Minimum sentence laws undermined

2003-02-03 23:30

Cape Town - Johnny de Lange, the chairperson of parliament's justice committee, was scathing in his criticism of "some" judicial and prosecuting officials on Monday, accusing them of undermining minimum sentence legislation.

He said at a committee meeting, officials - particularly in the Western Cape - were failing to effectively implement the law because of unhappiness with the legislation and were ultimately causing extra suffering for victims of crime.

This was despite the law being declared constitutional by the country's highest court, the Constitutional Court.

"I am really angered by this because these are people that are actually not doing what the Constitutional Court... and not doing what judges should be able to do in this country, and that's apply the law properly, efficiently and effectively.

'Smell the coffee'

"They are playing politics, simply, that is what they are doing.

"So I think (Western Cape National Director of Public Prosecutions) Mr (Frank) Kahn and them should start waking up, they should smell the coffee, and should start implementing this legislation properly," he said.

According to the law, a judge must pass the maximum sentence for certain crimes, including gang rapes or repeated rapes, unless they can justify a lesser sentence.

De Lange said such cases were being referred to regional courts in spite of it being clear sentencing could only be carried out in the high court.

This meant that cases often had to be re-heard in the high court before sentencing, with rape victims forced to relive the ordeal.

In some instances, sentencing was only completed up to 18 months later.

Dislike for the legislation

"The legislation is being implemented in such a way that they are showing their dislike for the legislation."

It was not the task of the courts or the preserve of judicial officers to speak out against legislation.

"I am really angered by this... they may think they are punishing the politicians... but that's not who they are punishing, they are punishing poor women who have been raped and abused."

But, the committee was prepared to consider proposals to amend the law submitted.

One option suggested was to allow an "automatic review" of regional court convictions, thus allowing the high court to uphold a lower court sentence, provided there was no breach of legal principle, he said.

Kahn: 'Do your homework'

Kahn, however, said there was widespread unhappiness with the legislation, and suggested De Lange "should do his homework more thoroughly" because he clearly did not understand the practical workings of the courts.

It was impractical to suggest rape cases be referred immediately to the high court, which effectively sat for only about six months of the year and did not have sufficient capacity.

"He should look at some of the statistics before jumping to rash conclusions."

The minimum sentence law was insensitive to the trauma of victims and unfair for the accused, and this was a view held also by the high court bench and regional court bench, he said.

"The logical solution would be to return to the situation where magistrates have a discretion to commit an accused for sentence by the high court after a conviction in the regional court," Kahn wrote in his 2000 annual report.

Govt aware of criticism

Justice spokesperson Paul Setsetse said government was aware of criticism from judicial officers of the legislation, but stressed that the failure to implement the law was a "disobedience of the Constitution".

It was not true that the legislation interfered with the discretion of the judiciary, as some had complained, and merely provided a stream-lined approach to sentencing.

"The law was thoroughly researched and scrutinised by parliament," he said.

- SAPA