Deputy Speaker, colleagues, hon members, ladies and gentlemen, I stand before this House to call on all members in this House to support this Bill. I will now give you the rationale.
The Criminal Law Amendment Act of 1997, which came into operation on 1 May 1998, dealt with the abolition of the death penalty and created a legal regime of discretionary minimum sentences in respect of certain serious offences. During the Second Reading debate on the Criminal Law Amendment Bill, on 6 November 1997, our beloved late Minister of Justice, Dullah Omar, described the introduction of discretionary minimum sentences for certain serious crimes as an important matter for our country and in the fight against crime in particular.
Discretionary minimum sentences are only provided for in respect of a small number of serious and defined offences. In each case the presiding judicial officer has the discretion to impose a lesser sentence than the prescribed minimum sentence, if he or she is satisfied that substantial and compelling circumstances exist which justify the imposition of such a lesser sentence.
The offences to which discretionary minimum sentences are applicable are listed in schedule 2 of the Act. These offences are categorised in terms of their degree of seriousness. For instance, Part 1, which carries potential life imprisonment, comprises murder with aggravated circumstances, as well as many instances of rape such as gang rape and rape of a minor. 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 discretionary minimum sentences provisions were extended on 1 May 2007 for a further period of two years in order to allow Parliament time to consider and pass the Criminal Law (Sentencing) Amendment Bill. The Bill proposes the repeal of the provision in terms of which the minimum sentences provisions shall lapse after two years, and it will therefore not be necessary in future to follow this procedure.
When the minimum sentences provisions were first debated and even once they were enacted, stakeholders in the legal fraternity were divided on their constitutionality. Some argued that their prescriptive nature constituted an unwarranted interference in the judicial function of sentencing. The late Minister Omar, in summarising the main arguments in favour of the introduction of minimum sentences during the Second Reading debate of 1997 referred to earlier, stated the following in this regard:
In terms of the proposed legislation, the courts are granted discretion to deviate from the prescribed minimum sentences. The introduction of minimum sentences could therefore not be regarded in this Bill as being interference with the independence of the judiciary.
In deciding challenges brought against the minimum sentences legislation in the years following this enactment, the Constitutional Court, on two occasions, as well as the Supreme Court of Appeal held that the provisions were indeed consistent with the Constitution and in line with the executive's and the legislature's interest and mandate as far as sentencing was concerned.
In State v Dzukuda of 2000, the Constitutional Court dismissed allegations that section 52 of the Act infringed on an accused's right to a fair trial in terms of section 35 of the Constitution.
A year later, in State v Dodo of 2001, the Constitutional Court had to deal with an application from the High Court for confirmation of a declaration of constitutional invalidity of section 51(1) of the Act. The High Court declared the section in question to be constitutionally invalid, because it was inconsistent with section 35(3)(c) of the Constitution and was also inconsistent with the separation of powers required by the Constitution.
The Constitutional Court, in interpreting the words "substantial and compelling circumstances" in section 51(3) of the Ac, endorsed the step-by- step sentencing procedure set out in State v Malgas by the Supreme Court of Appeal. The Court held in this regard that this interpretation of the SCA 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.
It is therefore necessary to briefly highlight some of the main points made in the Malgas case. Section 51 has not eliminated the courts' discretion in imposing a sentence in respect of offences referred to in Part 1 of Schedule 2. Courts are required to approach the imposition of sentence conscious of the fact that the legislature has ordained life imprisonment as the sentence that should ordinarily and in the absence of weightier justification be imposed for the listed crimes in the specified circumstances. [Time expired.] [Applause.]