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People’s conduct, and the legal consequences that follow it, should be judged based on the law in force at the time. This is a basic tenet of the South African legal system. The Latin maxim culpae poena par esto (let the punishment be proportioned to the crime; let the punishment fit the crime) has long been considered the cornerstone of criminal justice. This legal maxim predates Gilbert and Sullivan’s famous, if ironic, musical rendition in The Mikado. A sentence must be proportionate to the gravity of the offence and the degree of responsibility taken by the offender. The proportionality principle makes the blunt tool of punishment a valid and morally acceptable element of social order. Without proportionality as the governing sentencing principle, sentencing would either be the arbitrary application of state power or an ineffective response to criminal conduct. One all-too-common sentencing scenario involves mandatory minimum sentence for the crime of ‘[a]ssault with intent to do grievous bodily harm on a child under the age of 16 years’.
Section 51(2) of the Criminal Law Amendment Act 105 of 1997 stipulates: ‘Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court … shall in respect of a person who has been convicted of an offence referred to in –
…
(b) 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’.
The crime of ‘[a]ssault with intent to do grievous bodily harm on a child under the age of 16 years’ falls within Part III of the Criminal Law Amendment Act.
On the 18 September 2019 the Constitutional Court (CC) did not take into account the maxim culpae poena par esto, in my opinion, in deciding the common law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of ss 10 and 12(1)(c) of the Constitution. The concern is the decision of the CC – under the current sentencing law if correctly applied is grossly disproportionate. Perhaps I should take a step back and refer to the CC’s decision. Chief Justice Mogoeng Mogoeng in a unanimous decision in Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (Global Initiative to End All Corporal Punishment of Children and Others as amici curiae) 2019 (11) BCLR 1321 (CC) declared that the common law defence of reasonable and moderate parental chastisement as inconsistent with the provisions of ss 10 and 12(1)(c) of the Constitution. Sections 10 and 12 provide for the protection of human dignity and the freedom and security of the person respectively in the Bill of Rights. In essence, any parent of a child convicted of the crime of assault with the intent to do grievous bodily harm faces a minimum sentence of ten years’ imprisonment as a first offender. Section 51(3)(a) of the Criminal Law Amendment Act regulates: ‘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’. It provides the court with a discretion to impose a lesser sentence than the minimum sentence provided substantial and compelling circumstances as exists as enunciated in the leading cases of Malgas v S [2001] 3 All SA 220 (A) and S v Dodo 2001 (3) SA 382 (CC).
Section 51(5) of the Criminal Law Amendment Act enacts that ‘[t]he operation of a sentence imposed in terms of this section [meaning ss 51(1) and 51(2)] shall not be suspended as contemplated in s 297(4) of the Criminal Procedure Act [51 of 1977]’. Section 297(4) of the Criminal Procedure Act enacts: ‘Where a court convicts a person of an offence in respect of which any law prescribes a minimum punishment, the court may in its discretion pass sentence but order the operation of a part thereof to be suspended for a period not exceeding five years on any condition referred to in paragraph (a)(i) of subsection (1)’. A mere reading of the sections sounds confusing, but it is explained in the Supreme Court of Appeal (SCA) case of S v Seedat 2017 (1) SACR 141 (SCA). The SCA held at para 37 of its judgment: ‘Section 297(4) envisages that only a part of the sentence should be suspended and not the whole sentence’. So, even if the court sought to impose a suspended sentence, it could not suspend the whole sentence. A wholly suspended sentence is not competent in terms of s 297(4) of the Criminal Procedure Act and there is no provision in law permitting a court to suspend the sentencing of an accused (see Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA)). I am aware the SCA in Hildebrand v The State (SCA) (unreported case no 00424/2015, 26-11-2015) (Bosielo JA (Tshiqi and Swain JJA concurring)) held a court ‘having found good grounds to deviate from the minimum sentences, … was at large to impose any sentence which [it] found appropriate, given the particular circumstances of this case’. I do not agree with the findings in the Hildebrand case. Firstly, it is contrary to the purpose of the Criminal Law Amendment Act. Secondly, if Hildebrand is correct, it begs the question what is the purpose and reason for the legislature to enact s 51(5) of the Criminal Law Amendment Act? Thirdly, with respect to Tshiqi JA and Bosielo JA in the subsequent decisions of Seedat and Thabethe realised they led us who have to follow them into quicksand due to the Hildebrand case and made a u-turn. I say this with respect because Tshiqi JA and Bosielo JA in the Thabethe and Seedat cases held opposing views from the decision they reached in Seedat.
In an interpretation of s 51(5) of the Criminal Law Amendment Act, the Seedat case and s 297(4) of the Criminal Procedure Act shows a parent assaulting their child under the age of 16, face a period of direct imprisonment notwithstanding the gravity of the offence and the degree of responsibility of the offender. Tshiqi JA said sentencing needs to ‘serve the public interest’ and ‘[c]riminal proceedings need to instil public confidence in the criminal justice system with the public’. I hold the view that the reasonable person properly informed about the philosophy of the legislative provisions, Constitutional values and the actual circumstances of the ‘case’ may well view this result as grossly disproportionate – particularly if it is understood that the penal disparity is neither idiosyncratic or even rare but, rather, the uniform, systematic and incorrigible consequence of legislation. A frisson of appreciation that the prejudicial distinction wrought by such legislation is also in some ways arbitrary could only contribute to a sense of public outrage or abhorrence, a palpable sensation of unfairness.
Perhaps an example would illustrate how grossly disproportionate a sentence of imprisonment would be on a parent assaulting their child in the process of ‘parents to chastise their children moderately and reasonably’, but unlawfully. A parent after exhausting all remedies, assaults their 15-year-old child several times with a cane. The single parent has four other children younger than the 15-year-old. The parent assaulted the child, because the child did not want to attend school, wanted to hang around with criminal gangs, abuse drugs and on many occasions the child assaulted their younger siblings and stole household items. The single parent – who is also the sole breadwinner – after seeking help from law enforcement agencies, social welfare authorities and the justice system has no idea of how to discipline the 15-year-old child who ‘rules the roost’ in their house. The parent is criminally charged for assaulting their child and convicted. Under the current sentencing regime, the parent faces a minimum term of ten years’ imprisonment.
Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the ‘punishment fits the crime’. The proportionality principle has long been understood as multi-faceted. Penalties should be distributed according to the blameworthiness of the criminal conduct. The principle of proportionality has a long history as a guiding principle in sentencing, and it has a constitutional dimension. A person cannot be made to suffer disproportionate punishment simply to send a message to discourage others from committing the same offence. The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the offender, the sentence imposed must reflect –
The court must have regard to the aggravating and mitigating factors in the case. Careful adherence to the proportionality principle ensures that the offender is not unjustly dealt with for the sake of the common good.
In order to reflect blameworthiness, the sentencing process should punish reprehensible criminal conduct equally, and grade punishments according to the severity of the conduct and rank the ordering of seriousness. These general terms are amplified by reference to ordinal and cardinal proportionality in sentencing. Ordinal proportionality is a comparative measure of the range of dispositions that are appropriate between and among classes of offences. It expresses the notion that treating like with like ideally expresses a measure by which sentences for offences that are not alike can be arranged in a normative hierarchy of commensurate values. Ordinal proportionality deals with the severity level of criminal conduct, a matter of convention and culture that fixes the rungs on the ladder.
Ordinal proportionality addresses the ordering of the rungs and the distance and spacing between them. Ordinal proportionality has three requirements, namely:
Cardinal proportionality refers to the range of dispositions that are appropriate for a specific offence.
Ordinal and cardinal proportionality have both legislative and judicial dimensions. The first, obviously, relates to determinations by the legislature and the second refers to the jurisprudence of the courts. In either case a failure to satisfy the principle of ordinal proportionality necessarily implies a risk that the principle of cardinal proportionality cannot be satisfied. The maximisation of ordinal and cardinal proportionality in a rational system of sentencing would thus tend to diminish, but never eliminate, disparity. Inflexible tariffs intended to minimise disparity risk the introduction, or perpetuation, of an artificial principle of proportionality that can fail to produce a just and fit sentence in individual cases.
The gravity of the offence concerns the harm caused by the offender to the victim, as well as to society and its values. The other aspect of the principle of proportionality involves factors that relate to the offender’s moral culpability. The degree of responsibility of the offender includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts can draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. In applying the principles of proportionality in sentencing a parent for ‘disciplining’ their child, demonstrates the current sentencing legislative scheme is grossly disproportionate.
Lastly s 51(5) of the Criminal Law Amendment Act and s 297(4) of the Criminal Procedure Act are in direct contrast to the principles of the ‘best interests of the child’ (the complainant or victim) and the principle of the primary caregiver in some cases, especially the example I referred to above. The court should consider the child’s best interests as an important factor, given its substantial weight, and be alert, alive and sensitive to the child’s best interests. That is not to say that the child’s best interests must always outweigh other considerations. Children depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process. Parents are presumed to act in their child’s best interests. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship by sentencing the parent to a period of imprisonment. In S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) the court found that s 28(2) of the Constitution should be read with s 28(1)(b) of the Constitution. These two provisions impose four responsibilities on a sentencing court when a custodial sentence for a primary caregiver is being dealt with. They are –
Let us never forget the criminal law is a blunt instrument whose power can also be destructive of family and educational relationships.
Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.
This article was first published in De Rebus in 2021 (June) DR 20.
