Chapter Fourteen - The discretionary effect of mitigating and aggravating factors

Summary

The sentence imposed in a South African court depends primarily on the discretion of the presiding judicial officer, the sentencer. The sentencer is expected to come to a reasonable decision regarding an appropriate sentence, based on all the facts relevant to the case. These facts might be aggravating, mitigating or even neutral in their effect on the sentence. The sentencer should explain in the judgment why the eventual sentence is appropriate. This judgment usually states that all the relevant facts and factors have been taken ‘into account’ or have been considered, but the extent to which such factors actually affect the sentence usually remains a mystery.

However, the purely discretionary sentencing model is not the only model in place, as South African law currently employs two different but parallel sentencing models, where the roles of mitigating and aggravating circumstances are not quite the same. The first model could be described as the traditional position; the second manifests itself within a wide-ranging scheme of minimum custodial sentences that affect most of the more serious crimes. Within the traditional model the sentencer’s discretion determines the complete creation of the sentence, but with the minimum-sentences scheme the starting points are provided by the legislature. Whereas the details of the minimum sentences are uniquely South African (Terblanche and Mackenzie 2008), the same is not true of discretionary sentencing – here South African law has much in common with other parts of the world.