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Twenty Years of Constitutional Court Judgments: What Lessons are there about Sentencing?

SS Terblanche*

Pioneer in peer-reviewed, open access online law publications

Author

Stephan S Terblanche

Affiliation

University of South Africa

Email terblss@unisa.ac.za

Date published

5 December 2017

Editor Prof AA du Plessis

How to cite this article

Terblanche SS " Twenty Years of Constitutional Court Judgments: What Lessons are there about Sentencing?" PER / PELJ 2017(20) - DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1499

Copyright

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DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1499

Abstract

This contribution considers the Constitutional Court of South Africa’s judgments regarding aspects of sentencing. It starts with an overview of relevant judgments, before attending in more detail to judgments on the minimum sentences legislation and on sentencing when it affects children. On this foundation, the article then discusses the human rights that are affected by the imposition of sentences on offenders, before attempting to identify what the next instalment of Constitutional Court judgments might bring to the sentencing table.

This article offers a collection and collation of judgments that share one common element, namely that they have something to say about an aspect of sentencing. The value of such an approach is that it provides the first step to answering the following question: The Constitutional Court has been active for 20 years; what do we learn about sentencing from its judgments during this time?

Keywords

Sentencing; criminal sentences in South Africa; cruel, inhuman or degrading punishment; dignity and sentencing; Constitutional Court

……………………………………………………….

1 Introduction

In 2015 it was 20 years since the official opening of the Constitutional Court in South Africa.1 This was a significant milestone in the Court's history. Although not a dominant theme, some of the court's judgments directly influenced sentencing theory and practices. Some of the judgments had a profound influence on the development of constitutional jurisprudence and the new constitutional order.

* Stephan S Terblanche. B Juris (PU for CHE) LLD (Unisa). Professor, Department of Criminal and Procedural Law, UNISA, South Africa. Email: terblss@unisa.ac.za.

1 The opening, by former President Nelson Mandela, took place on 14 February 1995: see Constitutional Court date unknown http://www.constitutionalcourt. org.za/site/thecourt/history.htm; Davis, Marcus and Klaaren 1995 Annual Survey 728.

2 Such contributions are regular features when important courts, such as the Constitutional Court, reach important milestones. See Wilson, Dugard and Clark 2015 SAJHR 472-503; Bronstein 2014 SAJHR 24-40; Petersen 2014 SAJHR 405-429. There are even purer "overviews" of Constitutional Court judgments published regularly, of which Rautenbach 2008 TSAR 330-348 and Rautenbach 2017 TSAR 352-369 are but two examples.

3 S v Makwanyane 1995 2 SACR 1 (CC).

4 S v Williams 1995 2 SACR 251 (CC).

This contribution considers the Constitutional Court's judgments regarding aspects of sentencing. It starts with an overview of relevant judgments, before attending in more detail to judgments on the minimum sentences legislation and on sentencing when it affects children. On this foundation, the article then discusses the human rights that are affected by the imposition of sentences on offenders, before attempting to identify what the next instalment of Constitutional Court judgments might bring to the sentencing table.

It is worth noting what this article is not intended to do. It does not attempt a major discussion of any specific aspect of sentencing, such as minimum sentences or the sentencing of child offenders. It is a collection and collation of judgments that share one common element, namely that they have something to say about an aspect of sentencing. The value of such an approach is that it provides the first step to answering the following question: The Constitutional Court has been active for 20 years; what do we learn about sentencing from its judgments during this time?2

2 Overview of judgments

The Constitutional Court's earliest pronouncements on sentencing considered the constitutionality of a specific kind of sentence. In short succession the Court declared unconstitutional the death penalty, in S v Makwanyane,3 and corporal punishment for juvenile offenders, in S v Williams.4 No other sentence has been declared unconstitutional since this

initial activity. It nearly happened when, in S v Niemand,5 the Court ordered "a remedial reading-in"6 of certain words into the Correctional Services Act 8 of 1959. As a result, declaration as a habitual offender now allows for detention of no more than 15 years.7

5 S v Niemand 2001 2 SACR 654 (CC).

6 See Du Toit et al Commentary 28–24.

7 Release is possible after seven years – see s 73(6)(c) of the Correctional Services Act 111 of 1998; S v Trichart 2014 2 SACR 245 (GSJ) para 20. Before the Niemand judgment it was considered possible for a habitual offender to be held in prison indefinitely – see R v Edwards 1953 3 SA 168 (A); S v Masisi 1996 1 SACR 147 (O) 152d-e.

8 See S v Dzukuda 2000 2 SACR 443 (CC); S v Dodo 2001 1 SACR 594 (CC).

9 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC).

10 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC).

11 It was the first case heard by the Court (see Davis, Marcus and Klaaren 1995 Annual Survey 728), but the judgment was preceded by S v Zuma 1995 1 SACR 568 (CC), dated 5 April 1995.

12 S v Makwanyane 1995 2 SACR 1 (CC).

13 See, eg, Carozza 2003 Tex L Rev 1031-1089; Daniels and Brickhill 2006-2007 Penn St Int'l L Rev 379-381; Roux Politics of Principle 238-248; Van der Walt 2005 SAPL 253-265; Milton et al 1995 SACJ 188-204; Mureinik 1995 Annual Survey 29-33; Terblanche Guide to Sentencing (2) 420-430.

14 S v Williams 1995 2 SACR 251 (CC).

In a following series of judgments,8 the Court considered the constitutionality of the sentences prescribed in the Criminal Law Amendment Act 105 of 1997, the so-called "minimum sentences legislation". The Court declined to declare unconstitutional any of its provisions.

The Constitutional Court has also been quite active with regard to the rights of children. In Centre for Child Law v Minister of Justice9 the Court held that the minimum sentences did not apply to any children. Earlier, in S v M,10 the Court had held that the best interests of the children of a primary caregiver had to be taken seriously when sentencing such caregivers. Both these judgments raised a number of issues pertinent to the treatment of children in general and of child offenders in particular.

3 The earliest judgments

3.1 Introduction

As one of the Court's first judgments,11 S v Makwanyane12 touched on a wide spectrum of constitutional and human rights issues. Given this scope, and the fact that it dealt with a controversial topic, it is unsurprising that the judgment has been subjected to intense scrutiny, both in its immediate aftermath and subsequently, and both locally and internationally.13 S v Williams14 was a companion judgment: both judgments were decided by the

same judges, giving judgment only three days apart.15 The Constitution of the Republic of South Africa 200 of 1993 (hereafter the interim Constitution) made no mention of either the death penalty or corporal punishment and the Court had to consider the complete context of the Bill of Rights in the process of determining the constitutionality of these sentences. In the process it touched upon many topics such as constitutional interpretation in general, the influence of foreign sources, the content and interpretation of various rights and, finally, the limitation clause.16

15 On 6 and 9 June 1995 respectively.

16 Section 33 of the Interim Constitution (now s 36 of the Constitution of the Republic of South Africa, 1996 – hereafter the Constitution).

17 Proc R43 in GG 6175 of 1 May 1998.

18 Section 53(1) of the Act. See Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 4.

19 With the repeal of s 53(1) through the Criminal Law (Sentencing) Amendment Act 38 of 2007.

20 S v Dodo 2001 1 SACR 594 (CC).

21 For Part II-offences.

22 For Part-IV offences.

As others have commented on these judgments in detail, there is little need to add to those discussions here. However, I return to them when discussing the human rights affected by sentencing.

4 Developments since Makwanyane

4.1 Minimum sentences legislation

4.1.1 Minimum sentences legislation

It is convenient to set out briefly the history of the minimum sentences legislation. The Criminal Law Amendment Act 105 of 1997 (hereafter the Act) came into operation in May 1998.17 Before this happened, sentencing was almost exclusively within the discretion of the courts, subject to maxima contained in statutory penalty clauses. The Act introduced minimum sentences for a large number of the more serious crimes. It was originally intended as a temporary measure,18 but has since become permanent.19

The Act applies to adult offenders convicted of any of the offences listed in Schedule 2. This schedule lists a substantial number of offences in four categories (or parts) of roughly descending severity. In terms of section 51(1) of the Act, life imprisonment is prescribed for the offences contained in part I of Schedule 2. Essentially this includes aggravated forms of murder and rape. The constitutionality of section 51(1) was the subject of the judgment in S v Dodo.20 Section 51(2) prescribes minimum sentences for the offences listed in the other parts to Schedule 2, starting at 15 years' imprisonment21 and decreasing to 5 years' imprisonment.22 Increased

minimum sentences apply when the offender has previous convictions.23 Importantly, the sentencing courts are permitted to depart from the prescribed sentences when a reduced sentence is justified by "substantial and compelling circumstances".24

23 The detail of these provisions is discussed in Terblanche Guide to Sentencing (3) 49-91.

24 Section 51(3) of the Act.

25 Section 51(1)(b) of the Act. The legislation never applied to the district magistrates' courts: see Terblanche Guide to Sentencing (3) 65-66.

26 Section 52(2) of the Act.

27 See S v Dzukuda; S v Tilly; S v Tshilo 2000 2 SACR 51 (W) 56g ff and the cases referred to there. Also see O'Donovan and Redpath Impact of Minimum Sentencing 40-45.

28 S v Dzukuda 2000 2 SACR 443 (CC).

29 The trial court in S v Dzukuda; S v Tilly; S v Tshilo 2000 2 SACR 51 (W) held it was unconstitutional.

30 Terblanche Guide to Sentencing (2) 73 (original in-text references have been deleted for the purposes of the present discussion).

31 S v Dzukuda 2000 2 SACR 443 (CC) para 49; also see paras 38, 43 and 55.

Originally, regional courts had the power to impose any of the minimum periods of imprisonment, even if such a sentence exceeded the regional courts' general jurisdiction.25 However, when life imprisonment was prescribed, the case had to be committed for sentencing to a high court.26 The referral process caused severe delays in the finalisation of cases,27 came under heavy criticism for this reason, and resulted in the first consideration of the minimum sentences by the Constitutional Court.

4.1.2 The Constitutional Court and minimum sentences

In S v Dzukuda28 the Court considered whether the referral process was constitutional or not.29 Its findings are contained in the following summary:30

Contrary to the findings in the court a quo, the Constitutional Court found that a sentencing court does not have to be in a position identical to that of the trial court, that there is nothing in section 52 that prevents the High Court from obtaining all the information necessary to enable it to impose sentence, and that any inadequacies in the trial-court record can be corrected by the obtaining of such information in the same way as the sentencing court.

Importantly, the Court stressed31 that no

…provision in s 52, requires a High Court to act in a way which would impinge on an accused's right to a fair trial. It is for the High Court, in each case committed to it under s 52 for sentence, to ensure that the accused receives a fair trial and nothing in the section prevents the High Court from doing so.

With this finding, the Court placed the responsibility of ensuring that the trial remains fair, firmly in the hands of the courts.

In its second judgment on this legislation, S v Dodo,32 the Court was called upon to consider the validity of section 51(1), the provision that prescribes life imprisonment. The judgment followed within a few weeks of the judgment in S v Malgas,33 where the Supreme Court of Appeal considered the minimum sentences legislation in considerable detail, and particularly with respect to the "substantial and compelling circumstances" departure clause.34 Dodo fully endorsed Malgas's interpretation of the words "substantial and compelling circumstances", quoting the summary of the judgment in Malgas35 verbatim and holding this to be "a practical method" of dealing with the minimum sentences.36

32 S v Dodo 2001 1 SACR 594 (CC). The judgment was delivered on 5 April 2001.

33 S v Malgas 2001 1 SACR 469 (SCA), decided on 19 March 2001.

34 Section 51(3) of the Act. The words "substantial and compelling circumstances" have been subjected to a lot of debate (see Kubista 2005 SACJ 77-86; S v PB 2013 2 SACR 533 (SCA) para 21).

35 S v Malgas 2001 1 SACR 469 (SCA) para 25.

36 See S v Dodo 2001 1 SACR 594 (CC) para 11; also para 40 (the Malgas "construction … is undoubtedly correct…").

37 Also see Centre for Child Law v Minister of Justice 2009 2 SACR 477 (CC) paras 17-18.

38 S v Malgas 2001 1 SACR 469 (SCA) para 25D. In other words, not lightly or for "flimsy" reasons.

39 S v Malgas 2001 1 SACR 469 (SCA) para 25I.

40 S v Malgas 2001 1 SACR 469 (SCA) para 25G.

41 S v Dodo 2001 1 SACR 594 (CC) para 40.

The essence of the summary in Malgas is the following:37

  •  Courts should ordinarily impose the prescribed sentences.
  •  The legislature "deliberately left it to the courts" to determine whether circumstances justify departure. All traditionally relevant factors have to be taken into account in this process.
  •  Departure is permissible only when there are "truly convincing reasons" for so departing.38 If the prescribed sentence would be unjust, in being disproportionate to the crime, the offender and the needs of society, "so that an injustice would be done by imposing that sentence",39 the court may depart.
  •  The result will be a "standardised response"40 with consistently more severe sentences.
  • The Court concluded in Dodo41 that section 51(1) was not unconstitutional, as it "does not compel the court to act inconsistently with the Constitution".

    4.1.3 The minimum sentences and separation of powers

    The high court in S v Dodo,42 in finding that section 51(1) was unconstitutional, held that the legislature had gone too far in prescribing the minimum sentences. It found that this provision "undermine[d] the doctrine of separation of powers and the independence of the judiciary"43 and that, especially life imprisonment, "the most severe penalty open to the High Court", is something that "falls within the heartland of the judicial power, and is not to be usurped by the Legislature".44 The Constitutional Court disagreed with this assessment.

    42 S v Dodo 2001 1 SACR 301 (E).

    43 S v Dodo 2001 1 SACR 301 (E) 319j.

    44 S v Dodo 2001 1 SACR 301 (E) 319h-j.

    45 Currie and De Waal Bill of Rights Handbook 18.

    46 S v Dodo 2001 1 SACR 594 (CC) para 23.

    47 S v Dodo 2001 1 SACR 594 (CC) para 22.

    48 S v Dodo 2001 1 SACR 594 (CC) para 26.

    49 Through the Criminal Law (Sentencing) Amendment Act 38 of 2007.

    Stripped to its bare bones, the separation of powers "…requires the functions of government to be classified as either legislative, executive or judicial and requires each function to be performed by separate branches of government".45 The Constitutional Court accepted that the legislature has a legitimate interest in the nature and severity of sentences in South Africa.46 After all, the legislature has always been involved in creating offences and prescribing the sentences for such offences.47 With the prescription of minimum sentences, because of the departure clause, the legislature had not forced the courts to act in violation of the Constitution, as noted above.

    However, there are limits to what the legislature can prescribe with respect to sentences. The imposition of an appropriate sentence in a specific instance on an individual offender, the Constitutional Court explained, is undoubtedly the domain of the judicial power:48

    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 … Bill of Rights.

    4.1.4 Amendment of the legislation and subsequent judgments

    In an attempt to alleviate some of the criticism of the Act, the legislature amended it in 2007.49 Arguably, the most dramatic amendment was to give regional courts the power to impose life imprisonment when it was

    prescribed by section 51(1). Some of the other amendments include the following:

  •  The legislation became permanent, as the amendment removed the renewal requirement.
  •  The position of children of 16 and 17 years old was changed. This amendment is discussed below.
  • These amendments mean that the Act is now substantially different from the legislation considered constitutional in Dodo. There is little reason, therefore, to accept that Dodo is the Constitutional Court's final word on the constitutionality of the Act.

    4.2 Children and sentencing

    4.2.1 Introduction

    The inclusion in the Constitution of specific rights for children opened a new chapter in the development of children's rights, both generally and specifically when children intersect with the criminal justice system.50 In particular the Constitution establishes the best-interests-of-the-child principle,51 as well as the principles that imprisonment should be a last resort and, when imposed as a last resort, should be for the shortest appropriate term.52

    50 S v Kwalase 2000 2 SACR 135 (C) 139g-i. Also see, for a summary of the new chapter, Brandt v S 2005 2 All SA 1 (SCA) para 20; and S v Nkosi 2002 1 SACR 135 (W) 147f-i. Also see S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 12 ff; the Preamble to the Child Justice Act 75 of 2008; Gallinetti "Child Justice in South Africa" 639-640.

    51 Section 28(2) of the Constitution. For an overview of the large number of sources on this standard, with some connection to the sentencing of children, see Terblanche 2012 PELJ 442-445.

    52 Section 28(1)(g) of the Constitution.

    53 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 26.

    54 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) paras 26-28.

    The essence of the new chapter is that children are different from adults.53 They are different for the following reasons, highlighted in Centre for Child Law v Minister of Justice:54

  •  Physical vulnerability: Children's bodies are "generally frailer", leaving them less "able to protect themselves" and more in need of protection; they are "less resourceful in self-maintenance".
  •  Psychological vulnerability: Children are more easily influenced and pressured by others; "their ability to make choices [is] generally more
  • constricted"; their "as yet unformed character" leaves then more prone to impulsive decisions.
  •  They have a greater capaity for rehabilitation.
  • Specifically relevant to sentencing, the crux of the matter is the following:55

    55 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 28.

    56 Terblanche 2005 SACJ (2) 389. For an overview of such cases, see Terblanche 2005 SACJ (1) 112-113.

    57 Brandt v S 2005 2 All SA 1 (SCA) paras 9-12 [also reported as S v B 2006 1 SACR 311 (SCA)]. For a discussion, see Sloth-Nielsen 2005 Stell LR 98-103.

    58 Brandt v S 2005 2 All SA 1 (SCA) paras 14-15.

    59 Brandt v S 2005 2 All SA 1 (SCA) para 11.

    60 It was the "express object" of the amendment to "reverse" the Brandt decision: see Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) paras 6, 22, 53, 58.

    61 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC).

    We recognise that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.

    4.2.2 Children and minimum sentences

    When the Criminal Law Amendment Act 105 of 1997 was originally passed, the minimum sentences appeared also to apply to children aged 16 and 17 years at the time of the offence. The main (only) difference was that section 51(3)(b) required the court to record its reasons for applying the minimum sentences to such a child. This provision was "the object of a remarkable range of judgments".56 However, in Brandt v S57 the Supreme Court of Appeal settled the matter. It held that child offenders had to be treated differently to adult offenders for all the reasons noted above.58 This different treatment clearly includes the minimum sentences. As a result, when sentencing child offenders a court should start "with a clean slate" and not with the benchmarks that apply to adult offenders.59

    One of the amendments sought by the Criminal Law (Sentencing) Amendment Act 38 of 2007 was to reinstate the minimum sentences for child offenders aged 16 and 17.60 This amendment, the Constitutional Court held in Centre for Child Law v Minister of Justice,61 was unconstitutional. This judgment can be summarised as follows:

  •  The rights contained in section 28 of the Constitution (including the paramountcy of the child's best interests and the right not to be
  • detained except as a last resort and then for the shortest appropriate period of time) have to be obeyed by Parliament.62
  •  The Constitution sharply distinguishes children from adults, and for good reasons.63
  •  Children who commit heinous crimes may be imprisoned and imprisonment remains possible under the best-interests standard.64
  •  Detention "must be a last, not a first, or even intermediate, resort".65 Section 28(1)(g) requires individualised sentences – not the "rigid starting point that minimum sentencing entails".66 The legislation prescribed life imprisonment as the point of departure – a sentence that "is very far from the approach to sentencing that the Bill of Rights demands for children".67
  •  The limitations to the rights in section 28 were not justified.68
  • 62 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 25.

    63 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) paras 26-28.

    64 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 29.

    65 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 31.

    66 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 32.

    67 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 41.

    68 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 60.

    69 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 63.

    The Court summarised its finding with the following:69

    Legislation cannot take away the right of 16 and 17 year olds to be detained only as a last resort, and for the shortest appropriate period of time, without reasons being provided that specifically relate to this group and explain the need to change the constitutional disposition applying to them.

    The court's remedy was to amend section 51(6) so that the minimum sentences legislation does not apply to anybody under the age of 18.

    4.2.3 Sentencing of primary caregivers

    In S v M70 Sachs J posed the following question: When the offender who stands to be sentenced is the primary caregiver of a child,71

    70 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC). See Skelton 2008 CCR 351-368; Mujuzi 2011 SACJ (1) 164-177; Gallinetti 2010 SAPL 108-123; Erasmus 2010 SAPL 124-136.

    71 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 11.

    72 See S v Zinn 1969 2 SA 537 (A) 540G-H.

    73 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 36(a).

    74 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 28.

    75 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) paras 15 and 16. According to Skelton 2008 CCR 351, 358-359, 360-363 the court gave more attention to the best interests' principle in this case than it did in any other previous case.

    76 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 26.

    77 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 33. For a useful summary of this judgment, see S v GL 2010 2 SACR 488 (WCC) para 18.

    78 S v Zinn 1969 2 SA 537 (A) 540G-H; see Rautenbach 2008 TSAR 341.

    … does the new constitutional order require a fresh approach to sentencing? More particularly, does s 28 of the Constitution add an extra element to the responsibilities of a sentencing court over and above those imposed by the Zinn triad, and if so, how should these responsibilities be fulfilled?

    The reference to the Zinn triad72 indicated that the Court would consider the general principles of sentencing. In effect, the Court found them to be acceptable from a constitutional perspective.

    When it appears or is alleged that the offender in a specific case is taking care of a child, the obvious first issue is to determine whether the offender is a "primary caregiver".73 The Court explained that74

    a primary caregiver is the person with whom the child lives and who performs everyday tasks like ensuring that the child is fed and looked after and that the child attends school regularly.

    The Court then concluded, considering its own jurisprudence on the best-interests-of-the-child standard,75 that it is a right that can be limited, particularly with regard to its relationship with other rights.76 How then, should a sentencing court give the best interests of the child their rightful place when sentencing a child's caregiver? In answering this question,77 the court advised that it should be "a standard preoccupation" of sentencing courts to find a balance among all the different interests involved. If necessary, sentencers need to change their current mind-set, because the children need focussed attention whenever their interests arise during the sentencing process. However, the general approach that courts are expected to take when determining an appropriate sentence remains the approach established in Zinn, namely that the sentence is determined with reference to "the triad consisting of the crime, the offender and the interests of society".78 When the offender is a primary caregiver of any children these

    general principles should be applied in accordance with the following "guidelines":

  • a) If the general approach ("the Zinn-triad approach") indicates that "the appropriate sentence is clearly custodial", the court must ensure that the children are cared for, through some alternative means.79
  • b) If a non-custodial sentence is "clearly" appropriate, the court must take into account the interests of the children when determining the detail of such a sentence.80
  • c) If the appropriate sentence is not clearly either custodial or non-custodial, then the best interests of the children standard becomes an important guiding principle in determining the sentence to impose.81
  • 79 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 36(c).

    80 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 36(d).

    81 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 36(e).

    82 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 39.

    83 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 36.

    84 S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 52. See also Cowling 2007 Annual Survey 356.

    85 See MS v S (Centre for Child Law as Amicus Curiae) 2011 2 SACR 88 (CC) para 62; also Skelton 2008 CCR 358.

    In terms of these guidelines, therefore, the interests of the children become an independent sentencing factor only when the application of the triad of Zinn does not clearly indicate whether the appropriate sentence is either custodial or non-custodial.82 Sachs J also believed that these guidelines would "promote uniformity of principle, consistency of treatment and individualisation of outcome".83

    The Court followed this theoretical assessment with a practical determination of the appropriate sentence in this case. It considered the aggravating features: that M was a repeat offender who deliberately defrauded different retailers with a third party's credit card, over a period of time, with greed as the motive.84 The Court then confirmed the sentence of four years' imprisonment, but suspended 45 months thereof, in the process ensuring M's immediate release. In addition, it imposed three years' correctional supervision, including conditions such as that M had to perform community service, repay the victims, and undergo regular counselling.

    The judgment prompted many positive responses. One such response was that85

    S v M has revolutionised sentencing in cases where the person convicted is the primary caregiver of young children. It has reasserted the central role of the interests of young children as an independent consideration in the sentencing process.

    In practice the belief of Sachs J that the guidelines would promote consistency was probably too optimistic. Sometimes these guidelines have simply been ignored.86 In other cases the sentencing court decided that imprisonment was unavoidable because of the seriousness of the crime.87

    86 See S v Pillay 2011 2 SACR 409 (SCA); S v Londe 2011 1 SACR 377 (ECG); S v Mthethwa 2015 1 SACR 609 (GP).

    87 Eg, S v Langa 2010 2 SACR 289 (KZP) para 11 (the crimes included murder and kidnapping).

    88 MS v S (Centre for Child Law as Amicus Curiae) 2011 2 SACR 88 (CC) para 7.

    89 See the minority judgment (Khampepe J) para 47: "… the only conspicuous difference between M and Mrs S [MS] is that Mrs S is married to an almost absent father, whereas M was not married to any of the absent fathers of her children". See also Mujuzi 2011 SACJ (2) 402; Terblanche 2011 Annual Survey 1194.

    90 S v Makwanyane 1995 2 SACR 1 (CC).

    91 In S v Niemand 2001 2 SACR 654 (CC) fn 21 the Court noted equivalent terminology in international documents, such as art 7 of the International Covenant on Civil and Political Rights and art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

    92 Some of the reasons for the change are detailed by Bishop and Woolman "Freedom and Security" 40-1-40-5, but none of them relate to sentencing.

    This is also one of the rare instances where the Court found it necessary, within a few years only, to provide further guidance through a similar case. In MS v S88 the Court imposed a very different sentence from that imposed in S v M, based on the facts of the case. It is really not clear what these distinguishing facts were.89

    4.2.4 Conclusion

    With these judgments the Constitutional Court brought some clarity to the sentencing of child offenders, with a heavy emphasis on the need to treat child offenders differently from adults and for courts to take the best interests of children seriously. Much room remain for these considerations to make an impact on sentencing practices in our child justice courts.

    5 Important human rights connected to sentencing

    The focus of this contribution now needs to shift to the connection between sentencing and specific human rights. Two of the provisions of the Bill of Rights, which were also considered in S v Makwanyane,90 are of particular importance to sentencing in general. These are the prohibition against cruel, inhuman or degrading punishment, and the right to dignity.

    5.1 Cruel, inhuman or degrading punishment

    Section 11(2) of the Interim Constitution prohibited "cruel, inhuman or degrading treatment or punishment".91 The wording of the Constitution is slightly different,92 in that section 12 first establishes the right to freedom and security of the person, and then includes, within this right, the "right not

    to be treated or punished in a cruel, inhuman or degrading way".93 The question is whether these changes make any material difference. As is indicated in what follows, the answer is almost certainly in the negative.

    93 Section 12(1)(e) of the Constitution.

    94 It is clear that the restriction of freedom means the "restriction of physical movement", and that imprisonment "always constitutes a 'deprivation' [of freedom] for the purpose of FC s 12(1)(a)": Bishop and Woolman "Freedom and Security" 40-32. Also see De Lange v Smuts 1998 3 SA 785 (CC) para 28: any "restriction of physical movement'" is covered.

    95 S v Niemand 2001 2 SACR 654 (CC) para 20.

    96 S v Williams 1995 2 SACR 251 (CC).

    97 Meaning "in the alternative" – see Oxford South African Concise Dictionary.

    98 S v Williams 1995 2 SACR 251 (CC) para 20. Also see Mahomed J in S v Makwanyane 1995 2 SACR 1 (CC) para 276; S v Dodo 2001 1 SACR 594 (CC) para 35; Ex parte Attorney-General, Namibia: In Re Corporal Punishment 1991 3 SA 76 (NmSC) 86.

    99 See Bishop and Woolman "Freedom and Security" 40-66.

    100 S v Dodo 2001 1 SACR 594 (CC) para 35. The Makwanyane court also did not distinguish the concepts – Chaskalson P (S v Makwanyane 1995 2 SACR 1 (CC)

    5.1.1 Freedom

    Despite freedom’s being the broader right protected by section 12(1) of the Constitution, the Constitutional Court has not really deliberated on this right in its assessment of what amounts to cruel, inhuman or degrading punishment. Freedom clearly is important in the realm of sentencing, because any form of detention inevitably infringes upon the right to be free.94 Infringement upon the right to freedom is easily justified when such infringement follows the commission of a crime. However, such justification should be subject to the principles that apply to any limitation of rights, as discussed below. This scrutiny has been absent from our courts' discussions of section 12.

    5.1.2 Cruel, inhuman, degrading

    5.1.2.1 General

    The Constitutional Court itself noted that the wording of the provisions in the interim Constitution and the Constitution prohibiting cruel, inhuman or degrading treatment or punishment is essentially the same.95 One consequence of this concession is that judgments on the Interim Constitution remain valid despite the slightly different wording of the final Constitution. Thus, in S v Williams,96 the Court held that the prohibition should be read "disjunctively",97 involving the following seven "modes of conduct": "torture; cruel treatment; inhuman treatment; degrading treatment; cruel punishment; inhuman punishment and degrading punishment".98 Our courts have not yet considered it necessary to distinguish between cruel, inhuman, and degrading.99 The Constitutional Court thought that a clear separation would be hard.100

    para 95) concluded that the death penalty was cruel, inhuman and degrading punishment; also see Mahomed J paras 277-281. Also see Milton et al 1995 SACJ 195-197.

    101 S v Dodo 2001 1 SACR 594 (CC). For a summary, see Currie and De Waal Bill of Rights Handbook 284-285.

    102 See para 5.2.

    103 S v Dodo 2001 1 SACR 594 (CC) para 37. The Court also noted the connection in S v Makwanyane 1995 2 SACR 1 (CC) para 94, that proportionality is "an ingredient" of the cruel, inhuman or degrading enquiry.

    104 S v Dodo 2001 1 SACR 594 (CC) para 37.

    105 S v Zinn 1969 2 SA 537 (A) 540G-H.

    106 This language resembles that used in SALC Sentencing clause 2, regarding the main proposals for the reform of sentencing in South Africa.

    The Court gave its most detailed discussion of the prohibition against cruel, inhuman or degrading punishment in S v Dodo.101 In particular, it linked the prohibited punishment to two constitutional principles, namely those of proportionality and of dignity. Since dignity is itself a constitutional right, it is discussed below,102 while proportionality is considered next.

    5.1.2.2 Proportionality

    The importance of proportionality within the current enquiry is explained as follows in S v Dodo:103

    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.

    Why would proportionality go "to the heart of the inquiry"? The logic runs as follows.104 In terms of section 12(1)(a) of the Constitution a person may "not to be deprived of freedom ... without just cause". When a crime is committed, it provides the "just cause" to deprive the offender of his freedom. However, not every crime justifies the deprivation of liberty. This happens only when such deprivation is "reasonably necessary to curb the offence and punish the offender", having regard to all the personal and other factors "which could have a bearing on the seriousness of the offence and the culpability of the offender". This means that "the length of punishment must be proportionate to the offence".

    This explanation in Dodo can be seen as a statement of the constitutional proportionality requirement for sentencing. Since it directly refers to the seriousness of the crime and the culpability of the offender, the question arises whether it is fundamentally different from the trite sentencing principles established in S v Zinn.105 Notable differences include that Dodo does not refer explicitly to the interests of society, and that the personal "and other" circumstances appear to be limited to those with a "bearing on the seriousness of the offence and the culpability of the offender".106 Focussing on the "seriousness of the crime" (Dodo) is certainly more specific than just "the crime" (Zinn), as is "the culpability of the offender" when compared with

    just "the offender". So far, there has been little recognition that Dodo might contain a restatement of the trite sentencing principles.

    5.1.2.3 Gross disproportionality and the position in the USA and Canada

    Although S v Dodo107 noted that "the length of punishment must be proportionate to the offence", it also noted that "mere disproportionality" would not violate the right not to be subjected to cruel, inhuman or degrading punishment. This could happen only when there is "gross disproportionality".108

    107 S v Dodo 2001 1 SACR 594 (CC) para 37.

    108 S v Dodo 2001 1 SACR 594 (CC) para 39. Also Bishop and Woolman "Freedom and Security" 40-71.

    109 "Gross" in this sense is probably best equated with "blatant" – see Oxford South African Dictionary vide "Gross".

    110 S v Dodo 2001 1 SACR 594 (CC) paras 28-31.

    111 R v Latimer 2001 SCC 1 para 76.

    112 S v Dodo 2001 1 SACR 594 (CC) para 31.

    113 S v Dodo 2001 1 SACR 594 (CC) para 30.

    114 S v Dodo 2001 1 SACR 594 (CC) para 39.

    115 As noted in S v Dodo 2001 1 SACR 594 (CC) para 31.

    When, or against which standards, would disproportionality become "gross"? 109 Dodo found useful guidance to the answer from judgments by the United States of America (USA) and Canadian supreme courts. Some of these judgments were attended to in some detail in Ackermann J's discussion of the separation of powers.110 The Court referred, inter alia, to R v Latimer,111 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)".112 This stringent and demanding test amounts to the following:113

    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’.

    Dodo also includes several examples of cases in which the North American courts have held the prescribed sentences not to be grossly disproportionate. Here, however, Ackermann J noted that none of these references should be understood as "agreement … with the application of the gross disproportionality test to the legislation or facts in such decision".114 This is an important qualification, as the approaches followed in one country might give a totally foreign outcome to "standards of decency" in another.115

    The gross proportionality standards in the USA and Canada are neither simple, nor equal in practical application, nor fixed in time. Much has been

    written about these standards. What follows is a brief overview of the current position.

    The Eighth Amendment to the United States Constitution outlaws "cruel and unusual punishment".116 The grossly disproportionate standard has been deduced from this Amendment. However, apart from some death penalty judgments,117 the sentence prescribed in legislation has been declared invalid for violating the Eighth Amendment in only one example. This happened in Solem v Helm,118 where life imprisonment without the possibility of parole for a seventh nonviolent felony119 was declared unconstitutional.

    116 US Const amend VIII.

    117 See Gregg v Georgia 428 US 153 (1976). Also see Roper v Simmons 543 US 551 (2005) (death penalty for children declared unconstitutional); Atkins v Virginia 536 US 304 (2002) (death penalty for mentally ill offenders declared unconstitutional).

    118 Solem v Helm 463 US 277 (1983).

    119 "Felony" is an Anglo-American term for more serious crimes where, very generally speaking, imprisonment without the option of a fine is a permissible sentence.

    120 Brennan 2004 J Crim L & Criminology 554-558.

    121 Rummel v Estelle 445 US 263 (1980) 274-75.

    122 Harmelin v Michigan 501 US 957 (1991).

    123 Ewing v California 538 US 11 (2003) – see 32. Also see Kurki "International Standards for Sentencing" 364: "In California, any felony counts as the third strike because only the first two convictions need to be from a list of more serious offenses … Thus a minor theft or marijuana possession may result in a life sentence" (with parole after 25 years).

    Otherwise, the US Supreme Court has consistently held that prescribed sentences are not sufficiently disproportionate.120 The following cases are all examples where the Court was not prepared to interfere with the prescribed sentences:

  •  In Rummel v Estelle121 the defendant was sentenced to life imprisonment (with the possibility of parole after 12 years), for his third felony conviction. All his convictions were for economic offences, involving amounts between $28 and $121.
  •  Harmelin v Michigan122 involved possession of 672 grams of cocaine, only a little more than the 650 grams limit above which life imprisonment without the possibility of parole was prescribed.
  •  California's "Three Strikes and You're Out Laws" were considered in Ewing v California:123 In accordance with this legislation, the trial court imposed life imprisonment (without parole for the first 25 years) for the theft of golf clubs worth $1 200.
  • Most of these sentences are more severe than the severest sentence that can be imposed in South Africa for the gravest crimes.

    These sentences are also very different from the position in Canada. It used to be rare for the Canadian Supreme Court to declare "mandatory minimum sentences" unconstitutional. However, the Court has done so in the two recent cases of R v Nur124 and R v Lloyd.125

    124 R v Nur 2015 1 SCR 773.

    125 R v Lloyd 2016 1 SCC 130.

    126 R v Nur 2015 1 SCR 773 para 77.

    127 R v Lloyd 2016 1 SCC 130 para 22.

    128 R v Lloyd 2016 1 SCC 130 para 35.

    129 See Tonry "Punishment Policies" 15 (US punishment policies are harsher than those of other countries), 21 (a large number of mandatory penalties are found only in the USA); Tonry and Hatlestad Sentencing Reform 249: "The severity of criminal penalties in the United States in the 1990s is unprecedented in American history and unequalled in any Western country in this century."

    In Lloyd the Court declared unconstitutional a provision prescribing a minimum sentence of one year's imprisonment for "trafficking or possession for the purpose of trafficking" of certain drugs, if the offender had had another drug conviction within the previous ten years. It is worth repeating that the prescribed sentence found to be unconstitutional was a sentence of one year's imprisonment. The Court's finding was based on the principle established in Nur126 that a law violates the prohibition against cruel and unusual punishment if (1) "it imposes a grossly disproportionate sentence on the individual before the court", or (2) it "will impose grossly disproportionate sentences on others" when "reasonably foreseeable applications" are considered.127 In other words, the Court considered not only the facts of the case before it but also the proportionality of the minimum sentence in other scenarios that could reasonably be foreseen. The Court added that,128

    … mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge.

    The final words apply to South African minimum sentences too.

    To conclude this discussion: Although the same words are used to determine the constitutionality of prescribed sentences in the USA and Canada, the practice is so different that these words are almost meaningless. In particular, when comparisons are made with the sentences imposed in the USA, it is important to realise that punishment in the USA tends to be much harsher than in most other countries with a constitutional dispensation.129

    5.1.3 In conclusion: cruel, inhuman or degrading punishment

    Many questions remain about proportionality and sentencing, and it remains unknown how the Constitutional Court will apply the grossly disproportionate standard. Given the increasingly long sentences that tend

    to be imposed by our courts and required by the legislature, these questions might well have to be answered in the not too distant future.

    5.2 Dignity

    Dignity is ensconced in the Constitution where it declares that "Everyone has inherent dignity and the right to have their dignity respected and protected."130 It is barely possible to overstate its importance.131 From the many examples that could be quoted, the Constitutional Court noted in Mayelane v Ngwenyama132 that the right to dignity is "the most important of all human rights, and the source of all other personal rights". In relation to criminal law, dignity has been described as a "foundational value", being at the foundation of rights such as freedom and physical integrity.133 Dignity is also closely related to the prohibition against cruel, inhuman and degrading punishment. Ackermann J wrote in S v Dodo134 that "the impairment of human dignity … must be involved in all three" of these adjectives.135 Specifically on the proportionality between the crime and the sentence, Ackermann J continued that not to consider such proportionality would be "… to ignore, if not to deny, that which lies at the very heart of human dignity".136

    130 Section 10 of the Constitution.

    131 This is true even of S v Makwanyane 1995 2 SACR 1 (CC) where dignity played a secondary role in the court's decision (see Kende 2006 Geo Wash Int'l L Rev 223; Freedman 1995 SACJ 197-202). Most of the judges in Makwanyane stressed the value of human dignity and the right thereto: see Chaskalson P para 10; Mahomed J para 271; Mokgoro J para 309; Sachs J para 346; Langa J para 216; O'Regan J para 328, stating that dignity cannot be overemphasised. Also see Ex parte Minister of Safety and Security: In re S v Walters 2002 2 SACR 105 (CC) para 5, following the words "…a thread that ran through all [the considerations noted in Makwanyane] was the great store our Constitution puts on the two interrelated rights to life and to dignity".

    132 Mayelane v Ngwenyama 2013 8 BCLR 918 (CC) para 68, quoting S v Makwanyane 1995 2 SACR 1 (CC) para 144.

    133 See Hoctor 2004 SALJ 306.

    134 S v Dodo 2001 1 SACR 594 (CC) para 35.

    135 Ferreira and Steyn 2006 SAPL 109 argues that, logically, a sentence considered cruel, inhuman or degrading will also violate the right to dignity.

    136 S v Dodo 2001 1 SACR 594 (CC) para 38. Also see below, in connection with longer prison sentences.

    137 Also see Ferreira and Steyn 2006 SAPL 97 (the fundamental rights of an offender are clearly limited by the imposition of a sentence).

    It is submitted that the imposition of any sentence tends to impact the dignity of the person punished.137 If this submission is debatable, it is at least clear that, logically, the prohibition against "degrading" punishment is inseparable from the right to have even offenders' dignity protected and respected.

    Dignity gains prominence with any long sentence.138 Long prison sentences are often justified by their supposed deterrent effect.139 In S v Dodo140 the Court warned that, when "the length of a sentence … bears no relation to the gravity of the offence", because of an attempt to add a deterrent effect, "… the offender is being used essentially as a means to another end and the offender's dignity assailed". In contrast, dignity reminds us that human beings have "inherent and infinite worth" and cannot be used "as means to an end".141

    138 See Ferreira and Steyn 2006 SAPL 100-101.

    139 See para 5.3.4 below.

    140 S v Dodo 2001 1 SACR 594 (CC) para 38. For a similar warning, if in a somewhat different context, see S v Williams 1995 3 SA 632 (CC) para 85.

    141 The principle that no human being should ever be treated as a mere object is also known as the "Kantian" view of dignity – see Ackermann Human Dignity 100-101.

    142 See Mellon 2009 SACJ 341-342.

    143 Section 36 of the Constitution.

    144 Section 33 of the Interim Constitution.

    145 S v Makwanyane 1995 2 SACR 1 (CC) para 104. Also see Ferreira and Steyn 2006 SAPL 102-104.

    Exemplary sentences are, therefore, constitutionally problematic.142 While it is clear that sentences cannot just be increased for their supposed deterrent effect, as if there were no constitutional consequences, it remains an open question in our law where the line should be drawn or where the tipping point would be reached.

    5.3 Limitation clause

    5.3.1 Overview and application to sentencing

    It is already trite that the infringement upon a right is only part of the constitutional issue, as it also needs to be established whether such a limitation might not be constitutionally acceptable. Legislation prescribing a sentence might infringe upon rights such as dignity and the prohibition against cruel, inhuman or degrading punishment, but such an infringement will not be unconstitutional if proven to be justified. This two-stage approach is required by the limitation clause in the Constitution143 (and was required in the preceding interim Constitution).144

    One of the most frequently cited dicta about the way in which courts should approach limitations comes from S v Makwanyane.145 Its essence can be summarised as follows:

  •  Constitutional rights may be limited for purposes that would be reasonable and necessary in "an open and democratic society based on freedom and equality".
  •  There are no fixed standards, and the courts are required to determine the issue of limitation on a case by case basis.
  •  In the course of this determination the requirement of proportionality, "which calls for the balancing of different interests", is central.146
  • 146 For more detail on the balancing of interests, see para 5.3.2 below.

    147 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 51. The quote is from Richter v Minister for Home Affairs 2009 3 SA 615 (CC) para 71.

    148 S v Makwanyane 1995 2 SACR 1 (CC) para 104. Also see Ferreira and Steyn 2006 SAPL 106-107.

    149 Barrie 2013 SAPL 54.

    150 Ferreira and Steyn 2006 SAPL 107.

    151 Barrie 2013 SAPL 54.

    152 See para 5.1.2.2 above.

    Given the topic of sentencing, it is useful to quote one more summary of what is at stake, from Centre of Child Law v Minister of Justice:147

    In determining whether a limitation is reasonable and justifiable within the meaning of s 36 of the Constitution, 'it is necessary to weigh the extent of the limitation of the right, on the one hand, with the purpose, importance and effect of the infringing provision on the other, taking into account the availability of less restrictive means to achieve this purpose'.

    5.3.2 The balancing requirement of proportionality

    As noted above, the limitation assessment involves a proportionality requirement, which requires a balancing of various relevant considerations. According to Makwanyane148 this process includes

    … the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.

    The sentencing of offenders lends itself well to the notion of more or less damaging measures. In Barrie's assessment, the court in Makwanyane "saw the effects of the death penalty as too drastic and saw life imprisonment as a less restrictive means which would achieve the same purpose".149 More generally, the "less restrictive means to achieve the purpose" requirement means that "a less restrictive but equally effective form of punishment" must be imposed, if available in a specific case,150 because "a law which invades rights more than is necessary to achieve its purpose is disproportionate".151

    It is clear that the "proportionality" noted in the limitations assessment is substantially different from the "proportionality" required between the crime and the sentence.152 The risk when using the same term for different concepts is that clarity is easily lost. Interestingly, and perhaps ironically, the Constitutional Court has not addressed this issue, nor has it really been called upon to do so. Roughly half of the cases discussed in this contribution

    did not involve the second phase, as no infringement was found to have occurred.153 Apart from S v Dodo,154 proportionality as a sentencing requirement has not been considered in detail in any other case, with the result that the Court has so far been able to avoid the need to carefully address both forms of proportionality in one case.155

    153 See S v Dzukuda 2000 2 SACR 443 (CC); S v Dodo 2001 1 SACR 594 (CC); S v Niemand 2001 2 SACR 654 (CC).

    154 See para 5.1.2.2 above.

    155 In S v Makwanyane 1995 2 SACR 1 (CC) Chaskalson P dealt with proportionality only as a test for limiting violation of the rights (paras 104-109, 132); see also O'Regan J para 339; Sachs J paras 348-357.

    156 Life and dignity are "values of the highest order" and an infringement can only be justified given "a clear and convincing case" (S v Makwanyane 1995 2 SACR 1 (CC) para 111 Chaskalson P) or, the infringement must be "manifestly reasonable" (para 210 Kriegler J).

    157 S v Makwanyane 1995 2 SACR 1 (CC) para 145.

    158 S v Williams 1995 2 SACR 251 (CC).

    159 S v Williams 1995 2 SACR 251 (CC) paras 61-64.

    160 S v Williams 1995 2 SACR 251 (CC) paras 66-75.

    161 S v Williams 1995 2 SACR 251 (CC) paras 80-84.

    162 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC).

    163 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 53.

    5.3.3 Practical examples of the limitation clause regarding sentencing

    In Makwanyane and Williams it was clear that rights were violated, including important rights such as life and dignity.156 The respondent in Makwanyane offered as justification the fact that public opinion supported the death penalty, as well as all the purposes of punishment. These purposes of punishment include retribution, deterrence and incapacitation. However, the respondent could not provide sufficient data to satisfy the court that these reasons could justify the retention of the death penalty, especially given the availability of life imprisonment as "a severe alternative punishment", compared to the "destruction of life and dignity" involved in the death penalty.157

    Similar arguments were offered in S v Williams.158 The state argued that corporal punishment was justified, on the one hand, as a practical solution to the limited alternative options and shortage of resources and, on the other hand, as a deterrent.159 The court rejected these arguments. First, it showed that significant alternative measures existed,160 and found that the state failed to show that the deterrent effect of corporal punishment was significantly stronger than the deterrent effect of these other measures.161

    In Centre for Child Law v Minister of Justice162 the government argued that the minimum sentences legislation needed to apply to 16 and 17 year olds because of the harm caused by their crimes, which would be offset by these sentences.163 Again the government was unsuccessful, as it could offer no

    facts to support these arguments.164 It was finally rejected since "high crime levels and well-justified public anger do not provide justification for a legislative intervention overriding a specific protection in the Bill of Rights".165

    164 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 54.

    165 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 60.

    166 Ferreira and Steyn 2006 SAPL 108.

    167 Section 1 of the Canadian Charter of Rights and Freedoms.

    168 See Currie and De Waal Bill of Rights Handbook 152 (the Canadian Charter is the "principal model for the South African Bill of Rights").

    169 R v Lloyd 2016 1 SCC 130 – see para 5.1.2.3 above for a discussion of this case.

    170 R v Lloyd 2016 1 SCC 130 para 49.

    These findings induce us to ask whether there could ever be a justification for a law that amounts to cruel, inhuman or degrading punishment. The view of Ferreira and Steyn166 that "cruel, inhuman or degrading punishment of necessity constitutes an unreasonable and unjustifiable limitation of the fundamental rights of the offender in terms of section 36" might well prove to be correct.

    In terms of the Canadian Charter of Rights and Freedoms a violation of its rights can also be justified.167 Given the guidance that the Constitutional Court has already obtained from Canadian cases in determining the constitutionality of South African legislation,168 it is useful to consider how the Canadian Supreme Court has dealt with the current issue. In R v Lloyd169 it held as follows, before declaring unconstitutional a sentence of one year's imprisonment for dealing in certain drugs: although combatting drug dealing is an important objective, and although there is a rational connection between this objective and the prescribed sentence, the170

    … Crown has not established that less harmful means to achieve Parliament's objective of combatting the distribution of illicit drugs, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available. Nor has it shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law.

    Even though the minimum sentence was one of only one year's imprisonment, and the crime quite serious, the Court still required of the state to show that the legislative measures would be functional.

    5.3.4 The limitation clause: conclusion

    The Constitutional Court is yet to find a sentencing provision that violates human rights to be constitutionally justified.

    6 Future developments related to sentencing

    6.1 Introduction

    The discussion above highlights certain areas that have either not received any attention, or insufficient attention, from the Constitutional Court. These can be summarised as follows:

  •  The right to freedom of the person, as the foundation of the prohibition against cruel, inhuman or degrading punishment, needs to be incorporated into discussions of the constitutionality of longer prison sentences.
  •  An explicit discussion of the relationship between the principles for a proportionate sentence, as formulated in S v Dodo,171 and the traditional triad of elements that determine an appropriate sentence, as phrased in S v Zinn,172 would add a lot of value to the Court's sentencing jurisprudence.
  •  Further development is still possible in connection with the meaning of "cruel, inhuman or degrading". Such further development might well show that the words "cruel" and "inhuman" are virtual synonyms, but that "degrading" is substantively different. After all, the connection between degrading punishment and the concept of dignity is immediately apparent, whereas this is not necessarily the case with cruel and inhuman punishment.
  •  The "gross disproportionality standard" and its connection with North American laws need further clarification. Until this has been done, the grossly disproportionate standard is not useful for South African purposes.
  •  Uncertainty remains as to whether a sentence that violates the prohibition against cruel, inhuman or degrading punishment could then be justified in terms of the limitations clause.
  • 171 S v Dodo 2001 1 SACR 594 (CC) para 37.

    172 S v Zinn 1969 2 SA 537 (A) 540G-H.

    It is submitted that the minimum sentences legislation is the closest to being unconstitutional of any statutorily regulated aspect of sentencing and, therefore, a probable candidate for a next constitutional challenge. Several of the above-mentioned areas needing clarification would require attention in determining the continued constitutionality of this legislation.

    6.2 Minimum sentences legislation

    Since the constitutionality of this legislation has already been considered in S v Dodo,173 one first needs to establish why a reconsideration might be on the cards.

    173 S v Dodo 2001 1 SACR 594 (CC).

    174 See Van Zyl Smit "Sentencing" 49-14 (it is not a "relatively short-term response" any longer); also Terblanche Guide to Sentencing (3) 91.

    175 Cf S v Malgas 2001 1 SACR 469 (SCA) para 7 (due weight should be given to this fact).

    176 Terblanche Guide to Sentencing (3) 51.

    177 See para 4.1.4.

    178 See, on the selection and appointment of judicial officers, Hoexter and Olivier Judiciary in South Africa 123-141 (judges), 325-328 (magistrates).

    6.2.1 The legislation has been amended

    The first point is that the current minimum sentences legislation is not the same as that considered by Dodo. As noted in paragraph 4.1.4 above, following the amendment in 2007 it now contains several further troublesome elements. The following two are possibly the most troublesome of these.

    6.2.1.1 No longer temporary

    Van Zyl Smit174 argued that the mere fact that the legislation is not temporary any longer would justify a reconsideration on its constitutionality. This argument carries considerable weight. Several judgments noted the poor legislative language used in the legislation, but also noted the temporary, "emergency", nature of the measures.175 Because of this factor, it is conceivable that they treated the legislation with more patience than they would have done otherwise.176

    6.2.1.2 Life imprisonment and the regional courts

    Regional courts now have the power to impose life imprisonment when prescribed for the crimes listed in Part I of Schedule 2.177 This means that regional magistrates have far greater powers for these crimes, because they are limited to 15 years' imprisonment for all other crimes. Why should this be the case? This raises the further question why higher courts (with presiding judges) normally have a higher punitive jurisdiction than lower courts (with presiding magistrates). Logically speaking, the most obvious answer is that greater power is justified by greater experience and knowledge. The appointment of judges is preceded by more careful scrutiny, during a more involved process, than is the case with magistrates.178 Why then do regional magistrates get the same powers as judges, just for some of the offences covered by the minimum sentences legislation?

    Pragmatism appears to be the only answer. With the minimum sentences in place, there are now so many cases requiring life imprisonment that high courts cannot cope with the workload.179 If this is so, then some offenders are being sentenced to the maximum sentence available to courts in South Africa by judicial officers who are potentially less competent than others, a situation that could violate the rights to equality and to a fair trial. It should be noted here that pragmatism does not have a good success rate as a justification for the violation of human rights.180

    179 See De Kock "Minimum Sentences" 33-37.

    180 See R v Lloyd 2016 1 SCR 130, as discussed in para 5.1.2.3 above.

    181 That there are increases when previous convictions are present (s 51(2) of the Act) does not change the position that in essence the legislation imposes only these four sentences.

    182 See Scurry Baehr 2008 Yale J L & Feminism 226; Van der Merwe 2013 SACJ 411.

    183 S v Malgas 2001 1 SACR 469 (SCA) para 8; S v Mabuza 2009 2 SACR 435 (SCA) para 20 ("benchmark"); S v Tuswa 2013 2 SACR 269 (KZP) para 63 ("starting point").

    184 See S v Vilakazi 2009 1 SACR 552 (SCA) para 13: "What is striking about that regime is the absence of any gradation between ten years' imprisonment and life imprisonment. The minimum sentence of ten years' imprisonment progresses immediately to the maximum sentence that our law allows once any of the aggravating features is present, irrespective of how many of those features are present, irrespective of the degree in which the feature is present, and irrespective of whether the convicted person is a first or repeat offender."

    185 See S v Maake 2011 1 SACR 263 (SCA) paras 19-20; S v Mathebula 2012 1 SACR 374 (SCA) para 10.

    186 See S v S 1995 1 SACR 267 (A) 272g-h; S v Jimenez 2003 1 SACR 507 (SCA) para 6; S v M (Centre for Child Law as Amicus Curiae) 2007 2 SACR 539 (CC) para 94.

    6.2.2 Looking beyond the prescribed life imprisonment

    Dodo considered only the validity of section 51(1), prescribing life imprisonment. It did not consider the other provisions, and it did not consider the logic of the legislation internally – in other words, it did not consider how the severity of the prescribed sentences relates to the objective gravity of the different offences in comparison with one another.

    The point is that the minimum sentences legislation contains just four sentences for a broad array of the most serious crimes that can be committed in terms of our criminal law: imprisonment for life, for 15 years, 10 years and 5 years.181 It also contains several inexplicable inconsistencies, with the sentencing "cliffs" for rape a particularly notable example:182 when accompanied by one of the aggravating features noted in Part I of Schedule 1, the sentence is life imprisonment; without such a feature, the point of departure183 is a minimum sentence of 10 years' imprisonment.184 Courts follow a rather different approach when sentencing. They have to carefully individualise their sentences by considering all the factors relevant to the matter, in particular those mitigating or aggravating the crime and those that affect the culpability of the offender.185 To this end courts are endowed with a wide discretion, because every case is unique186 and the sentence has to cater for each important unique feature of the

    case.187 The resultant sentences also typically show that crime seriousness is properly reflected, not in a graph of four bars, but in a line that starts close to zero and smoothly rises to cater for even small increases in gravity. When the sentencing discretion is left with the courts, they impose sentences, for example in the case of murder, ranging from "detention until the rising of the court"188 through correctional supervision189 and totally suspended sentences, to imprisonment of every imaginable duration up to life imprisonment.

    187 See S v PB 2013 2 SACR 533 (SCA) para 18, inter alia noting that "… no two cases present exactly the same factual matrix".

    188 S v Hartmann 1975 3 SA 532 (C) 536-537.

    189 S v Potgieter 1994 1 SACR 61 (A); S v Ingram 1995 1 SACR 1 (A).

    190 Terblanche Guide to Sentencing (3) 162.

    191 See S v Maake 2011 1 SACR 263 (SCA) paras 19-24 (original in-text references have been deleted for purposes of the present discussion).

    192 See R v Majerero 1948 3 SA 1032 (A) 1033; R v Van der Walt 1952 4 SA 382 (A) 383; R v Huebsch 1953 2 SA 561 (A) 565.

    193 S v Maake 2011 1 SACR 263 (SCA) para 22.

    194 S v Immelman 1978 3 SA 726 (A) 729B–D.

    The courts also have to explain why they impose a specific sentence, and how they decided on the duration of the sentence. This requirement "has long been recognised", and is demanded by the interests of justice,190 as explained by the Supreme Court of Appeal in S v Maake:191

    It is not only a salutary practice, but obligatory for judicial officers to provide reasons to substantiate conclusions. … In an article …, ['Writing a Judgment' (1998) SALJ 115 at 116–128] former Chief Justice MM Corbett pointed out that this general rule applies to both civil and criminal cases. [20] When a matter is taken on appeal, a court of appeal has a similar interest in knowing why a judicial officer who heard the matter made the order which he did. Broader considerations come into play. It is in the interests of the open and proper administration of justice that courts state publicly the reasons for their decisions. A statement of reasons gives some assurance that the court gave due consideration to the matter and did not act arbitrarily. This is important in the maintenance of public confidence in the administration of justice. [21] Before the matter was dealt with statutorily the same general rule of practice applied in criminal matters, both in regard to conviction and sentence.

    The court then referred to several cases in which the importance of a judgment is stressed as being "clearly in the interest of justice".192 Specifically with respect to sentencing, the court quoted with clear approval193 the following from S v Immelman:194

    It seems to me that, with regard to the sentence of the Court in cases where the trial Judge enjoys a discretion, a statement of the reasons which move him to impose the sentence which he does also serves the interests of justice. The absence of such reasons may operate unfairly, as against both the accused person and the State. [Otherwise] … there may be no indication … on what factual basis the Court approached the question of sentence.

    Maake closed this aspect by noting that legislation requires both "superior" and magistrates' courts to give reasons for their decisions about the law or the facts.195

    195 S v Maake 2011 1 SACR 263 (SCA) paras 24, 25 (s 146 of the Criminal Procedure Act 51 of 1977 and s 93(3)(c), (d) and (e) of the Magistrates' Courts Act 32 of 1944 respectively).

    196 Scurry Baehr 2008 Yale J L & Feminism 239.

    197 Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) paras 16, 45: "…the very essence [of] the minimum sentencing regime makes for tougher and longer sentences… As this court noted in Dodo, the very object of the regime is to 'ensure that consistently heavier sentences are impose'." (See S v Dodo 2001 1 SACR 594 (CC) para 11). Also see S v Mabunda 2013 2 SACR 161 (SCA) para 4; S v RO 2010 2 SACR 248 (SCA) paras 40-41; Scurry Baehr 2008 Yale J L & Feminism 224, quoting the Minister of Justice's prediction that the minimum sentences would reduce crime.

    198 See Kubista 2005 SACJ 79; O'Donovan and Redpath Impact of Minimum Sentencing 13. This view is often deduced from the statement in S v Malgas 2001 1 SACR 469 (SCA) para 8 that, "In short, the Legislature aimed at ensuring a severe, standardised, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response". Also see S v Brown 2015 1 SACR 211 (SCA) para 118.

    199 Terblanche Guide to Sentencing (3) 91; O'Donovan and Redpath Impact of Minimum Sentencing 51-57.

    None of these considerations are satisfied when legislation prescribes sentences without giving reasons and without any explanation for the periods of imprisonment it prescribes.

    Although the Constitutional Court considered the separation of powers in Dodo and concluded that parliament has an interest in the nature and duration of sentences that are imposed, it did not consider the arguments advanced above. In particular, it did not consider the inequality that results from the status quo, where the legislation imposed terms of imprisonment without any explanation or justification, while courts imposing sentence have to explain every fine detail thereof; nor the fact that the interests of justice inevitably suffer in the absence of such an explanation. The interests of justice also suffer because of the high benchmarks in the minimum sentences legislation. As noted by Scurry Baehr,196 instead of using the language of aggravation to increase the sentence for serious instances of these crimes, the high starting points force the courts to employ the language of mitigation to get to a lower (proportional) sentence.

    Even when the minimum sentences are found to violate certain rights, the justification of such infringements will have to be considered as well. Given the relative harshness of the prescribed sentences, combined with the temporary nature of the legislation, it has generally been agreed that it is the main aim of the Act to combat crime; in other words, to serve as a deterrent.197 Recently it appears as if sentencing consistency is also considered an important objective,198 although this view is, at best, debatable.199 There is a massive body of research on the deterrent effect of

    severe punishment200 which, if proof existed that heavier punishment improved deterrence, should have provided ample authority to such claims. That it has proven virtually impossible to find such proof is a strong indication that it does not exist.201

    200 See Terblanche Guide to Sentencing (3) 172-173 for a summary of some of this body of research.

    201 Also see Lenta 2007 SAPL 385-404.

    7 Concluding remarks

    It is appropriate to return to the question posed in the introduction to this contribution. What do we learn about sentencing from the Constitutional Court's judgments of the past 20 years?

    Ironically, there is less to be learnt than one might have thought. This is probably due to the fact that, when it comes to constitutional development, 20 years is actually a brief period. There is room for clarification of many sentencing aspects, but probably none more so than the question about the point at which the legislative authority should hand over the sentencing reigns to the judicial authority. How and when this will happen, only time can tell.

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    List of Abbreviations

    Annual Survey

    Annual Survey of South African Law

    CCR

    Constitutional Court Review

    Geo Wash Int'l L Rev

    George Washington International Law Review

    J Crim L & Criminology

    Journal of Criminal Law and Criminology

    PELJ

    Potchefstroom Electronic Law Journal

    Penn St Int'l L Rev

    Penn State International Law Review

    SACJ

    Southern African Journal of Criminal Justice

    SAJHR

    South African Journal of Human Rights

    SALC

    South African Law Commission

    SALJ

    South African Law Journal

    SAPL

    South African Journal of Public Law

    Stell LR

    Stellenbosch Law Review

    Tex L Rev

    Texas Law Review

    TSAR

    Tydskrif vir Suid-Afrikaanse Reg

    US Const amend

    United States Constution Amendment

    Yale J L & Feminism

    Yale Journal of Law and Feminism

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