Remitting of a case to the trial court and the duty to the steps to obtain evidence to determine the existence of substantial and compelling circumstances

Abstract

It has been a while since the minimum-sentencing legislation introduced a new approach to sentencing in the South African courts. After the initial resistance and considerable diversity in the different courts' approach to the legislation, it can now been said that the courts have given adequate clarity to the sentencing regime and how it should be approached. In S v Malgas (2001 (2) SA 1222 (SCA)), the court outlined the principles and the procedure that are appropriate in dealing with this sentencing regime. In S v Dodo (2001 (3) SA 382 (CC)), the Constitutional Court solidified the approach adopted in Malgas and, since then, there appears to be clarity regarding the sentencing approach. In sum, the courts are obliged to impose the specified minimum sentences unless there are substantial and compelling circumstances. In the absence of such substantial and compelling circumstances, the court has no option but to impose the prescribed minimum sentence.