The Minister of Justice is going to lend me her speech so that I can finish it for her.
Hon members, the Bill before us is an amendment to the Criminal Law Act on minimum sentences which was passed in 1997. That Act put in place a regime of minimum sentences for certain serious offences which the Constitutional Court has correctly described as discretionary. This is so because a judicial officer, upon finding substantial and compelling circumstances, may deviate from the minimum sentences set down in the legislation.
Up to now, this House has not guided the courts in any way as to the precise meaning of the phrase "substantial and compelling". As members, we will know that the 1997 Act, which the Minister has already alluded to, was not necessarily well received by some members of the judiciary and the legal fraternity. In not one but two Constitutional Court cases that court found the legislation entirely constitutional. In one of those cases, State v Dodo, Justice Ackermann quoted, with approval, the first certification judgment, where the court said:
The separation of powers anticipates the necessary or unavoidable intrusion of one branch on the terrain of the other. No constitutional scheme can reflect a complete separation of powers. The scheme is always one of partial separation.
However, notwithstanding these and other definitive judgments, including the superb judgment alluded to by the Minister in State v Malgas, where the court detailed the finer aspects relating to the application of "substantial and compelling", disdain for this legislation in some quarters has persisted. This is particularly true in rape cases.
Members are familiar with the case of State v Abrahams where the courts held that the accused, who had raped his 14-year-old daughter, was not a threat to society as a whole, and this was, in itself, a mitigating factor. Although the Appeal Court in that case found that the judge had misdirected himself, tendencies along this line of reasoning persist in our courts.
In State v Mahomotsa, the accused, who was 23 years old, raped a girl under the age of 16 after brandishing a firearm. He was arrested and, while awaiting trial, he raped another girl under 16, threatening to stab her with a knife. In both cases, he raped these girls more than once. I now want to quote from the judgment delivered so that members can see for themselves the kinds of attitudes that prevail in regard to rape cases. The judge says and I quote:
Although there was intercourse ...
note "intercourse" -
... with each complainant more than once, this was the result of the virility of a young man still at school who had intercourse with other school pupils against their wishes ...
and notes -
... school pupils who had previously been sexually active. Where one is dealing with school pupils and where, in addition, it appears that the two girls concerned had already had intercourse before, one really shouldn't lose perspective, especially not in relation to the first count, which dealt with a complainant who had, in any event, been naughty a few days earlier, and had intercourse with somebody else.
The injustice which she suffered in this case does not demand an unusually severe punishment.
There are many examples of clearly inappropriate and often sexist pronouncements emanating from some quarters in our judiciary.
Lest we are too quick to conclude that these attitudes vest only in male judges, I would refer members to the appeal of Nkomo v the State where it was left to Acting Justice of Appeal Theron, in a dissenting judgment, to restore to the victim a measure of dignity.
In this case, the victim was held hostage all night by the perpetrator. She was forced to remain naked for the entire period. She was physically assaulted to overcome her resistance to performing oral sex on the perpetrator. She was raped on four occasions. In her desperation to escape, she jumped from the second floor of a building despite the potential danger to her life and notwithstanding the unanimous finding by the court, "It is difficult to imagine a rape under much worse conditions", Justice Lewis of that court found that because there was no serious injury, and the victim's wounds were superficial, the perpetrator was young - he happened to be 29 years old - and there was a prospect of rehabilitation, the maximum sentence was not then pronounced.
Arising from these and other very sadly indicting tendencies in some of our courts, we have veered into the terrain of the absolute discretion of the courts in deciding what does and what does not constitute "substantial and compelling circumstances". We now propose the following factors will not in future be able to be considered "substantial and compelling circumstances" so as to attract a lesser sentence for the accused.
These factors are, firstly, the victim's sexual history; secondly, the apparent lack of physical injury to the victim; thirdly, the accused's cultural or religious values regarding rape; and, fourthly, any previous relationship between the accused and the victim.
Previously - coming now to the issue of jurisdiction - after convicting accused persons for crimes listed in Part 1, which are the most serious crimes, our regional courts stopped proceedings and referred such cases to the High Court for sentencing, owing mainly to a lack of statutory jurisdiction to pass the sentence of life imprisonment. Apart from the administrative delay caused in transferring a case from one court to the other, some High Courts refused to simply sentence the accused based on the record of the proceedings in the lower court, and insisted on rehearing evidence. This often led to secondary trauma for victims, particularly in rape cases when a woman or a child victim had to give evidence not once, but twice before our courts.
This two-tier process is now being removed, with the necessary jurisdiction being conferred on the regional court to pass life-imprisonment sentences. Where a person is sentenced to life imprisonment in a regional court, an automatic right to appeal will attach. At the same time, we now require the National Prosecuting Authority to clearly stipulate a policy on prosecuting the most serious crimes in the High Court as the court of first instance. We intend by this measure that, as far as possible, most serious crimes will be prosecuted in the High Courts and not in the regional courts, as has been the practice up to now. This is to reassert the role of dominus litus in respect of the National Prosecuting Authority.
Lastly and finally, the committee has added the ritual murder of people or the so-called "witch killings" to Part 1 of the schedule to the Act. In this regard, while all premeditated murders are already in this category, it was thought to abide by the request of the Premier of Limpopo to deal harshly with crimes of this nature so as to send a strong message that muti murders or witch killings, the victims of which are largely women and children, are cowardly crimes which will be dealt with extremely harshly by the state in all its manifestations. I thank you for your attention, hon members. [Applause.]