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18 S. Afr. J. Crim. Just. 77 (2005)
Substantial and Compelling Circumstances: Sentencing of Rapists under the Mandatory Minimum Sentencing Scheme

handle is hein.journals/soafcrimj18 and id is 83 raw text is: 'Substantial and compelling circumstances': Sentencing of rapists under the mandatory minimum sentencing scheme NICOLE J KUBISTA I Introduction Faced with the staggering level of violence against women in the form of sexual assault and rape in South Africa, Parliament enacted s 51 of the Criminal Law Amendment Act 105 of 1997 ('the Act'). Section 51 created legislatively predetermined sentences ('mandatory minimums'), for specific crimes set out in Part I of Schedule 2, including egregious forms of rape. It further mandated that sentencing courts were to start from the presumption that the sentence ordinarily imposed for crimes set out in Part I of Schedule 2 rape is life imprisonment. Initially, the Act was met with judicial opposition and confusion. In response, the Supreme Court of Appeal held that the Act did not hamper the ability of judges to use their discretion since the Act still allowed judges the discretion to depart from mandatory minimums when substantial and compelling circumstances were present.1 This appellate guidance allowed judges to employ factors that had been relevant prior to the Act to determine if departure from the Act's mandatory minimum was justified. This practice has resulted in the misuse of the subjective severity of the crime as a mitigating factor. By replacing legislative intent with judicial discretion the premise of objectively measuring the gravity of each type of crime has been undermined. What is more, the practice of justifying departures from s 51 based on substantial and compelling circumstances has created a rape jurisprudence that could have long-term negative effects on sentences for rape. 2 The Criminal Law Amendment Act The Criminal Law Amendment Act 105 of 19972 is the result of a parliamentary policy decision to set mandatory minimum sentences for S vMalgas 2001 (2) SA 1222 (SCA). 2 This Act came into effect on 1 May 1998.

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