Sentencing

Abstract

There is no absolute line between culpability and non-culpability (CR Snyman Criminal Law 5ed (2008) 176). This is confirmed by the existence of the concept of diminished responsibility, (a ‘tussenposisie’, according to A Kruger and VG Hiemstra Hiemstra: Suid Afrikaanse Strafproses 7ed (2010) 245), which is not a defence, but provides for reduction in sentence. The offender’s mental and emotional state at the time of the commission of an offence may be affected by a variety of either pathological or non-pathological factors (S Terblanche Guide to sentencing in South Africa 2ed (2007) 198-199). In the latter instance factors such as provocation, rage or jealousy may influence the offender to the extent that his or her power of restraint or self-control, compared to a normal person, is substantially reduced. In such a case the offender can rely on diminished responsibility as a weighty mitigating factor. In S v Mathe 2014 (2) SACR 298 (KZD) at paras [16]-[26] the court, with reference to precedent, highlighted important principles guiding an enquiry about diminished responsibility. Firstly, because diminished responsibility is not a definite condition but a state of mind varying in degree, each case will be determined on its own facts (at para [16]). The essential question is the extent, or degree, to which the particular circumstances reduced the powers of restraint and self-control of an offender. Gorven J noted as follows (with reference to S v Mnisi 2009 (2) SACR 227 (SCA) at para [5]):