Tamika Thumbiran of the University of Pretoria’s (UP) Centre for Human Rights writes about the abuse of the discretionary proviso in South Africa’s Criminal Law Amendment Act that has resulted in minimum sentencing provisions for serious sexual offences.

South Africa’s minimum sentencing legislation for sexual offences has been lauded as one of the most progressive in Africa. Yet despite legislative efforts to ensure severe punishment for perpetrators of sexual violence, our courts continue to fail to protect survivors by exploiting their discretion to deviate from minimum sentencing provisions.

In 1997, the Criminal Law Amendment Act (105 of 1997) was passed to provide minimum sentences for certain serious offences. Section 51 of the act prescribes a life sentence for eight categories of rape: multiple rapes, rapes by more than one person, rape by a convicted rapist who has not yet been sentenced, rape by a person who knows they are HIV positive, rape of a child (under 16 years of age), rape of persons with disabilities, and rape involving the infliction of grievous bodily harm. The principal intention behind these provisions was to ensure that these grave offences incur serious and standardised mandated punishment by virtue of their inherent abhorrent nature.

To ensure that judicial officers retain a level of discretion in sentencing proceedings, section 51(3) was also included in the act. This proviso affords judicial officers discretion to deviate from the minimum sentence prescribed only where “substantial and compelling circumstances” exists. However, since the enactment of this legislation, there has been a patterned and documented abuse of the discretionary proviso, which paints a stark, and often ugly, contrast to the ideal that the act sought to achieve.   

Since the enactment of minimum sentencing provisions, there has been a propensity by judicial officers to reserve these minimum mandatory sentences for a minority of cases. The judiciary, contrary to the intention of the legislature, has developed a habit of applying the exception rather than the rule by reserving the minimum prescribed sentences for what judicial officers consider “the worst rapes”.

For example, the case of S v Abrahams (2002, SACR 116) where the Supreme Court of Appeal reasoned that “…some rapes are worse than others, and the life sentence ordained by the legislature should be reserved for cases devoid of substantial…” Here we see how the court deformed the test for a deviation from the prescribed minimum life sentence. Instead of assessing whether there are substantial and compelling circumstances to warrant a deviation, our courts deem it fit to hand down the minimum life sentence for only the “worst rape cases”. Our courts have repeatedly found that a case where the violence employed by the perpetrator is not considered to be excessive “is not among the worst cases of rape that appear before the courts in South Africa”[1] and therefore warrants a deviation from the minimum prescribed sentence.

Another example where our courts have appallingly misconstrued the act is the case of Ndou v S (2014 (1) SACR 198). In this case, the Supreme Court of Appeal reduced the accused’s life sentence for the rape of his 15-year-old step-daughter because the complainant did not suffer serious physical injuries and because she submitted to the rape without any threat of violence. Shockingly, the court also remarked that the fact that the survivor accepted gifts from the accused played a role in her “submitting to the sexual intercourse”.

These cases are just two examples from the plethora of case law where these problematic principles have been applied. The issue is exacerbated in the lower courts, where there is less documentation and regulation of sentencing proceedings. Judicial officers continue to allow rape myths to play a role when sentencing perpetrators of sexual violence. This has resulted in unjust, disproportionate sentencing in cases involving sexual violence, rendering minimum sentencing provisions ineffectual.

To counter this worrying trend, I suggest that our judiciary undergo a radical change of attitude in cases involving sexual violence. Since the problem lies with the judiciary, the solution can only come from it. To this end, I recommend that the South African Judicial Education Institute commit to efforts to ensure that South Africa’s judicial officers receive comprehensive gender-based sensitisation training, particularly for those who preside over matters in the criminal courts.

South Africa’s judiciary has always been an integral proponent in progressing the rights of women; it is therefore optimally positioned to course-correct and reclaim its role as a flag bearer against gender-based violence. If our judiciary refuses to allow itself to evolve, our minimum sentencing legislation will continue to have minimal impact on the war against gender-based violence.