The term ‘substantial and compelling circumstances’ has not been properly defined by South African courts. However, in terms of s 51(3)(a) of the Criminal Law Amendment Act 105 of 1997 (the Act), a court is granted a discretion to impose a lesser sentence than that one prescribed by the Act where ‘substantial and compelling circumstances’ exist. The phrase ‘substantial and compelling circumstances’ has created much debate, as there has been a wide range of interpretations.
When sentencing an accused person, the court has to evaluate all the evidence, including the mitigating and aggravating factors, to decide whether substantial and compelling circumstances exist. A court must be conscious of the fact that the legislature has ordained a particular sentence for such an offence and there must be truly convincing reasons to depart therefrom, which reasons must be stipulated on the record.
It is for this reason that courts have not attempted to define the meaning of the phrase ‘substantial and compelling circumstances’, keeping in mind that with the principle, the imposition of sentence is pre-eminently the domain of a sentencing court. ‘A court must consider all the circumstances of the case, including the many factors traditionally taken into account by courts when sentencing offenders. For circumstances to qualify as substantial and compelling, they need not be ‘exceptional’ in the sense that they are seldom encountered or rare, nor are they limited to those which diminish the moral guilt of the offender’ (see S v Pillay 2018 (2) SACR 192 (KZD) at para 10).
In S v Pillay the accused was convicted of the murder of Annelene Pillay (the deceased), committed under circumstances contemplated in s 51, part I of sch 2 of the Act, in that the state alleged the offence was planned or premeditated (count 1), and, possession of a firearm in contravention of s 3 of the Firearms Control Act 60 of 2000 read with s 51, part II of sch 2 of the Act (count 2).
The issue, which concerned the court, was whether to impose the prescribed minimum sentences of life imprisonment in respect of count 1 and 15 years’ imprisonment in respect of count 2, or whether to deviate from such sentences?
Henriques J stated that where a court is convinced – that after consideration of all the factors – an injustice would be done if the minimum sentence is imposed, then it can characterise such factors as constituting substantial and compelling circumstances and deviate from imposing the prescribed minimum sentence.
In S v Vilakazi 2009 (1) SACR 552 (SCA), the court explained that particular factors, whether aggravating or mitigating, should not be taken individually and in isolation as substantial or compelling circumstances. Ultimately, in deciding whether substantial and compelling circumstances exist, one must look at traditional mitigating and aggravating factors and consider the cumulative effect thereof. When sentencing, a court takes into account the personal circumstances of an accused. However, only some of these carry sufficient weight to tip the scales in favour of the accused to impact on the sentence to be imposed. Often the fact that the accused is young and is a first offender has the effect of reducing a sentence, as there is potential for the offender not to repeat the crime and to be rehabilitated.
The minimum sentences have been ordained to be the sentences that must ordinarily be imposed unless the court finds substantial and compelling circumstances, which justify a departure therefrom. In addition, the Supreme Court of Appeal has indicated that the minimum sentences must not be departed from for ‘flimsy reasons’ and are the starting point when imposing sentence.
In the event of substantial and compelling circumstances not existing, a sentencing court is then entitled to depart from imposing the prescribed minimum sentences, if it is of the view that having regard to the nature of the offence, the personal circumstances of the accused, and the interests of society, it would be disproportionate and unjust to do so. This is often referred to as the proportionality test.
‘Mandatory minimum sentences should be approached with a degree of caution, because though there is a discretion to deviate from the prescribed sentences under s 51(3)(a) of the 1997 Act, courts may easily do so for “flimsy” reasons and where there is a need to deviate from the prescribed sentences, such need may not be recognised by the court. Further, South Africa should opt for the implementation of a more restorative approach, which will result in the restoration of the victim by repairing the damages suffered as a result of the crime. Finally, a strong deterrent against crime is necessary, consistency will be achieved where courts adhere to the sentencing principles, most importantly the principle of proportionality and where courts decide cases on their own merits’ (Thulisile Brenda Njoko What constitutes ‘substantial and compelling circumstances’ in the mandatory and minimum sentencing context? (LLM thesis, University of KwaZulu-Natal, 2016).
I for one agree with the views of some presiding officers that, substantial and compelling circumstances can be found in traditional mitigating factors. If the imposition of prescribed sentences is disproportionate to crime, criminal and legitimate needs of society; that on its own constitutes substantial and compelling circumstance justifying a lesser sentence than life imprisonment.
Sipho Tumelo Mdhluli LLB (University of Limpopo) is a legal practitioner at Lekhu Pilson Attorneys in Middelburg.
This article was first published in De Rebus in 2021 (March) DR 7.
