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[2001] ZACC 16
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S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC); 2001 (1) SACR 594 (CC) (5 April 2001)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
1/01
BUZANI DODO Applicant
versus
THE
STATE Respondent
Heard on : 22 March 2001
Decided on : 5 April
2001
JUDGMENT
ACKERMANN J:
Introduction
[1] This
case concerns the constitutional validity of the provisions of section 51(1) of
the Criminal Law Amendment Act, 105 of 1997
(the Act). This section in effect
makes it obligatory for a High Court to sentence an accused, convicted of
offences specified in
the Act, to imprisonment for life unless, under section
51(3)(a), the court is satisfied that “substantial and compelling
circumstances”
exist which justify the imposition of a lesser
sentence.
[2] The Eastern Cape High Court (the High Court) declared the
section in question to be constitutionally invalid, because it was
inconsistent
with section 35(3)(c) of the Constitution, which guarantees to every accused
person “a public trial before an
ordinary court” and was also
inconsistent with the separation of powers required by the Constitution. This
order serves before
this Court for confirmation under the provisions of section
172(2) of the Constitution. The applicant, who had been convicted in
the High
Court of murder, under circumstances which made the provisions of section 51(1)
of the Act applicable to him, supports confirmation.
The State, through the
office of the National Director of Public Prosecutions, opposes
confirmation.
[3] Section 51(1) of the Act provides that –
“[n]otwithstanding any other law but subject to subsections (3) and (6), a
High Court shall, if it has convicted a person of
an offence referred to in Part
I of Schedule 2, sentence the person to imprisonment for
life.”
Subsection 3(a) provides that –
“[i]f any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which
justify the imposition of a
lesser sentence than the sentence prescribed in those subsections, it shall
enter those circumstances
on the record of the proceedings and may thereupon
impose such lesser sentence.”
Under subsection 5 the
operation of a sentence imposed in terms of the section may not be suspended as
contemplated in section 297(4)
of the Criminal Procedure Act 51 of 1977 (the
CPA). Subsections 3(b) and 6 are not presently relevant. One of the offences
referred
to in Part I of Schedule 2 to the Act is:
“Murder, when –
(a) it was planned or premeditated;
(b) the victim was
–
(i)
a
law enforcement officer performing his or her functions as such, whether on duty
or not; or
(ii)
a person who has given or was
likely to give material evidence with reference to any offence referred to in
Schedule 1 to the Criminal
Procedure Act, 1977 (Act 51 of 1977), at criminal
proceedings in any court;
(c)
the death of the victim was
caused by the accused in committing or attempting to commit or after having
committed or attempted to
commit one of the following
offences:
(i) Rape; or
(ii) robbery with aggravating circumstances;
or
(d)
the
offence was committed by a person, group of persons or syndicate acting in the
execution or furtherance of a common purpose or
conspiracy.”
The High Court
Judgment
[4] Smuts AJ, in the course of his careful judgment in the High
Court, came to the conclusion that he was obliged to consider the
constitutionality of section 51(1) because -
4.1 the offence of murder, being one of the offences of which he had convicted
the applicant, had been committed under circumstances
which brought it within
the provisions of Part I of Schedule 2, namely murder committed under the
circumstances detailed in paragraph
(c)(i) thereof;
4.2 if he were not bound by the provisions of section 51(1) he would have
imposed a sentence other than life imprisonment;
4.3 on his construction of the phrase “substantial and compelling
circumstances” –
“the discretion to depart from the imposition of a mandatory life sentence
arises when such sentence would occasion a shocking
injustice ... would be
‘grossly disproportionate’ to the crime committed or
‘startlingly inappropriate’ or
the Court forms the view that such
sentence is ‘offensive to its sense of justice’ ... or when such
sentence is ‘disturbingly
inappropriate’” (citations
omitted);
4.4 if he were bound by the provisions he “would be obliged to impose a
sentence of life imprisonment”, it being implicit
in the phrase quoted,
and expressly stated elsewhere in the judgment that he did not consider the
circumstances relating to the murder
count on which the applicant had been
convicted to be “substantial and compelling” so as, on his
construction of section
51(3)(a), to warrant the imposition of a lesser
punishment.
[5] The finding referred to in paragraph 4.1
above was not challenged or questioned in this Court and for purposes of the
present
judgment it must be accepted as correct. There is a close link between
the judge a quo’s reasons for finding that the section
is inconsistent
with the constitutional separation of powers and his finding that it constitutes
an unjustifiable limitation of section
35(3)(c) of the
Constitution.
[6] Dealing with the latter provision of the Constitution
he observed, in the course of his judgment, that “[s]entencing is
pre-eminently the prerogative of the courts”, that the section of the Act
in question “constitutes an invasion of the
domain of the Judiciary not by
the Executive, but by the Legislature”, and that a criminal trial before
an ordinary court requires,
among other things, “an independent court
which is empowered ... in the event of a conviction, to weigh and balance all
factors
relevant to the crime, the accused and the interests of society before
the imposition of sentence.” What was new about the
“trial
envisaged by s 51(1) of the Act,” Smuts AJ held, is that “an accused
convicted of a serious charge before
the High Court, unless the Court is
satisfied that substantial and compelling circumstances exist which justify the
imposition of
a lesser sentence, faces a life sentence which was decided upon
before the commencement of the trial, not by the Court itself, but
by the
Legislature.” This, the learned judge further found, in truth directs the
High Court “to consider principles
more relevant to the functions of a
court of appeal when dealing with the issue of sentence.” He concluded
that this –
“... is not a trial before an ordinary court ... [but] ... a trial before
a court in which, at the imposition of the prescribed
sentence, the robes are
the robes of the judge, but the voice is the voice of the
Legislature.”
The judge consequently found that
“[s]uch a trial ... constitutes a limitation of ... [t]he fair trial
envisaged in section
35(3)(c) of the Constitution” which could not be
justified under section 36 thereof.
[7] In dealing with the separation
of powers, the High Court reviewed the major judgments of this Court on the
issue and referred
to the
First Certification
Judgment
,
[1]
and the
judgments in
Bernstein
,
[2]
De Lange v Smuts
,
[3]
and
Heath,
[4]
relying upon the
following passages from the last-mentioned case:
“[23] [ ... T]here is a clear though not absolute separation between the
legislature and the executive on the one hand, and
the courts on the other ...
.
[25] [...] Parliament and the provincial legislatures make the laws but do not
implement them. The national and provincial executives
prepare and initiate
laws to be placed before the legislatures, implement the laws thus made, but
have no law-making power other
than that vested in them by the legislatures.
[...] Under our Constitution it is the duty of the courts to ensure that the
limits
to the exercise of public power are not transgressed. Crucial to the
discharge of this duty is that the courts be and be seen to
be
independent.
[26] The separation required by the Constitution between the legislature and
executive on the one hand, and the courts on the other,
must be upheld otherwise
the role of the courts as an independent arbiter of issues involving the
division of powers between the
various spheres of government, and the legality
of legislative and executive action measured against the Bill of Rights, and
other
provisions of the Constitution, will be undermined. The Constitution
recognises this and imposes a positive obligation on the State
to ensure that
this is done. It provides that courts are independent and subject only to the
Constitution and the law which they
must apply impartially without fear, favour
or prejudice. No organ of State or other person may interfere with the
functioning of
the courts, and all organs of State, through legislative and
other measures, must assist and protect the courts to ensure their independence,
impartiality, dignity, accessibility and effectiveness.” (footnotes
omitted)
[8] The High Court’s reasons for coming to
the conclusion that the provisions of section 51(1) of the Act “undermine
the doctrine of separation of powers and the independence of the
judiciary” and are inconsistent therewith are summarised in
the judgment,
borrowing the terminology used in
De Lange v
Smuts
,
[5]
as follows:
“A sentence of imprisonment for life, irrespective of the policies and
procedures to which such sentence may be subjected by
the Department of
Correctional Services, must be regarded by the Court imposing it as having the
potential consequence, at the very
least, that the accused so sentenced will
indeed be incarcerated until his death. It is an extreme sentence. It is the
most severe
sentence which may lawfully be imposed on an accused such as the one
now before Court. It is a sentence which, in the ordinary course,
requires a
meticulous weighing of all relevant factors before a decision to impose it can
be justified. [... W]hatever the boundaries
of separation of powers are
eventually determined to be, the imposition of the most severe penalty open to
the High Court must fall
within the exclusive prerogative and discretion of that
Court. It falls within the heartland of the judicial power, and is not to
be
usurped by the Legislature.”
[9] Although expressly
limiting the grounds for the High Court’s declaration of invalidity to the
two referred to in paragraph
2 above, the learned judge made certain comments
concerning the inconsistency of the section with the right to dignity,
guaranteed
by section 10 of the Constitution, to the effect that the operation
of the section was “inimical to a society in which human
dignity is
cherished” and “constitutes an affront to the human dignity not only
of those who may suffer because of its
application ... [but also] ... to the
dignity of those in whose name this procedure is sanctioned.” I will
revert to the matter
of dignity later in this judgment.
The
construction of section 51(1) read with section 51(3)(a) of the
Act
[10] The construction of the phrase “substantial and
compelling circumstances” in section 51(3)(a) goes to the heart
of these
issues. The existence of these circumstances permits the imposition of a
lesser sentence than the one prescribed. Establishing
its true meaning has
proved to be intractably difficult and has led to a series of widely divergent
constructions in the High Courts.
Some have severely limited the sentencing
discretion to “unusual and exceptional”
factors,
[6]
others to cases of
“gross
disproportionality”
[7]
while
others have left the normal sentencing discretion virtually
unaffected.
[8]
[11]
[ In the light of the
recent judgment of the Supreme Court of Appeal in
S v
Malgas
[9]
it is unnecessary to
review these decisions. In
Malgas
the words “substantial and
compelling circumstances” in section 51(3)(a) were interpreted by, amongst
other things, detailing
a step-by-step procedure to be followed in applying the
test to the actual sentencing situation. This operational construction is
summarised in the judgment
1
[0]
as
follows:
“A Section 51 has limited but not eliminated the courts’ discretion
in imposing sentence in respect of offences referred
to in Part 1 of Schedule 2
(or imprisonment for other specified periods for offences listed in other parts
of Schedule 2).
B Courts are required to approach the imposition of sentence conscious that the
legislature has ordained life imprisonment (or the
particular prescribed period
of imprisonment) as the sentence that should
ordinarily
and in the
absence of weighty justification be imposed for the listed crimes in the
specified circumstances.
C Unless there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are therefore
required to elicit a
severe, standardised and consistent response from the courts.
D The specified sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to the offender,
undue sympathy,
aversion to imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying the legislation,
and marginal differences in personal
circumstances or degrees of participation between co-offenders are to be
excluded.
E The legislature has however deliberately left it to the courts to decide
whether the circumstances of any particular case call
for a departure from the
prescribed sentence. While the emphasis has shifted to the objective gravity of
the type of crime and the
need for effective sanctions against it, this does not
mean that all other considerations are to be ignored.
F All factors (other than those set out in D above) traditionally taken into
account in sentencing (whether or not they diminish
moral guilt) thus continue
to play a role; none is excluded at the outset from consideration in the
sentencing process.
G The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick (“substantial
and
compelling”) and must be such as cumulatively justify a departure from the
standardised response that the legislature has
ordained.
H In applying the statutory provisions, it is inappropriately constricting to
use the concepts developed in dealing with appeals
against sentence as the sole
criterion.
I If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence unjust in
that it would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would
be done by imposing that sentence, it is
entitled to impose a lesser sentence.
J In so doing, account must be taken of the fact that crime of that particular
kind has been singled out for severe punishment and
that the sentence to be
imposed in lieu of the prescribed sentence should be assessed paying due regard
to the bench mark which the
legislature has
provided.”
This interpretation, as an
overarching guideline, is one that this Court endorses as a practical method to
be employed by all judicial
officers faced with the application of section 51.
It will no doubt be refined and particularised on a case by case basis, as the
need arises. It steers an appropriate path, which the legislature doubtless
intended, respecting the legislature’s decision
to ensure that
consistently heavier sentences are imposed in relation to the serious crimes
covered by section 51 and at the same
time promoting “the spirit, purport
and objects of the Bill of
Rights.”
1
[1]
Separation
of Powers
[12] I deal with the separation of powers issue first.
Closely linked to this issue, as I hope presently to demonstrate, is the
right
of an accused under section 12(1)(e) of the Constitution “not to be ...
punished in a cruel, inhuman or degrading way.”
This right did not form
the basis of attack in the High Court. Although alluded to in passing, it was
not further dealt with in
the High Court judgment. It is impossible to address
the separation of powers issue meaningfully without dealing with this
right.
[13] The statement in the High Court judgment quoted in paragraph
8 above that the imposition of the most severe punishment falls
within the
“exclusive prerogative and discretion” of a High Court does not, I
believe, correctly reflect the law, either
as it exists now or as it existed
prior to the interim Constitution. The history, for example, of the death
penalty for murder up
to 1994, makes this plain. Prior to its amendment by
section 61 of the General Law Amendment Act, 46 of 1935, section 338 of the
Criminal Procedure and Evidence Act, 31 of 1917 prescribed the mandatory
imposition of the death penalty for the crime of murder,
save in the case where
the accused was under sixteen years of age or where the accused had murdered her
newly born child. Even after
the amendment which permitted the trial court to
impose a sentence other than death if there were extenuating circumstances, the
trial court did not enjoy an unfettered discretion. On an even more fundamental
basis, the nature and range of any punishment, whether
determinate or
indeterminate, has to be founded in the common or statute law; the principle of
legality “nulla poena sine lege”
requires
this.
1
[2]
This principle was in
fact endorsed in
Malgas.
1
[3]
Even the exercise of the court’s “normative
judgment”
1
[4]
in determining
the nature and severity of the sentence within the options permitted by law has
to be judicially exercised; it is
not
unfettered.
1
[5]
This was and is
true of all sentencing, not merely in the case of the most severe sentences.
Statutes abound which limit court
powers, even those of a High Court, to impose
sentences relating to, for example, the extent of the punishment, the
circumstances
under which it may be imposed or when execution thereof may be
suspended.
[14] Constitutional Principle VI, contained in schedule 4 of
the interim Constitution, provides that –
“[t]here shall be a separation of powers between the legislature,
executive and judiciary, with appropriate checks and balances
to ensure
accountability, responsiveness and openness.”
In the
First Certification Judgment
this Court, in dismissing a challenge that
the new text of the Constitution (NT) did not comply with this Constitutional
Principle
(CP), said the following:
“The principle of separation of powers, on the one hand, recognises the
functional independence of branches of government.
On the other hand, the
principle of checks and balances focuses on the desirability of ensuring that
the constitutional order, as
a totality, prevents the branches of government
from usurping power from one another. In this sense it anticipates the
necessary
or unavoidable intrusion of one branch on the terrain of another. No
constitutional scheme can reflect a complete separation of
powers: the scheme is
always one of partial separation. In Justice Frankfurter’s words,
‘[t]he areas are partly interacting,
not wholly
disjointed’.
1
[6]
....
The model adopted reflects the historical circumstances of our constitutional
development. We find in the NT checks and balances
that evidence a concern for
both the over-concentration of power and the requirement of an energetic and
effective, yet answerable,
executive. A strict separation of powers has not
always been maintained; but there is nothing to suggest that the CPs imposed
upon
the [Constitutional Assembly] an obligation to adopt a particular form of
strict separation, such as that found in the United States
of America, France or
the
Netherlands.”
1
[7]
[15] In
De Lange v Smuts
, in a
passage
1
[8]
subsequently endorsed by
a unanimous Court in
Heath,
1
[9]
it was stated that
the distinctly South African model of separation of powers to be developed over
time by our Courts would reflect
–
“... a delicate balancing, informed both by South Africa’s history
and its new dispensation, between the need, on the
one hand, to control
government by separating powers and enforcing checks and balances and, on the
other, to avoid diffusing power
so completely that the government is unable to
take timely measures in the public
interest.”
[16] This Court has therefore clearly
enunciated that the separation of powers under our Constitution –
16.1 although intended as a means of controlling government by separating or
diffusing power, is not strict;
16.2 embodies a system of checks and balances designed to prevent an
over-concentration of power in any one arm of government; it
anticipates the
necessary or unavoidable intrusion of one branch on the terrain of another; this
engenders interaction, but does
so in a way which avoids diffusing power so
completely that government is unable to take timely measures in the public
interest.
[17] It is salutary to bear in mind the following
cautionary remarks of Professor Tribe which, although made in relation to the US
Constitution, are of general relevance when considering separation of powers
issues:
“We must therefore seek an understanding of the Constitution’s
separation of powers not primarily in what the Framers
thought, nor in what
Enlightenment political philosophers wrote, but in what the Constitution itself
says and does. What counts
is not any abstract theory of separation of powers,
but the actual separation of powers ‘
operationally defined
by the
Constitution.’ Therefore, where constitutional text is informative with
respect to a separation of powers issue, it
is important not to leap over that
text in favor of abstract principles that one might wish to see embodied in our
regime of separated
powers, but that might not in fact have found their way into
our Constitution’s
structure.”
2
[0]
“... [E]ven when a constitution contains a provision explicitly mandating
strict separation of powers, it behooves us to read
the rest of the document to
ascertain what sort of separation that particular charter
actually
imposes.”
2
[1]
“At times, text will be sufficient, without necessarily developing an
overarching vision of the structure, to decide major
cases. ... Sometimes,
however, it will be necessary to extrapolate what amounts to a blueprint of
organizational relationships from
the fundamental structural postulates one sees
as informing the Constitution as a whole
...”.
2
[2]
[18] Both
the judgment of the court a quo and the argument presented in this Court by Mr
Eksteen who, together with Mr Boswell, appeared
on behalf of the applicant for
confirmation at the request of the Court (and to whom we are indebted for their
assistance), contended
for a virtually exclusive and limitless sentencing
discretion of the courts. Considerable reliance was in this regard placed on
the following passage from the judgment of the Appellate Division of the Supreme
Court in
S v Toms; S v Bruce,
per Smalberger
JA:
2
[3]
“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 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 individualisation of punishment,
which requires proper consideration
of the individual circumstances of each
accused person. This principle too is firmly entrenched in our
law”.
[19] Three observations are necessary. First,
the Appellate Division did not suggest that punishment fell within the exclusive
domain
of the trial court.
[20] Second, the Court directed its above
observations to a mandatory sentence –
“in the sense of sentence prescribed by the Legislature which leaves the
court with no discretion at all – either in
respect of the kind of
sentence to be imposed or, in the case of imprisonment, the period
thereof.”
2
[4]
It
was such a totally restrictive form of mandatory sentence that the Court
criticised in the following terms:
“It reduces the court’s normal sentencing function to the level of a
rubber stamp. It negates the ideal of individualisation.
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. ... Harsh and inequitable
results inevitably
flow from such a situation. Consequently judicial policy is
opposed to mandatory sentences ... as they are detrimental to the proper
administration of justice and the image and standing of the
courts.”
2
[5]
[21] In
the third place it is necessary to see the above dicta within the constitutional
context in which they were made, namely,
prior to South Africa becoming a
constitutional state with a justiciable bill of rights. The doctrine of
parliamentary sovereignty
was still the guiding constitutional norm as
Smalberger JA himself emphasised when he remarked:
“The Legislature is of course at liberty to subjugate these principles
[relating to the infliction of punishment by the courts]
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. ... Courts will not be astute to find that a mandatory
sentence
has been
prescribed.”
2
[6]
Save
in the most exceptional circumstances it was difficult, if not impossible, to
rely on the separation of powers
doctrine.
2
[7]
It was quite
impossible to invoke a constitutionally entrenched right of an accused not to be
punished in a cruel, inhuman or degrading
way against legislative incursion into
the judicial sentencing function. The courts were restricted to using the
fairly limited
means at their disposal. In order to do justice under a system
of parliamentary sovereignty, where the Court could not review the
constitutionality of a parliamentary statutory provision in the absence of a
Bill of Rights, it is not surprising that the Court
vigorously asserted its
sentencing power, even one which, in its extent, might have gone beyond that
considered necessary or appropriate
under a constitution such as our present
one. No disagreement with, or criticism of,
Toms
is implied. I merely
stress that the question before this Court is to be decided in a radically
different constitutional setting,
where proper regard can and must be had to the
separation of powers doctrine and, in conjunction therewith, to the
accused’s
right not to be punished in a cruel, inhuman or degrading way.
In these circumstances little is to be gained from our pre-1994
jurisprudence.
[22] There is under our Constitution no absolute
separation of powers between the judicial function, on the one hand, and the
legislative
and executive on the other. When the nature and process of
punishment is considered in its totality, it is apparent that all three
branches
of the state play a functional role and must necessarily do so. No judicial
punishment can take place unless the person
to be punished has been convicted of
an offence which either under the common law or statute carries with it a
punishment. It is
pre-eminently the function of the legislature to determine
what conduct should be criminalised and punished. Even here the separation
is
not complete, because this function of the legislature is checked by the
Constitution in general and by the Bill of Rights in
particular, and such checks
are enforced through the courts.
[23] Both the legislature and executive
share an interest in the punishment to be imposed by courts, both in regard to
its nature
2
[8]
and its severity.
They have a general interest in sentencing policy, penology and the extent to
which correctional institutions
are used to further the various objectives of
punishment. The availability and cost of prisons, as well as the views of these
arms
of government on custodial sentences, legitimately inform policy on
alternative forms of non-custodial sentences and the legislative
implementation
thereof. Examples that come to mind are the conditions on, and maximum periods
for which sentences may be postponed
or
suspended.
2
[9]
[24] The
executive and legislative branches of state have a very real interest in the
severity of sentences. The executive has a
general obligation to ensure that
law-abiding persons are protected, if needs be through the criminal laws, from
persons who are
bent on breaking the law. This obligation weighs particularly
heavily in regard to crimes of violence against bodily integrity and
increases
with the severity of the crime.
[25] In order to discharge this
obligation, which is an integral part of constitutionalism, the executive and
legislative branches
must have the power under the Constitution to carry out
these obligations. They must have the power, through legislative means,
of
ensuring that sufficiently severe penalties are imposed on dangerous criminals
in order to protect society. The legislature’s
objective of ensuring
greater consistency in sentencing is also a legitimate aim and the legislature
must have the power to legislate
in this area. The legislature’s interest
in penal sentences is implicitly recognised by the Constitution. Section
35(3)(n)
thereof provides:
“Every accused person has ... the right –
(n) to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed
between the time that the
offence was committed and the time of
sentencing”.
[26] The legislature’s
powers are decidedly not unlimited. Legislation is by its nature general. It
cannot provide for each
individually determined case. Accordingly such power
ought not, on general constitutional principles, wholly to exclude the important
function and power of a court to apply and adapt a general principle to the
individual case. This power must be appropriately balanced
with that of the
judiciary. What an appropriate balance ought to be is incapable of
comprehensive abstract formulation, but must
be decided as specific challenges
arise. In the field of sentencing, however, it can be stated as a matter of
principle, that the
legislature ought not to oblige the judiciary to impose a
punishment which is wholly lacking in proportionality to the crime. This
would
be inimical to the rule of law and the constitutional state. It would a
fortiori be so if the legislature obliged the judiciary
to pass a sentence which
was inconsistent with the Constitution and in particular with the Bill of
Rights. The clearest example
of this would be a statutory provision that
obliged a court to impose a sentence which was inconsistent with an
accused’s right
not to be sentenced to a punishment which was cruel,
inhuman or degrading as envisaged by section 12(1)(e) of the Constitution, or
to
a fair trial under section
35(3).
3
[0]
Foreign
jurisprudence
[27] There are many examples of other open and democratic
societies which permit the legislature to limit the judiciary’s power
to
impose punishments. The United States of America and Canada are striking
instances.
[28] The power of the legislatures in the United States to
define crimes and their punishment is not considered to be in breach of
the
separation of powers principle and the courts will not interfere with the
exercise of that power unless it has been exercised
in a manner which breaches
the Constitution.
3
[1]
Full
recognition is granted to the –
“power that the legislature possesses to adapt its penal laws to
conditions as they may exist and punish the crimes of men
according to their
forms and
frequency.”
3
[2]
It
is accepted that the separation of powers doctrine imposes on the coordinate
branches–
“... a degree of overlapping responsibility, a duty of interdependence as
well as independence the absence of which ‘would
preclude the
establishment of a Nation capable of governing itself
effectively.’”
3
[3]
Historically,
federal sentencing (the function of determining the scope and extent of
punishment for crimes with a federal subject
matter) –
“never has been thought to be assigned by the Constitution to the
exclusive jurisdiction of any one of the three Branches of
Government.
Congress, of course, has the power to fix the sentence for a federal crime ...
and the scope of judicial discretion
with respect to sentence is subject to
congressional
control.”
3
[4]
Indeed,
the tripartite division of sentencing responsibility is regarded as an important
check-and-balance feature:
“[I]f a given policy can be implemented only by a combination of
legislative enactment, judicial application, and executive
implementation, no
man or group of men will be able to impose its unchecked
will”.
3
[5]
[29] The
Eighth Amendment of the US Constitution prohibits the infliction of “cruel
and unusual punishments.” The prohibition
is directed not only against a
punishment which constitutes torture or is barbaric, but against any punishment
which by its excessive
length or severity is “grossly out of proportion to
the severity of the
crime.”
3
[6]
The Court has
also held that federal courts should be deferential in their review of
legislatively mandated terms of
imprisonment.
3
[7]
The case of
Rummel
3
[8]
illustrates how
deferential the test is. The petitioner Rummel had on two separate occasions
been convicted in Texas state courts
and sentenced to imprisonment for
relatively minor offences.
3
[9]
On
conviction of a third fairly minor
offence,
4
[0]
he received a mandatory
life sentence pursuant to the Texas statute. The Supreme Court held that the
mandatory life sentence did
not constitute cruel and unusual punishment under
the Eighth Amendment.
[30] It is implicit in the jurisprudence of the
Supreme Court of Canada that mandatory minimum sentences are not regarded as
being
inconsistent with any separation of powers
doctrine.
4
[1]
In
R v Latimer
it was stated:
4
[2]
“It is not for the court to pass on the wisdom of Parliament with respect
to the gravity of various offences and the range
of penalties which may be
imposed upon those found guilty of committing the offences. Parliament has
broad discretion in proscribing
conduct as criminal and in determining proper
punishment.”
In Canada the issue is dealt with on the basis
of whether the statutory provision enacting the mandatory minimum sentence
unjustifiably
infringes the right guaranteed by section 12 of the Canadian
Charter of Rights and Freedoms “not to be subjected to any cruel
and
unusual treatment or
punishment.”
4
[3]
The
criterion which is applied to determine whether a mandatory minimum punishment
is cruel and unusual is “whether the punishment
prescribed is so excessive
as to outrage standards of decency;” the “effect of that punishment
must not be grossly disproportionate
to what would have been
appropriate.”
4
[4]
[31] The
nature and elements of the gross disproportionality analysis under section 12 of
the Charter have been formulated as follows:
“[T]he court must first consider the gravity of the offence, the personal
characteristics of the offender and the particular
circumstances of the case in
order to determine what range of sentences would have been appropriate to
punish, rehabilitate or deter
this particular offender ... . The other purposes
which may be pursued by the imposition of punishment, in particular the
deterrence
of other potential offenders, are thus not relevant at this stage of
the inquiry. This does not mean that the judge or the legislator
can no longer
consider general deterrence or other penological purposes that go beyond the
particular offender in determining a sentence,
but only that the resulting
sentence must not be grossly disproportionate to what the offender
deserves.”
4
[5]
In
R v Smith
the Court pointed out that gross disproportionality is aimed
at punishments that are more than merely excessive and correctly warned
that one
–
“Should be careful not to stigmatize every disproportionate or excessive
sentence as being a constitutional violation, and
should leave to the usual
sentencing appeal process the task of reviewing the fitness of a
sentence.”
4
[6]
In
Latimer
the Supreme Court also observed that the test for determining
whether a sentence is disproportionately long is “
very properly
stringent and demanding
... [for] ... [a] lesser test would tend to
trivialize the
Charter
”(emphasis in the
original).
4
[7]
In this case the
accused was convicted of second degree murder after killing his severely
disabled 12-year-old daughter. The Canadian
Criminal Code, in the case of
second degree murder, provides for the mandatory imposition of a life sentence
with no chance of parole
for ten years. The Supreme Court found that the
mandatory minimum sentence was not grossly disproportionate in the case at hand
and that there was no violation of Mr Latimer’s section 12
right.
[32] Other democratic countries such as
Australia,
4
[8]
Germany,
4
[9]
India,
5
[0]
New
Zealand
5
[1]
and the United
Kingdom,
5
[2]
have sentencing
statutes which mandate minimum sentences under circumstances that are, in
certain instances, more intrusive of the
judicial sentencing function than
section 51(1) in the present case. The Namibian High Court has also used the
“grossly disproportionate
test” for determining whether a mandatory
minimum sentence constitutes “cruel, inhuman or degrading treatment or
punishment”
under article 8(2)(b) of the Namibian
Constitution.
5
[3]
It has never, so
far as I have been able to determine, been decided in any of these jurisdictions
that mere involvement by the legislature
in the sentencing field conflicts with
the separation of powers principle.
[33] On this part of the case I
accordingly conclude as follows:
33.1 While our Constitution recognises a separation of powers between the
different branches of the state and a system of appropriate
checks and balances
on the exercise of the respective functions and powers of these branches, such
separation does not confer on
the courts the sole authority to determine the
nature and severity of sentences to be imposed on convicted persons.
33.2 Both the legislature and the executive have a legitimate interest, role and
duty, in regard to the imposition and subsequent
administration of penal
sentences.
33.3 The concomitant authority of the other branches in the field of sentencing
must not, however, infringe the authority of the
courts in this regard.
33.4 It is neither possible nor, in any event, desirable to attempt a
comprehensive delineation of the legitimate authority of the
courts in this
regard.
33.5 For purposes of this case it is sufficient to hold that the legislature is
not empowered to compel any court to pass a sentence
which is inconsistent with
the Constitution.
[34] Accordingly the only relevant inquiry
in this regard is whether section 51(1) read with section 51(3)(a) of the Act
compels
the High Court to pass a sentence which is inconsistent with the
accused’s right under section 12(1)(e) of the Constitution
“not to
be ... punished in a cruel, inhuman or degrading way.” I deal later with
the High Court’s finding in regard
to section 35(3)(c) of the
Constitution.
The construction of section 12(1)(e) of the
Constitution
[35] Section 12(1)(e) provides:
“(1) Everyone has the right to freedom and security of the person, which
includes the right –
....
(e) not to be treated or punished in a cruel, inhuman or degrading
way.”
I propose saying no
more on the ambit of this right than is required for the resolution of the issue
in the present case. In the
phrase “cruel, inhuman or degrading”
the three adjectival concepts are employed disjunctively and it follows that a
limitation
of the right occurs if a punishment has any one of these three
characteristics. This imports notions of human dignity as was correctly
recognised, although in another context, by the High Court in this case. The
human dignity of all persons is independently recognised
as both an attribute
and a right in section 10 of the Constitution, which proclaims that
“[e]veryone has inherent dignity and
the right to have their dignity
respected and protected.” It is also one of the foundational values of
the Constitution
5
[4]
and is woven,
in a variety of other ways, into the fabric of our Bill of
Rights.
5
[5]
While it is not easy to
distinguish between the three concepts “cruel”,
“inhuman” and “degrading”,
the impairment of human
dignity, in some form and to some degree, must be involved in all three. One
should not lose sight of the
fact that the right relates, in part at least, to
freedom.
[36] It should also be emphasised, as was pointed out by the
Canadian Supreme Court in
Smith
,
5
[6]
that the
effect
of a sentence imposed must be measured and that such effect is
often a composite of many factors; it is not limited to the length
of the
sentence but includes its nature and the conditions under which it is served.
In the instant case, however, one is concerned
chiefly with the effect of the
duration
of a sentence of life imprisonment. Consequently the freedom
aspect of the right in question and its relation to human dignity looms
large.
[37] The concept of proportionality goes to the heart of the
inquiry as to whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which an
offender is sentenced that is in issue. This was recognised
in
S v
Makwanyane
.
5
[7]
Section
12(1)(a) guarantees, amongst others, the right “not to be deprived of
freedom ... without just cause”. The
“cause” justifying penal
incarceration and thus the deprivation of the offender’s freedom, is the
offence committed.
‘Offence’, as used throughout in the present
context, consists of all factors relevant to the nature and seriousness
of the
criminal act itself, as well as all relevant personal and other circumstances
relating to the offender which could have a
bearing on the seriousness of the
offence and the culpability of the offender. In order to justify the
deprivation of an offender’s
freedom it must be shown that it is
reasonably necessary to curb the offence and punish the offender. Thus the
length of punishment
must be proportionate to the offence.
[38] To
attempt to justify any period of penal incarceration, let alone imprisonment for
life as in the present case, without inquiring
into the proportionality between
the offence and the period of imprisonment, is to ignore, if not to deny, that
which lies at the
very heart of human dignity. Human beings are not commodities
to which a price can be attached; they are creatures with inherent
and infinite
worth;
5
[8]
they ought to be treated
as ends in themselves, never merely as means to an end. Where the length of a
sentence, which has been
imposed because of its general deterrent effect on
others, bears no relation to the gravity of the offence (in the sense defined
in
paragraph 37 above) the offender is being used essentially as a means to another
end and the offender’s dignity assailed.
So too where the reformative
effect of the punishment is predominant and the offender sentenced to lengthy
imprisonment, principally
because he cannot be reformed in a shorter period, but
the length of imprisonment bears no relationship to what the committed offence
merits. Even in the absence of such features, mere disproportionality between
the offence and the period of imprisonment would also
tend to treat the offender
as a means to an end, thereby denying the offender’s
humanity.
[39] In my view the gross proportionality approach adopted by
the US and Canadian Supreme Courts is compatible with and supportive
of the
above analysis, can properly be employed and should be employed under our
Constitution. For the reasons advanced in the Canadian
cases, it would not be
mere
disproportionality between the sentence legislated and the sentence
merited by the offence which would lead to a limitation of the
section 12(1)(e)
right, but only
gross
disproportionality. I wish pertinently to stress,
however, that it is not to be inferred from the reference in this judgment to
any foreign decision, that agreement is being expressed with the
application
of the gross disproportionality test to the legislation or facts in such
decision.
[40] On the construction that
Malgas
places on the
concept “substantial and compelling circumstances” in section
51(3)(a), which is undoubtedly correct, section
51(1) does not require the High
Court to impose a sentence of life imprisonment in circumstances where it would
be inconsistent with
the offender’s right guaranteed by section 12(1)(e)
of the Constitution. The whole approach enunciated in
Malgas,
and in
particular the determinative test articulated in paragraph I of the
summary,
5
[9]
namely:
“If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence unjust in
that it would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would
be done by imposing that sentence, it is
entitled to impose a lesser sentence”,
makes plain that
the power of the court to impose a lesser sentence than that prescribed can be
exercised well before the disproportionality
between the mandated sentence and
the nature of the offence becomes so great that it can be typified as gross.
Thus the sentencing
court is not obliged to impose a sentence which would limit
the offender’s section 12(1)(e) right. Accordingly section 51(1)
does not
compel the court to act inconsistently with the Constitution. It is necessary
to emphasise the difference between the
two tests, because they serve different
purposes. The test in
Malgas
must be employed in order to determine when
section 51(3)(a) can legitimately be invoked by a sentencing court to pass a
lesser sentence
than that prescribed by section 51(1) or (2). The test of gross
disproportionality, on the other hand, must be applied in order
to determine
whether a sentence mandated by law is inconsistent with the offender’s
section 12(1)(e) right. It has not been
suggested that section 51(1) compels
the sentencing court to act inconsistently with the Constitution in any other
way.
[41] Checks and balances constitute an integral part of the
separation of powers principle; they prevent one separate arm of the
state from
becoming too powerful in the exercise of the powers allocated to it. In modern
constitutionalism a most important check
on the legislature in this regard is an
entrenched bill of rights enforceable through an independent judiciary. A bill
of rights
protects individual rights by limiting the power of the legislature.
Once it has been held, as this judgment does, that legislation
in the field of
penal sentencing does not, per se, infringe the separation of powers principle
as between the legislature and the
judiciary, section 51(1) read with section
51(3)(a) does not, on its proper construction, transgress the Bill of Rights
check on
the legislature and therefore does not infringe the separation of
powers principle either.
Section 35(3)(c) of the
Constitution
[42] It is now convenient to deal with the argument that
section 51(1), read with section 51(3)(a) of the Act, is inconsistent with
section 35(3)(c) of the Constitution, which guarantees to every accused person
the right “to a public trial before an ordinary
court”, because a
court, bound by section 51(1), is no longer an “ordinary” court. Mr
Eksteen correctly appreciated
that a consequence of the construction which the
judgment in
Malgas
had placed on section 51(1) read with section 51(3)(a)
of the Act, namely that it did not oblige a High Court to impose a penal
sentence
on a convicted person that was inconsistent with the Constitution,
destroyed the basis of the argument founded on the infringement
of the
separation of powers principle. He accordingly limited, very properly, his oral
argument before us to the attack based on
section 35(3)(c) of the
Constitution.
[43] In the view I take of the matter, the failure of the
separation of powers argument and the conclusion that section 51(1) is
not
inconsistent with the Constitution for any other reason, also has fatal
consequences for this argument. Under section 165 of
the Constitution, the
judicial authority of the Republic is vested in “the
courts”
6
[0]
and their
independence is both established
6
[1]
and expressly protected.
6
[2]
What
such judicial independence comprises was considered in
De Lange v
Smuts
6
[3]
and need not be
repeated here. The High Courts constitute one such category of courts for
purposes of section 165(1) of the
Constitution.
6
[4]
Counsel did not
suggest, nor could it properly have been suggested, that the High Courts, as
actually established and functioning
under the Constitution, in any way lack the
independence or any other attribute required by the Constitution. A High Court
is therefore
self-evidently an “ordinary court” for purposes of
section 35(3)(c) of the Constitution.
[44] The argument is, however,
that the provisions of section 51(1) of the Act have the effect of depriving the
High Courts of their
sentencing powers in such a manner and to such a degree,
that they can no longer rightly be classified as “ordinary”
courts.
This could only be so if section 51(1) has some material effect on their
independence or if it deprives them of some judicial
function of such a nature
that they could no longer properly be classified as ordinary courts.
[45]
( I have great difficulty
in conceiving how this could be so. We were, however, pressed in argument on
this score with the judgment
of the House of Lords in
R v Secretary of State
for the Home Department, Ex Parte
Venables
6
[5]
and the
judgment of the European Court of Human Rights in
T v United
Kingdom
,
6
[6]
which followed on
the
Venables
judgment. Both cases are concerned with clearly
distinguishable issues. In
Venables
it was decided that in fixing a
detention tariff, the Secretary of State was carrying out, contrary to the
constitutional principle
of separation of powers, a classic judicial function
and that, in doing so he ought, like a sentencing judge, not to act contrary
to
the fundamental principles governing the administration of justice. On the
facts it was held that the Secretary of State had
acted contrary to such
principles and his determination was accordingly set
aside.
6
[7]
In
T v
UK
6
[8]
the European Court of
Human Rights held that the Home Secretary, who set the applicant’s
detention tariff, was clearly not
independent of the Executive, and that there
had accordingly been a violation of article 6(1) of the European Convention for
the
protection of Human Rights and Fundamental Freedoms
1953
6
[9]
, which in relevant part
states:
“In the determination of any criminal charge against him ... everyone
shall be entitled to a fair and public hearing by a competent,
independent and
impartial tribunal established by law.”
[46] It was
also contended that section 51(1) was, notwithstanding the provisions of section
51(3)(a), in conflict with article 14
of the International Covenant on Civil and
Political Rights 1966 (ICCPR) and principle 3 of the United Nations Basic
Principles on
the Independence of the Judiciary (UN Basic
Principles).
7
[0]
[47] There is
no merit in counsel’s submissions. The only part of article 14 of the
ICCPR with any conceivable relevance to
the present issue is the provision in
article 14.1 to the effect that –
“... everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established
by
law.”
There is simply no warrant for reading article 14
of the ICCPR in such a way that any legislative provision on sentence,
regardless
of its nature and extent, would render the trial envisaged by the
article unfair or subvert the independent nature of the tribunal
contemplated.
[48] For present purposes, the only relevant principles of
the UN Basic Principles are 2 to 4 which provide:
“2. The judiciary shall decide matters before them impartially, on the
basis of facts and in accordance with the law, without
any restrictions,
improper influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or
for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature
and shall have exclusive authority to decide whether
an issue submitted for its
decision is within its competence as defined by
law.
4. There shall not be any inappropriate or unwarranted interference with the
judicial process, nor shall judicial decisions by the
courts be subject to
revision. This principle is without prejudice to judicial review or to
mitigation or commutation by competent
authorities of sentences imposed by the
judiciary, in accordance with the
law.”
The purpose and effect of these
Basic Principles are to be gathered from the last paragraph of the introductory
preamble where it
is stated that the principles have been formulated
–
“to assist Member States in their task of securing and promoting the
independence of the judiciary [and] should be
taken into account and
respected
by Governments
within the framework of their national
legislation and practice
...”. (emphasis
supplied)
The Basic Principles are nothing more than
guidelines relating, amongst other things, to the independence of judges. They
are intended
to assist member states in securing and promoting such
independence. Such assistance is to take place within the framework of a
state’s national legislation and law. They must be construed within the
universally recognised separation of powers principles
and its concomitant
check-and-balance procedures.
[49] Both the impartiality of the
judiciary and its independence are fully and properly recognised and protected
in the Constitution
by section 165(2), (3) and (4) of the
Constitution.
7
[1]
Principle 2
relates to the impartiality of the judiciary and enumerates conduct which might
impinge on such impartiality. Principle
4 deals with inappropriate or
unwarranted interference with the judicial process. It is has not been suggested
that the Constitution
in any way permits any conduct which would be inconsistent
with Principles 2 or 4. Section 51(1) has in this judgment been found
to be
consistent with the separation of powers principle and an offender’s fair
trial rights. Nothing in its provisions detracts
in any way from judicial
impartiality or constitutes inappropriate or unwarranted interference with the
judicial process under our
Constitution, in a way which could, on any reasonable
construction of their provisions, be incompatible with Principles 2 or 4.
Nor
does section 51 in any way deprive any court contemplated by the Constitution of
its exclusive authority (as against the legislature
or the executive) to decide
whether an issue submitted for its decision is within “its competence as
defined by law”.
[50] No other authority is invoked for the
submission that section 51(1) “impinge[s] upon international standards of
judicial
independence”. None has been cited to this Court and I know of
none. On the contrary, the conclusion reached above that section
51(1) does not
trespass on the separation of powers principle, nor in any way limits an
offender’s fair trial right, is in
accord with the jurisprudence of
leading democracies in the world. There is no other basis for finding that the
application of section
51(1) in any way alters the character of the High Court
or in any way detracts from it being an “ordinary” court as
contemplated
by section 35(3)(c) of the Constitution.
[51] I accordingly
hold that section 51(1) of the Act is not inconsistent with –
51.1 the right of an offender under section 12(1)(e) of the Constitution not to
be “punished in a cruel, inhuman or degrading
way”, or,
51.2 the separation of powers principle under the Constitution, or,
51.3 the right of an accused under section 35(3)(c) “to a public trial
before an ordinary court”.
The
Order
[52] The following order is made:
1. The Court declines to confirm the order made by the Eastern Cape High Court
declaring
section 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
to be
constitutionally invalid.
2. The case is referred back to the Eastern Cape High Court to be dealt with in
accordance with this judgment.
Chaskalson P, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs
J, Yacoob J, Madlanga AJ and Somyalo AJ concur in the
judgment of Ackermann
J.For the applicant : JW Eksteen SC and BL Boswell, at the request of the
Court.
For the respondent : JA van S d’Oliveira SC, J Engelbrecht and T Matzke
on behalf of the National Director of Public Prosecutions.
[1]
In re: Certification of the
Constitution of the Republic of South Africa,
1996
1996 (10) BCLR 1253
(CC);
1996 (4) SA 744
(CC) paras 106-13 and 123.
[2]
Bernstein and Others v
Bester NO and Others
[1996] ZACC 2
;
1996 (4) BCLR 449
(CC);
1996 (2) SA 751
(CC) para
105.
[3]
De Lange v Smuts NO and
Others
[1998] ZACC 6
;
1998 (7) BCLR 779
(CC);
1998 (3) SA 785
(CC) paras 60-1.
[4]
South African Association of
Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) BCLR 77
(CC);
2001 (1)
SA 883
(CC) paras 23-6.
[5]
Above n 3 para 61.
[6]
For example
, S v Mofokeng
and Another
1999 (1) SACR 502
(W) 522i-523c;
S v Segole and Another
1999 (2) SACR 115
(W) 122h-123h;
S v Zitha and Others
1999 (2) SACR 404
(W) 407i-411h;
S v Budaza
1999 (2) SACR 491
(E) 503g-504e;
S v Boer en
Andere
2000 (2) SACR 114
(NC) 121d-122a.
[7]
For example,
S v Shongwe
1999 (2) SACR 220
(O) 223a-224c;
S v Blaauw
1999 (2) SACR 295
(W)
311e-312h;
S v Dithotze
1999 (2) SACR 314
(W) 317h-318h;
S v
Homareda
1999 (2) SACR 319
(W) 325g-326d;
S v Khanjwayo
;
S v
Mihlali
1999 (2) SACR 651
(O) 656f-659c;
S v Montgomery
2000 (2) SACR
318
(N) 324c-e;
S v Madondo
(NPD) Case No: CC 22/99, 30 March 1999,
unreported, 8 of the typescript judgment;
S v Ngubane
(NPD) Case No: CC
31/99, 30 March 1999, unreported, 3-4 of the typescript judgment.
[8]
For example,
S v
Majalefa
(WLD) Case No: 365/98, 22 October 1998, unreported 6 of the
typescript judgment;
S v Mangesi
1999 (2) SACR 570
(E) 586d.
[9]
(SCA) Case No: 117/2000, 19
March 2001, unreported.
1
[0]
Id para 25 of the typescript
judgment.
[1]
1
Section 39(2) of the
Constitution.
1
[2]
No punishment without a law.
Compare Dig. 50.16.131. See also, for example, De Wet en Swanepoel
Die
Suid-Afrikaanse Strafreg
2 ed (Butterworths, Durban 1960) 43-5; Du Toit
Straf in Suid-Afrika
(Juta, Cape Town 1981) xxiv and Burchell et al
South African Criminal Law and Procedures
Volume I: General Principles of
Criminal Law 3 ed (Juta, Cape Town 1997) 28-30; Van Zyl Smit “Sentencing
and Punishment”
in Chaskalson et al (eds)
Constitutional Law of South
Africa
(Juta, Cape Town 1996, revision service 2 1998) 28-2.
1
[3]
Above n 9 para 2.
1
[4]
See
S v Dzukuda and
Others; S v Tshilo
2000(11) BCLR 1252 (CC);
2000 (4) SA 1078
(CC) para
35.
1
[5]
Id.
1
[6]
Above n 1 para 109,
footnotes omitted.
1
[7]
Id para 112, footnotes
omitted.
1
[8]
Above n 3 para 60.
1
[9]
Above n 4 para 24.
2
[0]
Tribe
American
Constitutional Law
Volume One 3 ed (Foundation Press, New York 2000) 127,
footnotes omitted.
2
[1]
Id 128 fn 16.
[2]
2
Id 130.
2
[3]
[1990] ZASCA 38
;
1990 (2) SA 802
(A) 806H-I
(citation omitted).
2
[4]
Id 806J-807A.
2
[5]
Id 807A-C (citation
omitted).
2
[6]
Id 807E-F (citation
omitted).
2
[7]
See, for example,
Minister of the Interior and Another v Harris and Another
1952 (4) SA 769
(A), the so-called
High Court of Parliament
case.
2
[8]
See section 276 of the
CPA.
2
[9]
See section 297 of the
CPA.
3
[0]
Or a provision which was
inconsistent with the right under section 12(1)(a) not to be deprived of freedom
arbitrarily or without
just cause.
3
[1]
Weems v United States
[1910] USSC 127
;
217 US 349
, 378 (1910).
3
[2]
Id 379.
[3]
3
Mistretta v United
States
[1989] USSC 9
;
488 US 361
, 381 (1989) per Blackmun J citing
Buckley v Valeo
424 US 1
, 121 (1976).
3
[4]
Id 364, internal citations
omitted. The historical overview at 364-6, shows that this tripartite division
of sentencing responsibility
has never been disturbed.
3
[5]
Id 365, citing from
United States v Brown
[1965] USSC 129
;
381 US 437
, 443 (1965).
3
[6]
O’Neil v
Vermont
[1892] USSC 112
;
144 US 323
(1892) as quoted with approval in
Weems
above n
31, 371. See also
Robinson v California
[1962] USSC 130
;
370 US 660
, 676 (1962) Douglas J
concurring;
Coker v Georgia
[1977] USSC 151
;
433 US 584
, 592 (1977);
Rummel v
Estelle
[1980] USSC 46
;
445 US 263
, 271-2, 290 (1980);
Solem v Helm
[1983] USSC 155
;
463 US 277
, 288
(1983); and
Harmelin v Michigan
[1991] USSC 120
;
501 US 957
, 996-8, 1009-21 (1991).
3
[7]
Rummel
above n 36,
274;
Hutto v Davis
[1982] USSC 55
;
454 US 370
, 374, 383 (1982).
3
[8]
Above n 36.
3
[9]
Fraudulent use of a credit
card to obtain $80 worth of goods and services, and passing a forged cheque in
the amount of $28.36, respectively.
4
[0]
Obtaining $120.75 by false
pretences.
4
[1]
See
R v Smith
(1987)
34 CCC (3d) 97 and
R v Latimer
2001 SCC 1.
File No.: 26980, 18 January
2001, unreported.
4
[2]
Id para 77, quoting
R v
Guiller
(1985) 48 CR (3d) 226
, 238 (Ontario Dist Ct).
4
[3]
Smith
above n 41
144-6 and
Latimer
id paras 73-4.
[4]
4
Latimer
id para 73
(citations omitted).
4
[5]
Smith
above n 41 139
as confirmed in
Latimer
id para 73-6.
4
[6]
Smith
id 139.
4
[7]
Latimer
above n 41
para 76, quoting
Steele v Mountain Institution
(1990) 2 SCR 1385
,
1417.
4
[8]
Under Australian law, no
violation of the separation of powers doctrine occurs when compulsory minimum
sentences are set by the legislature
leaving little or no discretion to the
sentencing judge. In the leading case,
Palling v Corfield
[1970] HCA 53
;
(1970) 123 CLR
52
, 58-9, it is made clear that prescribing penalties is solely in the
prerogative of the legislature, and no judicial discretion need
be given. See
also
Leask v Commonwealth of Australia
(1996) 140 ALR 1
, 15. In
Wynbyne v Marshall
[1997] NTSC 120
;
(1997) 117 NTR 11
, 26 (Sup Ct of the Northern
Territory) it was assumed that there was a restriction on the ability of the
Legislative Assembly to
pass laws which require courts to impose punishments
which are cruel or unusual, but that there was nothing cruel or unusual in the
requirement, imposed by the legislature, to record a conviction upon a finding
of guilt and impose a mandatory minimum sentence of
the nature dealt with in
that case.
4
[9]
In Germany the independence
of the judiciary and its separation from the other branches is well established
under articles 92 and
97 of the German Basic Law and includes the principle that
“judicial power may be exercised only by judges.” See Currie
“Separation of Powers in the Federal Republic of Germany” in (1993)
41
The American Journal of Comparative Law
201, 249. Article 104(2) of
the Basic Law further states that “only a judge may decide on the
admissibility or continuation
of detention”. Sentencing authority is thus
central to the judicial function. At the same time, the “Special
Part”
of the Strafgesetzbuch (StGB) contains fairly detailed maximum and
minimum sentences for various offences. Thus the crimes of murder
(as defined
in article 211) and genocide (as defined in article 220a) carry mandatory life
sentences. In the case of manslaughter,
which does not constitute murder,
article 212 prescribes a mandatory minimum sentence of five years imprisonment.
Similar mandatory
minimum sentences are prescribed, for example, in certain
circumstances for theft (article 242), fraud (article 263) and receiving
stolen
property (article 259).
5
[0]
Although Indian courts
generally enjoy a wide discretion in imposing sentence, this is “canalised
and guided by law”.
See Kelkar
Criminal Procedure
3 ed (Eastern
Book Company, Lucknow 1993, with supplement), 430. The permissible range of
sentence may be very narrow. For instance,
section 302 of the
Penal Code
provides a minimum of a life sentence and the maximum of the death penalty in
cases of murder. In
Jagmohan Singh v State of Utar Pradesh
(1973) 1 SCC
20
and
Bachan Singh v State of Punjab
(1980) 2 SCC 684
, it was argued,
inter alia, that the lack of legislative guidelines to direct courts in choosing
between the two alternative punishments
in section 302 amounted to an unlawful
delegation of a legislative function to the judiciary. While this argument was
rejected in
both cases, all the justices in the
Bachan Singh
case agreed
that the imposition of standards tailoring the judicial discretion as to
sentence was a legitimate legislative function.
See paras 74-5 and para 77 of
Bhagwati J’s dissent (separately reported at
(1982) 3 SCC 24).
5
[1]
In New Zealand, “[t]he
general discretion of the court in regard to imprisonment is limited somewhat by
various statutory provisions”.
See Hodge
Doyle and Hodge’s
Criminal Procedure in New Zealand
3 ed (The Law Book Company Limited, Sydney
1991) 183. Most notably, the Criminal Justice Act 1985 contains a set of
comprehensive
principles that “govern[ ] sentencing practice in New
Zealand.” See Casey “Sentencing” in Thorndon et al
(eds)
The Laws of New Zealand
Volume 25 (Butterworths, Wellington 1999), para
1. In essence, these principles emphasise the imposition of custodial sentences
for violent crimes, while favouring alternative punishments for non-violent
crimes. See Doyle and Hodge 187. Furthermore, statutes
creating other offences
always specify the maximum sentence and may also contain other legislative
guidelines. Section 172 of the
Crimes Act 1961 prescribes a mandatory life
sentence for murder.
5
[2]
The
Criminal Justice Act 1991 (as amended by the Criminal Justice Act 1993) contains
the most comprehensive attempt to influence
judicial sentencing policy. The Act
steers clear of imposing strict guidelines, but attempts to introduce broad
principles to influence
courts’ choices of sentence. See Henham
Criminal Justice and Sentencing Policy
(Dartmouth, Aldershot 1996) 9-10
and 131. Sections 109-11 of the Powers of Criminal Courts (Sentencing) Act 2000
contains more specific
provisions.
“Section 109 of the Act requires a court to pass a life sentence on an
offender who meets the conditions set out in section
109(1). These are that he
was 18 years or older when he committed the offence for which he is to be
sentenced, that this offence
is a ‘serious offence’ as defined in
subsection (5) committed after September 30, 1997, and that he had been
convicted
of a ‘serious offence’ before he committed the offence for
which he is to be sentenced.”
See Archbold
Criminal Pleading, Evidence and Practice 2001,
(Sweet &
Maxwell, London 2001) 586. Under section 109(2) the court is relieved from
passing the mandatory life sentence only
where it “is of the opinion that
there are
exceptional circumstances
relating to either of the offences or
to the offender which justify its not doing so.” (emphasis supplied)
Section 110 obliges
a court sentencing an offender for a class A drug
trafficking offence to pass a minimum sentence of seven years if the offender is
aged 18 or over and has been convicted on at least two separate occasions of
such an offence. Section 111 mandates a minimum sentence
of three years for a
third domestic burglary conviction. Under sections 110 and 111 the mandatory
sentence can only be avoided where
the court is of the opinion that there are
“particular circumstances which – (a) relate to any of the offences
or to
the offender; and (b)
would make it unjust to do so
in all the
circumstances.” (emphasis
supplied)
5
[3]
S v
Vries
1996 (12) BCLR 1666
(Nm) 1676G and 1702J-1703A.
5
[4]
See, for example, sections
1(a) and 74(1) of the Constitution and Chaskalson “Human Dignity as a
Foundational Value of our
Constitutional Order” (2000) 16
SA Journal of
Human Rights
193.
[5]
5
See, for example, sections
7(1), 36(1), 37(5)(c) and 39(1)(a) of the Constitution.
5
[6]
Above n 41 139-40 per Lamer
J.
5
[7]
S v Makwanyane and
Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC) paras 94, 197 and
352-6.
5
[8]
See
Prinsloo v Van der
Linde and Another
[1997] ZACC 5
;
1997 (6) BCLR 759
(CC);
1997 (3) SA 1012
(CC) para 31.
5
[9]
Above n 9 para 25.
6
[0]
Section 165(1) of the
Constitution.
6
[1]
By section 165(2) of the
Constitution, which declares them to be “independent and subject only to
the Constitution and the
law”.
6
[2]
By subsections
(3) and (4) of section 165 of the Constitution which state:
“(3) No person or organ of state may interfere with the functioning of the
courts.
(4) Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the
courts.”
6
[3]
Above
n 3 paras 69-73.
6
[4]
Section 166(c) of the
Constitution.
6
[5]
[1997] UKHL 25
;
[1998] AC 407
(HL).
[6]
6
(2000) 7 BHRC 659.
6
[7]
Above n 65 at 526.
6
[8]
Above n 66.
6
[9]
Id at paras 108 and 113.
7
[0]
Basic Principles on the
Independence of the Judiciary, Seventh United Nations Congress on the Prevention
of Crime and the Treatment
of Offenders, Milan, 26 August to 6 September 1985,
U.N. Doc. A/CONF.121/22/Rev.1 at 59
(1985).
7
[1]
The subsections
provide:
“(2) The courts are independent and subject only to the Constitution and
the law, which they must apply impartially and without
fear favour or
prejudice.
(3) No person or organ of state may interfere with the functioning of the
courts.
(4) Organs of state through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the
courts.”