1996_53.html
THE STATE VERSUS STEPHANUS VRIES CR 32/96
O'LINN J.; FRANK J.: GIBSON J.
HEARD ON: 1996/03/20 &
1996/04/30
DELIVERED ON: 1996/06/19
Fundamental Human Rights and
Freedoms - cruel and inhuman
punishment - Stock Theft Act providing for
minimum sentence
upon second or subsequent conviction - Provision
unconstitu-
tional as requires imposition of sentence which in cases
that
can be foreseen as likely to arise commonly will
be such that no
reasonable man would have imposed
Act thus provides for
punishment which is inhuman
Section proscribing the minimum\sentence
down-read.
Sentence - Minimum mandory sentence - Constitutionality
of.
Not per se unconstitutional - Test to be applied
-If sentence in particular
caTse such that no reasonable
man would have imposed it is unconstitutional -
Where
cases that this will happen can be foreseen as likely
to arise
commonly statory provision subject to attack
where not like
to arise commonly a constitutional
exemption must be applied in respect
of the particular
case before court. Constitutional law - Stock
Theft
Act - Minimum proscribed sentence unconstitutional
Not
referred back to Parliament in terms of Act 25(1)(a)
of Constitution - Not
done as minimum would sentence
remain in place pending referal,
as section down-read
and not struck out completely essence of section
remain
intact and no valid societal aim paralysed.
CASE NO. CR 32/96
IN THE HIGH COURT OF NAMIBIA
In the matter*
between
THE STATE
versus
STEPHANUS VRIES
CORAM: O'LINN, J. et
FRANK, J. et GIBSON, J.
Heard on: 1996.03.20 +
1996.04.30
Delivered on: 1996.06.19
JUDGMENT
FRANK, J.: The
accused was convicted of the theft of a
goat valued at N$280. The
accused, a 45 year old male,
informed the Court that he was married with
six children and
employed earning N$250 per month plus rations. The
accused
had previous convictions namely theft of a sheep valued at
N$6
during 1969, use of property without the owner's consent
during 1977 and
malicious damage to property during 1979.
The magistrate sentenced
the accused to 18 months
imprisonment which he suspended in
toto.
When the matter was initially submitted for review
my
brother Hannah J. queried the sentence as it did not comply
with the
provisions of the Stock Theft Act, no. 12 of 1990
in that section 14(1)(b) of
that Act provides for a minimum
sentence of three years imprisonment
for a second or
subsequent conviction of stock theft which
cannot be
suspended partially or wholly (section 14(2)).
The matter
has now been referred to the full bench to determine
whether
the prescribed minimum sentence is in conflict with
Article
8(2)(b) of the Constitution which reads: "No persons
shall
be subject to torture or to cruel, inhuman or
degrading
treatment or punishment."
In ex parte Attorney-General,
Namibia: In Re Corporal
Punishment, 1991(3) SA 76 (NmSC) the
Supreme Court had the
following to say with regard to Article 8:
"It
seems clear that the words have to be
read
disjunctively. Thus read, the section seeks
to protect citizens
from seven different
conditions:
(a) Torture;
(b) cruel treatment;
(c) cruel punishment;
(d) inhuman
treatment;
(e) inhuman punishment;
(f) degrading
treatment;
(g) degrading punishment.
Although the
Namibian Constitution expressly
directs itself to permissable
derogations from the
fundamental rights and freedoms entrenched in
chapter 3 of the Constitution, no derogation from
the rights entrenched
by Article 8 is permitted.
This is clear from Article
24(3) of the
Constitution. The State's obligation is absolute
and unqualified. All that is therefore required
to establish a
violation of Article 8 is a finding
that a particular statute or
practise authorised
or regulated by a State organ falls within one
or
other of the seven permutations of Act 8(2) (b)
;
'no questions of justification can ever
arise.' (at 86 B - E)
The question as to whether a particular form of
punishment authorised by
the law can properly be
said to be inhuman or degrading involves the
exercise of a value judgment by the Court
It is however a value judgment
which requires
objectively to be articulated and identified,
regard being had to the contemporary norms,
expressed in its national
institutions and its
Constitution, and further having regard to
the
3
emerging consensus of
values in the civilised
community (of which Namibia is a part)
which
Namibians share. This is not a static exercise.
It
is a continually evolving dynamic. What may
have been
acceptable as a just form of punishment
some decades ago, may appear to
be manifestly
inhuman or degrading today. Yesterday's orthodoxy
might appear to be today's heresy."
(at 86 H - 87 A)
As is apparent
from the heading of the above Supreme Court
decision the question that had to
be resolved was whether
the infliction of corporal punishment was in
conflict with
Article 8(2) (b) of the Constitution and not when will
a
permissable form of punishment such as imprisonment conflict
with
Article 8(2)(b), if ever. The value judgment and the
way it is to be
made must thus be seen in that context. It
is not apposite in
the present case, e.g. to determine
whether India, Canada,
Australia, USA, etc have stock
theft Acts and what their penal
provisions provide and if
they do not have minimum sentences to
conclude that
therefore the Namibian Stock Theft Act, in so
far as it
makes provision for minimum sentences, is unconstitutional.
The
problems, effects and importance of Stock Theft would
vary from
country to country as would, probably, the way it
is dealt with. What
however is important and significant is
that it is clear that the
prohibition against the
punishments mentioned in Article 8(2)(b)
is absolute and to
decide whether Article 8(2) (b) is infringed
is a value
judgment that could vary from time to time but which is
one
not arbitrarily arrived at but which must be
judicially
arrived at by way of an attempt to give content to the
value
judgment by referral to the prevailing norms which may o:
may not
coincide with the norms of any particular judge. A;
4
was pointed out in Cohen v Georgia, 1977 433 US 584 at 592
these
judgments "should not be, or appear to be, merely the
subjective views of
individual Justices; judgment should be
informed by objective
factors to the maximum possible
extent."
The first question to
decide is whether the imposition of a
minimum sentence by the
legislature is per se
unconstitutional. The defects of
such sentences are
succinctly spelt out in S v Thorns; S v Bruce,
1990(2) SA
802 (A) at 806 H - 807 D in the following terms:
"The
first principle is that the infliction of
punishment is pre-eminently a
matter for the
discretion of the trial Court (at R v Mapumulo and
Others, 1920 AD 56 at 3 7 ) . That Courts should, as
far as possible,
have an unfettered discretion in
relation to sentence is a cherished
principle
which calls for constant recognition. Such a
discretion permits of balanced and fair
sentencing,
which is a hallmark of enlightened
criminal justice. The second,
and somewhat
related principle, is that of
the
individualisation of punishment, which requires
proper
consideration of the individual
circumstances of each
accused person. This
principle too is firmly entrenched
in our law (S
v Rabie. 1975(4) SA 855 (a) at 861 D;
Sy
Scheepers, 1977(2) SA 159 (A) at 158 F - G ) .
A mandatory
sentence runs counter to these
principles (I use the term
'mandatory sentence' in
the sense of a sentence prescribed by
the
legislature which leaves the Court with no
discretion at all - either in respect of the kind
of sentence to be
imposed or, in the case of
imprisonment, the period thereof). It reduces
the
Court's normal sentencing function to the level of
a rubber
stamp. It negates the ideal of
individualisation.
The morally just and the
morally reprehensible are treated
alike.
Extenuating and aggravating factors both count for
nothing. No consideration, no matter how valid or
compelling, can affect
the question of sentence.
As Holmes J.A. pointed out in S v Gibson,
1974(4)
SA 478 (A) at 482 A, a mandatory sentence
'unduly
puts all the emphasis on the punitive
5
and deterrent factors of sentence, and
precludes the traditional consideration of
subjective factors
relating to the convicted
person.'
Harsh and inequitable
results inevitably follow
from such a situation. Consequently
judicial
policy is opposed to mandatory sentences (ct S v
Mpetha, 1985(3) SA 702 (A) at 710 E ) , as they are
detrimental to
the proper administration of
justice and the image and standing of the
courts."
Despite the mentioned defects the imposition of a
mandatory
sentence is accepted in both Canada and the United States
of
America as not being per se contrary to the provisions of
their
respective Constitutions which prohibits "cruel and
unusual"
punishment. As will be seen later the factors
mentioned in the
Thorns case above, are considered when
deciding whether such a
sentence is unconstitutional or not.
This is done out of deference to the
legislature which as
representative of the populace clearly reflects
the norms
and values of the electorate and thus of society in
general.
Thus regard is had to the "contemporary norms, expressed in
its
national institutions" (see Corporal Punishment case,
above).
Parliament is empowered by the Constitution to pass
legislation and is
thus undoubtedly entitled to proscribe
conduct as criminal and to determine
punishment for conduct
so proscribed. I am thus of the view that minimum
sentences
are not per se unconstitutional. This view is bolstered
by
the approach set out hereinafter which in my view is
the
only reasonable one to allow both Parliament and the courts
to play
their proper role as envisaged by the Constitution.
I pause here for a
moment to state that if a minimum
sentence is unconstitutional then
for the reasons set out in
the Thorns case a maximum one would also be
unconstitutional.
6
Whereas
Parliament may generally enact legislation including
legislation with penal
provisions Parliament cannot enact
penalties which will fall foul
of Art 8(2) (b) . Whether a
prescribed punishment infringes
Art 8(2) (b) is for the
courts to decide and not for
Parliament (Art 25 of the
Constitution). This is also the approach
in Canada and the
USA. (See Smith v The Queen. 1987(34) CCC (3d) 97 and
the
Georgetown Law Journal (Vol. 79 no. 4 April 1991). In Smith
v
The Queen the following appears at 13 7:
"It is not for the court to
pass on the wisdom of
Parliament with respect to the gravity of
various
offences and the range of penalties which may be
imposed upon those found guilty of committing the
offences.
Parliament has broad discretion in
proscribing conduct as criminal and
in determining
proper punishment. While the final judgment as to
whether a punishment exceeds constitutional limits
set by the Chapter
is properly a judicial function
" , the courts are empowered,
indeed required,
to measure the content of legislation against the
guarantees of the Constitution."
The next question that arises is when will
courts hold that
a minimum mandatory sentence amounts to cruel,
inhuman or
degrading punishment. In both the USA and Canada the
courts
have evolved a test based on proportionality. Thus
a
sentence is "in violation of the eighth amendment if it is
grossly
disproportionate to the severity of the offence" in
the USA (Georgetown Law
Journal, above at 1118 - 1121) and
"Section 12 is violated
where the sentence prescribed is
grossly or excessively
disproportionate to the wrongdoing"
in Canada (R v Goltz. 1991(6) CCC (3d)
481 at 482 b ) . The
mentioned eighth amendment reads
"Excessive bail shall not
be required, nor excessive fines imposed,
nor cruel and
7
unusual
punishments inflicted" and section 12 reads
"Everyone
has a right not to be subjected to any cruel and
unusual treatment or
punishment."
To determine whether a sentence is
"grossly
disproportionate" use is made of expressions like;
"- a
severe punishment must not be unacceptable to contemporary
society",
"the infliction of a severe punishment by the
State cannot
comport with human dignity when it is nothing
more than the pointless
infliction of suffering" , it is
excessive and serves no valid
legislative purpose", "
invalid if popular sentiment abhors
it" (Furman v Georgia,
(1971) 408 US 238 at 277, 279)
and "outrage standards of
decency", " no one, not the
offender and not the
public, could possibly have thought
that that particular
accused's offence would attract such
penalty. It was
unexpected and unanticipated in its severity either
by him
or by them." (Smith v The Queen, supra at 139 and 1 4 7 ) .
The
fact that the sentence is excessive in the view of the
Court hearing the
matter is not sufficient to declare it
unconstitutional.
This point is made in both the majority
and minority judgments in Smith v The
Queen. Lamer J. makes
the point as follows in the majority
judgment:
"The test for review under section 12 of the
Charter
is one of gross disproportionality,
because it is aimed at
punishments that are more
than merely excessive. We should be
careful not
to stigmatise every disproportionate or excessive
sentence as being a constitutional violation, and
should leave to the
usual sentencing appeal
process the task of reviewing the fitness of
a
sentence. Section 12 will only be infringed where
the
sentence is so unfit having regard to the
8
offence and the offender as to be grossly-
disproportionate. "
(at 139)
Mclntyre J. makes the same point in
his minority judgment as
follows:
"Not every departure by a court or
legislature
from what might be called a truly appropriate
degree of punishment will constitute cruel an
unusual punishment.
Sentencing, at the best of
times, is an imprecise and imperfect
procedure and
there will always be a substantial range of
appropriate sentences. Further, there will be a
range of
sentences which may be considered
excessive, but
not so excessive or so
disproportionate as to
'outrage standards of
decency' and thereby justify judicial
interference
under section 12 of the Charter. In other
words,
there is a vast grey area between the truly
appropriate
sentence and a cruel and unusual
sentence under the Charter."
(at 109 - 110)
It seems to me that the disproportionality test is the
same
test that was originally used to determine whether
a
sentence was shocking before the "shocking" test
became
virtually synonymous with the "startlingly" or
"disturbingly
inappropriate" test. Thus in R v Taliaard,
1924 TPD 581
Curlewis J. held in this regard that a court
could not
interfere with a sentence unless "it is so clearly
excessive
that no reasonable man would have imposed it." It
is with
this test that Shreiner J. took issue in R v Recce, 1939 TPD
242
and which eventually led to the "shocking" test to
become
synonymous with the "disturbingly or
startlingly
inappropriate" test. Shreiner J. states the following at
p.
243 - 244:
said:
'Unless
"In that case Curlewis, J.
9
the Court is clearly of opinion that no reasonable
man ought
to have imposed such a sentence,
the Court cannot interfere.'
It would, on
principle, seem regrettable that the Court should
not be entitled to alter a sentence which seemed
to it to be grossly
excessive, because it could
conceive of reasonable people holding a
different
view. In matters of sentence opinions must
necessarily vary greatly. Different people will
inevitably take
different views with regard to the
appropriate punishment in any
particular case and,
consequently, the Court would have to hesitate
long indeed before it could come to the conclusion
that a particular
sentence is such that no
reasonable person ought not to have awarded
it.
But the position is different when the Court has
to express
its own view as to whether the sentence
is excessive or not; on such a
question the Court
is able to give a clear and definite opinion
It is clear, at least that the Court will not
interfere simply because
it disagrees with the
sentence that was imposed ; but
at some
stage more disagreement may be left behind and the
superior court may feel a sense of shock or
outrage at the
sentence."
In considering what "no reasonable man would have
imposed"
all the factors taken into account in
the
"disproportionality" test would have to be considered and I
doubt
whether in effect the "shocking" test as proposed in
the Tali aard
case differs from the "disproportionally" test.
This "shocking" test
also gives sufficient recognition to
the legislature because as
pointed out by -Shre-iner J. only
punishments which are "more than
merely excessive" will be
subject to attack and will leave other
sentences to be
normal appeal procedures which would include appeals on
the
basis of shock in its normal sense intact but distinct from
the basis
of "shock" in constitutional challenges to
sentences. In
this way not every excessive or even
startlingly or
disturbingly inappropriate sentence will be
dealt with as constitutional
violations but will be dealt
with under the normal principles
applicable to appeals
10
concerning sentences.
Where I hereafter use the work "shock" in a
constitutional
sense I refer to shock as defined in the Taliaard case
as
being a sentence "so excessive that no reasonable man would
have
imposed it" and not to the concept as used in its
ordinary
meaning as developed for appeals in the ordinary
course of Criminal
Procedure.
It follows thus that this Court must look at the facts of
the
present case and determine what a proper sentence would
have been taking
all the facts and circumstances into
account which must be
taken into account when sentencing an
accused. Once this is done and an
appropriate sentence has
been determined this sentence must then be measured
against
the statutory mandatory one. If this is done and
the
mandatory sentence induces a sense of shock then Act 8(2)(b)
has been
infringed.
What must be determined next is whether the
statutory
section must be set aside or whether only the
sentence
imposed on the individual accused must be set aside.
Both counsel
approached the matter on the basis that the
statutory
injunction must be set aside and there was no
basis on which
a sentence on an individual basis could be
set aside without setting the
statutory injunction aside.
I am not convinced that this proposition
is sound as in
Canada both these possibilities exist (R v
Kumar, Vol. 20
Canadian Rights Reporter 114) and it seems to me
that the
ratio of our Supreme Court in S v Tcoeib, 1996(1) SACR
390
(NmS) is to the same effect. In the Tcoeib case the Supreme
Court
dealt with the constitutionality of life imprisonment
under two distinct
headings namely as set out at 391 h - i:
"1. Is the imposition of a
sentence of life
imprisonment per se unconstitutional
in
Namibia?
2. If it is not per se unconstitutional,
is such
sentence nevertheless unconstitutional in the
circumstances of the present case?"
The approach clearly indicates that
whereas a sentence may
in general terms not be unconstitutional per se it may
be
such on the facts of a particular case. How must one
then
determine whether a minimum sentence is per
se
unconstitutional or whether it is unconstitutional only in
a specific
case (i.e. when does one apply the so-called
"constitutional
exemption" to a particular accused and not
nullify the empowering
statute).
The Canadians have evolved a set of principles which in my
view
is the only sensible approach once it is accepted that
a sentence may in
general be acceptable and constitutional
but in a particular case
be unacceptable and
unconstitutional. From a reading of the
Canadian cases of
Smith v The Queen. R v Goltz and R v Kumar mentioned
above,
the following may be said to be their approach: (Here
it
must be kept in mind that even if a sentence is held to be
grossly
disproportionate it may still be upheld because of
section 1 of the Canadian
Charter which creates derogations
under certain circumstances. This is
however not the case
12
in
Namibia where the rights created in Art 8(2) (b)
are
absolute as already pointed o u t ) .
1. A statutory minimum
sentence of imprisonment is not per
se unconstitutional.
2. It
will be unconstitutional however if it prescribes
imprisonment as
a punishment which is "grossly
disproportionate" to the
circumstances of the offender
and the offence.
3. The section 12
test for "gross disproportionality" is
to be applied first with
respect to the offence and
offender before court, and
then with respect to
hypothetical cases which, ,
can be foreseen as
likely to arise commonly." (R v Kumar,
at 130. See
also Smith and Goltz cases).
4. Where a
statutory minimum sentence is found to be
"grossly
disproportionate" there are three possible
avenues open to
the court namely:
(a) to declare the provision of no force or effect
for
all purposes;
(b) to declare the provision to be of
force and effect
only in a particular class of cases i.e. to
read
it down; and
(c) to declare the provision
to be of no force or
13
effect in respect to the particular case before
the
court i.e. apply a constitutional exemption.
5. Although not totally clear
it seems that the options
mentioned above in 4 (a) and (b)
are followed when
"cases can be foreseen as
likely to arise
commonly" and option 4 (c) is followed
when what was
described in the Goltz case at 497 as "far-fetched
and
marginally imaginable cases" suddenly becomes reality
which can happen as every experienced lawyer can
testify.
If the test with regard to legislation is not to be based
on
"reasonable hypothetical circumstances as opposed to
far-
fetched or marginally imaginable cases" then no
statutory
minimum sentence will survive scrutiny. In this manner
a
proper balance is in my view struck between the role of the
legislature
and the courts. Thus if the sentence legislated
is not shocking in
reasonable hypothetical cases it will not
be impugned. If in an
individual case it then turns out to
be shocking that individual's right in
terms of Art 8(2)(b)
will be protected by applying a constitutional
exemption.
On this basis Parliament can legislate generally and
the
constitutional rights of the subjects are protected.
Maybe an
example from Canada where the constitutional
exemption option
was followed will clarify the matter
further. Thus in R v Chief
(see Kumar case at 124 - 125) a
native Indian Trapper from the Yukon area who
was reliant on
game for the support of his family and dependent on
income
14
from the sale of furs
faced a mandatory prohibition against
the possession of firearms after having
been convicted of an
assault. Esson J. justified the
reliance on the
constitutional exemption as "the remedy
which will do
justice in the instant case without changing
the general
good. Section 98(1), in its application
to the great
majority of Canadians, cannot possibly be
considered to
offend the Charter." (Section 98 was the section
providing
for the mandatory prohibition).
In my view the position
in Namibia can be summarised as
follows or be divided into the
following steps:
1. A statutory minimum sentence is
not per se
unconstitutional.
2. It will be
unconstitutional if it provides for a
punishment which
will be shocking in the circumstances
of the specific case before
court.
3. Where a statutory minimum sentence results
in a
shocking sentence there are four options available to
the court, namely;
(a) to declare the provision of no force or affect
for
all purposes,
(b) to declare the provision to be
of no force and
effect only in a particular class of cases i.e.
to
down-read it,
15
(c) to declare the provision to be of no force or
effect in respect to the particular case before
court
i.e. apply a constitutional exemption,
(d) to allow the legislature
to cure the defects in
the impugned legislation
pursuant to the
provisions of Art 25(1)(a) of the
Constitution.
4. Where the statutory minimum sentence is found to
be
shocking in the case before the Court the Court must
then
enquire whether it will be shocking "with respect
to hypothetical cases
which, , can be foreseen as
likely to arise commonly."
If the answer to the second
enquiry is in the affirmative then the
Court must act
in one of the respects set out in 3 (a) ,
(b) or (d)
above. If the answer to the second enquiry is in
the
negative the court must act as set out in 3(c)
above.
Before I deal with the facts of the present case it
is
necessary to briefly deal with minimum sentences imposed for
second
or subsequent offenders in general. To decide
whether such a
sentence is in conflict with Article 8(2) of
the Constitution the
same general principles should apply (R
v Kumar above, see also R v
Parsons quoted in the Canadian
Charter of Rights; Vol. 3 at 12:
90080 where a minimum
penalty of 90 days for a third or subsequent conviction
for
drunken driving was upheld). However as is apparent from
the
Kumar case other considerations may apply based on the
fact that it is
at the discretion of the prosecution to
prove or not to prove previous
convictions. Thus although
16
such sentences may not be grossly disproportionate the Kumar
case dealt
also with the factor of the arbitrariness in the
proof of previous
convictions and the effect thereof on the
"principles of fundamental
justice." I make no decision
with regard to these aspects as the matter
was referred to
this court to establish whether the mandatory
sentence
provided for in the Stock Theft Act infringed on Art 8(2) (b)
and
on no other basis and both counsel also directed their
submissions on this
basis only.
As already stated the Stock Theft Act makes provision for
a
minimum sentence of 3 years imprisonment for a second
or
subsequent conviction. It is apposite to quote the section
at this
juncture in toto:
"14(1) Any person who is convicted of
an
offence referred to in paragraph (a) ,
(b) , (c) or (d) of subsection (1) of
section 11 shall be
liable -
(a) in the case of a first conviction
(i) to imprisonment for a period
not exceeding
10 years; or
(ii) to a fine not exceeding
R4 0 000; or
(iii) to both such fine and
such
imprisonment; or
(b)
in the case of a second or
subsequent
conviction, to
imprisonment for a
period not
exceeding 2 0 years: Provided that
where such second or subsequent
conviction relates to
stock, other
than poultry or the carcase or
portion of the carcase of any such
stock, such person
shall be liable
to imprisonment for a period of
not less than three years, but not
exceeding 20
years."
17
As also already
mentioned section 14(2) expressly excludes
a court from
suspending any portion of the minimum mandatory
sentence for second
or subsequent offenders where such
offenders were 18
years or older when the second or
subsequent offence was
committed.
The first factor to notice is that there is no limit on
the
number of years which may elapse between the date of
the
last previous conviction and the offence in respect of which
the
minimum penalty is to be applied. Thus in the present
case the
accused's previous conviction for stock theft in
1969
triggered the minimum sentence upon his second
conviction
in May 1995, a period of approximately 26 years.
Here it must be borne
in mind that in general, as was
pointed out by Taylor J.A. in R
v Kumar at 131, that:
"It is, of course, recognised in the
sentencing
process that the significance of a
previous
conviction, especially if it is the sole previous
conviction, reduces with the passage of time.
There comes a point at
which, in the case of all
but the most serious of
offences, a sole
conviction registered many years ago no longer
has
any significance at all."
The present accused has more than
one previous conviction
but even then his last conviction prior to this case
was in
1977 and thus approximately 18 years ago. I may just
point
out that the fact that previous convictions may lose
their
significance due to the affluxion of time seems to be
an
important consideration where minimum sentences
are
scrutinised in the USA (R v Kumar at 131) and has also been
recognised
in a country such as South Africa where it is
18
expressly provided for that certain previous convictions
fall away after 10 years (section 271 A of the
Criminal
Procedure Act-, Act 51 of 1977) .
The second factor to note is
that although the section does
limit itself by excluding poultry and the
carcase of stock
from its ambit it does not distinguish between the
different
kinds of stock at all. Thus, e.g. whether sheep or
cattle
are involved makes no difference, and this where it
is
common knowledge that the value of cattle are five to six
times
that of sheep. The only other exemption is made for
second or
subsequent offenders under 18 years of age.
In my view the circumstances of
the present case does not
warrant a sentence in excess of 9
months imprisonment
whereas I personally would have imposed one
of 6 months.
From this it follows that one of three years can only
be
described as shocking. In fact, the sentence imposed by
the
magistrate is also startlingly inappropriate. The fact
that
he suspended it in toto does soften its effect but the point
is he
had to start off from the basis that 18 months was
appropriate
before he had to decide whether to suspend it in
toto or only a portion
thereof. (S v Olyn en Andere,
1990 (2) SA 73 (NC)) .
Due to the
factors already mentioned relating to the non-
limitation of previous
convictions, the failure to
distinguish between different kinds of
stock and also due to
the prevalence of stock theft I am of
the view that
hypothetically cases where the minimum
sentence will
probably be shocking "is likely to arise commonly."
In order to attempt to counter the prevalence of stock theft
and the effects
thereof especially in the rural areas where
people barely eke out a
living with the small number of
livestock they possess Parliament
thought it necessary to
introduce a minimum sentence. This
followed a public outcry
especially from farmers and the rural community.
This can
easily be understood. To steal even one sheep or goat
from
a person trying to make a living out of say a herd of ten
is
catastrophic for such a person. Furthermore with
transport
and vast distances that can be covered in one night as well
as
the fact that extensive farming is mostly practised in
this country it
is not easy to counter stock theft.
Parliament had every
right to attempt to do everything
within its powers to curb these
pernicious activities.
The factors mentioned is clearly such that cognisance
can be
taken thereof and are thus part of the "objective
factors"
mentioned earlier which would and must influence the
value
judgment as to whether a specific sentence will
be
constitutional or not. They are clearly factors which
the
reasonable man would contemplate and which a court must also
take
cognisance of to determine whether a reasonable man
ought not to
have imposed such a sentence.
The next question which arises is whether the
whole section
14 must be declared unconstitutional, whether it should
be
read down or whether it should be referred back
to
Parliament to correct the defects.
20
If the matter is referred back to Parliament the
section
will remain valid until the conditions of the referral has
been
met (Article 25(1) (a)). This would mean that in the
meantime
persons will receive the minimum mandatory-
sentence.
This is not only a hypothetical possibility but
will happen on a daily basis.
Furthermore, in my view, as
I intend to down-read the sections for
reasons I will set
out later, the essence of the section will remain
intact
giving some effect to the intention of Parliament while
also
immediately recognising the rights of ordinary
citizens.
Parliament will in any event be entitled to
amend the
section should it so wish. As already pointed
out the
passing of the Stock Theft Act had a valid social aim as
its
object and the order I intend making will not render
the
whole Act inoperative as it does not strike at the
heart
thereof and no valid societal aim will be paralysed if the
Act is
not referred to Parliament for corrective action.
As it is not the
imprisonment per se which is
unconstitutional but only the
minimum prescribed period of
imprisonment I am not inclined to
declare the whole of
section 14(1) (b) unconstitutional.
I intend to read the
section down in such a way that upon a second or
subsequent
conviction an offender will have to undergo a
period of
imprisonment which will be in the discretion of the Court
but
which the Court will not be able to suspend because of
section 14(2)
unless of course such second or subsequent
offender was under the age
of 18 when he/she committed such
second or subsequent offence.
Because of the provisions of
section 284 of the Criminal Procedure Act, no.
51 of 1977
21
this will in effect
mean that there will remain a minimum
sentence of four days
imprisonment.
Before I conclude I need to say something about
the
practical effects of this judgment. Magistrates are
not
entitled to declare any mandatory
punishment
unconstitutional or to grant a constitutional exemption in
any
particular case. They must apply the law as it stands.
Should they be of
the view that a mandatory sentence would
be unconstitutional they must
impose it nevertheless and
thereafter refer the matter for review
or even special
review to the High Court.
In the result:
(a) The
words "of not less than three years, but" is struck
out from section
14(1)(b) of the Stock Theft Act, Act
no. 12 of 1990 as being in
conflict with Act 8(2) (b) of
the Constitution; and
(b) the
sentence imposed by the magistrate is set aside and
substituted with
one of six (6) months imprisonment.
FRANK, JUDGE
22
m his judgment.
GIBSON, JUDGE
1 a g r S e W i t h
t h e
°rder proposed
, .
by F r a n
k fl
F r a n
k J
-sons o ^
- ― **•
f r j u d g m e n t to t h
e
Judgment.
23
ON BEHALF OF THE
STATE:
ADV H F JACOBS
ON BEHALF OF THE
ACCUSED:
ADV D F SMUTq
Instructed by:
Amicus Curiae