13 March 2007
The Governance and Administration Cabinet Committee today approved the
introduction of the Criminal Law (sentencing) Amendment Bill and also pending
the passing of the Bill by Parliament, that the operation of sections 51 and 52
of the Criminal Law Amendment Act, 1997 should be extended for a further two
years.
Sections 51 and 52 of the Criminal Law Amendment Act, 1997, also known as
the minimum sentences legislation, make provision for the imposition of minimum
sentences in respect of serious offences. The Act also provides that these
provisions will lapse unless they are renewed, for periods of two years at a
time, by the President with the concurrence of Parliament. The provisions were
last extended on 1 May 2005.
When the minimum sentences provisions were first enacted, stakeholders in
the legal fraternity were divided on the constitutionality thereof, some
arguing that the prescriptive nature thereof constituted an unwarranted
interference with the judicial function of sentencing. However, the
Constitutional Court on two occasions as well as the Supreme Court of Appeal
held that the provisions are consistent with the Constitution and in line with
the Executive's and the Legislature's interest and mandate, as far as
sentencing is concerned.
Notwithstanding the fact that there can be no doubt about the
constitutionality of this legislation, there are certain practical difficulties
involved in the application thereof, most notably the fact that cases often
have to be transferred from the Regional courts to the High courts for
sentencing, leading to delays and sometimes duplication as well as the fact
that vulnerable victims are often required to repeat their testimony which
could be seen as a form of secondary victimisation.
The department has therefore, following deliberations with stakeholders,
developed proposals aimed at eliminating the procedural delays and secondary
victimisation of witnesses. These proposals are contained in the draft Criminal
Law (Sentencing) Amendment Bill, which, if approved by Cabinet, will be
introduced into Parliament shortly.
In particular, it aims to expedite the finalisation of serious criminal
cases, especially of a violent nature, to punish offenders of serious offences
appropriately and to provide for the removal of secondary victimisation of
complainants. This will mostly be achieved by granting jurisdiction to the
Regional courts to impose life sentences in cases where this is prescribed. It
will clearly not be possible to introduce the amendment Bill and to enact the
amending legislation before 1 May 2007, which is the date when this legislation
will lapse unless it is extended.
I have therefore, in the meanwhile, requested the Speaker of the National
Assembly and the Chairperson of the National Council of Provinces, to consider
the extension of the minimum sentences legislation for a further period of two
years.
In the light of the Constitutional Court's judgments with regard to the
constitutionality of this legislation, it is appropriate to retain these
provisions as a substitute for a formal and more comprehensive sentencing
framework until such time as new legislation providing for a comprehensive
sentencing framework is passed.
Enquiries:
Zolile Nqayi
Tel: 021 467 1714
Cell: 082 898 6483
Fax: 012 467 1732
E-mail: znqayi@justice.gov.za
Issued by: Department of Justice and Constitutional Development
30 June 2007
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)
