Criminal Law Amendment Act, 1997
Encyclopedia
The Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) is an act
of the Parliament of South Africa
which dealt with the consequences of the Constitutional Court's
ruling in S v Makwanyane in which capital punishment
was declared to be unconstitutional. The act repealed the laws allowing for the death penalty and amended various other laws referring to death sentences or capital offences. It also established a procedure by which existing death sentences could be converted to prison sentences, and fixed minimum sentences for certain serious crimes. The act came into force on 13 November 1998, except for the minimum sentencing provisions, which came into force on 1 May 1998.
; section nine of that bill of rights stated that, "Every person shall have the right to life." The Constitutional Court
was also created by the Interim Constitution; the first case on which it heard argument was S v Makwanyane and Another
, a test case
to determine the constitutionality of the death penalty. On 6 June 1995 the court handed down its judgment, ruling that the death penalty violated the right to life, the right to dignity, and the protection against cruel and inhuman punishment. The judgment invalidated the provisions in the Criminal Procedure Act
that allowed for capital punishment, and any similar provision in any other law in force. The court also ruled that prisoners already sentenced to death could not be executed, and that they should remain in prison until their sentences were set aside and replaced according to law.
would then exercise the power of commutation
to set aside the death sentence and replace it by the sentence determined by the court. In cases where an appeal to the Supreme Court of Appeal
was pending, and that appeal was against the sentence only, the case was to be referred back to the original court for a new sentence to be imposed. In cases where an appeal against the conviction was pending, the Supreme Court of Appeal was required to impose a new sentence when it ruled on the appeal.
s, which remained in force for their territories.
provisions were initially to have effect only for two years, subject to extension by Presidential proclamation. Such extensions were repeatedly made to keep the provisions in force until 2007, when the Criminal Law (Sentencing) Amendment Act, 2007 made them permanent. The act prescribes life imprisonment for certain convictions of murder or rape; subsequent amendments added certain terrorism-related crimes, genocide and crimes against humanity under the Rome Statute of the International Criminal Court
, and human trafficking. Various lesser minimum sentences are prescribed for other crimes, including 15 years for a first conviction of murder, 20 years for a second conviction, and 25 years for any third or subsequent conviction.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of South Africa
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
which dealt with the consequences of the Constitutional Court's
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
ruling in S v Makwanyane in which capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
was declared to be unconstitutional. The act repealed the laws allowing for the death penalty and amended various other laws referring to death sentences or capital offences. It also established a procedure by which existing death sentences could be converted to prison sentences, and fixed minimum sentences for certain serious crimes. The act came into force on 13 November 1998, except for the minimum sentencing provisions, which came into force on 1 May 1998.
Background
The Interim Constitution of South Africa, which came into force on 27 April 1994, created for the first time in South Africa a justiciable bill of rightsBill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
; section nine of that bill of rights stated that, "Every person shall have the right to life." The Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
was also created by the Interim Constitution; the first case on which it heard argument was S v Makwanyane and Another
S v Makwanyane and Another
S v Makwanyane and Another was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution...
, a test case
Test case (law)
In case law, a test case is a legal action whose purpose is to set a precedent. An example of a test case might be a legal entity who files a lawsuit in order to see if the court considers a certain law or a certain legal precedent applicable in specific circumstances...
to determine the constitutionality of the death penalty. On 6 June 1995 the court handed down its judgment, ruling that the death penalty violated the right to life, the right to dignity, and the protection against cruel and inhuman punishment. The judgment invalidated the provisions in the Criminal Procedure Act
Criminal Procedure Act, 1977
The Criminal Procedure Act, 1977 is an act of the Parliament of South Africa that governs criminal procedure in South Africa's legal system...
that allowed for capital punishment, and any similar provision in any other law in force. The court also ruled that prisoners already sentenced to death could not be executed, and that they should remain in prison until their sentences were set aside and replaced according to law.
Replacement of sentences
Section 1 of the act established the procedure for replacing death sentences. For people sentenced to death and whose appeals were exhausted, the Minister of Justice was required to refer each case back to the court which had imposed the death sentence, to be heard by the judge who had imposed the sentence, if possible, or by another judge of that court. The judge would then receive written argument from the prosecuting authority and from the convict, and determine an appropriate sentence. The PresidentPresident of South Africa
The President of the Republic of South Africa is the head of state and head of government under South Africa's Constitution. From 1961 to 1994, the head of state was called the State President....
would then exercise the power of commutation
Commutation of sentence
Commutation of sentence involves the reduction of legal penalties, especially in terms of imprisonment. Unlike a pardon, a commutation does not nullify the conviction and is often conditional. Clemency is a similar term, meaning the lessening of the penalty of the crime without forgiving the crime...
to set aside the death sentence and replace it by the sentence determined by the court. In cases where an appeal to the Supreme Court of Appeal
Supreme Court of Appeal of South Africa
The Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
was pending, and that appeal was against the sentence only, the case was to be referred back to the original court for a new sentence to be imposed. In cases where an appeal against the conviction was pending, the Supreme Court of Appeal was required to impose a new sentence when it ruled on the appeal.
Repeal of laws
The act repealed sections 276(1)(a), 277, 278 and 279 of the Criminal Procedure Act (CPA), which made the death sentence a valid sentence for certain offences and established the procedure for carrying it out. It also amended other sections of the CPA and various other acts which referred to the death sentence or to capital offences. It made similar amendments to the Defence Act to abolish capital punishment in the military justice system. A schedule to the act contained similar amendments to laws of the formerly independent bantustanBantustan
A bantustan was a territory set aside for black inhabitants of South Africa and South West Africa , as part of the policy of apartheid...
s, which remained in force for their territories.
Minimum sentences
Sections 51 to 53 of the act provided for certain minimum sentences to be required for certain serious crimes. These mandatory sentencingMandatory sentencing
A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...
provisions were initially to have effect only for two years, subject to extension by Presidential proclamation. Such extensions were repeatedly made to keep the provisions in force until 2007, when the Criminal Law (Sentencing) Amendment Act, 2007 made them permanent. The act prescribes life imprisonment for certain convictions of murder or rape; subsequent amendments added certain terrorism-related crimes, genocide and crimes against humanity under the Rome Statute of the International Criminal Court
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
, and human trafficking. Various lesser minimum sentences are prescribed for other crimes, including 15 years for a first conviction of murder, 20 years for a second conviction, and 25 years for any third or subsequent conviction.