Criminal Law Amendment Act, 1997

Act 105 of 1997

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Criminal Law Amendment Act, 1997

Citation: Act 105 of 1997
Date: 19 December 1997
Language: English
Publication: Download PDF (610.3 KB)

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History of this document

05 August 2022 amendment not yet applied

Amended by Criminal and Related Matters Amendment Act, 2021

01 December 2021 amendment not yet applied

Amended by Cybercrimes Act, 2020

02 August 2017 amendment not yet applied

Amended by Judicial Matters Amendment Act, 2017

01 June 2016 amendment not yet applied

Amended by Criminal Matters Amendment Act, 2015

09 August 2015 amendment not yet applied

Amended by Prevention and Combating of Trafficking in Persons Act, 2013

22 January 2014 amendment not yet applied

Amended by Judicial Matters Amendment Act, 2013

17 February 2009 amendment not yet applied

Amended by Judicial Matters Amendment Act, 2008

31 December 2007 amendment not yet applied

Amended by Criminal Law (Sentencing) Amendment Act, 2007

16 December 2007 amendment not yet applied

Amended by Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007

20 May 2005 amendment not yet applied

Amended by Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004

27 April 2004 amendment not yet applied

Amended by Prevention and Combating of Corrupt Activities Act, 2004

23 May 2003 amendment not yet applied

Amended by Defence Act, 2002

21 June 2002 amendment not yet applied

Amended by Judicial Matters Amendment Act, 2000

07 December 2001 amendment not yet applied

Amended by Judicial Matters Amendment Act, 2001

23 March 2001 amendment not yet applied

Amended by Judicial Matters Amendment Act, 2000

13 November 1998

Commenced by Criminal Law Amendment Act, 1997: Commencement

Note: Commencement of sections 1-50

01 May 1998

Commenced by Criminal Law Amendment Act, 1997: Commencement

Note: Commencement of sections 51-53

19 December 1997 this version

Published in Government Gazette 18519

Amended by Judicial Matters Amendment Act, 1998

27 November 1997

Assented to

Cited documents 0

Documents citing this one 1538

Judgment

1486

S v Matyityi (695/2009) [2010] ZASCA 127 (30 September 2010)

Reported

Whether remorse and relative youth justify departing from s51 mandatory life sentences for murder and rape.

Criminal Law Amendment Act s 51 – minimum sentences; substantial and compelling circumstances; plea of guilty and remorse; relative youthfulness as mitigation; application of S v Malgas; victim impact and sentencing; life imprisonment for murder and rape.

S v Vilakazi (576/2007) [2008] ZASCA 87 (3 September 2008)

Reported

Life sentence for rape of under‑16 held disproportionate; Malgas/Dodo proportionality test requires full case-specific assessment.

Criminal law – Rape where victim under 16 – Mandatory minimums under Criminal Law Amendment Act – Application of Malgas/Dodo determinative test for substantial and compelling circumstances – High Court misdirections (age, medical history) – Conviction upheld on evidence of non-consent and mens rea – Sentencing: life disproportionate; substituted 15 years with pre-trial detention credit.

S v Malgas (117/2000) [2001] ZASCA 30 (19 March 2001)

Reported

The applicant’s cumulative mitigating circumstances met s51(3)(a)’s 'substantial and compelling' test, justifying a lesser sentence.

Criminal law – Minimum sentences (s 51, Criminal Law Amendment Act 105 of 1997) – Interpretation of 'substantial and compelling circumstances' – Composite cumulative test – Trial court retains discretion to impose lesser sentence – Appellate sentencing tests not determinative – Reasons to be recorded on the record.

S v Maila (429/2022) [2023] ZASCA 3 (23 January 2023)

Conviction and life sentence upheld despite exclusion of an illegally obtained warning statement; child witness evidence deemed trustworthy.

Criminal law – Sexual offences – Single child witness evidence and trustworthiness (Woji principles; rejection of double cautionary rule); illegally obtained warning statement and its exclusion; late and uncorroborated alibi (Thebus); minimum sentencing under s 51(1) and Schedule 2 – no substantial and compelling circumstances to deviate from life imprisonment.

Bogaards v S (120/11) [2012] ZACC 23 (28 September 2012)

Reported

Appellate courts must notify the applicant before increasing sentence; court orders, not warrants, determine "prisoner" status.

• Criminal law – Correctional Services Act s 115(e) – definition of "prisoner" and "prison" includes court holding cells and persons in transit; lawful detention derives from court order, not merely administrative warrant. • Constitutional law – Right to fair trial s 35(3) – appellate procedure: appellate courts must notify appellant when contemplating an increase in sentence; failure to notify may amount to an irregularity and failure of justice. • Common law development – long-standing notice practice elevated to mandatory requirement; procedures for giving notice and corollary limits on withdrawal of appeal explained.

Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi (959 of 2015) [2017] ZASCA 85 (2 June 2017)

Reported

Intent to cause grievous bodily harm is not an element of Part I(c) rape; appeal upheld and life sentence reinstated.

Criminal procedure — s 311 CPA — appeal by Director of Public Prosecutions on question of law; jurisdiction; procedure; Superior Courts Act leave requirements. Criminal law — Criminal Law Amendment Act Schedule 2 Part I(c) rape 'involving the infliction of grievous bodily harm' — whether intent to cause grievous bodily harm is an element — held not to be; objective/factual test for infliction of grievous bodily harm. Sentencing — classification of rape for minimum‑sentence purposes; reinstatement of regional court life sentence; remittal for sentencing appeal.

Kekana v S (629/2013) [2014] ZASCA 158 (1 October 2014)

Accepted s 112(2) plea showed premeditated murder; no substantial and compelling circumstances justified departing from life imprisonment.

* Criminal law – Murder – Premeditation – short interval between intent and act may suffice where conduct shows steps to implement a plan (fetching petrol, pouring, locking, spreading fuel). * Plea procedure – s 112(2) CPA – written plea accepted by the State fixes factual matrix for conviction and sentencing. * Sentence – Minimum sentences Act (s 51(1)) – substantial and compelling circumstances absent where offence is brutal, exploited vulnerability and offender failed to render assistance. * Appeal – Appellate interference limited absent material misdirection or a sentence that is shockingly inappropriate (S v Malgas).

Shaik and Others v S (CCT 86/06) [2007] ZACC 19 (2 October 2007)

Reported

Non-joinder and alleged prosecutorial misconduct did not render the trial unfair; POCA confiscation appeal granted leave.

Criminal procedure – fair trial – non-joinder of suspected co-perpetrators does not, without prejudice, render trial unfair; Prosecutorial conduct – NPA Act contemplates investigative-prosecutorial overlap; Late evidence – Rules 30/31 and s22 Supreme Court Act require exceptional, incontrovertible evidence; Sentencing – minimum sentence legislation applies to ongoing offences committed before and after commencement; POCA – confiscation orders raise constitutional property and proportionality issues, leave to appeal granted.

Bailey v S (454/2011) [2012] ZASCA 154 (1 October 2012)

Reported

Whether the appellant's circumstances constituted substantial and compelling reasons to avoid life imprisonment for raping his minor daughter.

Criminal law – minimum sentences – s 51(1) and s 51(3)(a) Criminal Law Amendment Act 105 of 1997; rape of minor by parent (incest) as aggravating factor; substantial and compelling circumstances — meaning and threshold; plea of guilty, remorse, rehabilitation and drug use as mitigation; comparative sentencing as guideline not binding; scope of appellate review of prescribed minimum sentences.

S v Legoa (33/2002) [2002] ZASCA 122 (26 September 2002)

Reported

Minimum-sentence elements (including value) must be proved before conviction; bulk consignment value, not street gram price, controls.

Criminal law – dealing in cannabis – meaning of "value" in minimum-sentencing Schedule; market value must reflect the relevant market level for the consignment (bulk price), not automatically street-per-gram price; elements bringing offence within Schedule (including value) must be proved before conviction; State may not adduce such proof only after conviction when plea guilty has ended the verdict stage.