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Stare decisis is integral to the rule of law. The term stems from the Latin maxim stare decisis et non quieta movere, which means to stand by decisions and not to disturb settled matters. At its core, the doctrine engages the principles of certainty and correctness, which at times pursue contradictory aims. ‘Stare decisis brings important benefits to constitutional adjudication that balance predictability and consistency with changing social circumstances and the need for correctness’ (R v Sullivan 2022 SCC 19 (CanLII)). An incorrect ‘decision by a court is more difficult to repair and may require legislative intervention’ (Sullivan). Much has been said about the Mahlase v S (SCA) (unreported case no 255/1211, 29-11-2013) (Tshiqi JA (Lewis and Theron JJA concurring)) decision delivered by Tshiqi JA.
In para 9 the court said: ‘The second misdirection pertained to the sentence imposed for the rape conviction. The court correctly bemoaned the fact that Ms D M was apparently raped more than once and in front of her colleagues. The learned judge however overlooked the fact that because accused 2 and 6, who were implicated by Mr Mahlangu, were not before the trial court and had not yet been convicted of the rape, it cannot be held that the rape fell within the provisions of Part 1 Schedule 2 of the Criminal Law Amendment Act [105 of 1997] (where the victim is raped more than once) as the High Court found that it did. It follows that the minimum sentence for rape was not applicable to the rape conviction and the sentence of life imprisonment must be set aside.’
The finding of the court compelled the Legislature to amend the Criminal Law Amendment Act with the enactment of Criminal and Related Matters Amendment Act 12 of 2021 and specifically the amendment of Part I of sch 2 to Act 105 of 1997, as amended by s 37 of the Judicial Matters Amendment Act 62 of 2000 and s 27 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004, s 68 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, s 5 of the Criminal Law (Sentencing) Amendment Act 38 of 2007, s 22 of the Judicial Matters Amendment Act 66 of 2008, s 48 of Prevention and Combating of Trafficking in Persons Act 7 of 2013 and s 25 of the Judicial Matters Amendment Act 8 of 2017 that enacts rape –
‘(a) when committed –
(i) in the circumstances where the accused is convicted of the offence of compelled rape and evidence adduced at the trial of the accused proves that the victim was also raped –
(aa) as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by any co-perpetrator or accomplice; or
(bb) by a person, who was compelled by any co-perpetrator or accomplice, to rape the victim, irrespective of whether or not the co-perpetrator or accomplice has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question.’
It is unwise for a court to bind all other courts with an incorrect approach to legislation. ‘It is better to revisit precedent than to allow it to perpetuate an injustice’ (Sullivan).
The importance of the preceding paragraph prompted me to write this article based on my article ‘Parents who assault their children – the inconsistency of applying s 297(4) of the Criminal Procedure Act’ 2021 (June) DR 20 and a subsequent article that was written by Garth Davis, a regional magistrate at the Durban Magistrate’s Court (Garth Davis ‘Hildebrand and Seedat – The importance of the law of precedent or stare decisis’ 2022 (Aug) e-Mantshi 19). Davis holds the view that ‘the effect of a finding in terms of section 51(3) [of the Criminal Law Amendment Act] was that section 51(5) was no longer applicable and that the court was free to impose any sentence’ provided the court finds ‘substantial and compelling circumstances exist’ (Davis (op cit)). His belief is based on the Hildebrand v State (SCA) (unreported case no 00424/2015, 26-11-2015) (Bosielo JA (Tshiqi and Swain JJA concurring)) case. Davis reasons S v Seedat 2017 (1) SACR 141 (SCA) does not overrule the Hildebrand decision. I agree with the outcome of the Hildebrand decision, but not on the reasoning of the court in so far as a finding in terms of s 51(3) of the Criminal Law Amendment Act that it substantial and compelling circumstances exist as it makes s 51(5) redundant.
I agree with Davis’s reasoning in so far as to what stare decisis is not his conclusion, but do not agree in so far as the redundancy of s 51(5) is concerned. The reasoning concerning the Hildebrand decision is wrong insofar as the provisions of the Criminal Law Amendment Act are concerned. I say this for several reasons. It is important to understand the purpose of the legislation as part of my reasoning why I hold the view the reasoning in Hildebrand is wrong.
It is indeed so that the Criminal Law Amendment Act is not well-drafted legislation. It has been described as an Act that ‘purports to cover the field of serious crime in no more than a handful of blunt paragraphs’ (see Vilakazi v S [2008] 4 All SA 396 (SCA)). ‘The modern approach to statutory interpretation mandates that statutes be read with an eye toward harmonizing their text, context, and purpose’ (Mark Mancini ‘The purpose error in the modern approach to statutory interpretation’ (2022) 59 Alberta Law Review 919). ‘Jurists [and courts specifically] can stray from the modern approach by prioritizing abstract statutory purposes over the specific legal rules by which an act pursues these objectives’ (Mancini (op cit)). It has been described as a purpose error. ‘Two factors generally drive the commission of the purpose error. First, the definition of the statutory purpose at an unduly high level of abstraction. Second, the failure to qualify a statute’s primary purpose by considering other competing secondary purposes that the act also aims to achieve’ (Mancini (op cit)). ‘There is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’ (Derek Sinko ‘The use of “use”: Legislative intent, plain meaning, and corpus linguistics’ (https://papers.ssrn.com, accessed 11-12-2022)). ‘What courts “must interpret is the text through which the legislature seeks [its objective]”’ (Mancini (op cit)).
The purpose of the Criminal Law Amendment Act 105 of 1997 states ‘to provide for minimum sentences for certain serious offences; and to provide for matters connected therewith’. The purpose of the legislation will not provide all the answers. An understanding of the words ‘in context and as applied to facts is the core interpretive task. Words at certain levels of generality will indicate different legal rules and purposes, and courts should pay close attention to how the legislature chooses to “set meaningful boundaries on the purposes it wishes courts … to pursue’ (Mancini (op cit)). ‘The language is the focus: It can be “precise and narrow”’ regarding minimum sentences for serious offences (Mancini (op cit)). The why and how are contained in the phrase ‘to provide for matters connected with it’. It is the why and how that is the central focus of this article.
Subsection 51(3)(a) provides that: ‘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’. An ordinarily grammatical meaning of the word ‘lesser’ does not mean ‘any’ as stated in the Hildebrand case (see para 8). The words ‘lesser’ and ‘any’ are not synonymous words. Courts are not mandated to read words or amend words into statutory provisions. The reasoning in the Hildebrand case is not a logical proposition. Neither is it consistent with the grammatical structure of s 51(3) of the Criminal Law Amendment Act. Parliament has clearly expressed the intention that the punishment imposed under s 51 of the Act is a minimum punishment. This express language ousts the general discretion of the sentencing court to select the form (type of sentence) and it limits the degree of punishment. I cannot, therefore, accept that Parliament intended the subsection to be so interpreted as stated in the Hildebrand case.
The Hildebrand reasoning insofar as s 51(3) of the Act is, with respect, framed at a high level of abstraction and in isolation from the Legislative intention which is stated above. It disqualifies s 51(5) of the Criminal Law Amendment Act without any substance or flawed reasoning. In Hildebrand, Bosielo JA states: ‘It should be clear that s 51(5) refers to “a minimum sentence imposed in terms of this section”. Self-evidently, this section does not apply to sentences imposed after a finding that substantial and compelling circumstances exist, because such a sentence is not one imposed in terms of s 51. The sentence imposed by the regional magistrate accordingly did not fall within the restrictive provisions of s 51(5)’ (para 10). Section 51(5) reads ‘the operation of a minimum sentence imposed in terms of this section shall not be suspended as contemplated in section 297(4) of the Criminal Procedure Act [51 of 1977]’. The use of the word ‘minimum’ in the Hildebrand case is an addition that does not form part of s 51(5) of the Criminal Law Amendment Act. There is nothing in the Criminal Law Amendment Act to even suggest s 51(5) as being qualified by another specifically s 51(3) as found by the Hildebrand decision. The interpretation is not consistent with the explicit wording and grammatical construction of the subsection. It is important to emphasise that a naked text (s 51(3)) cannot be the sole determinant on which the meaning of a statute is determined by a court because it will not capture the entirety of legislative expression.
I deem it important to elaborate on the stare decisis rule based on Davis’s opinion and S v Dawjee and Others [2018] 3 All SA 816 (WCC). Respectfully, I disagree with the statement made by Davis that the effect of a finding in terms of s 51(3) makes s 51(5) of the Act redundant and, therefore, Seedat has no relevance. Tshiqi JA states: ‘If it were the intention of the High Court to invoke the provisions of s 297(4), it could do so, as it had already accepted that there were substantial and compelling circumstances that justified a deviation from the prescribed minimum sentence. However, in order for that sentence to be competent, the court would have to impose a sentence for a specific term of imprisonment’ (para 36). Tshiqi JA specifically discusses s 51(3) of the Criminal Law Amendment Act and its consequences if a finding was made substantial and compelling circumstances exist. Hildebrand concludes that if substantial and compelling circumstances exist, s 51(5) of the Criminal Law Amendment Act does not apply. Seedat concludes that for the sentence to be competent even though substantial and compelling circumstances exist, the court must impose a specific term of imprisonment in terms of s 51(5) of the Criminal Law Amendment Act and s 297(4) of the Criminal Procedure Act. To simplify it, both cases reached their decision based on an interpretation of s 51(3) of the Criminal Law Amendment Act (the how and why I referred to the above in this article) and the consequences of it, to wit s 51(5) of the Criminal Law Amendment Act. Strengthening my stance Bosielo JA said in Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) at para 23: ‘It is true that s 51(5)(a) … precludes a sentencing court from suspending a sentence imposed in terms of this Act. It follows that the court below erred in having the sentence wholly suspended’. Interestingly Bosielo JA wrote Thabethe and the subsequent Hildebrand decisions reaching different conclusions on an interpretation of s 51(3) and s 51(5) of the Criminal Law Amendment Act. It is specifically his divergent views of interpreting s 51(5) that must be of concern.
‘The principle of judicial comity – that judges treat fellow judges’ decisions with courtesy and consideration – as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed’ (Sullivan). ‘Courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
‘2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”)’ (Sullivan). ‘The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision’ (Sullivan). At the fear of repetition, it is important to stress I agree with the outcome of the Hildebrand decision based on the proportionality principle and not the interpretation of s 51(3) and the consequences flowing from it to wit s 51(5) of the Criminal Law Amendment Act.
‘3. The earlier decision was not fully considered, eg, taken in [important] circumstances’ (Sullivan).
Davis is spot on with his remarks, Seedat does not refer to Hildebrand and neither does Hildebrand refer to Thabethe. The three decisions, however, discussed the provisions of the Criminal Law Amendment Act and specifically s 51(3) the (how and why.) It is for these reasons I hold the view that because of the how and why the importance of Thabethe and Seedat. It is important to appreciate that stare decisis can be conceptualised in two distinct categories: Horizontal and vertical. Horizontal stare decisis requires a court to follow its own previous decisions unless exceptional circumstances warrant changing the law. In contrast, vertical stare decisis requires lower courts to follow higher courts’ binding decisions. For the law to evolve and remain the ‘living tree’ vital to the context of the times it operates in, it is appropriate for lower courts to periodically revisit issues previously decided by higher courts. A legal precedent may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Hildebrand with respect cannot be followed as it is not based on a correct interpretation of s 51(5) of the Criminal Law Amendment Act. Jurists must avoid following Hildebrand as it will follow the controversy created by the Mahlase decision.
Desmond Francke BIuris (UWC) is a magistrate in Uthukela.
This article was first published in De Rebus in 2023 (Jan/Feb) DR 25.
