerned is serving some period of imprisonment. Its provisions will
apply to a partially
suspended sentence, but are clearly not of
application in the case of a totally suspended sentence. Where a
sentence, or part thereof,
is suspended, great care will have to be
taken when formulating the conditions of suspension, lest
inappropriate conditions defeat
the very purpose of suspension. Where
a person steadfastly refuses to
/63
63
render military service cm the
grounds of conscience,
and is prepared to undergo
incarceration for the sake
of his convictions, a condition of
suspension
(assuming suspension to be
appropriate in such
circumstances) that he renders
military service or does
not again contravene s 126 A(l)(a)
of the Act would
serve no purpose. These would be
usual
conditions of suspension, but the
fact that they are
inappropriate would not
per se
render suspension
impermissible. The court could
suspend any sentence,
or part thereof, on other
appropriate conditions,
including the condition that the
person concerned
renders community service.
In view of the
conclusion to which
I
have
come that s 126 A(l)(a) does not
prescribe a mandatory
sentence it is not necessary for
me to consider
whether, if it did, it would have
been competent to
suspend such sentence or any
portion thereof.
/64
64
In the result, both appeals must
succeed. The sentences imposed upon Toms and Bruce accordingly fall
to be reconsidered in the light
of the judicial discretion which
exists in regard to the imposition of sentence. In the case of Bruce,
his counsel reguested that
in the event of his appeal being
successful, his sentence should be set aside and the matter remitted
to the trial magistrate to
reconsider his sentence afresh. In my view
this would be the appropriate course to follow. In the case of Toms,
his counsel suggested
that this Court should determine an appropriate
sentence. The evidence reveals Toms to be a highly principled man of
impressive qualities,
not least of which is his sensitivity to the
suffering of his fellow man, in whose service he so resolutely and
compassionately stands.
Because he has already served 9 months'
imprisonment, and because he clearly does not
/65
65
merit
imprisonment in excess of that period,
I
agree with his counsel's suggestion that
his sentence should be reduced to that period. From this it must not
be
inferred that
I
consider 9 months' imprisonment to have
been the appropriate sentence for Toms. It
is merely the sentence which the exigencies of the situation dictate.
A lesser sentence
may well have sufficed had
the
trial magistrate been appreciative of the fact that
he
had a discretion in regard to sentence.
I
express no firm view on the matter.
The appeals succeed. The following
orders are made:
1) In the case of
Toms
, his
sentence is set aside, and there is substituted in its stead a
sentence of 9 months' imprisonment;
/66
66
2) In the case of
Bruce
,
his sentence is set aside, and the matter is remitted to the trial
court to reconsider afresh the question of an appropriate sentence.
J
W
SMALBERGER
JUDGE OF APPEAL
NICHOLAS, AJA – concurs
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION
)
In the matters of:
139/89
IVAN PETER
TOMS
Appellant
and
THE STATE
Respondent
and
289/89
ROBERT DAVID
BRUCE
Appellant
and
THE STATE
. Respondeht
CORAM
: CORBETT CJ, BOTHA,
SMALBERGER, KUMLEBEN JJA et NICHOLAS AJA.
HEARD
: 27 February 1990
DATE OF JUDGMENT
: 30 March
1990
JUDGMENT
2
CORBETT
CJ:
I
have
had the opportunity of reading the judg-
ments
prepared in this matter by my Brothers Botha and Smal-
berger.
As the divergent views expressed in those judgments indicate, the
issue as to whether or not sec 126A(l)(a) of the Defence
Act 44 of
1957 prescribes a mandatory sentence of imprisonment is a difficult
and finely balanced one. After careful and- anxious
consideration,
and not without some hesitation,
I
have
come to the conclusion, broadly for
the
reasons stated by Smalberger JA, that it does not.
Such a
mandatory sehtence of imprisonment would,
I
believe, be unigue in the annals of the
administration of criminal justice in this country. There is, of
course, precedent for the
statutory imposition of minimum prison
sentences - in his judgment Smalberger JA
refers to a number
of these - but in these
instances there is provision also
3 for a maximum
and within the range created by the minimum and maximum the Court
retains to a certain extent a sentencing discretion.
Even so the
imposition of a mandatory minimum prison sentence has always been
regarded as an undesirable intrusion by the Legislature
upon the
jurisdiction of the courts to determine the
punishment to be
meted out to persons
convicted of statutory offences and as the kind of enactment that is
calculated in certain
instances to produce
grave injustice (see
eg
S
v Mpetha
1985
(3)
SA 702
(A) at 706 D - G). How much more repugnant to principle and
justice would not a mandatory prison sentence be: one which was both
a maximum and a minimum sentence;
one which
allowed of no exercise of the judicial discretion; and one which had
to be imposed willy-nilly, irrespective of
the
circumstances, the age, personality or character of the accused and
irrespective of what justice required?
The Courts have many times in the
past called
4 attention to
the undesirability of mandatory minimum sentences and Parliament has
often responded by subsequently eliminating them.
When the form of
punishment now under consideration was first introduced into sec
126A(l)(a) by sec 16 of Act 34 of 1983 (sec 2 of
Act 45 of 1987
merely changed the wording in respects which are not material for
present purposes) Parliament m
ú
st
have been aware of these matters. In the circumstances had it
intended nevertheless to introduce the novelty of a mandatory-prison
sentence, a maximum and at the same time a minimum sentence, thus
reducing the sentencing role of the Court, as it has
been
put, to that of a rubber stamp,
I
would
have expected it to have done so in clearer language.
The phrase "liable to"
in statutory provisions relating to sentence is a standard one,
invariably used where no minimum
punishment is intended and where the
court is given a discretion as to sentence, subject to a statutory
5 maximum,
usually indicated by a stipulated sentence preceded by words such as
"not exceeding" or "not more than".
Here the
words "liable to" indicate that the accused, upon
conviction, becomes exposed to the possibility of any sentence
within
the range of the court's competence. In other words, he becomes the
subject of the court's permitted discretion in regard
to punishment.
The phrase "liable to" is also used in sentencing
provisions which lay down a minimum sentence or both a
maximum
and a minimum sentence, the latter being indicated usually by a
stipulated sentence, preceded by words such as "not less
than".
Here again
the words "liable to"
would indicate the accused's exposure
to
any sentence within the range defined by the minimum sentence and the
maximum sentence, if any. This accords with my understanding
of the
ordinary meaning of the words "liable to", discussed in the
judgment of my Brother Smalberger. And
I
do
not think that the use of the phrase
6 "strafbaar met" in the
Afrikaans text leads one to any different conclusion.
It follows from
this that a statutory provision to
the effect that an accused on
conviction is "liable to" a specified punishment, without
there being any indication whether
this was a maximum or a minimum
sentence, should be interpreted as giving the court the discretion to
impose any sentence up to that
specified; and this position is of
course reinforced by the provisions of
sec 283(1)
of the
Criminal
Procedure Act 51 of 1977
. Thus had
sec 126A(l)(a)
provided that a
person was liable on conviction to a sentence of 5 years
imprisonment, then it seems to me that . the natural meaning
of that
provision would be that the Court could impose a sentence of
imprisonment ranging up to 5 years; and in principle the fact
that
instead of 5 years the subsection lays down a formula for the
calculation of the prison sentencé specified does not appear
to make any
7 difference.
In all the
circumstances had the Legislature
intended
a mandatory sentence, calculated in accordance with
the
formula and otherwise invariable,
I
would
have expected it to discard the words "liable to" and used
a phrase such as "shall be sentenced to". It
is true that
in
sec 126A(l)(b)
and (2)(b), which deal with the offences of failing
to report for different types of military service, the specified
punishment of
imprisonment or detention, as the case may be, is
preceded by the words "not exceeding"; and it is primarily
the absence
of these words in
sec 126A(l)(a)
which has led my Brother
Botha to the conclusion that this subsection provides for a mandatory
sentence. While recognising the force
of the arguments marshalled in
his judgment,
I
am
nevertheless of the view that the presence of these words in the
other subsections referred to and their absence in
sec 126A(l)(a)
is
not a sufficiently
8
clear
indication of the Legislative intent to outweigh the factors
mentioned in this judgment and in the judgment of my Brother
Smalberger
which
point to the sentence not
being a mandatory one.
As regards the
power to suspend a sentence imposed
under
sec 126A(l)(a)
,
I
agree
with Smalberger JA that the
power accorded
to the court by
sec 297
(1) (b) of Act 51 of
1977
has not been excluded.
I
have
nothing to add to what he has said about this.
I
accordingly
concur in the judgment of Smalberger
JA and
in the orders made by him.
CORBETT CJ
IN THE SUPREME COURT OF SOUTH
AFRICA
APPELLATE DIVISION
In the matters between:
1.
Case No 139/1989
IVAN
PETER TOMS
Appellant
and
THE STATE
Respondent
2.
Case No 289/1989
ROBERT
DAVID BRUCE
Appellant
and
THE STATE
Respondent
CORAM
:
CORBETT
CJ, BOTHA, SMALBERGER, KUMLEBEN
JJA et NICHOLAS AJA
HEARD:
27
FEBRUARY 1990
DELIVERED
: 30 MARCH 1990
JUDGMENT
BOTHA JA
:-
2.
I
have
had the advantage of pondering the judgment of my Brother SMALBERGER.
With respect,
I
am
constrained to disagree with him. In my judgment the appeals must
fail.
The relevant
provisions of the Defehce Act (44 of 1957) are quoted in the judgment
of my Colleague.
I
do
not propose to repeat them here.
The main question to be decided is
whether the Legislature intended to preclude a court sentencing a
person convicted under section
126A(1)(a) of the Act from exercising
a discretion to impose a sentence of imprisonment for a period which
is less than the longer
of the two alternative periods of
imprisonment provided for in the section. After anxious deliberation,
there is no doubt in my mind
that the Legislature did so intend.
The intention of the Legislature
to prescribe a mandatory sentence in section 126A(1)(a) is manifested
by the absence of the words
"not exceeding"
3. before the
periods of imprisonment provided for, in striking contrast with the
presence of those words before the period of imprisonment
prescribed
in section 126A(1)(b), a contrast which is rendered the more
conspicuous by its repetition in paragraphs
(a) and (b)
of section 126A(2), and which
I
would say becomes glaring when it is found
reflected yet again in sections 72I(1) and (2)(a), as opposed to
section 72I(2)(b).- The
sections mentioned all have
this
in common, that they lay down the punishment applicable in respect of
various kinds of non-performance of the different kinds
of compulsory
service provided for in the Act. On that score, the recurring
contrast between sentences of imprisonment or detention
for a period
"not exceeding" a stated duration, and sentences of
imprisonment or detention for a stated period which is
not qualified
by those words, leads inexorably to the conclusion that in those
instances where the words "not exceeding"
do not appear,
they were omitted
4. deliberately by the
Legislature, in order to achieve some particular object.
It is to be observed that in my
view of the matter the pattern discernible in the provisions
mentioned above, which evinces a particular
intention on the part of
the Legislature, exists solely in relation to the presence or the
absence of the words "not exceeding".
It is not related to
the kind of non-
performance of service which is
involved. It so
happens that in paragraphs (a) and
(b) of both subsections (1) and (2) of section 126A a distinction. is
made between a refusal to
render service and a failure to report
therefor, which coincides in each case with the absence and the
presence of the words "not
exceeding", but on my approach
to the matter that distinction is neither here nor there. The
compelling index to the Legislature's
intention consists in the mere
contrasting of the omission of the words "not exceeding" in
subsections (1)(a) and (2)(a)
with their
5. inclusion in subsections (1)(b)
and (2)(b). On that basis, the impact of the contrast is not
detracted from at all by the lumping
together of a refusal and a
failure to render service, or to comply with an order or duty in
relation thereto, in sections 72I(1)
and (2)(a) and (b). On the
contrary, the repetition of the contrast in the last-mentioned
provisions serves to fortify, conclusively,
its impact.
If it is clear,
then, as
I
consider
it to be,
that the Legislature deliberatêly
omitted the words
"not exceeding" from
section 126A(1)(a), with what
object did it do so? The answer is
surely obvious. When the Legislature prescribes punishment in the
form of imprisonment, the use
of the words "not exceeding"
in relation to a particular period of imprisonment mentioned connotes
not only that the stated
period shall be the maximum that may be
imposed, but also, as an implicit corollary, that the sentencing
court shall have the power,
in its discretion, to impose any lesser
6
period of imprisonment than the
stated maximum. Therefore, when the Legislature in its formulation of
a prescribed punishment of imprisonment
deliberately excises from it
the words "not exceeding" in relation to the stated period
of imprisonment, it must necessarily
intend to deprive the sentencing
court of the power and of any discretion to impose a period of
imprisonment which is less than the
period stated. To my mind this
conclusion is a matter of simple logic which is so compelling that
there is no escape from it.
It was nevertheless argued on
behalf of the appellants that there were other possible explanations
for the omission of the words "not
exceeding" from section
126A(1)(a). So, it was suggested that the section was merely "'n
voorbeeld van onbeholpe wetsopstelling"
(
per
HOEXTER JA
in
Boland Bank Bpk v Picfoods Bpk en andere
1987 (4) SA 615(A)
at 632B/C). This suggestion must be rejected as fanciful, in view of
the pattern of contrasts pointed out above: it is
7. guite inconceivable that bad
draftsmanship could have resulted by coincidence in a series of
provisions each containing the antithesis
in question. Next, it was
suggested that the Legislature's intention was merely to emphasize
that the offence under paragraph (a)
of section 126A(1) was much more
serious than the one under paragraph (b), and that the same applied
to paragraphs (a) and (b) of
section 126A(2) (and
presumably also to sections 72I(1)
and (2)(a) as
cpposed to
section 72I(2)(b)). Of this suggestion
I
propose to say no more than that it is so
fanciful as to be wholly without merit.
Then it was
contended that the inclusion of the words "not exceeding"
in section 126A(1)(a) would have resulted in an awkwardness
of
language, which the Legislature presumably wished to avoid.
I
do not agree. In my opinion the words "not
exceeding" could be inserted in the two places where they would
be appropriate
in the section, without any difficulty and
8.
without causing
any straining of, or awkwardness in, the language as it stands. Nor
am
I
able to
perceive any incongruity in language in the use together of the
phrases "not exceeding" and "whichever is the
longer".
If there were any incongruity, it would be notional, rather than li
nguistic, and on that footing it would
rnilitate
against the argument advanced on behalf of the
appellants,
not in favour of it. Indeed it would be supportive of th
é
reli
á
nce
placed in the reasoning of the Courts
a
quo
on the words "whichever is the
longer". In my v
ï
ew,
however, nothing turns on the
words
"whichever is the longer", nor on the word "only"
where it occurs in paragraph (b) of section
126A(1). (It may be mentioned in passing, though, that the word
"ohly" in paragraph
(b) of subsection (1) might well gain
greater significance as a factor militating against the argument for
the appellants, when it
is considered in conjunction with its
counterpart, the word "only" in paragraph (b) of subsection
(2), having
9. regard to the less complex
context of the latter subsection. It is not necessary for my
purposes, however, to pursue this line
of thought.
In argument on behalf of the
appellants much was made of what was termed the ordinary and literal
meaning of the words of section
126A(1)(a) in their immediate
context. One must tread warily here, in order not to confuse the
concepts of language, context, and
interpretation. As a matter of
language, the only words in the section calling for attention are the
words "liable to".
Linguistically, as the dictionaries
show, when it is said that a person is "liable to"
something, the phrase "liable
to" is colourless, or
neutral, as to the question whether the thing to which it is coupled
is to follow necessarily, or merely
as a possibility. In ordinary
parlance, when a person is said to be "liable to"
punishment, the question is left open whether
he is susceptible to
punishment as a possibility, or whether he will
10. necessarily suffer punishment.
The position is no different, in a linguistic sense, when the
punishment concerned happens to be
of the kind that is meted out in a
court of law. Consequently, a statement that a person is "liable
to" imprisonment for
a stated period provides no clue, purely as
a matter of language, as to whether the stated period of imprisonment
is intended to
be a mandatory sentence or a discretionary sentence.
It follows, in my view, thatthere is no room in the present case,
with reference
to section
126A(1)(a), for invoking the rule
of interpretation
that the words of a statute are to
be given their ordinary and literal meaning, unless sound reason
appears to the contrary. The truth
is that the ordinary and literal
meaning of the words, as such, does not furnish any answer to the
question which falls for decision.
Accordingly, the statement that
the words "liable to" in the section would normally denote
a burden of punishment and not
that the burden is
11.
mandatory or
compulsory, cannot, in my respectful
opinion,
be founded on mere linguistic treatment of the
section;
nor can it properly be said, with respect, that such statement is in
conformity with what the words of the section, in their
primary
sense, signify, or with the
prima facie
meaning of the section. The statement in question, as
I
see it, can rest only on a process of
reasoning which has already left the
linguistic treatmentof the section
behind, and which
has in fact
proceeded two steps beyond it. The first step is to take into account
the immediate context in which the words "liable
to"
appear, viz in conjunction with imprisonment for a stated period, and
the second step, which,
I
consider,
must needs be taken simultaneously with the first, is to superimpose
on the words as read in their context two rules of
interpretation in
aid of the result arrived at, the first beihg the presumption against
legislative interference with the cherished
principle of the
12.
unfettered discretion of the
courts in relation to sentence, and the second being the canon of
strict construction of penal provisions.
The considerations mentioned in
the preceding
paragraph may be further illustrated as follows.
The
words "liable to", in relation to criminal
punishment,
are not inappropriate to a form of punishment which
is
mandatory. So, it is not inept to say that a person
over the
age of 18 years, who has been convicted of
murder without
extenuating circumstances, is "liable
to" be sentenced
to death. The Afrikaans word
"strafbaar" is frequently
used in the same way; the
person in my example is "strafbaar
met die dood". On
the other hand, "liable to" may
also denote a
discretionary form of criminal punishment, as
in
relation to imprisonment for a period not exceeding a
stated
duration. And the same applies to the
Afrikaans "strafbaar
met", e g "gevangenisstraf vir h
tydperk van hoogstens
". When VAN DER WALT J, in
13.
S
v Nel
1987 (4) SA 950(W)
at 958E, said
that "straf-baar met" connoted an empowering provision and
not a mandatory one, he could not, with respect,
have
intended
to lay down a definition of the meaning of the
words
as a generalization, divorced from the context
in
which he was considering them; and when he referred to
"enigeen
met 'n aanvoeling vir Afrikaans" he must have
had
in mind such a person who was also
au
fait
with the
rules
of interpretation relating to "the courts' discretion in the
matter of punishment and to penal
provisions. In other words, he was
dealing, not simply
with the meaning of the language,
but, via context, with the interpretation of it, in the light of
well-known canons of construction.
In the present
case, the most important feature of the wording of section
126A(1)(a), in my view, is the omission from it of the words
"not
exceeding". For the reasons already given,
I
have found that the omission was
deliberate. That being
14. so, the only importance of the
words actually used in the section is that, in their ordinary and
literal meaning, they are apt
to give expression to the notion of a
mandatory sentence of imprisonment for the longer of the two
alternative periods stated. It
is not possible to imagine that the
Legislature had any other object in mind when it deliberately omitted
the words "not exceeding"
from the section. In consequence,
there is simply no room for subjecting the words of the section to a
process of interpretation
by means of applying the rules of
interpretation relating to the courts' discretion in respect of
sentencing, penal provisions, or
the like.
On this
approach,
I
do
not, with respect, agree with the reasoning that, because a mandatory
sentence is not provided for
expresse
et totidem verbis
(as it is said),
therefore it can only be found in the section by means of
interpretation by implication. The words used are, in their
ordinary
and literal meaning,
15.
capable
of denoting either a discretionary or a
mandatory
sentence. Accordingly, one might as well say
that,
because a discretionary sentence was not
expressly
provided for, therefore it can only be found
there
by way of implying, notionally if not literally, the words "not
exceeding" in the section. But those are the very
words which,
as
I
have found,
have been omitted with deliberate intention. One would therefore be
putting back what the Legislature has chosen to leave
out. On my
approach, one would simply select
from the two possible meanings
available, that one
which is in
conformity with the pointers, to the Legislature's intention, with
which
I
have
already dealt. A contrary result can only be achieved by ignoring
such pointers and by subjecting the section, in isolation,
to a
process of interpretation, invoking in aid various canons of
construction.
In my view it would be wrong to
take section 126A(1)(a) as a starting point, standing by itself, to
16. assign a
meaning to it by invoking the aid of rules of
interpretation,
and then to consider whether the result
arrived
at is negatived by sufficiently cogent
indicia
to the contrary elsewhere in the Act.
To take such a course, in the search for the intention of the
Legislature, is to enter upon
a
cul-de-sac
,
for it in fact fails to reach a point where the intention of the
Legislature is made to appear. In this regard
I
am obliged to point out, with respect, that
in the
judgment of SMALBERGER JA it is
held, with reference to
section 126A(1)(a),
that it does not provide for a mandatory sentence, "whatever the
legislature may have intended"; and
it is said, with reference
to
subsections (2)(a) and (b), that "(t)he
legislature, it may be presumed, had something in contemplation when
it
used different wording", but that
it did not intend to prescribe a mandatory sentence. In this way the
vital question as to the
intention of the Legislature in deliberately
using different wording in subsections
17. (2)(a) and (b), is, with
respect, simply not addressed and left in the air. In this way, too,
a doubt is conjured up in regard
to the Legislature's intention
which, with respect, appears to me to be wholly contrived and
artificial. It can only exist in a vacuum
which is created by first
interpreting section 126A(1)(a) in a certain way, namely as providing
for a discretionary sentence. It
disappears at once if, on taking a
global view of all the relevant provisions, it is found that section
126A(1)(a) prescribes a mandatory
sentence.
In support of
the postulate of a doubt as to
the
intention of the Legislature, reliance is placed on
the
provisions of sections 72I(1) and (2)(a). It is said that, because a
refusal and a mere failure to render the service involved
are lumped
together in those subsections, the Legislature would not have
intended the sentences prescribed to be mandatory.
With
respect,
I
do not
agree. As pointed out earlier,
18. those subsections display the
same conspicuous absence of the words "not exceeding",
which do appear in subsection (2)(b),
as.is the case with paragraphs
(a) and (b) of sections 126A(1) and (2). That the Legislature
contemplated mandatory sentences in
the context of the provisions of
section 72I is abundantly clear from the explicit provisions of
section 72I(3)(b). The ostensible
anomaly of treating a refúsal
and a failure tó render service together in sections 72I(1)
and (2)(a) is not, in my
opinion, of any real significance. In the
first place, the distinction which is to be found in paragraphs (a)
and (b) of section
126A(1) and (2) is not simply between a refusal
and a failure to render service; it is between
a refusal "to render
service" when called up and
a failure "to report
therefor"; obviously the latter offence is of far less gravity
than the former. By contrast, sections
72I(1) and (2)(a) both deal
with a refusal or a failure "to render the service"
concerned;
19.
the
two kinds of offences are accordingly much more closely allied to
each other. In the second place, there is no provision, in section
126A for the suspension of any part of a sentence imposed under
subsections (1)(a) or (2)(a) (cf secti
ó
n
126A(7)), a
matter to which
I
shall return presently. By contrast,
section 72I(5)
makes express provision for the suspension of sentences imposed under
subsections (1) and (2)(a), so that the possibility
of more lenient
treatment of an offender in respect of a failure of lesser
seriousness is adequately catered for. In these circumstances
I
find no warrant in sections 72I(1) and
(2)(a) for casting doubt on the intention of the Legislature. On the
contrary, such intention,
as
I
stated
earlier,
I
consider
to be fortified by those sections, when read with the contrasting
wording of section 72I(2)(b).
Some other
points were raised in argument on behalf of the appellants, with
which
I
do not
consider
20.
it necessary to
deal in detail. For instance, reference was made to section 37(1) of
Act 62 of 1955, the history of conflicting interpretations
of it, and
the manner in which the Legislature
intervened by means
of section 31 of Act 80
of 1964. Suffice it to say that
I
can
find nothing in those considerations which can serve to detract from
the views
I
have
expressed above regarding the intention of the Legislature as
manifested in the Act which is under
scrutiny here.
It is said that
a mandatory sentence of the kind in question here is extremely
unusual, if not unique.
I
agree.
In my judgment, however, the indications that the Legislature
intended to provide for just such a sentence are so compelling,
and
indeed overwhelming, that
I
can
see no avenue of escape, other than to rewrite the Act, which,
unfortunately, it is not within my power to do.
I
turn
now to
section 283
of the
Criminal Procedure Act 51 of 1977
, which is
quoted in the
21. judgment of my Brother
SMALBÉRGER. In my view
section 283
cannot be made to apply to
a mandatory sentence of the kind in question here, at all. To begin
with
section 283(2):
it excludes from
the operation of subsection (1) "any offence for which a minimum
penalty
is prescribed ". In my
opinion, a provision for a
mandatory sentence does not fall
within the ambit of these words. When the Legislature provides, in
terms which are found to be peremptory,
that an offender is to be
sentenced to imprisonment for a stated period, no more and no less,
it is not prescribing "a minimum
penalty". To be sure, the
effect of providing for a compulsory sentence will be imprisonment
for a period which can, in a sense,
be regarded as a minimum, but
that relates only to the effect of the provision, and, what is more,
only to one half of its effect.
It is simultaneously a provision for
a maximum sentence. To my mind it would be a misnomer to call a
mandatory or compulsory sentence
of a fixed period of imprisonment a
22.
minimum penalty, just as it would
be a misnomer to call it a maximum penalty. When
section 283(2)
refers to "a minimum penalty", it implicitly presupposes
that a heavier penalty is possible, but in the case of mandatory
sentence no such possibility exists. Because a mandatory sentence
precludes anything more than what is prescribed, it cannot be brought
home within the words "a minimum penalty is prescribed".
Proceeding,
then, to subsection (1): its
provision that a person
liable to a sentence of
imprisonment for a period may be sentenced to imprisonment for any
shorter period, is couched in very general
terms. Consequently, in
accordance with established principle, it cannot be invoked to
override the specific provisions of a particular
statute to the
contrary. To illustrate the point: assuming that subsection (2) had
not been included after subsection (1), the latter
could not have
been made to apply to a particular statutory provision prescribing a
minimum sentence for a specific
23.
offence. The fact that the
Legislature saw fit in subsection (2) expressly to exclude from the
operation of subsection (1) the case
of a minimum penalty, does not
entail, however, that subsection (1) applies to other instances of a
specific provision which in a
different form is in conflict with its
general provisions. Any specific provision which runs counter to the
general provision of
subsection (1) must override the latter. It
follows, therefore, that
section 283(1)
cannot be made to apply to
the case of a mandatory sentence such as that contained in
section
126A(1)(a).
The fact that the words of section
126A(1)(a), "liable to
imprisonment for a period
" happen to coincide largely
with the words of
section 283(1)
, "liable to a
sentence of imprisonment
for any period ", is not
of any consequence,
for, on my
finding as to the intention of the Legislature in regard to
section
126A(1)(a)
, the words
I
have
quoted must be taken to convey imprisonment "for
24.
a period which shall be (neither
more nor less than)
", and that effectively
excludes the operation of
section 283(1).
It remains to deal with the
subsidiary
question to be decided: whether it
is competent for a court sentencing an offender under
section
126A(1)(a)
to suspend any
part of the sentence. In my judgment the answer must be in the
negative. The object of the Legislature is to
coerce
compliance with the provisions of the Act relating to compulsory
service of the
various kinds dealt with. That
object could be
achieved effectively, if
suspension were possible, only if it were made the primary condition
of suspension that the offender should
render the service in
question. But for such a situation the Legislature has already made
express provision in section 126A(7). The
effect of section 126A(7)
is to create a procedure by which it is made possible for the
offender hïmself to bring about the
suspension of his sentence;
he can do
25. so simply
by signing the prescribed notice directed to the Adjudant-General,
stating that he is willing to render service, and
there is no reason
why he should not do so, if he is so minded,immediately on sentence
being passed. It is thus for the offender
himself at any stage to
procure, in effect, the suspension of his sentence. By expressly
creating this unusual procedure the Legislature
has, in my view, made
it perfectly plain that
the sentencing
court shall not be empowered to suspend any part of the sentence.
This conclusion
is in no way detracted from
by the reference in section
126A(3)(b)(i)
to a sentence of imprisonment which has not been suspended in full;
obviously that provision would apply where it is
possible to do so,
viz in relation to sections 126A(1)(b) and 126A(2)(b), but it
cannot
negative the clear effect of sections 126A(1)(a)
and
126A(2)(a) read with section 126A(7).
It was suggested in argument that
a sentence under section 126A(1)(a) could be suspended on
26.
conditions
other them the rendering of military service, such as that the
offender should perform community service of some kind.
I
cannot agree. Such a possibility flies in
the face of the clear intention of the Legislature as reflected in
section 126A(7). Moreover,
in the case of religious objectors the
Legislature has, in section 72E, created an elaborate machinery for
alternative kinds of service,
including community service, and has
expressly provided, in section 72I(5), for the suspension of
sentences imposed under sections
72I(1) or (2)(a) on condition that
such service be rendered. In view of
the
Legislature's much harsher treatment of conscientious objectors, it
is inconceivable, in my view, that it would have countenanced
the
rendering of community service, in their case, as a means of avoiding
military service. Accordingly such a possibility has been
excluded by
the clearest necessary implication.
In regard to the suspension of
sentences
27.
under
section 126A(1)(a), reliance was placed, on behalf of the appellants,
on the provisions of
section 297
of the
Criminal Procedure Act 51 of
1977
. In my judgment
section 297
cannot be made to apply to a
mandatory sentence such as is provided for in
section 126A(1)(a).
My
reasoning in this regard is the same as that set out above in respect
of
section 283
of the
Criminal Procedure Act.
I
do not propose to repeat it. In brief: the
expression "an offence in respect of which any law prescribes a
minimum punishment",
where it occurs in
sections 297(1)
and (4),
does not embrace a mandatory sentence of the kind provided for in
section 126A(1)(a)
; and the general provisions
contained
in
section 297(1)(b)
must be considered to be
overridden
by the specific provisions of
section 126A(1)(a).
Finally:
I
have reached the conclusions stated in this
judgment with profound regret. On the view
I
have taken as to the intention of the
28.
Legislature,
I
agree fully with the description of my
Brother SMALBERGER of
section 126A(1)(a)
as
a draconian
provision which is not
necessary or desirable for
achieving the
purpose of the Act. Unlike my Colleague,
however,
I
have found
myself compelled to accept that the Legislature's intention was as
I
have stated it to be, for the reasons
I
have given. But
I
wish to make it clear that
I
subscribe fully to what SMALBERGER JA
has said generally in regard to
the cherished principle
that the
discretion of the co
ú
rts
in the matter of sentence should not be encroached upon, and that the
individualization of punishment should not be rendered nugatory.
I
agree, also, that on the view
I
have taken of the effect of section
126A(1)(a), it must inevitably lead to harsh and inequitable results.
It is not for me to comment
on the policy of the Legislature, when
once
I
have found
an unavoidably clear expression of it in the Act. But
I
am qualified, entitled and obliged to speak
my mind on the effect of that policy on the
29.
administration
of justice in the courts of the country,
which
is the sphere in which
I
function.
And on that level
I
find
a legislative provision like section 126A(l)(a), which reduces a
sentencing court to a mere rubber stamp, to be wholly repugnant.
I would dismiss both the appeals.
A.S. BOTHA JA
/mb
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matters between:
1.
Case No 139/1989
IVAN
PETER TOMS
Appellant
and
THE STATE
Respondent
2.
Case No 289/1989
ROBERT
DAVID BRUCE
Appellant
and
THE STATE
"
Respondent
CORAM
:
CORBETT
CJ, BOTHA, SMALBERGER, KUMLEBEN
JJA et NICHOLAS AJA
HEARD
:
27
FEBRUARY 1990
DELIVERED
: 30 MARCH 1990
JUDGMENT
KUMLEBEN JA
/...
1.
KUMLEBEN JA
:
I
agree
with my Brother Botha that the
sentence laid
down in s 126A(l)(a) is a mandatory one.
I
do so with all the reluctance and disquiet
expressed. in his dissenting judgment.
I
do
not, however, share
the view that such
sentence cannot be suspended.
S 297 of the
Criminal Procedure
Act 51 of 1977 ("the
Criminal Code") provides for the suspension of a sentence. The
two subsections which are for present
purposes material, read as
follows:
"(1) Where a court convicts a
person of any offence, other than an offence in respect of which any
law prescribes a minimum punishment,
the court may in its discretion
(b) pass sentence but order the
operation of the whole or any part thereof to be suspended for a
period not exceeding five years on
any condition referred to in
paragraph (a)(i)
2/...
2.
which the court may specify in the
order;"
and
"(4) Where a court cpnvicts a
person of an offence in respect of which any law prescribes a minimum
punishment, the court may
in its discretion pass sentence but order
the operation of a part thereof to be suspended for a period not
exceeding five years on
any condition referred to in paragraph (a)(i)
of subsection (1)."
In paragraph (a)(i) of ss (1) the
nature of the
conditions which may be imposed
are set out and
include: (aa) the payment of
compensation, (cc)
"the
performance without remuneration
and outside the prison
of some service for the benefit of
the community",
(gg)
"good conduct" and (hh)
a condition relating to
"any
other
matter".
The fact that a mandatory
punishment has been prescribed in s 126A(1) (a) of the Defence Act 44
of
3/...
3. 1957 ("the Act") does
not in
itself
in any way preclude the operation of sec 297(1)
or 297(4): in terms they provide for suspension of the sentence
imposed on a person
convicted of "any offence". Whether a
sentence may be wholly or only partially suspended depends upon
whether a "minimum
punishment" has been laid down in the
enactment creating the offence. (One notes though, in passing, that
in practice the
distinction between these two
forms of suspension need
not be a substantial one : cf
S
v Hartmann
, 1975(3)
S.A. 532 (C) 537 G - H).
A minimum punishment and a
mandatory one (in the sense that but one punishment is prescribed)
are by definition two different things:
the exercise of a discretion
- albeit a restricted one - is implicit in the former, but prohibited
by the latter. It is so
4/...
4. that in
effect
a
mandatory sentence may be regarded as both a maximum and a minimum
sentence but it is, in my view, more correct to describe it
as
neither. And
I
do
not consider that the reference to a "minimum punishment"
in ss (1) and (4) of s 297 is to be taken -contrary to the
ordinary
meaning of the phrase - to include a mandatory sentence.
S 352(1)(b) of
Act 56 of 1955 ("the 1955
Criminal
Code"), which existed unamended until its repeal and replacement
in 1977
by s 297 of the Criminal Code,
authorised the suspension of the whole or part of a sentence save in
the case of a conviction of "an
offence specified in the Fourth
Schedule or an offence in respect of which the imposition of a
prescribed punishment on the person
convicted thereof is compulsory"
and the Fourth Schedule included "any
5/...
5. offence in respect of which any
law imposes a minimum punishment". (In the case of offences
falling within these two categories
provision was made for
partial
suspension - see s 352(2)(a)(i).) Thus, at the time s 352(l)(b)
was enacted - and thereafter until it was repealed - a distinction
between a "prescribed punishment" and a "minimum
punishment" was recognised and drawn. All the indications are
that at the time s 297 was enacted, and the language changed to omit
any reference to a "prescribed punishment", no such
mandatory punishment existed, or was envisaged in the future. S
329(2)(a) of the 1955 Criminal Code, which . provided for compulsory
whipping in the case of a conviction of certain offences, was
replaced by s 292(1) of the Criminal Code, which made the imposition
of the sentence of whipping discretionary. And, as pointed out in the
judgment of Smalberger JA, no
6/...
6.
instances of a prescribed sentence
of imprisonment appear to have existed at the time s 297 was enacted
and, it is fair to assume,
none was contemplated. (The
death penalty, though mandatory in
certain instances, is self-evidently not a punishment susceptible to
suspension and as obviously
could never be described as a "minimum
punishment".)
It thus appears
that the reference to a "prescribed punishment" was omitted
from s 297 not
per
incuriam
,
but advisedly. It is, anomalous that such a
punishment
should in the result be capable of total suspension (unless
prohibited by the enactment concerned) whereas a minimum punishment
may be only partially suspended. However, this incongruity does not
arise from a
casus omissus
in the Criminal Code but, as
I
have
said, from the fact that a form of
7/...
7. punishment subseguently came
into being which was not contemplated at the time the Criminal Code
was enacted. In the circumstances,
if this is seen to be a defect
which is to be cured, it is for the Legislature to do so.
Thus, if the sentence in the
instant case is capable of suspension, it can, in my opinion, be
wholly suspended.
There is nothing said in s
126A(1), or elsewhere in the Act, which expressly precludes the right
to suspend conferred in s 297. The
critical question is whether the
provisions of the Act
impliedly
do so. As the extract from
Craies on Statute Law, cited in the judgment of my Brother Smalberger
indicates:
"'Words plainly should not be
added by
8/...
8.
implication into the language of a
statute unless it is necessary to do so to give the paragraph sense
and meaning in its context.'"
Similarly Van Winsen J in
S v
Van
Rensburg
1967(2) S.A. 291
(C) 294 D held that:
"(The) implication must be a
necessary one in the sense that without it effect cannot be given to
the statute as it stands."
(See too
Tai Properties (Pty)
Ltd v Bobat
1952 (1) S.A. 723
(N) 729 G.)
At the time the sentence for a
contravention of s 126A(l)(a) was decided upon, one may readily
assume that the Legislature was aware
of the provisions of s 297 and,
that, in the absence of exclusion, it would apply to the mandatory
sentence imposed. Moreover, in
the very compilation of this section,
attention was given to the question of suspension: S 126A(3)(b)(i)
provides that "at the
imposition in
terms
of this
section
of
any sentence
of imprisonment or
9/...
9.
detention which has not been
suspended in full;.."
(My emphasis). Had it been the
intention that a sentence imposed in terms of s 126A(l)(a) should not
be capable of suspension, it
is, to my mind, highly improbable - in
fact virtually inconceivable - that there would not have been an
express exclusionary provision
or, at the very least, that s
126A(3)(b)(i) would not have made the implied intention plain by
restricting its provisions to convictions
of offences created in s
126A other than those set out in ss (l)(a) and ss (2)(a).
In the past, when it was intended
that a sentence should not be capable of suspension, saying so in
express terms presented no problem.
Thus, for instance, s 2(1) of the
Terrorism Act 83 of 1967 created the offence of "participation
in
10/...
10.
terroristic activities"
carrying a compulsory minimum prison sentence. In the realisation
that, in the absence of any exclusionary
provision, this sentence
could be partially suspended in terms of s 352(2)(i) of the 1955
Criminal Code, the right to suspend was
expressly excluded in terms
of s 5(d) of the Terrorism Act. Similarly, when the statutory offence
of sabotage was first enacted in
terms of s 21(1) óf the
General" Law Amendment Act 76 of 1962 and a compulsory minimum
prison sentence laid down, its
partial suspension was
expressly prohibited by s 21(4)(f)
of that Act.. (S 21 of the General Law Amendment Act and the
Terrorism Act have been repealed by
s 73 of the Internal Security
Act, 74 of 1982.)
In the light of s 297 of the
Criminal Code, which in express terms authorises suspension, and the
11/...
11.
past practice of excluding
suspension in so many words in the case of a compulsory sentence,
when such was the intention, the inference
is, to my mind, a strong
one that a mandatory sentence imposed in terms of s 126A (l)(a) can
be suspended.
There are further considerations
which lend support to this conclusion.
In the other judgments of this
court in this matter the manifest purpose of s 126 A(l)(a) has been
stressed. Its terms, aptly described
as draconian, were intended as a
far-reaching and effective deterrent against a refusal to do military
service. The acknowledgment
that such a sentence may be suspended
does - or rather may - ameliorate the harshness of this punishment
and
pro tanto
reduce its
12/...
12. coercive effect. But in my
view certainly not to the extent that it can be said that, by
implication, suspension was prohibited.
Though capable of suspension,
it remains a drastic punishment and a substantial deterrent. A
would-be objector would inevitably realise
that there could be no
assurance that the compulsory sentence would in fact be suspended
wholly or partly; would have no certainty
as to the nature, duration
or rigour of the conditions of suspension which may be decided upon;
and would know that non-compliance
with any of them could result in
the full period of compulsory imprisonment having to be served.
Viewed more positively and humanely,
there appear to be no good
reasons for supposing that the Legislature did not appreciate that in
a fitting case the suspension of
the sentence, subject to appropriate
conditions, would be in the interests of the offender
13/...
13. and of the community and thus
conform to accepted standards of justice and fairness.
Mr
Vilioen
, who appeared
for the respondent in the
Toms
appeal, pointed out in argument
that ordinarily a condition of suspension is that the offence be not
repeated and that such a condition
in the present context would not
be appropriate. This fact, so it was submitted, is an indication that
suspension was precluded.
But, as appears from the nature of the
conditions of suspension foreshadowed in s 297(1)(a), a court has
been given a wide discretion
to impose "one or more"
conditions, "service for the benefit of the community" and
"good conduct" being
two of those mentioned. To argue that
because one such condition is inappropriate, suspension was not
contemplated - in fact excluded
- does not appear to me to be sound
reasoning. In the ordinary run of
14/...
14.
convictions for
common law offences instances arise where there is no need
for
a "deterrent condition" (though one is often added for good
measure) but good cause exists for the imposition of a condition
of
some other kind, for instance, payment of compensation or community
service. This serves to confirm that a "deterrent condition",
though a freguent condition of suspension, is not an essential one.
Finally, in this regard, it should be mentioned that the amelioration
of the harshness of a sentence is one of the recognized and important
purposes of suspension of a sentence (
cf
Du Toit "Straf in Suid-Afrika"
363).
Mr
Vilioen
further relied
on s 126A(7), arguing that it afforded an offender the opportunity of
avoiding the consequences of the mandatory prison
15/...
15.
sentence, and
that for this reason provision in addition for the suspension of such
is unnecessary and out of place.
I
fail
to see how this subsection bears upon the question. It applies to an
objector who is
actually serving a prison
sentence and confers upon him
the option of
terminating its operation by substituting
military
service. The question of suspension is a
separate
and anterior one to be decided by the judicial
officer
concerned and not by the sentenced offender. S 126A(6) is likewise of
no assistance to the respondent. As pointed out in the
judgment of
Smalberger J.A., an objector, whether he receives a wholly or
partially suspended sentence, will not have "served
the full
period imposed" and would therefore not be exempt from liability
to render military service in terms of the Act.
S 72
I,
which was inserted in the Act by s 9
16/...
16. of Act 34
of 1983, introduced a new dispensation for persons objecting to
military service on religious grounds. Should the board
of exemption
decide to grant such dispensation,the objector is to be classified
within one of the three categories referred to in
s
72
D, the third of which makes provision for community,
in
lieu of military, service. This form of substituted service applying
to one group of religious objectors corresponds to a condition
of
suspension which, one may suppose, would be a most appropriate one,
assuming
suspension to be permitted. This,
so the argument runs,
is a reason for
concluding that a sentence imposed in terms of s 126A(l)(a), by
implication, may not be suspended. Had s 72
I
been initially included in the Act, this
would have been a consideration - not necessarily an important or
decisive one - to be taken
into account in deciding whether
suspension is prohibited. But the fact that it was subsequently
17/...
17.
introduced
robs this submission of what weight it might
otherwise have had. In
Kent,
N.O. v South African
Railways and Another
,
1946
A.D. 398
at 405, this court
held:
"...that Statutes must be
read together and the
later one must not be so construed
as to repeal the provisions of an earlier one, or to take away rights
conferred by an earlier one
unless the later Statute expressly alters
the provisions of the earlier one in that respect or such alteration
is a necessary inference
from the terms of the later Statute. The
inference must be a necessary one and not merely a possible one. In
Maxwell's
Interpretation of Statutes
, the principle is, stated
as follows (4th ed., p. 233):-
'The language of every enactment
must be so construed as far as possible as to be consistent with
every other which it does not in
express terms modify or repeal. The
law, therefore, will not allow the revocation or alteration of a
Statute by construction when
the words may have their proper
operation without it.'"
This dictum is
in point: it applies a
fortiori
to an
amending statute of the nature of the
one in question.
If it is borne in mind
that the provisions of s 72
I
18/...
18. were subseguently introduced,
it follows that the position was not that the Legislature
initially
intended harsher treatmeht of conscientious objectors but that it
subsequently
saw the merit of other alternatives - perhaps,
though not necessarily, more lenient ones - in the case of religious
objectors.
In the maj
ó
rity
judgment certain principles relating to the interpretation of
statutes, and some important presumptions, applicable in case of
doubt or ambiguity are comprehensively discussed.
I
refer particularly to the presumption that
the Legislature did not intend harsh and ineguitable results or an
interference with the
court's jurisdiction: in
casu
the latter would apply to the
jurisdiction conferred on a court by sec 297 to suspend all
sentences. If one supposes in favour of
the respondent - contrary to
the
19/...
19.
view
I
hold - that doubt exists as to whether
suspension was impliedly prohibited, certain of these principles and
presumptions would serve
to decide the issue in favour of the
appellants.
In the result
I
consider that a sentence imposed in terms
of s 126A(l)(a) may be wholly
suspended and
to that extent
I
would
allow the appeals.
However, in the light of
the decision of the majority of the court, it would serve no purpose
f or me to discuss the order to be made
in each on the basis of my
conclusion.
M E KUMLEBEN JA