REPORTABLE
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 117/2000
In the matter between
HENNA MALGAS
Appellant
and
THE STATE
Respondent
CORAM:
HARMS, MARAIS, CAMERON JJA CHETTY et MTHIYANE
AJJA
DATE HEARD:
16 February 2001
DATE DELIVERED:
19 March 2001
Minimum  sentences  for  certain  serious  offences - murder - life imprisonment - s 51(3)(a)
Act  51 of  1977 - substantial  and  compelling  circumstances  justifying lesser sentence -
interpretation of provision.
JUDGMENT
MARAIS JA

J Hogarth, Sentencing as a Human Process (1971) U. of Toronto
P., p.5.  (Cited in Stockdale and Devlin on Sentencing, 1987, p 8).
MARAIS JA:     [1]     Judicial hostility to legislative prescriptions which strip
courts of their sentencing discretion is hardly surprising.  Given the infinite variety
of circumstances which attend the commission of crimes, who are better placed
than the courts, which experience daily the complexities of imposing sentences
which are as just as human fallibility can make them, to understand the arbitrariness
and potential unjustness of such edicts?  Sentencing has rightly been described as
“a lonely and onerous task”1.  For those who must shoulder that responsibility in
society’s name, to have to impose a statutorily decreed sentence which is
manifestly unjust in the particular circumstances of the case is a monstrous thing.
[2]          That said, there is a significant distinction between, on the one hand,  a
legislative provision which does in truth deprive a court of any sentencing discretion
at all, or so attenuates it that its existence is illusory, and, on the other, one which

fetters only partially the exercise of the discretion and leaves it otherwise largely
intact.  Ritualistic incantations of the doctrine of the separation of powers to justify
resistance to any form of legislative intervention in this regard seem to me to lack
plausibility.  Subject of course to constraints going to substance imposed by the
Constitution, Parliament is obviously empowered to create new offences and
abolish old ones (whether they were statutorily created or originated in the common
law) and to provide for the penalties courts may impose.  It may, and does, limit
the sentencing powers of courts in a variety of ways.  The types of sentence which
may be imposed may be laid down, for example, those listed in s 276 of the
Criminal Procedure Act 51 of 1977.  A maximum penalty of one kind or another
may be specified.  Even in those countries where the doctrine of the separation of
powers is an article of faith, legislatures have been doing such things for generations
without protest from the judiciary or the citizenry.  No court exercising criminal
jurisdiction in South Africa could convincingly claim to be the sole constitutional

S v Toms; S v Bruce 1990 (2) SA 802 (A) at 806H - 807D.
repository of power to do such things.  Indeed, the courts have no inherent power
to do any such thing.  They cannot create new crimes.  Nor can they invent a new
kind of penalty such as, for example, physical detention under lock and key at
some place other than a prison.
[3]          What is rightly regarded as an unjustifiable intrusion by the legislature
upon the legitimate domain of the courts, is legislation which is so prescriptive in
its terms that it leaves a court effectively with no sentencing discretion whatsoever
and obliges it to pass a specific sentence which, judged by all normal and well-
established sentencing criteria, could be manifestly unjust in the circumstances of
a particular case.  Such a sentencing provision can accurately be described as a
mandatory provision in the pejorative sense intended by opponents of legislative
incursions into this area.2  A provision which leaves the courts free to exercise a
substantial measure of judicial discretion is not, in my opinion, properly described

as a mandatory provision in that sense.  As I see it, this case is concerned with
such a provision.
[4]          Sections 51 and 53 of the Criminal Law Amendment Act 105 of 1997
provide:
“51.  Minimum sentences for certain serious offences. -   (1)
Notwithstanding any other law but subject to subsections (3) and (6), a High Court
shall, if it has convicted a person of an offence referred to in Part I of Schedule 2,
sentence the person to imprisonment for life.
(2)     Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall -
(a)
if it has convicted a person of an offence referred to in Part II of
Schedule 2, sentence the person in the case of -
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a
period not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to
imprisonment for a period not less than 25 years;
(b)
if it has convicted a person of an offence referred to in Part III of
Schedule 2, sentence the person, in the case of -
(i)
a first offender, to imprisonment for a period not less than 10
years;
(ii)
a second offender of any such offence, to imprisonment for a
period not less than 15 years; and

(iii)
a third or subsequent offender of any such offence, to
imprisonment for a period not less than 20 years; and
(c)
if it has convicted a person of an offence referred to in Part IV of
Schedule 2, sentence the person, in the case of -
(i)
a first offender, to imprisonment for a period not less than 5
years;
(ii)
a second offender of any such offence, to imprisonment for a
period not less than 7 years; and
(iii)
a third or subsequent offender of any such offence, to
imprisonment for a period not less than 10 years:
Provided that the maximum sentence that a regional court may impose in
terms of this subsection shall not be more than five years longer than the
minimum sentence that it may impose in terms of this subsection;
(3)(a)  If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the record of the
proceedings and may thereupon impose such lesser sentence.
(b) If any court referred to in subsection (1) or (2) decides to impose a
sentence prescribed in those subsections upon a child who was 16
years of age or older; but under the age of 18 years, at the time of the
commission of the act which constituted the offence in question, it
shall enter the reasons for its decision on the record of the
proceedings.
(4)     Any sentence contemplated in this section shall be calculated from the
date of sentence.
(5)     The operation of a sentence imposed in terms of this section shall not
be suspended as contemplated in section 297(4) of the Criminal Procedure Act,
1977 (Act 51 of 1977).
(6)     The provisions of this section shall not be applicable in respect of a

child who was under the age of 16 years at the time of the commission of the act
which constituted the offence in question.
(7)     If in the application of this section the age of a child is placed in issue,
the onus shall be on the State to prove the age of the child beyond reasonable
doubt.
(8)     (Omitted because immaterial.)”
“53.     Saving. -
(1)     Sections 51 and 52 shall, subject to subsections (2)
and (3), cease to have effect after the expiry of two years from the commencement
of this Act.
(2)   The period referred to in subsection (1) may be extended by the
President, with the concurrence of Parliament, by proclamation in the Gazette for
one year at a time.
(3)       Any appeal against -
(a)
a conviction of an offence referred to in Schedule 2 of this Act and a
resultant sentence imposed in terms of section 51; or
(b)
a sentence imposed in terms of section 51, shall be continued and
concluded as if section 51 had at all relevant times been in operation.”

[5]          Schedule 2 is as follows:
“PART I
Murder, when -
(a)
it was planned or premeditated;
(b)
the victim was -
(i)
a law enforcement officer performing his or her functions as such,
whether on duty or not; or

(ii)
a person who has given or was likely to give material evidence with
reference to any offence referred to in Schedule 1 to the Criminal
Procedure Act, 1977 (Act 51 of 1977), at criminal proceedings in any
court;
(c)
the death of the victim was caused by the accused in committing or
attempting to commit or after having committed or attempted to commit one
of the following offences:
(i)
Rape; or
(ii)
robbery with aggravating circumstances; or
(d)
the offence was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common purpose or conspiracy.
Rape -
(a)
when committed -
(i)
in circumstances where the victim was raped more than once whether
by the accused or by any co-perpetrator or accomplice;
(ii)
by more than one person, where such persons acted in the execution
of furtherance or a common purpose or conspiracy;
(iii)
by a person who has been convicted of two or more offences of rape,
but has not yet been sentenced in respect of such convictions; or
(iv)
by a person, knowing that he has the acquired immune deficiency
syndrome or the human immunodeficiency virus;
(b)
where the victim -
(i)
is a girl under the age of 16 years;
(ii)
is a physically disabled woman who, due to her physical disability, is
rendered particularly vulnerable; or
(iii)
is a mentally ill woman as contemplated in section 1 of the Mental

Health Act, 1973 (Act 18 of 1973); or
(c)
involving the infliction of grievous bodily harm.
PART II
Murder in circumstances other than those referred to in Part 1.
Robbery -
(a)
when there are aggravating circumstances; or
(b)
involving the taking of a motor vehicle.
Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act,
1993 (Act 140 of 1992).  If it is proved that -
(a)
the value of the dependence producing substance in question is more than
R50 000,00;
(b)
the value of the dependence-producing substance in question is more than
R10 000,00 and that the offence was committed by a person, group of
persons, syndicate or any enterprise acting in the execution of furtherance of
a common purpose or conspiracy; or
(c)
the offence was committed by any law enforcement officer.
Any offence relating to -
(a)
the dealing in or smuggling of ammunition, firearms, explosives or armament;
or
(b)
the possession of an automatic or semi-automatic firearm, explosives or
armament.
Any offence relating to exchange control, corruption, extortion, fraud, forgery,
uttering or theft -
(a)
involving amounts of more than R500 000,00

(b)
involving amounts of more than R100 000,00, if it is proved that the offence
was committed by a person, group of persons, syndicate or any enterprise
acting in the execution or furtherance of a common purpose or conspiracy;
or
(c)
if it is proved that the offence was committed by any law enforcement officer
-
(i)
involving amounts of more than R10 000,00; or
(ii)
as a member of a group of persons, syndicate or any enterprise acting
in the execution or furtherance of a common purpose or conspiracy.
PART III
Rape in circumstances other than those referred to in Part I.
Indecent assault on a child under the age of 16 years, involving the infliction of
bodily harm.
Assault with intent to do grievous bodily harm on a child under the age of 16 years.
Any offence in contravention of section 36 of the Arms and Ammunition Act, 1969
(Act 75 of 1969), on account of being in possession of more than 1000 rounds of
ammunition intended for firing in an arm contemplated in section 39 (2)(a)(i) of that
Act.
PART IV
Any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51
of 1977), other than an offence referred to in Part I, II. or III of this Schedule, if the
accused had with him or her at the time a firearm, which was intended for use as
such, in the commission of such offence.”

S v Mofokeng and Another 1999 (1) SACR 502 (W); S v Segole and
Another 1999 (2) SACR 115 (W); S v Zitha and Others 1999 (2)
SACR 404 (W); S v Jansen 1999 (2) SACR 368 (C); S v Swartz and
Another 1999 (2) SACR 380 (C); S v Blaauw 1999 (2) SACR 295
(W); S v Shongwe 1999 (2) SACR 220 (O); S v Dithotze 1999 (2)
SACR 314 (W); S v Homareda 1999 (2) SACR 319 (W); S v Van
Wyk 2000 (1) SACR 45 (C); S v N 2000 (1) SACR 209 (W); S v Boer
en Andere 2000 (2) SACR 114 (NC); S v Kanjwayo; S v Mihlali
1999 (2) SACR 651 (O); S v Montgomery 2000 (2) SACR 318 (N).
Unreported cases: S v Mthembu and Another, 365/98 WLD (Leveson
J) 22.10.1998; S v Madondo, cc 22/99 NPD (Squires J) 30.3.1999;
S v Ngubane, cc 31/99 NPD (Squires J) 30.3.1999; S v Cimani, cc
11/99 ECD (Jones J) 28.4.1999; S v Oliphant, cc 27/99 SECLD
(Erasmus J); S v Van Rooyen en Andere, cc 18/00 SECLD (Kroon J)
7.6.2000.
[6]          There have been a number of decisions3 in which the High Courts have
considered the import of the injunction to impose imprisonment for life upon a
person convicted of an offence referred to in Part 1 of Schedule 2 (or imprisonment
for other specified periods for offences listed in other parts of  Schedule 2) unless
satisfied that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence.  The interpretations placed upon the provisions
have been discordant and that necessitates this Court considering the question
afresh in deciding the outcome of the appeal against sentence in this matter.  In

S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) at 1100I
- 1102B.
doing so, I have found much of great help in those judgments for which I am
grateful.  Valuable as they are, a dissection and discussion of each of them would
result in  an indigestible judgment.  Instead, I shall approach the problem as if the
matter was res nova but with the advantage of the insights which the reading of
those judgments has given.
[7]          First, some preliminary observations.  The provisions are to be read in the
light of the values enshrined in the Constitution and, unless it does not prove
possible to do so, interpreted in a manner which respects those values.4  Due
weight must be given to the fact that these provisions were not intended to be
permanent fixtures on the legislative scene and were to lapse after two years unless
extended annually.  (They were put into operation on 1 May 1998 and were
extended for 12 months with effect from 1 May 2000.)  That shows that when

conceived they were intended to be relatively short-term responses to a situation
which it was hoped would not persist indefinitely.  That situation was and remains
notorious: an alarming burgeoning in the commission of crimes of the kind specified
resulting in the government, the police, prosecutors and the courts constantly being
exhorted to use their best efforts to stem the tide of criminality which threatened
and continues to threaten to engulf society.  It was of course open to the High
Courts even prior to the enactment of the amending legislation to impose life
imprisonment in the free exercise of their discretion.  The very fact that this
amending legislation has been enacted indicates that parliament was not content with
that and that it was no longer to be “business as usual” when sentencing for the
commission of the specified crimes.
[8]          In what respects was it no longer to be business as usual?  First, a court
was not to be given a clean slate on which to inscribe whatever sentence it thought
fit.  Instead, it was required to approach that question conscious of the fact that the

legislature has ordained life imprisonment or the particular prescribed period of
imprisonment as the sentence which should ordinarily be imposed for the
commission of the listed crimes in the specified circumstances.  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.  When considering
sentence the emphasis was to be shifted to the objective gravity of the type of crime
and the public’s need for effective sanctions against it.  But that did not mean that
all other considerations were to be ignored.  The residual discretion to decline to
pass the sentence which the commission of such an offence would ordinarily attract
plainly was given to the courts in recognition of the easily foreseeable injustices
which could result from obliging them to pass the specified sentences come what
may.
[9]          Secondly, a court was required to spell out and enter on the record the

[2000] 1 WLR 377 at 381H
circumstances which it considered justified a refusal to impose the specified
sentence.  As was observed in Flannery v Halifax Estate Agencies Ltd 5 by the
Court of Appeal, “a requirement to give reasons concentrates the mind, if it is
fulfilled the resulting decision is much more likely to be soundly based --- than if it
is not”.  Moreover, those circumstances had to be substantial and compelling.
Whatever nuances of meaning may lurk in those words, their central thrust  seems
obvious.  The specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny.  Speculative hypotheses
favourable to the offender, maudlin sympathy, aversion to imprisoning first
offenders, personal doubts as to the efficacy of the policy implicit in the amending
legislation, and like considerations were equally obviously not intended to qualify
as substantial and compelling circumstances.    Nor were marginal differences in the
personal circumstances or degrees of participation of co-offenders which, but for

the provisions, might have justified differentiating between them.  But for the rest
I can see no warrant for deducing that the legislature intended a court to exclude
from consideration, ante omnia as it were, any or all of the many factors
traditionally and rightly taken into account by courts when sentencing offenders.
The use of the epithets “substantial” and “compelling” cannot be interpreted as
excluding even from consideration any of those factors.  They are neither notionally
nor linguistically appropriate to achieve that.  What they are apt to convey, is that
the ultimate cumulative impact of those circumstances must be such as to justify
a departure.  It is axiomatic in the normal process of sentencing that, while each of
a number of mitigating factors when viewed in isolation may have little persuasive
force, their combined impact may be considerable.  Parliament cannot have been
ignorant of that.  There is no indication in the language it has employed that it
intended the enquiry into the possible existence of substantial and compelling
circumstances justifying a departure, to proceed in a radically different way, namely,

by eliminating at the very threshold of the enquiry one or more factors traditionally
and rightly taken into consideration when assessing sentence.  None of those
factors have been singled out either expressly or impliedly for exclusion from
consideration.
[10]          To the extent therefore that there are dicta in the previously decided
cases that suggest that there are such factors which fall to be eliminated entirely
either at the outset of the enquiry or at any subsequent stage (eg age or the absence
of previous convictions), I consider them to be erroneous.  Equally erroneous, so
it seems to me, are dicta which suggest that for circumstances to qualify as
substantial and compelling they must be “exceptional” in the sense of seldom
encountered or rare.  The frequency or infrequency of the existence of a set of
circumstances is logically irrelevant to the question of whether or not they are
substantial and compelling.
[11]          Some of the courts which have had to deal with the problem have

resorted to the processes of thought employed and the concepts developed by the
courts in considering appeals against sentence.  In my view such an approach is
problematical and likely to lead to error in giving effect to the intention of the
legislature.
[12]          The mental process in which courts engage when considering questions
of sentence depends upon the task at hand.  Subject of course to any limitations
imposed by legislation or binding judicial precedent, a trial court will consider the
particular circumstances of the case in the light of the well-known triad of factors
relevant to sentence and impose what it considers to be a just and appropriate
sentence.  A court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question of sentence as if it
were the trial court and then substitute the sentence arrived at by it simply because
it prefers it.  To do so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates its exercise of that discretion,

an appellate court is of course entitled to consider the question of sentence afresh.
In doing so, it assesses sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance.  As it is said,  an appellate
court is at large.  However, even in the absence of material misdirection, an
appellate court may yet be justified in interfering with the sentence imposed by the
trial court.  It may do so when the disparity between the sentence of the trial court
and the sentence which the appellate court would have imposed had it been the trial
court is so marked that it can properly be described as “shocking”, “startling” or
“disturbingly inappropriate”.  It must be emphasised that in the latter situation the
appellate court is not at large in the sense in which it is at large in the former.  In the
latter situation it may not substitute the sentence which it thinks appropriate merely
because it does not accord with the sentence imposed by the trial court or because
it prefers it to that sentence.  It may do so only where the difference is so
substantial that it attracts epithets of the kind I have mentioned.  No such limitation

exists in the former situation.
[13]          Some of the courts which have wrestled with the problems which
sections s 51 raises have sought to draw parallels between the latter process and the
approach to be followed when applying its provisions.  With respect, I consider the
attempt to be misguided.  The tests for interference with sentences on appeal were
evolved in order to avoid subverting basic principles that are fundamental in our law
of criminal procedure, namely, that the imposition of sentence is the prerogative of
the trial court for good reason and that it is not for appellate courts to interfere with
that exercise of discretion unless it is convincingly shown that it has not been
properly exercised.  The epithets (“shocking”, “startling”, “disturbingly
inappropriate” and the like) that have been employed to drive that point home
should not simply be appropriated indiscriminately for use in a situation which is
very different.
[14]          When applying the provisions of s 51 a trial court is not in appellate

mode.  It is not confronted by a prior exercise of judicial discretion attuned to the
particular circumstances of the case and which is prima facie to be respected.
Instead, it is faced with a generalised statutory injunction to impose a particular
sentence which injunction rests, not upon all the circumstances of the case
including the personal circumstances of the offender, but simply upon whether or
not the crime falls within the specific categories spelt out in Schedule 2.
Concomitantly, there is a provision which vests the sentencing court with the
power, indeed the obligation, to consider whether the particular circumstances of
the case require a different sentence to be imposed.  And a different sentence must
be imposed if the court is satisfied that substantial and compelling circumstances
exist which “justify” (my emphasis) it.  In considering that question the trial court
is doing so for the first time.  There has been no prior consideration of the
particular circumstances of the case by either the legislature or another court.  There
is thus no justification for arbitrarily importing into the exercise a test which was

evolved in a very different context and which was designed to serve a very different
purpose.
[15]          I consider the dicta in the cases which advocate such an approach to the
application of s 51 to be conducive to error.  In my view, they constrict
unjustifiably the power given to a trial court by s 51 (3) to conclude that a lesser
sentence is justified.  Any limitations upon that power must be derived from a
proper interpretation of the provisions of the Act and not from the assumption a
priori that only a process akin to that which a court follows when in appellate mode
is intended.
[16]          It is of course so that satisfaction of the test which that process
postulates would also justify the conclusion that a departure from the prescribed
sentence is justified.  The problem is that it by no means follows that simply
because that test is not satisfied, a departure is ipso facto unjustified.  In other
words, while satisfaction of that test is certainly a sufficient justification for

departure, satisfaction of it is not necessary to justify departure.  The use of the test
tends to obscure that.  Hence its potential to lead one into error.
[17]          On the other hand, it seems clear that those who have decried the
suggestion that the exercise required involves no more than assessing what, but for
the legislation, would have been an appropriate sentence and, if that should be
anything less than the prescribed sentence, regarding that as sufficient justification
for departure, are right.  As they have pointed out, that approach would obviously
represent a return to what I have called “business as usual” and no effect
whatsoever would be given to the intention of the legislature.
[18]          Here lies the rub.  Somewhere between these two extremes the intention
of the legislature is located and must be found.  The absence of any pertinent
guidance from the legislature by way of definition or otherwise as to what
circumstances should rank as substantial and compelling or what should not, does
not make the task any easier.  That it has refrained from giving such guidance as

Van Zyl Smit, 1999 (15) SAJHR 270 at 271-273.
was done in Minnesota from whence the concept of “substantial and compelling
circumstances” was derived6 is significant.  It signals that it has deliberately and
advisedly left it to the courts to decide in the final analysis whether the
circumstances of any particular case call for a departure from the prescribed
sentence.  In doing so, they are required to regard the prescribed sentences as being
generally appropriate for crimes of the kind specified and enjoined not to depart
from them unless they are satisfied that there is weighty justification for doing so.
A departure must be justified by reference to circumstances which can be seen to
be substantial and compelling as contrasted with circumstances of little significance
or of debatable validity or which reflect a purely personal preference unlikely to be
shared by many.
[19]          There has been some uncertainty as to whether the words “substantial
and compelling” are to be examined separately or conjointly in attempting to arrive

at Parliament’s intention and in applying them to the particular circumstances of a
case.  In my opinion it is a barren exercise to subject each to intense scrutiny on its
own devoid of the influence of its neighbour.  The legislature refrained from using
the word “or” in favour of the word “and” and has thus provided a composite
description of the circumstances which can justify a departure from the prescribed
sentences. What Parliament requires is that the circumstances should meet the test
of the composite description.
[20]          It would be an impossible task to attempt to catalogue exhaustively either
those circumstances or combinations of circumstances which could rank as
substantial and compelling or those which could not.  The best one can do is to
acknowledge that one is obliged to keep in the forefront of one’s mind that the
specified sentence has been prescribed by law as the sentence which must be
regarded as ordinarily appropriate and that personal distaste for such legislative
generalisation cannot justify an indulgent approach to the characterisation of

circumstances as substantial and compelling.  When justifying a departure a court
is to guard against lapses, conscious or unconscious, into sophistry or spurious
rationalisations or the drawing of distinctions so subtle that they can hardly be seen
to exist.
[21]          It would be foolish of course, to refuse to acknowledge that there is an
abiding reality which cannot be wished away, namely, an understandable tendency
for a court to use, even if only as a starting point, past sentencing patterns as a
provisional standard for comparison when deciding whether a prescribed sentence
should be regarded as unjust.  To attempt to deny a court the right to have any
regard whatsoever to past sentencing patterns when deciding whether a prescribed
sentence is in the circumstances of a particular case manifestly unjust is tantamount
to expecting someone who has not been allowed to see the colour blue to
appreciate and gauge the extent to which the colour dark blue differs from it.  As
long as it is appreciated that the mere existence of some discrepancy between them

cannot be the sole criterion and that something more than that is needed to justify
departure, no great harm will be done.
[22]          What that something more must be it is not possible to express in
precise, accurate and all-embracing language.  The greater the sense of unease a
court feels about the imposition of a prescribed sentence, the greater its anxiety will
be that it may be perpetrating an injustice.  Once a court reaches the point where
unease has hardened into a conviction that an injustice will be done, that can only
be because it is satisfied that the circumstances of the particular case render the
prescribed sentence unjust or, as some might prefer to put it, disproportionate to
the crime, the criminal and the legitimate needs of society.  If that is the result of a
consideration of the circumstances the court is entitled to characterise them as
substantial and compelling and such as to justify the imposition of a lesser sentence.
[23]          While speaking of injustice, it is necessary to add that the imposition of
the prescribed sentence need not amount to a shocking injustice (“‘n skokkende

onreg” as it has been put in some of the cases in the High Court) before a departure
is justified.  That it would be an injustice is enough.  One does not calibrate
injustices in a court of law and take note only of those which are shocking.
[24]          It has been suggested that the kind of circumstances which might qualify
as substantial and compelling are those which reduce the moral guilt of the offender
(analogously to the circumstances considered in earlier times to be capable of
constituting “extenuating circumstances” in crimes which attracted the sentence of
death).  That will no doubt often be so but it would not be right to suppose that it
is only factors diminishing moral guilt which may rank as substantial and compelling
circumstances.
[25]         What stands out quite clearly is that the courts are a good deal freer to
depart from the prescribed sentences than has been supposed in some of the
previously decided cases and that it is they who are to judge whether or not the
circumstances of any particular case are such as to justify a departure.  However,

in doing so, they are to respect, and not merely pay lip service to, the legislature’s
view that the prescribed periods of imprisonment are to be taken to be ordinarily
appropriate when crimes of the specified kind are committed.  In summary -
A
Section 51 has limited but not eliminated the courts’ discretion in imposing
sentence in respect of offences referred to in Part 1 of Schedule 2 (or
imprisonment for other specified periods for offences listed in other parts of
Schedule 2).
B
Courts are required to approach the imposition of sentence conscious that
the legislature has ordained life imprisonment (or the particular prescribed
period of imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed crimes in the
specified circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are therefore required to elicit a
severe, standardised and consistent response from the courts.
D
The specified sentences are not to be departed from lightly and for flimsy
reasons.  Speculative hypotheses favourable to the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubts as to the
efficacy of the policy underlying the legislation, and marginal differences in
personal circumstances or degrees of participation between co-offenders are
to be excluded.
E
The legislature has however deliberately left it to the courts to decide whether
the circumstances of any particular case call for a departure from the
prescribed sentence.  While the emphasis has shifted to the objective gravity

of the type of crime and the need for effective sanctions against it, this does
not mean that all other considerations are to be ignored.
F
All factors (other than those set out in D above) traditionally taken into
account in sentencing (whether or not they diminish moral guilt) thus
continue to play a role; none is excluded at the outset from consideration in
the sentencing process.
G
The ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick (“substantial and compelling”) and
must be such as cumulatively justify a departure from the standardised
response that the legislature has ordained.
H
In applying the statutory provisions, it is inappropriately constricting to use
the concepts developed in dealing with appeals against sentence as the sole
criterion.
I
If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed sentence unjust in
that it would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that sentence, it is
entitled to impose a lesser sentence.
J
In so doing, account must be taken of the fact that crime of that particular
kind has been singled out for severe punishment and that the sentence to be
imposed in lieu of the prescribed sentence should be assessed paying due
regard to the bench mark which the legislature has provided.
[26]          I turn to the merits of the present appeal against sentence.  Appellant, a
22 year old woman, was convicted by Liebenberg J in the South Eastern Cape

Local Division of the High Court of murder and sentenced to imprisonment for life.
Leave to appeal to this Court against her sentence was granted by the court a quo.
At the instigation of his wife, appellant shot the deceased in the head while he lay
asleep at his home.  The circumstances which led up to that were these.  Appellant
had been living for about a month in the deceased’s house together with him, his
wife Carol and their children.  Precisely what the nature of appellant’s relationship
with the deceased was is unclear.  However, she testified that the night before the
deceased was shot he had struck her because he believed that she had been sexually
involved with another man.  The relationship between the deceased and his wife was
stormy and many quarrels had taken place.  The deceased’s wife had allegedly been
unfaithful to him with various other men.  On the night that appellant was struck by
the deceased Carol told her that she intended to shoot the deceased.  Carol had
been upset by the incident.
[27]          On the day of the shooting a quarrel between the deceased and Carol

took place. Later the deceased told appellant that he loved her.  She replied that she
wished to have nothing to do with him.  He produced a firearm and locked himself
in the bathroom where he fired a shot causing Carol and appellant to think he had
committed suicide.  When told by appellant that she and Carol were going to “drink
pills” he emerged from the bathroom unscathed.  Friends of the deceased arrived
and whisky was consumed until approximately 1.30 am when the friends left.
Thereafter appellant, Carol and the deceased all lay upon the same bed.  The
deceased fell asleep and Carol roused him and gave him two pills to drink.  The
deceased fell asleep again and snored so loudly that appellant went to lie down in
another room.
[28]          Shortly after 3.00 am Carol woke appellant and handed her a pair of
gloves, a jersey and a firearm which she had loaded and cocked.  Appellant was
told to don the gloves so that her fingerprints would not appear on the firearm and
also to prevent any traces of gunpowder from being deposited upon her hands.

She was  told to wear the jersey so that any gunpowder marks and traces of blood
would not be deposited upon her night attire.  Carol told her to repair to their
bedroom and to shoot the deceased. She referred to her life with the deceased as
“‘n hond se lewe”.  Appellant knelt alongside the deceased and levelled the firearm
at his head.  She could not bring herself to fire the shot and stood up again.  After
further persuasion by Carol she knelt alongside the bed again and once again trained
the weapon upon the deceased.  Again she could not bring herself to fire the shot.
When she rose to her feet Carol told her that she had to shoot the deceased or she
would burn the house down with petrol.  She also said that if appellant shot the
deceased she, Carol, and Carol’s children would thereafter be able to lead “‘n baie
lekker lewe”.  Carol also reminded her that the deceased had struck her the previous
evening and that that should serve as an incentive to her to shoot him.  The
appellant once again knelt alongside the deceased and pointed the firearm at his
head.  Carol said that she would indicate when the shot should be fired.  When

Carol said to her “Henna nou!” she fired a shot and the deceased was struck in the
head.  He died soon thereafter.
[29]          With the co-operation of appellant Carol thereafter attempted to pass off
what had occurred as an act of suicide committed by the deceased.  Some time
thereafter appellant confessed first to a friend and thereafter to a member of the
South African Police who was also a friend that she had shot the deceased.  That
led to her arrest and trial.
[30]          Liebenberg J gave anxious consideration to the question of sentence and
concluded that the circumstances of the case could not be regarded as substantial
and compelling in their mitigatory effect and therefore such as to justify the
imposition of a lesser sentence than imprisonment for life.  He reached that
conclusion with regret and said that if it had not been for the fact that a sentence of
life imprisonment was prescribed by the relevant statute, he would not have
considered sentencing appellant to imprisonment for life.  He referred to the lack

of unanimity in the provincial divisions  of  the  High  Court  as  to  the  correct
interpretation  of  the  legislation and regarded  himself  as  bound  by  the
approach  indicated  by  Stegmann J  in  S  v Mofokeng which approach had been
approved by Jones J in an unreported decision in the Eastern Cape Division.  He
indicated that he was, in any event, in agreement with that approach.  One of the
findings made by Stegmann J in Mofokeng’s case was that “for substantial and
compelling reasons to be found, the facts of the particular case must present some
circumstance that is so exceptional in its nature and that so obviously exposes the
injustice of the statutory prescribed sentence in the particular case, that it can rightly
be described as ‘compelling’ the conclusion that the imposition of a lesser sentence
than that prescribed by Parliament is justified”.
[31]          As I have indicated earlier in this judgment the requirement that the
circumstances be “exceptional” does not appear from the legislation and, in so far
as Liebenberg J approached the question of sentence from that perspective, he

erred.  In all other respects Liebenberg J approached the question of sentence in a
manner consistent with the approach set forth in this judgment.  He made reference
to the very serious nature of the crime.  He pointed to the element of premeditation
present and the defenselessness of the deceased.  He considered that the motive for
the killing was greed.  There were apparently some life insurance policies from
which Carol would benefit and the appellant stood to gain from the “lekker lewe”
of which Carol had spoken.  He adverted to the prevalence of crimes of violence
in the country and the community’s interest in having the courts deal severely with
offenders.
[32]          As against those considerations he took into account the absence of any
previous convictions, and accepted evidence that Carol was a domineering
personality.  He accepted too that Carol had been the instigator and that she had
brought influence to bear upon the appellant but did not consider it to have been a
weighty factor when measured against the appellant’s deed.  The learned Judge

regarded appellant’s remorse induced voluntary admission of her guilt to her friends
as possibly the strongest point in appellant’s favour but then tended to minimise its
importance by observing that subsequent remorse was not something exceptional.
Having balanced all these considerations he concluded that they did not amount to
substantial and compelling circumstances within the meaning of the legislation.
[33]          It is not possible to say to what extent the learned Judge’s evaluation of
the circumstances of the case as not being substantial and compelling was
influenced by his adoption of the proposition that they would have to be classifiable
as exceptional before they would qualify as substantial and compelling
circumstances.  That it must have played some role seems clear for he found it
necessary to state expressly that he approved of Stegmann J’s view that the
circumstances would have to be exceptional. Given that misdirection this Court is
at large to reconsider the matter afresh and it is unnecessary to decide whether or

Cf S v Homareda 1999 (2) SACR 319 (W) at 326c-d.
not it would have been free to do so absent such misdirection.7
[34]          The circumstances in which the crime was committed are undoubtedly
such as to render it necessary to impose a sentence of imprisonment for life unless
substantial and compelling circumstances justify a lesser sentence.  The shooting
was premeditated and planned.  The fact that the planning and premeditation
occurred not long before the deed was accomplished cannot alter that.  It was also
carried out in the execution of a common purpose to kill the deceased.  Giving all
due weight to the enormity of the crime and the public interest in an appropriately
severe punishment being imposed for it, I consider that the personal circumstances
of the accused (her relative youth, her clean record and her vulnerability to Carol’s
influence by reason of her status as a resident in the latter’s home at the latter’s
pleasure) and the fact that she was dragooned into the commission of the offence
by a domineering personality are strongly mitigating factors. As a fact she gained
nothing from the commission of the crime.  Her remorse cannot be doubted and her

spontaneous confession which brought to light the commission of a crime which
would otherwise have gone undetected is deserving of recognition in a tangible
sense.  She is young enough to make rehabilitation of her a real prospect even after
a long period of imprisonment.  These circumstances, cumulatively regarded, satisfy
me that a sentence of life imprisonment would be unjust.  They qualify therefore as
substantial and compelling circumstances within the meaning of the provision.
None the less, it remains a particularly heinous crime of the kind which the
legislature has singled out for severe punishment and the sentence to be imposed
in lieu of life imprisonment should be assessed paying due regard to the bench mark
which the legislature has provided.  In my judgment, imprisonment for twenty-five
(25) years is appropriate.
[35]          The appeal succeeds.  The sentence of life imprisonment is set aside and
there is substituted for it a sentence of imprisonment for twenty-five (25) years.  In
so  far  as  it  may be necessary to do so, the sentence so imposed is antedated to

3 November 1999 being the date upon which the sentence of life imprisonment was
imposed.

R M MARAIS
JUDGE OF APPEAL
HARMS
JA)
CAMERON   JA)
CHETTY        AJA)
MTHIYANE   AJA)    CONCUR