Mandatory Sentences: A Conundrum for the New South Africa?

• NCJ Number: 183336
• Journal: Punishment and Society Volume: 2 Issue: 2 Dated: April 2000 Pages: 197-212
• Author(s): Dirk van Zyl Smit
• Date Published: April 2000
• Length: 16 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: This is a revised version of an article read at the Sentencing and Society Conference, Glasgow, July 24-26, 1999.

Annotation

In late 1997 the first South African Parliament elected by universal suffrage unanimously passed legislation (the Criminal Law Amendment Act) that provided minimum sentences for specified offenses; this article examines some issues surrounding the mandates and implementation of this legislation.

Abstract

Specifically, this article focuses on the context in which the Criminal Law Amendment Act emerged, the process leading to its enactment, and its interpretation by the courts. The transition to majority rule in South Africa and the period immediately thereafter were times in which there was probably some overall increase in crime rates in South Africa and certainly a dramatic increase in perceptions that crime was a major national problem. "Reasonable" critics of government policy toward crime called for action to make sentencing more certain and severe without returning to the death penalty. One trend in thinking was to ensure that harsh sentences were imposed by reducing judicial discretion in sentencing. From the beginning of 1997 onward, the government gave indications that it was thinking of introducing mandatory minimum sentences for certain categories of serious crime. Once such mandatory minimum sentences were enacted, the question was whether the judiciary would attempt to limit the impact of the act by interpreting it strictly. This would allow them to take advantage of provisions for departures from minimum sentences if "substantial and compelling circumstances" exist. An analysis of particular judicial decisions that have dispensed sentences less than the minimum for particular crimes shows that the public attitude is such that judges are heavily criticized for such departures, as supporters of minimum sentences charge that judges are "soft on crime." Such charges may lead to further restrictions in judicial discretion in sentencing. 12 notes, 47 references, a list of 15 cited cases, and a list of 8 cited statutes