Mandatory Sentences in South Africa: Lessons for Australia?
| Author | Geraldine Mackenzie,Stephan Terblanche |
| DOI | 10.1375/acri.41.3.3402 |
| Published date | 01 December 2008 |
| Date | 01 December 2008 |
402 THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 41 NUMBER 3 2008 PP. 402–420
Address for correspondence: Professor Stephan Terblanche, Department of Criminal and
Procedural Law, P O Box 392 UNISA 0003. E-mail: terblss@unisa.ac.za
Mandatory Sentences in South Africa:
Lessons for Australia?
Stephan Terblanche
University of South Africa
Geraldine Mackenzie
Bond University, Australia
Many of the most serious crimes that can be committed in South
Africa are, since 1998, subject to mandatory minimum sentences
prescribed in legislation. This legislation was originally introduced as a
short-term measure, yet has now become a permanent fixture. This
article looks critically at the mandatory sentencing legislation in South
Africa, drawing comparisons with similar legislation in Australia. It also
examines some of the consequences of such legislation not properly
foreseen in South Africa, in particular the escalation in the prison popula-
tion. In taking an internationally comparative approach, this article
contributes to the contemporary debate on mandatory sentencing.
Mandatory sentencing in a strict sense refers to the fixing by the legislature of a set
penalty for a particular criminal offence (Roche, 1999). Mandatory penalties in this
sense have a long history, and it has only been since the nineteenth century that
sentencers have been given a wide discretion (Roche, 1999; Warner, 2007).
However, in a wider sense, the term ‘mandatory sentencing’ refers to the situation
where the legislature sets a minimum and maximum sentence for an offence
(Warner, 2007). Hence the common use of the term mandatory minimum sentenc-
ing, which is the usage mainly referred to here.
This article examines some of the consequences for the criminal justice system
of the introduction of mandatory minimum sentences in South Africa. These
changes were made in 1998 through the Criminal Law Amendment Act 1997
(hereafter referred to as ‘the Act’). Australia has also experienced mandatory
minimum sentencing laws, the most notorious of which were in the Northern
Territory and Western Australia in the 1990s.
There are different approaches to the critique of mandatory sentencing schemes,
for example, mandatory sentencing has been opposed on a number of grounds,
including the abuse of human rights (Cunneen, 2002; Winge, 2002); breaches of
international covenants, for example, the International Covenant on Civil and
Political Rights (Pritchard, 2001); the disproportionate effect on certain racial and
socioeconomic groups (Johnson & Zdenkowski, 2000; Sheldon & Gowans, 2000);
and compromises to judicial independence (Mason, 2001).
Our intention with this contribution is to compare the more significant manda-
tory minimum sentences schemes in Australia and South Africa and to consider, in
particular, what lessons may be learned for the criminal justice systems in other
jurisdictions from the scheme presently implemented in South Africa. This article
makes an important contribution to the literature by taking a legal comparative
approach; it also adds to existing knowledge by pointing out the consequences for
the criminal justice system of mandatory minimum sentencing.
Background:The South African Criminal Justice System
The main historical source of South Africa’s law of procedure is English law, as is
the case in Australia. However, whereas Australia is governed on a federal basis,
South Africa is largely a unitary state with strong centralised governmental power.
Although Currie (Currie & De Waal, 2001, p. 132) notes that the Constitution of the
Republic of South Africa 1996 provides for a system of ‘cooperative federalism’, the
African National Congress (ANC) as governing party has control at almost every
governmental level. The South African criminal justice system characterises this
centrality, as it applies with basically no regional differences throughout the
country.1The highest trial courts are the High Courts, which are distributed in the
main centres. At the next level are the regional courts, also distributed throughout
the country. They are presided over by regional magistrates, who normally have the
power to impose sentences of up to 15 years’ imprisonment for every charge of
which the accused person may have been convicted (s 92 of the Magistrates’ Courts
Act 1944). At the lowest level is found the district magistrates court, normally
empowered to impose a still substantial 3 years’ imprisonment for every charge.
These ordinary sentencing powers are affected when a particular statute explicitly
provides for higher or lower powers. The judges in the High Courts basically have
an unlimited sentence jurisdiction, but in practice are limited to life imprisonment.
The High Courts are also appellate courts for convictions and sentences in the
lower courts. The highest appellate court, in nonconstitutional matters, is the
Supreme Court of Appeal. The final court of appeal is the Constitutional Court, the
highest court in cases giving rise to constitutional issues (for the structure and juris-
diction of the criminal courts, see Joubert, 2008, pp. 30–40; Kriegler & Kruger 2002,
pp. 290–297).
In Australia, all states and territories now have legislative guidance (to various
degrees) governing the sentence discretion,2although some sentencing legislative
regimes are more comprehensive than others. In South Africa, beyond the minimum
sentences legislation, there is little legislative guidance but substantial appellate
control (South African Law Commission, 2000a). In the past, the mantra that the
sentence discretion belongs to the trial court and that it should not be fettered was
uppermost (Du Toit, 1981). Recently, appellate control of sentences has even
increased. In a number of judgments over the last 5 years or so, the Supreme Court of
Appeal has become more specific, requiring that sentences previously imposed in
similar matters be used as guidance when imposing sentence (S v Jimenez, 2003;
S v Xaba, 2005).
403
MANDATORY SENTENCES IN SOUTH AFRICA
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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