Criminal Law Amendment Act, 1997

19 December 1997 It is hereby notified that the President has assented to the following Act which is hereby published for general information:— No. 105 of 1997: Criminal Law Amendment Act. 1997. I I KANTOOR VAN DIE PRESIDENT No. 1659. 19 Desember 1997 Hierby word bekend gemaak dat die President SY goedkeuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:— No. 105 van 1997: Strafregwysigin.gswet, 1997. ~ No. 18519 Act No. 105, 1997 GOVERNMENT GAZETTE, 19 DECEMBER 1997 CRIktINAL LAW AMENDMENT An, 1997 GENERAL EXPLANATORY NOTE: [ 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a sohd llne indl~ate insertions in existing enactments. 8 1+$ ACT To make provision for the setting aside of all sentences of death in accordance with law and their substitution by lawful punishments; to amend certain laws so as to repeal provisions relating to capital punishment; to provide for minimum sentences for certain serious offences; and to provide for matters connected therewith. PREAMBLE WHEREAS the Constitution-of the Republic of South 1996), provides that everyone has the right to life; Africa, 1996 (Act No. 108 of AND WHEREAS the Constitutional Court has ruled unconstitutional and therefore invalid: that the sentence of death is AND WHEREAS it is necessary to make provision for the setting aside of all sentences in accordance with law and their substitution by lawful punishments, such (English text signed by the President. ) (Assented to 27 November 1997.) B E IT THEREFORE ENACTED by the Parliament of the Republic of South AfricA as follows:— Substitution of sentence of death 1. (1) The Minister of Justice shall, as soon as practicable after the commencement of this Act, refer the case of every person who has been sentenced to death and has in 5 respect of that sentence exhausted all the recognised legal procedures pertaining to appeal or review, or no longer has such procedures at his or her disposal, to the court in which the sentence of death was imposed. (2) The court shall consist of the judge who imposed the sentence in question or, if it cannot be so constituted, the Judge President of the COUrt in question shall designate any 10 other judge of that court to deal with the matter h terms of subsection (3). (3) (a) The COUrt shall be furnished with written ~gument on behalf of the person sentenced to d~th ~d the prosecuting authority. ., . . ...-.!-- > 4 N(, 1X51(J ,\ct ho. 105, 1997 (b) The court— GOVERNM~ G~E, 19 DECEMBER 1997 CRIMIN,4L LAW’ AMENDME~ Am, 1997 ,-., (i) shall consider the written arguments and the evidence led at the triaf; and (ii ) ma). if necessary. hear oral argument on such wri(ten Mwments, find shall advise the President. with fu]] reasons therefor, of tie n~ to set aside the sentence of death. of the appropriate sentence to be substi~tti i,~+ its Place and, if applicable. of the date to which the sentence shall be antedated. (4) The President shall set aside the sentence of death and substitute for the sentence of death the punishment advised by the court, (5) NO appeal shall lie in respect of an)’ aspect of the proceedings, finding or advice of the court in terms of subsection (3). (6) (c[ ) Pending the commencement of the Legal Aid Guide as contemplated in section 3A of the Legal Aid Act, 1969 (Act No. 18 of 1969). and to the extent that (he ~gaf Aid Guide as it exists at the comrnencenient of this Act does not regulate (he position of the granting of legal aid or legal representation in respect of the proceedings referred to in subsections ( 1 ) to (5), the Legal Aid Board may issue directives, in consul~tion with the Minister of Justice. in terms of which legal aid or legal representation may be rendered or made available for purposes of subsections ( 1 ) to (5). (b ~ (i) The directives contemplated in paragraph (a) shall be published in the Gazerre by the Minister of Justice. ,, (ii ) Before the directives are published in the Ga~erre. they shall be” submitted to Parliament and tabled as soon as possible. (7) The appeal of even person who has been sentenced to death and who has’appealed to the Supreme Court of Appeal against that sentence and not against conviction, shall be head b) the full court of the division which would have heard such an appeal if a direction in terms of section 3 15(2)(u) of the criminal Procedure Act. 1977 (Act No. 51 of 1977). had. a[ the time the-appeal was noted. been competent and been made by the trial court, , (8) The registrar of the Supreme Court of Appeal shall. as soon as practicable after the commencement of this Act. remit the record of every appeal referred to in subsection (7) to the registrar of the court which will hear such appeal. (9) The full coun shall. in hearing an appeal referred to it in terms of subsection (7), \et aside the sentence of death and thereafter have the same powers it would have had if the appeal had been refened to it in terms of section 3 15(2 )(a) of the Criminal Procedure Act. 1977 (/iCt NO. f] of 1977). i 10) All other appeals in cases where the sentence of death was imposed and which are either part heard or pending before the Supreme Court of Appeal shall be disposed of’ b! that court. uhich for that purpose shall have the povers set forth in section 322(2) ~~f the Crinl]na] Procedure Act. 1977 (Act No. 51 of 1977). (11 } A sentence of imprisonment substituted for the sentence of death in terms of this section, ma) be antedated b) the court to a specified date. which shall not be earlier than the da[e on uhich the sentence of death was imposed. (12 ) FOI- the purposes of this section. an~r provision of the criminal Procedure Act. 1977 ( .4ct No. 51 of 1977]. amended 01- rep_ealed b> this Act. shall be deemed not to be so amended 01- repealed. Amendment of section 83 of Act 44 of 1957, as substituted by section 39 of Act 87 of 1984 and amended by section 25 of Act 132 of 1992

2. Section 83 of the Defence Act. 1957. is hereby amended— (a) b!” the deletion in subsection (3) of subparagraph (i) of paragraph (c); and (h) b! the substitution in subsection (3) for the proviso to paragraph (c) of the followin~ proviso: “’Provided that if any such sentence has been imposed by a military court. such commission shall not terminate and shall not be deemed to have been cancelled unless such sentence is confirmed under the First Schedule and. if under any law it may not be carried into effect or be executed (as the case may be), although it has thus been confirmed. unless and until it has been reviewed and endorsed by a board or council of review’ or. unless and until the finding in question as we]] as the sentence has been endorsed by a council of review as being in accordance with real and substantial] justice [and has been approved by 1 5 10 15 ~o 25 30 35 40 45 50 55 f 6 No. I $519 .4ct No. 105.1997 GO\; ERNMENT GAZETTE, 19 DECEMBER 1997 CRIMINAL L.4W’ ANt ENDME\’T ACT. 199? the State President]. it has after such confirmation been thus reviewed and endorsed or been thus endorsed [and approvedl, as the case may be.”. Amendment of section 1 of First Schedule to Act 44 of 1957

3. Section 1 of the Firs~ Schedule to the Defence Act. 1957, is hereby amended by the 5 deletion of the definition of “capital offence”, Amendment of section 4 of First Schedule to Act 44 of 1957

4. Section 4 of the First Schedule-to the Deferice Act, 1957, is hereby amended— (a) b} the substitution for the heading of the following heading: “Of fences endangering safety of forces”: and (b) by the substitution for the words following upon paragraph (h) of the following words: “shall be guilty of an offence and liable on conviction to [be sentenced to death] imprisonment for a period not exceeding 30 years.”. Substitution of section 51 of First Schedule to .Act 44 of 1957

5. The following section is hereby substituted for section 51 of the First Schedule to the Defence Act. 1957: “Alternative punishments

51. The court convicting an~ person [— (a) of an offence under section four may, instead of imposing sentence of death on that person, impose upon him any other punishment within the jurisdiction of that court: (b)] of any [other] offence under this Code may. instead of imposing upon that person any penalty prescribed herein in respect of such offence. impose upon him or her any other penalty within the court’s jurisdiction which is provided for in this Code in respect of any offence. not being a more severe penalty than the maximum penalty so prescribed.”. Amendment of section 52 of First Schedule to Act 44 of 1957

6. Section 52 of the First Schedule to tbe Defence Act. 1957. is hereby amended by the substitution in subsection (2) for the words preceding the proviso of the following w orals: “Any person who is engaged in any mutiny or riotous or unseemly behaviour or who commits [a capital civil offence] treason. murder. rape or culpable homicide or any offence under section 4 of this Code or any other prescribed offence. ma> be arrested by any person subject to this Code in whose presence he or she is so engaged or commits any such offence”. Amendment of section 58 of First Schedule to Act 44 of 1957

7. Section 58 of the First Schedule to the Defence Act, 1957. is hereby amended by the substitution for the proviso of (he following proviso: “Provided that-a person charged with [a capital civil offence] treason, murder. rape or culpable homicide committed by him or her outside the Republic or an offence under section 4. 10. 13 or 29 of this Code may be tried by a military court at any time after the commission of the offence. ”. 10 15 20 25 30 35 40 8 No. 18519 Act No. 105.1997 GOVERNMENT GAzEnE, I 9 DECEMBER 1997 CRIM1~.4L LAW’ AMENDMENT ACT, 1997 Amendment of section 59 of First Schedule to Act 44 of 1957

8. Section 59 of the First Schedule to the Defence Act, 1957,15 hereby amencjexl by the substitution for paragraph (fl) of subsection ( 1 ) of the following paragraph: “(a) in the case where that offence is [a capital civil offence] treason, murder, rape or culpable homicide committed outside the Republic or ~ ofience under section 4. 10.13 or 29. be tried and punished for that ofience by that military court at any time after he or she has ceased to be so subject; and”. Substitution of section 71 of First Schedule to Act 44 of 1957

9. The following section is hereby substituted for section 71 of the First Schedule to the Defence Act. 1957: “Jurisdiction of ordinary court martial

71. An ordinary court martial shall have jurisdiction to try any person subject to this Code, not being an officer, for any offence, other than [a capital civil offence] treason. murder. rape or culpable homicide commit- ted by him or her within the Republic or an offence under section 4 or 5, and ma} in respect of an}’ such offence impose any penalty which could be imposed in respect thereof by a general court martial, except imprisonment for a period exceeding two years.”. 15 Amendment of section 72 of First Schedule to Act 44 of 1957

10. Section 72 of the First Schedule to the Defence Act, 1957, is hereby amended by the substitution in subsection ( 1 ) for the words preceding the proviso of the following ~’ords: “A general court martial shall, subject to the provisions of subsection (2), consist of not less than three or (in the case of a trial for [a capital offence] treason, murder. w Or CUIPable homicide) not less than five members. all of whom sh~l be oficers of the South African National Defence Force who have held commissioned rank other than temporary commissioned rank for not less than three years, and shall be constituted and convened as may be prescribed”. Amendment of section 81 of First Schedule to Act 44 of 1957

11. Section 81 of the First Schedule to the Defence Act. 1957, is hereby amended by 30 the deletion of the proviso to subsection (1). Amendment of section 89 of First Schedule to Act 44 of 1957

12. Section 89 of the First Schedule to the Defence Act, 1957, is hereby amended— (a) by the deletion of the proviso to subsection (1); and (b) by the deletion of the proviso to subsection (2). Amendment of section 91 of First Schedule to Act 44 of 1957

13. Section 91 of the First Schedule to the Defence Act, 1957, is hereby amended— (u) b) the deletion of subparagraph (i) of paragraph (a) of subsection (1); (b) by the deletion of subparagraph (i) of paragraph (b) of subsection (l); and (c) by the deletion of subparagraph (i) of paragraph (c) of subsection (1). Amendment of section 93 of First Schedule to Act 44 of 1957

14. Section 93 of the First Schedule to the Defence Act. 1957, is hereby amended by the deletion of subsection (1). 35 40 1 I(I N(). I 8519 GOVERNMENT GAZETTE. IY DECEMBER 1997 .Act N(). 10S. 1997 CR1k’tINAL. LAW’ AMESDME!fT ACT. 1997 Repeal of sections 104 and 105 of First Schedule to Act 44 of 1957

15. Sections 104 and 105 of the First Schedule to the Defence Act, 1957. are hereby repealed. Substitution of section 106 of First Schedule to Act 44 of 1957

16. The following section is hereby substituted for section 106 of the First Schedule 5 to the Defence Act. 1957: “11’hen sentence to be executed

106. Subject to the provisions of [sections one hundred and three and one hundred andfour] section 103. any sentence shall be executed as soon as possible after it has been confirmed.”. 10 Substitution of section 114 of First Schedule to Act 44 of 1957

17. The following section is hereby substituted for section 114 of the First Schedule to the Defence Act. 1957: “Council of review to hear argument in certain cases

114. In any case in which [sentence of death or] a sentence of 12 months 15 imprisonment o; more or of cashiering has been imposed. or where application has been made b> the offender in terms of section 112 for the review of the proceedings of his or her case. the council of review shall, at the request of the offender. allow the offender or his or her counsel and the officer who prosecuted at the trial or any other person appointed for the 20 purpose by tbe Adjutant-General in his or her stead. to appear before it and hear argument on [be issues in the case,”, Amendment of section 145 of First Schedule to Act 44 of 1957

18. Section 145 of tbe First Schedule to the Defence Act. 1957. is hereby amended by the substitution for paragraph (a) of subsection (1) of the following paragraph: “(a) in matters where [a capital offence] treason. murder. rape or culpable homicide is involved. of three judges or retired judges of [the Supreme] g ~ Court [of South Africa] (one of whom shall be appointed as [chairman] chairperson by the Minister). one officer of the Permanent Force and one person who has had experience in the field on service: and”. 25 30 Amendment of section 147 of First Schedule to Act 44 of 1957

19. Section 147 of the First Schedule to the Defence Act. 1957. is hereby amended by the substitution in subsection (3) for the words preceding the proviso of the following words: “The chief disciplinary officer or any assistant disciplinary officer may under 35 warrant take such steps as may be prescribed for the execution of any sentence of [death] imprisonment, detention or field punishment imposed by a military court”. Amendment of section 1 of Act 8 of 1959, as amended by section 1 of Act 75 of 1965, section 46 of Act 70 of 1968, section 1 of Act 88 of 1977, section 1 of Act 58 of 1978, section 1 of Act 22 of 1980, Government Notice No. 2302 of 31 october 1980, section 40 1 of Act 43 of 1981, section 1 of Act 65 of 1982, section 1 of Act 104 of 1983, section 1 of Act 6 of 1985, section 1 of Act 92 of 1990, section 1 of Act 122 of 1991, section 5 of Act 135 of 1991, section 1 of Act 68 of 1993, section 1 of Act 116 of 1993, section 1 of Act 135 of 1993 and section 1 of Act 79 of 1996

20. Section 1 of the Correctional Services Act, 1959. is hereby amended by the 45 deletion of subparagraph (ii) of paragraph (a) of the definition of “prisoner”. 12 N o 18519 GO\’ERNMEh’T GAZE_ll% 1 Y DECEMBER 1997 Act No. 105, 1997 CRIMINAL LAW’ AMENDMENT ACT. 1997 Repeal of section 35 of Act 8 of 1959

21. Section 35 of the Correctional Services Act. 1959. is hereby repealed. Amendment of section 44 of Act 8 of 1959, as substituted by section 6 of Act 88 of 1977 and amended by section 10 of Act 104 of 1983, section 16 of Act 92 of 1990, section 2 of Act 80 of 1992 and section 27 of Act 79 of 1996 5

22. Section 44 of the Correctional Services Act, 1959. is hereby amended— (a) by the substitution in subsection (1) for subparagraph (ii) of paragraph (u) of the following subparagraph: “(ii) is found loitering within one hundred metres of any prison on or any other place where prisoners may be for the purpose of imprisonment 10 or labour [or within one hundred metres of any burial referred to in section 35(4)(b)] and who fails to depart therefrom upon being ordered so to do by any correctional official or a member of the South African Police Service:”; and (b) b! the substitution in subsection ( 1 ) for subparagraphs(i) and (ii) of paragraph 15 (e) of the following subparagraphs. respectively: “(i ) makes a ~ketch or~a~es a ph~tograph of any prison q portion of a prison [or any burial referred to in section 35(4)(b)]: (ii) publishes or causes to be published in any manner whatsoever any sketch or photograph of any prison or portion of a prison [or any 20 burial referred to in section 35(4)(~];”. Amendment of section 86 of Act 8 of 1959, as amended by section 18 of Act 104 of 1983

23. Section 86 of the Correctional Services Act. 1959. is hereby amended by the substitution for subsection (4) of the following subsection: 25 “(4) The Commissioner shall [save where death has occurred pursuant to a judicial sentence] also cause an enquiry to be heid as to any death in any prison from other than natural causes. and report thereon to the Minister.”. Amendment of section 94 of Act 8 of 1959, as amended by section 37 of Act 80 of 1964, section 24 of Act 75 of 1965, section 17 of Act 101 of 1969, section 8 of Act 92 30 of 1970, section 17 of’Act 62 of 1973, section 6 of Act 43 of 1981, section 20 of Act 104 of 1983, section 46 of Act 97 of 1986, section 28 of Act 92 of 1990, section 31 of Act 122 of 1991, section 26 of Act 68 of 1993 and section 15 of Act 135 of 1993

24. Section 94 of the Correctional Services Act, 1959, is hereby amended— (a) b> the substitution for paragraph (q) of subsec~ion ( 1 ) of the following 35 paragraph: “(q) the application of approved means of mechanical restraint to any prisoner [under sentence of death or] in the course of removal or while temporarily outside the precincts of a prison;”; and (b) by the substitution for paragraph (s) of subsection (1) of the following 40 paragraph: “(s) [the treatment of persons condemned to death; and] the disposal of the bodies of prisoners who have died in prison;”. Amendment of section 30 of Act 18 of 1973, as amended by section 2 of Act 38 of 1981, section 10 of Act 116 of 1993 and section 8 of Act 204 of 1993 45

25. Section 30 of the Mental Health Act, 1973, is hereby amended— (a) by the substitution for subsections ( 1 ) and (2) of the following subsections, respectively: “(1 ) Whenever it appears to the Minister of Correctional Services that a convicted prisoner in a prison is mentally ill to such a degree that he or 50 she should be detained in an institution [and the prisoner is not und~ the sentence of death]. he or she may order the magistrate of the district !4 ,. ~ 14 NO 18519 CX3\rERNMEh’T G.4ZETTE. 19 DECEMBER 1997 Act No. 105, 1997 CRIMINAL LAM” AMENDMENT ACT. 1997 in which the prison is situated to cause the mental condition of the prisoner to be enquired into. (2) Whenever it appears to the officer in charge of the prison in which a convicted prisoner is in custody that the prisoner is mentally ill to the degree referred to in subsection ( 1 ) [and the prisoner is not under 5 sentence of death], he or she shall report the matter to the magistrate of the district in which the prison is situated.”: and (b) by the deletion of subsection (7). Repeal of section 3 of Act 94 of 1974

26. Section 3 of the Second GeneFal Law Amendment Act. 1974, is hereby repealed, 10 Substitution of section 18 of Act 51 of 1977 27. ( 1 ) The following section is hereby substituted for section 18 of the Criminal Procedure Act. 1977 (hereinafter referred to as the principal Act): “Prescription of right to institute prosecution 18. [(1)] The right to institute a prosecution for any offence. other than 15 [an offence in respect of which th~ sentence of dea~h may be imposed] the offences of— (a) murder; (b) treason committed when the Republic is in a state of war; (c) robbe~, if aggravating circumstances were present; (d) kidnapping; (e) child-stealing: or (f) r a p e. shall. unless some other period is expressly provided by law. lapse after the expiration of a period of 20 years from the time when the offence was committed, [(2) The right to institute a prosecution for an offence in respect of which the sentence of death may be imposed, shall not be barred by lapse of time.]”. (~) This section shall be deemed to have come into operation on 27 April 1994. Amendment of section 79 of Act 51 of 1977, as amended by section 4 of Act 4 of 1992, section 17 of Act 116 of 1993 and section 44 of Act 129 of 1993

28. Section 79 of the principal Act is hereby amended— (a) b! the substitution for paragraph (a) of subsection (1) of the following paragraph: “(a) [where the accused is charged with an offence for which the sentence of death may not be imposed] by the medical superin- tendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or’”; and (b) by the substitution in subsection (1) for the words preceding subparagraph (i) of paragraph (b) of the following words: “[where the accused is charged with an offence for which the sentence of death may be imposed or] where the court in any particular case so directs—”. Amendment of section 121 of Act 51 of 1977, as amended by section 6 of Act 56 of 1979 and section 17 of Act 59 of 1983

29. Section 121 of the principal Act is hereby amended by the deletion of the proviso to paragraph (b) of subsection (5). Amendment of section 140 of Act 51 of 1977

30. Section 140 of the principal Act is hereby amended by the deletion of the proviso to paragraph (b) of subsection (2). Z() 25 30 35 40 45 50 “ . . ..2.2,;. . c . . 16 N(1. I X5 1!) ,4ct No. 105. J 997 (; O\”ERSMENT GAZETTE. 19 DECEMBER 1997 CRIMIXAL. LAM’ AhlENDMENT ACT. !997 Amendment of section 145 of Act 51 of 1977, as amended by section 4 of Act 64 of 1982 and section 2 of Act 107 of 1990

31. Section 145 of the principal Act is hereby amended by the deletion of the proviso to subsection (2). Amendment of section 255 of Act 51 of 1977, as substituted by section 50 of Act 20 of 1992 5

32. Section 255 of the principal ‘Act is hereby amended by the substitution for paragraph (u) of subsection ( 1 ) of the following paragraph: “(a ) If in any court during the trial of a person who is charged with an offence. other than an offence [in respect of which the sentence of death may be passed] referred to in section 18. it appears to the judge or judicial officer presiding at the trial that such person is probably a person as is described in section 21(1) of the Prevention and Treatment of Drug Dependency Act. 1992 (in this section referred to as the said Act). the judge or judicial officer. may. with the consent of tbe prosecutor given after consultation with a social worker as defined in section 1 of the said Act. stop the trial and order that an enqui~ be held in terms of section 22 of the said Act in respect of the person concerned by a magistrate as defined in section 1 of the said Act and indicated in the order.”. 10 Amendment of section 257”of Act 51 of 1977

33. Section 257 of the principal Act is hereb> amended b) the deletion of the second proviso. Amendment of section 276 of Act 51 of 1977, as amended by section 3 of Act 107 of 1990, section 41 of Act 122 of 1991, section 18 of Act 139 of 1992 and section 20 of Act 116 of 1993

34. Section 276 of the principal Act is hereby amended by the deletion of paragraph (a) of subsection (1), Repeal of sections 277, 278 and 279 of Act 51 of 1977

35. Sections 277.278 and 279 of the principal Act are hereby repealed. Substitution of section 282 of Act 51 of 1977, as substituted by section 13 of Act 5 of 1991 and amended by section 48 of Act 129 of 1993 30

36. The following section is hereby substituted for section 282 of the principal Act: “Antedating sentence of imprisonment

282. Whenever[— (a) a sentence of death: or (b)] any sentence of imprisonment. imposed on any person on conviction for an offence. is set aside on appeal or review and any sentence of imprisonment or other sentence of imprisonment is thereafter imposed on such person in respect of such offence in place of the [sentences referred to in paragraph (a) or (b). respectively] sentence of imprisonment imposed on conviction. or any other offence which is substituted for that offence on appeal or review, the sentence which was later imposed may, if the court imposing it is satisfied that the person concerned has [spent a period of time in prison awaiting the execution of the sentence referred to in paragraph (a) or has] served any part of the sentence [referred to in paragraph (b)] of imprisonment imposed on conviction. be antedated by the court to a specified date, which shall not be earlier than the date on which tbe [sentences referred to in paragraphs (a) and (b) were] sentence of imprisonment imposed on 35 40 45 ,. ..,.. . . . . . . . , 1$ .so ] },5 IQ GOVERNMENT GAZETTE. 19 DECEMBER 19CJ- ,ict N{). 105.1997 (’R lhllX,AI. LA\\’ AMENDMENT ACT. 199: conviction was imposed. and thereupon the sentence which was later imposed shall be deemed to have been imposed on the date so specified,”. Amendment of section 286 of Act 51 of 1977. as amended by section 6 of Act 107 of 1990

37. Section 286 of the principal Act is hereby amended by the substitution for paragraph f c I of subsection (2) of the following paragraph: ‘“(c) if in the opinion of the court the offence warrants the imposition of [the sentence of death or] punishment which by itself or together with an} punishment warranted or required in respect of any other offence of which the accused is simultaneously convicted. would entail imprisonment for a period exceeding 15 years.”, Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105 of 1982, section 8 of Act 107 of 1990, section 51 of Act 129 of 1993 and section 13 of Act 75 of 1995

38. Section 309 of the principal Act is hereby amended by the substitution in subsection ( 3 ) for the words preceding the proviso of the following words: “The provincial or local division concerned shall thereupon have the powers referred to in section 304(2), and. unless the appeal is based solely upon a question of law. the provincial or local division shall. in addition to such powers. have the power [o increase an} sentence imposed upon the appellan( or to impose any other form of sentence [excluding the sentence of death] in lieu of or in addition to such sentence”. Amendment of section 315 of Act 51 of 1977. as substituted by section 20 of Act 105 of 1982 and amended by section 10 of .4ct 107 of 1990

39. Section 315 of the principal Act is hereb> amended— (a) b} the substitution for paragraph (u) of subsection (2) of thr following paragraph: “(a ~ If an application [(excluding an application of a person who has been sentenced to death)] for leave to appeal in a criminal case heard b! a single judge of a provincial or local division (irrespective of whether he or she sat with or without assessors) is granted under section 316. the court or judge or judges granting the application shall. if it . [or] he or she or. in the case of the judges referred to in subsection (8) of that section. they or the majority of them, is or are satisfied that the questions of lav and of fact and the other considerations involved in the appeal are of such a natul-e that the appeal does not require the attention of the [Appellate Division] Supreme Court of Appeal. direct that the appeal be heard b> a full court.’”: and (h) b! the substitution for subsection (4) of the following subsection: “(4) An appeal in terms of this Chapter shall iie only as provided in sections 316 to 319 inclusive. and lsubject to the provisions of section 316A] not as of right.”’, ?5 30 35 40 Repeal of section 316A of Act 51 of 1977

40. Section 3 16A of the principal Act is hereby repealed. Substitution of section 320 of Act 51 of 1977, as substituted by section 12 of Act 107 of 1990 45

41. The following section is hereby substituted for section 320 of the principal Act: “Report of trial judge to be furnished on appeal

320. The judge or judges. as the case may be. of any court before whom a person is convicted shall, in the case of an appeal under section 316 [316A] or316B or of an application for a special entry under section 317 or 50 t I 2(I No. 18519 Act NO. 105, 1997 GOVERNMENT GAZETTE. 19 DECEMBER 1997 CRIMINAL LAW’ AMENDMENT ACT, 1997 the reservation of a question of law under section 319 or an application to the court of appeal for leave to appeal or for a special entry under this Act. furnish to the registrar a report giving his. her or their opinion upon the case or upon any point arising in the case, and s~h report, which shall form part of the record. shall without delay be forwarded by the registrar to the registrar of the court of appeal.’”. Amendment of section 322 of Act 51 of 1977, as amended by section 13 of Act 107 of 1990

42. Section 322 of the principal Act is hereby arnended— (u) by the deletion of subsection (2A); and (b) by the substitution for subsection (6) of the following subsection: “(6) The powers conferred by this section upon the court of appeal in relation to the imposition of punishments, shall include the power to impose a punishment more severe than that imposed by the court below or to impose another punishment [excluding the sentence of death] in lieu of or in addition to such punishment.”. Repeal of section 323 of Act 51 of 1977

43. Section 323 of the principal Act is hereby repealed. Repeal of sections 325A and 326 of Act 51 of 1977

44. Sections 325A and 326 of the principal Act are hereby repealed. Amendment of section 327 of Act 51 of 1977, as amended by section 16 of Act 107 of 1990

45. Section 327 of the principal Act is hereby amended— the substitution for subsection ( 1 ) of the following subsection: “(1 ) If any person convicted of any offence in any court [or sentenced to death in respect of any offence] has in respect of the conviction [or the sentence of death] exhausted all the recognized legal procedures pertaining to appeal or review, or if such procedures are no longer available to him or her. and such person or his or her legal representative addresses the Minister by way of petition, supported by relevant affidavit. stating that further evidence has since become available which materially affects his or her conviction [or the sentence of death imposed upon him]. the Minister may, if he or she considers that such further evidence, if true, might reasonably affect the conviction [or the sentence of death], direct that the petition and the relevant affidavits be referred to the court in which the conviction occurred [or in which the sentence of death was imposed],”; the substitution for subsections (3) and (4) of the following subsections. respectively: ‘“(3 ) Unless the court directs otherwise, the presence of the convicted person [or the person sentenced to death] shall not be essential at the hearing of further evidence. (4) (a) The court shall assess the value of the ftmther evidence and advise the [State] President whether, and to what extent. such evidence affects the conviction [or the sentence] in question. (b) The court shall not, as part of the proceedings of the court. announce its finding as to the further evidence or the effect thereof on the conviction [or sentence] in question.”; and (c) by the deletion of subparagraph (iii) of paragraph (a) of subsection (6). 5 10 15 20 25 30 35 40 45 1-J N(), 18519 Act NO. ]th. 1997 ““””’ ““’’;’’”7 GOVERNMENT GAZETTE. 19 DECEMBER 1997 CRIMINAL LAW’ AMENDMENT ACT. 199; ~ Amendment of section 1 of Act 1 of 1988

46. Section 1 of the Criminal Law Amendment Act, 1988, is hereby amended by the substitution for subsection ( 1 ) of the following subsection: “(1 ) Any person who consumes or uses any substance which impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance 5 with that appreciation, while knowing that such substance has that effect. and who while such faculties are thus impaired commits any act prohibited by law under any penalty. but is not criminally liable because his or her faculties were impaired as aforesaid. shall be guilty of an offence and shall be liable on conviction to the penalty [except the death penalty] which may be imposed in respect of the 10 commission of that act.”. - Repeal of sections 19 and 20 of Act 107 of 1990

47. Sections 19 and 20 of the Criminal Law Amendment Act. 1990, are hereb~ repealed. Substitution of section 3 of Act 94 of 1992 15

48. The following section is hereby substituted for section 3 of the Corruption Act. 1992: “Penalties 3. [Subject to the provisions of section 277(1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), any] @ person who is 20 convicted of an offence referred to in section 1 shall be liable to any penalt} within the punitive jurisdiction of the court concerned,”. Repeal of section 19 of Act 139 of 1992

49. Section 19 of the General Law Amendment Act. 1992. is hereby repealed Amendment of laws ?5

50. The laws mentioned in the second column of Schedule 1 are hereby amended to the extent set out in the third column of that Schedule. Minimum sentences for certain serious offences 51. (1) Notwithstanding any other law but subject to subsections (3) and (6). a High Court shall. if it has convicted a person of an offence referred to in Part I of Schedule 2, 30 sentence the person to imprisonment for life. (2) Notwithstanding any other law but subject to subsections (3) and (6). a regional court or a High Court shall— (u) if it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person. in the case of— (i) a first offender. to imprisonment for a period not less than 15 years: (ii) a second offender of any such offence, to imprisonment for a period not less than 20 years; and (iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years; (b) if it has convicted a person of an offence referred to in Part 111 of Schedule 2. sentence the person. in the case of— (i) a first offender. to imprisonment for a period not less than 10 years; (ii) a second offender of any such offence, to imprisonment for a period not less than 15 years; and (iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and 35 40 45 r+ 24 N() 18519 Act NO. 105, 1997 GOVERNMENT GAZETTE. 19 DECEMBER 1997 CRIMINAL L.4VV’ Ah4EtQDMENT ACT, 1997 i . —— (c) if it has convicted a person of an offence referred to in Part IV of Schedule 2. sentence the person. in the case of— (i) a first offender. to imprisonment for a period not less than 5 years; (ii ) a second offender of any such offence. to imprisonment for a period not less than 7 years; and (iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years: Provided that the maximum sentence that a regional court may impose in terms of this subsection shall not be more than five years longer than the minimum sentence that it may impose in terms of this subsection. (3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections. it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence. (b) If any court referred to in subsection (1) or (2) decides to impose a sentence prescribed in those subsections upon a child who was 16 years of age or older. but under the age of 18 years. at the time of the commission of the act which constituted the offence in question. it shall enter the reasons for its decision on the record of the proceedings. ~ 10 15 (4) Any sentence contemplated in this section shall be calculated from the date of 20 sentence. (5) The operation of a sentence imposed in terms of this section shall not be suspended as contemplated in section 297(4) of the Criminal Procedure Act. 1977 (Act No. 51 of 1977). (6) The provisions of this section shall not be applicable in respect of a child who was under the age of 16 years at the time of the commission of the act which constituted the offence in question. (7) If in the application of this section the age of a child is placed in issue, the onus shall be on the State to prove the age of the child beyond reasonable doubt. (8) For the purposes of this section and Schedule 2. “law enforcement officer” 25 30 includes— (a) a member of the National Intelligence Agency or the South African Secret Service established under the Intelligence Services Act. 1994 (Act No. 38 of 1994): and (b) a correctional official of the Department of Correctional Services or a person 35 authorised under the Correctional Services Act, 1959 (Act No. 8 of 1959). Committal of accused for sentence by High Court after plea of guilty or trial in regional court 52. ( I ) If a regional court, after it has convicted an accused of an offence referred to in Schedule 2 following on— (a) a plea of guilty; or (b) a plea of not guilty, but before sentence. is of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a regional court in terms of section 51, the court shall stop the proceedings and commit the accused for sentence by a High Court having jurisdiction. (2) (a) Where an accused is committed under subsection(1)(a) for sentence by a High Court. the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court. and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the Court that such plea or such admission was incorrectly recorded. (b) Unless the High Court in question— (i) (ii) is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded; or is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence. 40 45 50 55 ?6 No. !8519 !\ct N{). 105.1997 CJOVERNMENT G.4ZETt_E. 19 DECEMBER 1997 CRIMIN.AL L.Aw’ Ah4Eh’DMEh’T ~CT, 1997 the Court shall make a formal finding of guilty and sentence the accused as contemplated in section 51. (c) If the Court is satisfied that a plea of guilty or any admission by the accused which is material to his or her guilt was incorrectly recorded, or if the Court is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the charge. the Court shall enter a plea of not guilty and proceed with the trial as a summary trial in that Court: Provided that any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted. (d) The provisions of section 112(3) of the Criminal Procedure Act, 1977 (Act No.51 of 1977). shall apply with reference tq the proceedings under this subsection. (3) (a) Where an accused is committed under subsection(1)(b) for sentence by a High Court. the record of the proceedings in the regional court shall upon proof thereof in the High Court be received by the High Court and form part of the record of that Court. (b) The High Court shall. after considering the record of the proceedings in the regional court. sentence the accused, and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass sentence as contemplated in section 51: Provided that if the judge is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance vith justice. he or she shall. without sentencing the accused. obtain from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused, (c) If a judge acts under the proviso to paragraph (b). he or she shall inform the accused accordingly and postpone the case for judgment. and. if the accused is in custody, the judge may make-such order with regard to the detention or release of the accused as he or she may deem fit. (d) The Court in question may at anJ sitting thereof hear any evidence and for that purpose summon any person to appear to give evidence or to produce an~ document or other article. (e) Such Court. whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (b,). may— (i) (ii) (iii) (iv) (v) (\’i) confirm the conviction and thereupon impose a sentence as contemplated in section 51; alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51; alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the Court may deem fit: set aside the conviction: remit the case to the regional court with instruction to deal with any matter in such manner as the High Court may deem fit: or make any such order in regard to any matter or thing connected with such person or the proceedings in reg~rd to such person as the- High Court deems likely to promote the ends of justice. 5 10 15 20 25 30 35 40 Saving 53. ( 1 ) Sections51 and 52 shall, subject to subsections (2) and(3). cease to have effect 45 after the expiry of two years from the commencement of this Act. (2) The period referred to in subsection ( 1 ) maybe extended by the President. with the concurrence of Parliament, by proclamation in the Ga:ette for one year at a time. (3) Any appeal against— (a) a conviction of an offence referred to in Scheduie 2 of this Act and a resultant 50 sentence imposed in terms of section 51; or (b) a sentence imposed in terms of section 51. shall be continued and concluded as if section 51 had at all relevant times been in operation. I 28 No. 18519 Act NO. 105, 1997 Short title GOVERNMENT GAZETI_E. 19 DECEMBER 1997 CRIMINAL LAW AMENDMENT ACT. 1997

54. This Act shall be called the Criminal Law Amendment Act, 1997, and shall come into operation on a date fixed by the President by proclamation in the Gazette. i ., “. . . . . 30 No 18519 GOVERNMENT GAZETTE. 19 DECEMBER 1997 Act NO. 105.1997 CRIMINAL LAW AMENDMENT ACT 1997 SCHEDULE 1 LAWS AMENDED BY SECTION 50 Number and year of Short titie Extent of’ amendment law ACI NO. 71 of 1968 Dangerous Weapons (Transkei ) .4cL. 1968 Amendment of section -1 by the substitution for subsec- [ion ( 1 ) of the follow]ng subsection: “(I ) Whenever any person above the age of 18 years is con!icted of an offence int,olving violence 10 any other person and i~ has been pro~ed that he or she killed or injured such other person by using a danger- ous weapon or a firearm. he or she shall. excep~ when [the death sentence or tbe punishment prescribed h~ section 334ter or 334guat of the Criminal Proce- dure Act, 1955 (Act No. 56 of 19551, is imposed or] he or she is in ~erms of section [335 of that Act] 286 of the Criminal Procedure Act. 1977 (Act No. 51 of 1977 ). declared an habitual criminal. notwithstanding anything to the contra~ in an> law contained. be sen - Ienced to imprisonment for a period of not less than Iwo years and, ]f he or she IS so convic[ed by a magis- trate’s court. not exceeding eight years [and may in addition to any such punishment be sentenced to a whipping not exceeding ten strokes]: Provided that If the court is of the opinion tha[ there are mrcumstances which justif> the imposloon of a Ilghter sentence than ~he punishmen~ prescribed ‘o} this section. it shall en[er those circumstances on the record of the proceedings and may thereupon impose such IIghter sentence on the person so conlicted: Provided further tha[ in the case of a magistra~e”s court [and without derogation from its powers to impose a whipping]. such lighter sentence shall nol exceed a fine of [four hundred rand] R40 000 or imprisonment for a period of two vears .”’. (aJ Amendment of secuon 45 by [he substitution for para- graph (c) of subsection (3 J of the following paragraph: “(c) The commission of an oi?icer shall be deemed to have been cancel led on the dare on which an) [sen- tence of death] casbierlng or d]snmssa! from the De- fence Force. which may have been imposed on him or her. IS confirmed under Schedule 1.“. — (b) Amendmen{ of sect]on 1 of the Frost Schedule try the delet!on of the definition of “capital oflence”. ( CJ Amendment of section 4 of the First Schedu)e— ( i J by the subst]tu[ ion for the heading of the following heading: ‘“OFFENCES ENDANGERING SAFET}’ OF FORCES”: and ( ii) b! the substitution for the words following upon paragraph (h) of the following words: “shall be guilty of an offence and hable on con- viction to [be sentenced to death] imprisonment for a period not exceeding 30 vears.”’. Ic( No, 3401 1978 Defence ,Act. 1978 Transkel ) 32 No. 18519 GOVERNMENT GAZETTE. 19 DECEMBER 1997 Act No. 105.1997 CRIMINAL LAW AMENDMENT ACT. 199; Number and year of Short title Extent of amendment law i’ ((IJ The following sect)on is hereb} subsmuled for sec- tion 5? of the Fhs! Schedule, “ALTERNATIVE PUNISHMENTS

52. The court convicting any person [— (a) of an offersce under section 4 may, instead of imposing sentence of death on that person, im- pose upon him any other punishment within the jurisdiction of that court; (b)] of any [other] offence under this Code may, fn- stead of imposing upon that person any penahy prescribed here}n in respect of such offence. im- pose upon him m her any other penalty within the court’s jurisdiction which is provjded for in [his Code in respec{ of any ofience. not be)nq a more severe penaltj than the maximum penalt! so pre- scribed “’. (<) Amendmen( of section 53 of the Flrs( Schedule b! the substitution in subsecuon (2 I for the words preceding the proviso of the following words: ‘“An} person who is engaged in any mutiny or rto[ous or unseeml! behavlour or who comml[s [a capital civil offence] treason, murder. rape or culpable hom- cide or any offence under secuon 4 of this Code m an\ — other prescribed offence. ma! be arres(ed by an! per- son sub,jecl to [his Code !n whose presence he or she I\ so engaged m cnmrnits an} such @fence’” (/) The follov’lng section IS hereb> subs(i[u{ed for sectton 57 of the First Schedule: “CIVIL OFFENCE XIA}’ BE TRIED UNDER CODE

57. A person subject 10 this Code ma! be tried by a milltag cour[ hai,in~ junsdlctlcrn for an! civil offence (mher [ban treason. murder, rape [or other capital offence] or culpable hnmiclde committed b} hjm or— her within the Republ!c ). and may ]n respec( of such — offence he sert[enced to an} penalo w,lthin the jurisd\c- tlon of the court convlc([ng him or her .“. (xI Amendment of section 59 of the Firs{ Schedule by [he substitution for [he prcn ist] of the followlng pro! iso “Provided tha[ a person charged with [a capital civil offence] treason. murder. rape or culpable homicldc m an otTence uncle!- section 4 CJI- 13 of this Code ma> trc lr]ed h! a mill~ary court at any time after the comml\- slon of the offence.’”. (h) Amendment of section 68 of the First Schedule h> the subslltution for thr words preceding tbe proi Isn of the followmg words , . .. . . .. . .. . . . . .- ., 34 No. 18519 Act No. 105, 1997 GOVERNMENT GAZETTE, i 9 DECEMBER 19Y7 CRIMINAL LAW AMENDMENT ACT. 1997 ~umber and year of Short title km Extent of amendment ‘“A court martial shall corrslst of nrr( less than lhree or I in the case of a trial t’or [a capital offcmce] [reason. murder. rape or culpable homic)de I not less than five members. all of whom shall be ot%cers of ttw Defence Force who have held crrmmissioned rank for not less than Iwo years. and shall be constituted and cnnvened as may be prescribed”. (i) Amendment d’ seclion 83 of the Fuw Schedule— (i) hy the deletion of the prowso to subsec~ion ( I ). and (ii ) by the deletion of the proviso LO sub$ectlon (2). (j/ Amendment of section 85 of the Fir$[ Schedule h; the deleuon of paragraph (a I of subsecuon ( I ). (A J Amendmem of section X7 of the Fmt Schedule h! the dele(ion o!’ subsectmn ( 1 I ((I Repeal of sections 96 and 97 of the First Schedule (tII ) The folloii mg sec[lon If hereh! $uhvltuled fo!- wc- uon 9S of the Flrs( Schedule I WHEN Sfn’’rma’m BE txfxm-fml

98. Subject [o the pro~islmr< of [sections 95 and 96] section 95. any sentence shall be executed as soon a< possible af!er II ha. been confirmed “ (}1) The follow}n: sec[lon )~ hereb! >ubstl[utcd for scc- LIon 103 of ~hc Flr~I Schcdulc: I COUNCIL OF RE\”lE\\” T() HE.AR .ARGU- .MENT IN CERTAIN CASES

103. In an! case III \vhlch [sentence of death or] a semence of 12 morrths imprisonment or rnorc or of I cashiering has be en imposed. 01- v here application haf been made h) the ofTender in [erms of sccltcm l(11 for (he review ot the proceedln:s ot I>]s or hel- caw. the council of reliew shall. at the reques[ of the offender. allov the offender or his 01- her counwl and :he offIceI who prosecuted ac Lhe mal crr an! other person ap- pointed for the purpose by the Commander of the Dc- fence Force in his or hcr stead. to appear before it and hear argumen{ on the i$sues in the case.”. (o} Amendmerr[ of sec[ion 135 of the F1rsL Schedule h! the substitution in subsection (3) for (he u orals preceding the proviso of the folloulrr~ words: “The chief dlscipltnary oflicer or an! assistan~ diw- plinary oflicer ma! urrdcr \varrant take such steps a< ma> he prescribed for the e>ecutlon of any sentence of [death] !mpnsonment ~ detention imposed b! a mill- tary court”. ACI NO. 190 f19t31 Mental Health Act. (Transkei ) 1981 Amendment of section 29— (a) by the substitution for subsections ( I I and (? I of the following subsecuons. respec~i] e}>: 36 No. 18519 Act NO. 105.1997 Gt3\’ERX,MEKT GAZETTE. 19 DECEhfBER } 997 CRIMINAL LAW AMENDMENT ACT, 1997 Number and year of Short title Extent of amendment law 1 “(I ) Whenever i( appears to tbe Minis~er thai a convic[ed prisoner in a prison is mentally ill to such a degree that he or she should be detained in an in- stitrnion or in a hosp!tal prison for psychopaths [and the prisoner is not under sentence of death], he or— she ma! order the rnasystrate of the distrlc( in which — the prison is situated to cause the mental condl{ion of the prisoner to be enqcrlred into. (2) Whenever ][ appears [o the otlicer in charge of the prison in ~hich a convicted prisoner is in cus- (ody that the prisoner IS mentally ill to the degree referred to in subsection ( 1 ) [and the prisoner is not under sentence of death]. he or she shall reporr Ihe matter to the magistra~e of the dismic( tn which the prison is slnrated.’”: and 4c. No. 9 of 1983 Trans!ici I Transkeian Penal Cwle. 19S3 (a) Amendment of wc~ion 49 h! the deieuon of para- graph (I). (b) .AmendmenI of section 148 by the substjtuuon for subsection (3] of the following subsection: “(3 ) An! person convicted of an) offence under subsection ( 1 I shall be liable on conviction to be sen (enced to [death or to such lesser] such sen[ence as the courr ma! deem fit “. l(c) Amendm em of section 153 by the sutrstl[ution f’o] subsection (6t of the following subsection: ‘“(6) Anj person who, V.,lth aggavauny clrcunl- stances as defined in section 8 of this Code, commits I housebre ka In: or attempted housebreaking with in~ent [o commi[ an off”ence in contravention of this secuon shall be liable on con\ ic[ion to be sen~enced tcr [death or to such Iesser] such senlence as ~hc court ma} — deem fi[. ”’. (d) .Arnendmerrl 01 sectjon 155 by [he substitution to! subsection (2!J 01 the following suhsec~ ion. “(2 ) An! person wbo commits robber} or attempmd robbery with aggravatln~ cmumstances as dehned m section 8 of this Code shall be hable on corri,ic[ion to be sentenced m [death, or to such lesser] such sen- tence as the cour~ ma} deem fi[. ”. ic[ No. 26 Of 19S5 Bophutha(swana) hfen~al Health Act, 1985 Amendmen[ of secuon 30 b> the deletion of subsecuon (7J. ic[ No. 130[ 1991 Na~ional Defence Ac[. ,Amendmmrl of secuon 41 by the deletion of’ paragraph Bophrrthzmwana ) 1991 (cr) of subsection (-t). 4 ; 38 NC), 1 X519 Act No. 105.1997 GOVERNMENT GAZETTE. 19 DECEMBER 1997 CRIMIXAL L.4V+’ ~MENDMENT ACT, 1997 I Number and year of Short title Extent of amendment law Ac{ No. 71 of 196S Dangerous Weapons IVendat ACI. 1968 Amendmen[ of’ secuon 4 by the subwitution for suhsec- [ion ( I ) of the following subsection: “(1 ) Whenever any pkrson above the age of 18 years is corrvjcted of an offence involving violence to any olher person and it has been proved tha~ he or she killed or Injured such other person by using a danger- ous weapon or a firearm, he or she shall. except when [the death sentence or the punishment prescribed by section 334fer or 334qua/ of the Criminal Proce- dure Act. 1955 (Act No. 56 of 1955J. is imposed or] he or she IS in terms of secuon [335 of that Act] 286 01 the Criminal Procedure Ac[, 1977 (Act No, ? I of 1977). declared an habitual criminal, notwithstanding arrythlng to the contra~ In any law contalrred, be sen- tenced to impnsonmen{ for a period of nol less than two years and. [f he or she IS so con! icted bi a magi\- ma~e’s court. not exceeding etghl years [and may in addition to an! such punishment be sentenced to a whipping not exceeding ten strokes]: Provided thal lf [be court ]s of the opmjon thal there are clrcumstarrces u hlch just]fy the imposition of a ligh[er senlence [ban the punishmen[ prescribed b! thjs secuon. II shall errler those circumstances on the record of the proceedings and ma> thereupon Impose such l]~hter sentence on [he person so con~ )c~ed: Pro\lded further tha( In the case of a maglstra[e”s court [and without derogation from its powers to impose a whipping]. such h:hter sentence shall not exceed a fine of [four hundred rand] R4fl 000 or impnsonmerrl for a period of IWO }ears.’”, \c( No Is 01 1973 ,Mental Health ACL Amendmerrl of secuon K& Vends 1 1973 (CI I b> the subs[icwwn for subsectmns ( I I and (2) of the following subsections. respeculeiy “(1 ) Whene\er It appear~ to [he hfinister ~hat a corrvlcted prisoner in a prison is merrlall! ill LO such a degree [ha[ he or she should be detained In an ins[l[u[ion or In a hospital prmon for psycho- paths [and the prisoner is not under sentence of death]. he or she ma! order the ma:]m-ate of (he district in which the prison ]J sltuawd 10 cause the merr(al cond][]on of the prisoner to be enqu]red ]nlo. (2 I Whenel er H appears to the oflicer m charge of the prison m wh]ch a convicted pr]soner is in custod! [ha[ the prisoner IS mentall> ill to [he de- gree referred LO in subsection ( 1 ) [and the pris- oner is not under sentence of death]. he or she shall repon the matter to the magistrate of the dis- trict in which the pr]son is situated.”. and (b) by the deletlon of subsection (7). i 40 No. 18519 Act No. 105.1997 GOVERNMENT GAzETTE, 19 DECEMBER 1997 CRIMINAL LAW AMENDMENT ACT. 1997 . . . ..— .- Number and ~essr of Short title Extent of amendment la\l Act No. 15 0( 1982 Defence Act, 1982 (u) An~endmen[ of secoon 1 b! the deleuon of the defini - (Venda) Uon of “capital offence”, (/, / .<mendmen( of section 6 b! [he substltu~ion for para- gmph (c) of subsection (3 J of the following paragraph: “(c) The commission of any oficer shall be deemed (o have been cancelled on the date on which any sen- ~ence of [death} cashiering or dismissal from the De- ience Force, which ma! have been imposed on him oI-— her. is confirmed under the Code. ” _ . (c) Amendment of sect)on 82— (I) by the subsutuoon m subsecuon ( 1 ) for the words preceding the proviso of [be follow)n: word$ “Any courr mamal shall consist of not less than three. or }n the case of [any capital offence] trea- son. murder. rape or culpable hom]cide of nol less than file members”: and (ii I b> the delet]on O( paragraph (a) of ~he prov)so [o subsecnon (2 I. (d) Amendment of section 85 b! the substitution for the words preceding paragapb (CJ J of the follmvrng words: “An! courl marrlal shall have jurisd]coon to tr! an! person subject [o the Code for an! offence other than [a capital civil ofl’ence] treason. murder. rape or cul- pable hom]c)de and ma! sublecr to the pro,ls,on< of the Code. impose In respect of an! such offence-” 1 (c) Amendment ot seclion 86— ( i ) by the deleuon of subparagraph ( ] ) o! paragraph (ff J of suhsec~ion ( 1 ): (Ii ) h! the deleuon of subparagraph ( I I of pam:raph (h) of subsection ( 1 ): and (i it ) h! the deletion of subparagraph I I I of paragraph (c) of subsec~!cm ( I J. , (f/ Amendmerrl of <ectlon 4 of the Flrs( Schedule— () I h> [he subst!rul inn for the headln~ of the follow)ng beading: “OFFENCES ENDANGERING S.4FETl’ OF FORCES “: and (ii) h> the subsouruon for the words iollow]ng upon paragraph (h) of the folloulng words, “’shall be guilt: of an crfi’ence and shall bc Ilablc on conl ict]ol) to [be sentenced to death] impr)~- onmen{ for a pcnod not exceedln~ 30 )ears. ” (<q) The following sechon IS subsutu!ed for secuon 51 of the Flrs[ Schedule ... . 42 No. 18519 Act No. 10S 1997 GOVERNMENT GAZETTE. 19 DECEMBER 1997 CR1.MIN/lL L,4~ AMENDMENT ,\ CT. 1997 I Number and year of Short title ;xtent of amendment law “ALTERNATIVE PUNISHMENTS

51. The coun coniic[ing an! person [— (a) of an offence under section 4 ma}, instead of imposing sentence of death on that person. im. pose upon him any other punishment vithin the jurisdiction of that court; (b)] of an! [other] otl’ence under [his Code ma>. l])- stead of ]rnpmsing upnn thal person an> penalc! prescribed herc)n )n respecl of such nffencc. In- pose upon h)rn m her tin> o~hcr penal[} Ii jthln the court’s ~urtschctloc w’htch ]~ prc)llded Ior In d~ls C o d e In respecl ot an> offence, no[ bejn~ a more sei ere pcnail> [ban ~hc maximum penall) m pl-c- wribed.’”, ~i~ 4mendmenl nf sec~inn 52 01 the F]rs[ Schedule hi the ubs~}~uuon for subsec~icrn 12 I O( [he io]lov }ng subsec - on: (~, ,~n, person V,I1O I. ensaged m an! rnutm! Or . . nomus or unseeml! beh~! !our or u ho commtts [a capital civil otfersce or] an! ofi’tnce under section 4 ot this Code or an! other prescribed ofi’ence. ma! be Jr- lested h! an! person sub~ccl to [Ills Code in \~how pl’t2,e11cc hc o] sbr t< s(! en~:ige d or ~’ommil> an! such ~,f~el,cc. pro, ,dcd IIM[ an ofiicrr shall n.)[ bt l);lhl~ It anrs[ h> an: per,(]r other ~han Jr ott1L,t21 .“’. ~ .Amerldmcnl of scct![m 7(1 of til~, FII>[ Schedule- (I) b> ~he dele!(on 0[ lhe pro\!so ICI $ubsec\ion ( I ). and (ii) h} Ihc dele(ton of (I)c pro! I.c, [(o >ubwcllon (2] ) Amendment of scc~ion 73 of dlc Flrs[ Schedule h! the dele[ion nf’ subiec[lon ( 1 J. ./ Repeal of scctlorl. 77 and 7S of dw Firs{ Schedult ) The lollow]n: <ec[ion ]s subsulumd tcu section 82 oi w F]rs~ Schcdu]e. “COUNCIL OF RE\’lE\\’ T() HE.AR AR(;L- N1ENT IN CERTAIS CASES

81. I,, an\ case ]n v hlch [sentence of death or] 21 sentence of 12 months impnsonnlen! or more m of czishienng has been lrnposed. or 1{ here appljcauon has (wcn made b! an> accused undel sec!!on 79 ior the rei Iew of dw proceedinsi 01 hls ot he] case. the Coun - CII ot’ Re\ Icv shall. at the reques( of IIW accused. allof~ d)c accused or IIIS (w bet- counsel and [he oft-leer who prosecuted al Ihc lnal 01- an! o~her person appoln[ed lot’ [he purpose b> the Convenjn: Authority in his or— bcr stead. [o appear hclure It and hear ar~umcnt on the — issues In (he caw. ”. ‘4 44 No. 18519 Act NO. 105.1997 GC)VERN’MENT GAZETTE, I 9 DECEMBER I 997 CRIMINAL L.4W’ AMENDhlENT ACT. 1997 I Number and year of Short title law Extent of amendment (m) Amendment of section 102 of the First Schedule b! the suhsli[u[lon in $uhwctlon (3) for the unrds preced]n: (he proviso of (he follov,irig words: “The chief disciplinary off)cer or any assistant d!scl- plinary oi%cer may under warrant lake such steps as prescribed for the execution of any sentence of [death] lmpnsonment. detention or field punishment impo~ed by any coul-t martial or military coun, a$ the case ma! he”. I I ,. ,, .$6 No. 18519 Act No. 105.1997 GO\’ERNMENT GAZETTE, 19 DECEMBER 1997 CRIMIN.4L LAW’ AMENDhlEh’T ACT. 1997 SCHEDULE 2 (Section 51) PART I Murder. when- (a) (b) it was planned or premeditated; the victim was— (i) a law enforcement officer performing his or her functions as such. whether on duty or not; or (ii) a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977). at criminal proceedings in any court; the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences: (i) Rape: or (ii ) robbery with aggravating circumstances: or the offence was committed by a person. group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy. (c) (d) Rape— (a) when committed— (i) in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice: (ii ) by more than one person. where such persons acted in the execution or furtherance of a common purpose or conspiracy>: (iii) by a person who has been convicted of two or more offences of rape. but has not yet been sentenced in respect of such convictions: or ( il.) b) a person. knowing that he has the acquired immune deficiency syndrome or the human immunodeficienc! virus: (b) where the victim— is a girl under the age of 16 years; (i) (ii) is a physically disabled woman who. due to her physical disability. is rendered particularly vulnerable: or (iii) is a mentally ill woman as contemplated in section 1 of the Mental Health Act. 1973 (Act No. 18 of 1973): or (c) involving the infliction of grievous bodily harm. PART II Murder in circumstances other than those referred to in Part 1. Robbery— (a) when there are aggravating circumstances: or (b) involving the taking of a motor vehicle. Any offence referred to in section 13(f) of the Drugs and Drug Trafficking Act. 1992 (Act No. 140 of 1992). if it is proved that— (a) the value of the dependence-producing substance in question is more than R50 000.00; (b) the value of the dependence-producing substance in question is more than R 10000.00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy: or (c) the offence was committed by any law enforcement otlicer. Any offence relating t~ (a) the dealing in or smuggling of ammunition. firearms. explosives or armament: or (b) the possession of an automatic or semi-automatic firearm, explosives or armament. Any offence relating to exchange control. corruption. extortion. fraud, forgery. uttering or theft— 48 No, 18519 GOVERNMENT GAZETTE. 19 DECEMBER 1997 Act No. 105, 1997 CRIMINAL LAW AMENDMENT ACT. 1997 I / (u) involving amounts of more than R500 000.00: (b) involving amounts of more than RI 00000.00. if it is proved that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy: or (c) if it is proved that the offence was committed by any law enforcement officer— (i) involving amounts of more than RIO 000.00; or (ii) as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy. - PART III Rape in circumstances other than those referred to in Part I. Indecent assault on a child under the age of 16 years, involving the infliction of bodily harm. Assault with intent to do grievous bodily harm on a child under the age of 16 years. Any offence in contravention of section 36 of the Arms and Ammunition Act. 1969 (Act No. 75 of 1969), on account of being in possession of more than 1000 rounds of ammunition intended for firing in an arm contemplated in section 39(2)(a) (i) of that Act. PART IV Any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977). other than an offence referred to in Part I. II or LII of this Schedule. if the accused had with him or her-at the time a firearm. which was intended for use as such. in the commission of such offence.