NCJ Number
75130
Journal
South African Journal of Criminal Law and Criminology Dated: (1979) Pages: 36-54
Date Published
1979
Length
19 pages
Annotation
Powers of the courts to alter sentences under South African law are discussed, and misdirected court practices and excessive sentences are highlighted.
Abstract
Under South African law, the courts of appeal are given wide powers to alter sentences. A provincial division, acting as a court of appeal from the decision of a magistrate or when considering a case by way of review, may confirm, reduce, alter, or set aside any order of the magistrate's court. The only statutory limitation is that no sentence may be altered because of an irregularity or defect in the record. Generally, the court of appeal is reluctant to interfere with a competent sentence duly passed and will not alter a sentence merely because it would have imposed a different ruling had it been the court of the first instance. The grounds most commonly advanced in appeals against sentences are that the trial court misdirected itself or that it imposed an excessive sentence. Although law reports contain numerous examples of misdirections in particular instances, few attempts have been made to define the concept in general terms. Misdirection may relate to the factors that a court should have taken into account but did not consider or to the assessment of the weight given to such factors. For example, the court will misdirect itself if it fails to take into account the youthfulness of an offender because it is a principle of law that juveniles should be treated differently from adults. When a court of appeal deems the trial court's sentence excessive it does not thereby hold that the trial court erred in the application of rules or principles of sentencing. The article includes 124 footnotes.