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.
WHEREAS the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), provides that everyone has the right to life;
AND WHEREAS the Constitutional Court has ruled that the sentence of death is unconstitutional and therefore invalid;
AND WHEREAS it is necessary to make provision for the setting aside of all such sentences in accordance with law and their substitution by lawful punishments
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—
1. Substitution of sentence of death
(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 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 other judge of that court to deal with the matter in terms of subsection (3).
(a) The court shall be furnished with written argument on behalf of the person sentenced to death and the prosecuting authority.
(i) shall consider the written arguments and the evidence led at the trial; and
(ii) may, if necessary, hear oral argument on such written arguments,
and shall advise the President, with full reasons therefore, on the appropriate sentence to be substituted in the place of the sentence of death and, if applicable, on the date to which the sentence shall be antedated; and
[S 1(3)(b) substituted by s 25 of Act 34 of 1998 with effect from 19 December 1997.]
(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 any aspect of the proceedings, finding or advice of the court in terms of subsection (3).
(a) 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 the Legal Aid Guide as it exists at the commencement of this Act does not regulate the 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 consultation 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).
(i) The directives contemplated in paragraph (a) shall be published in the Gazette by the Minister of Justice.
(ii) Before the directives are published in the Gazette, they shall be submitted to Parliament and tabled as soon as possible.
(7) The appeal of every 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 heard by the full court of the division which would have heard such an appeal if a direction in terms of section 315(2)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), had, at 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 court shall, in hearing an appeal referred to it in terms of subsection (7), set aside the sentence of death and thereafter have the same powers it would have had if the appeal had been referred to it in terms of section 315(2)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
(10) All other appeals in cases where the sentence of death was imposed and which are not disposed of by the Supreme Court of Appeal shall be disposed of by that Court: Provided that the said Court shall, if the Court confirms the conviction, set aside the sentence of death and impose such punishment as it considers to be proper.
[S 1(10) substituted by s 25 of Act 34 of 1998 with effect from 19 December 1997.]
(11) A sentence of imprisonment substituted for the sentence of death in terms of this section, may be antedated by the court to a specified date, which shall not be earlier than the date on which the sentence of death was imposed.
(12) For the purposes of this section, any provision of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), amended or repealed by this Act, shall be deemed not to be so amended or repealed.
[S 2 to s 24 repealed by s 106(1) of Act 42 of 2002..]
25. Amendment of section 30 of Mental Health 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
(a) Substitutes section 30(1) and (2).
(b) Deletes section 30(7).
26. Repeal of section 3 of Second General Law Amendment Act 94 of 1974
27. Substitution of section 18 of Criminal Procedure Act 51 of 1977
28. Amendment of section 79 of Criminal Procedure 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
(a) Substitutes section 79(1)(a).
(b) Substitutes section 79(1)(b) words preceding subparagraph (i).
29. Amendment of section 121 of Criminal Procedure Act 51 of 1977, as amended by section 6 of Act 56 of 1979 and section 17 of Act 59 of 1983
Deletes the proviso to paragraph section 121(5)(b).
30. Amendment of section 140 of Criminal Procedure Act 51 of 1977
Deletes the proviso to section 140(2)(b).
31. Amendment of section 145 of Criminal Procedure Act 51 of 1977, as amended by section 4 of Act 64 of 1982 and section 2 of Act 107 of 1990
Deletes of the proviso to section 145(2).
32. Amendment of section 255 of Criminal Procedure Act 51 of 1977, as substituted by section 50 of Act 20 of 1992
Substitutes section 255(1)(a).
33. Amendment of section 257 of Criminal Procedure Act 51 of 1977
Deletes section 257, second proviso.
34. Amendment of section 276 of Criminal Procedure 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
Deletes section 276(1)(a).
35. Repeal of sections 277, 278 and 279 of Criminal Procedure Act 51 of 1977
36. Substitution of section 282 of Criminal Procedure Act 51 of 1977, as substituted by section 13 of Act 5 of 1991 and amended by section 48 of Act 129 of 1993
37. Amendment of section 286 of Criminal Procedure Act 51 of 1977, as amended by section 6 of Act 107 of 1990
Substitutes section 286(2)(c).
38. Amendment of section 309 of Criminal Procedure 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
Substitutes section 309(3), words preceding the proviso.
39. Amendment of section 315 of Criminal Procedure Act 51 of 1977, as substituted by section 20 of Act 105 of 1982 and amended by section 10 of Act 107 of 1990
(a) Substitutes section 315(2)(a).
(b) Substitutes section 315(4).
40. Repeal of section 316A of Criminal Procedure Act 51 of 1977
41. Substitution of section 320 of Criminal Procedure Act 51 of 1977, as substituted by section 12 of Act 107 of 1990
42. Amendment of section 322 of Criminal Procedure Act 51 of 1977, as amended by section 13 of Act 107 of 1990
(a) Deletes section 322(2A).
(b) Substitutes section 322(6).
43. Repeal of section 323 of Criminal Procedure Act 51 of 1977
44. Repeal of sections 325A and 326 of Criminal Procedure Act 51 of 1977
45. Amendment of section 327 of Criminal Procedure Act 51 of 1977, as amended by section 16 of Act 107 of 1990
(a) Substitutes section 327(1).
(b) Substitutes sections 327(3) and (4).
46. Substitution of section 1(1) of Criminal Law Amendment Act 1 of 1988
47. Repeal of sections 19 and 20 of Criminal Law Amendment Act 107 of 1990
48. Substitution of section 3 of Corruption Act 94 of 1992
49. Repeal of section 19 of General Law Amendment Act 139 of 1992
50. Amendment of laws
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.
51. Discretionary minimum sentences for certain serious offences
(1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.
(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in—
(a) Part II of Schedule 2, 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) Part III of Schedule 2, 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;
[S 51(2)(b)(iii) amended by s 5 of Act 18 of 2015 with effect from 1 June 2016.]
(c) Part IV of Schedule 2, 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; and
[S 51(2)(c)(iii) amended by s 5 of Act 18 of 2015 with effect from 1 June 2016.]
(d) Part V of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less than 3 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 5 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 7 years.
[S 51(2)(d) added by s 5 of Act 18 of 2015 with effect from 1 June 2016.]
Provided that the maximum term of imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more than five years.
(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 must thereupon impose such lesser sentence: Provided that if a regional court imposes such a lesser sentence in respect of an offence referred to Part 1 of Schedule 2, it shall have jurisdiction to impose a term of imprisonment for a period not exceeding 30 years.
(aA) When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence—
(i) The complainant's previous sexual history;
(ii) an apparent lack of physical injury to the complainant;
(iii) an accused person's cultural or religious beliefs about rape; or
(iv) any relationship between the accused person and the complainant prior to the offence being committed.
[S 51(4) omitted by s 1 of Act 38 of 2007.]
(5) The operation of a minimum 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).
[S 51(5) substituted by s 26 of Act 42 of 2013.]
(6) This section does not apply in respect of an accused person who was under the age of 18 years at the time of the commission of an offence contemplated in subsection (1) or (2).
[S 51(6) substituted by s 26 of Act 42 of 2013.]
(7) If in the application of this section the age of an accused person is placed in issue, the onus shall be on the State to prove the age of that person beyond reasonable doubt.
(8) For the purposes of this section and Schedule 2, “law enforcement officer” includes—
(a) a member of the National Intelligence Agency or the South African Secret Service referred to in section 3 of the Intelligence Services Act, 2002 (Act No. 65 of 2002); and
(b) a correctional official of the Department of Correctional Services or a person authorised under the Correctional Services Act, 1998 (Act No. 1ll of 1998).
(9) The amounts mentioned in respect of the offences referred to in Part II of Schedule 2 to the Act, may be adjusted by the Minister from time to time by notice in the Gazette.
[S 51 amended by s 34 of Act 62 of 2000, s 36 of Act 12 of 2004; substituted by s 1 of Act 38 of 2007.]
[S 51 commencement: 1 May 1998.]
[S 52 amended by s 34 of Act 62 of 2000; repealed by s 2 of Act 38 of 2007.]
52A. and 52B. .
[S 52A and s 52B inserted by s 35 of Act 62 of 2000; repealed by s 2 of Act 38 of 2007.]
[S 53(1) substituted by s 16 of Act 42 of 2001; deleted by s 3 of Act 38 of 2007.]
[S 53(2) deleted by s 3 of Act 38 of 2007.]
[S 53(2A) inserted by s 16 of Act 42 of 2001; deleted by s 3 of Act 38 of 2007.]
(3) Any appeal against—
(a) a conviction of an offence—
(i) referred to in Schedule 2 of this Act and a resultant sentence imposed in terms of Section 51; or
(ii) not referred to in the said Schedule 2 and a resultant sentence imposed in terms of section 52A; or
(b) a sentence imposed in terms of section 51 or 52A as the case may be,
shall be continued and concluded as if sections 51 and 52A had at all relevant times been in operation.
(4) Sections 51 and 52 shall not derogate from the provisions of Section 89(2) of the Magistrates' Courts Act. 1944 (Act No. 32 of 1944).
(5) If a regional court has convicted an accused of an offence referred to in Schedule 2 as well as an offence not referred to in that Schedule, and the court has, prior to the commencement of the Judicial Matters Amendment Act, 2000, committed the accused under Section 52(1) for sentence by a High Court in respect of the offence referred to in the said Schedule 2, but has not committed the accused for sentence by the High Court in question in respect of the offence not referred to in that Schedule, the regional court must sentence the accused in respect of the last-mentioned offence as if the Judicial Matters Amendment Act, 2000, had not been passed
[S 53 substituted by s 36 of Act 62 of 2000.]
[S 53 commencement: 1 May 1998.]
53A. Transitional provision
If a regional court has, prior to the date of the commencement of the Criminal Law (Sentencing) Amendment Act, 2007—
(a) committed an accused for sentence by a High Court under this Act, the High Court must dispose of the matter as if the Criminal Law (Sentencing) Amendment Act, 2007, had not been passed; or
(b) not committed an accused for sentence by a High Court under this Act, then the regional court must dispose of the matter in terms of this Act, as amended by the Criminal Law (Sentencing) Amendment Act, 2007.
[S 53A inserted by s 4 of Act 38 of 2007.]
54. Short title
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.
LAWS AMENDED BY SECTION 50
Number and year of law
Short title
Extent of amendment
Act 71 of 1968 (Transkei)
Dangerous Weapons Act, 1968
Amendment of section 4 by the substitution for subsection (1)
Act 34 of 1978 (Transkei)
Defence Act, 1978
(a) Amends section 45 (3)(c).
(b) Deletes definition of “capital offence” in First Schedule, section 1.
(c) Amends section 4 heading and words following(h).
(d) Substitutes First Schedule, section 52.
(e) Amends First Schedule, section 53(2), words preceding proviso.
(f) Substitutes First Schedule, section 57.
(g) Amends First Schedule, section 59 proviso.
(h) Amends First Schedule, section 68, words preceding proviso.
(i) Amends First Schedule, section 83 by deleting the proviso’s to section 83(1) and (2), respectively.
(j) Deletes First Schedule, section 85(1)(a).
(k) Deletes First Schedule, section 87(1).
(l) Repeal First Schedule, sections 96 and 97.
(m) Substitutes First Schedule, section 98.
(n) Substitutes First Schedule, section 103.
(o) Amends First Schedule, section 135(3), for the words preceding the proviso.
Act 19 of 1981 (Transkei)
Mental Health Act, 1981
Amends section 29(1) and (2) and deletes (7).
Act 9 of 1983 (Transkei)
Transkeian Penal Code, 1983
(a) Deletes section 49(i).
(b) Substitutes section 148(3).
(c) Substitutes section 153(6).
(d) Substitutes section 155(2).
Act 26 of 1985 (Bophuthatswana)
Mental Health Act, 1985
Deletes section 30(7).
Act 13 of 1991 (Bophuthatswana)
National Defence Act, 1991
Deletes section 41(4)(a).
Act 71 of 1968 (Venda
Dangerous Weapons Act, 1968
Substitutes section 4(1).
Act 18 of 1973 (Venda
Mental Health Act, 1973
Amends section 30(1) and (2), deletes (7).
Act 15 of 1982 (Venda
Defence Act, 1982
(a) Deletes section 1, definition of “capital offence”.
(b) Substitutes section 6(3)(c).
(c) Amend section 82(1), words preceding proviso; and deletes 82(2), proviso (a).
(d) Substitutes section 85, words preceding (a).
(e) Delete section 86(1)(a)(i), 86(1)(b)(i), 86(1)(c)(i).
(f) Substitute First Schedule, section 4 heading; section 4, words following (h).
(g) Substitutes First Schedule, section 51.
(h) Substitutes First Schedule, section 52(2).
(i) Deletes First Schedule, section 70(1) proviso; and 70(2) proviso .
(j) Deletes First Schedule, section 73(1).
(k) Repeal First Schedule, sections 77 and 78.
(l) Substitutes First Schedule, section 82.
(m) Substitutes First Schedule, section 102(3), words preceding proviso.
[Schedule 2, Part I substituted by s 68 of Act 32 of 2007 with effect from 16 December 2007.]
Uncommenced amendment
Any offence referred to in section 2 of the Prohibition of Mercenary activities and Regulation of certain Activities in Country of Armed Conflict Act, 2006;
[Schedule 2, Part I amended by s 14 of Act 27 of 2006 with effect from a date to be proclaimed.]
(a) it was planned or premeditated;
(b) the victim was—
(i) a law enforcement officer performing his or her functions as such, whether on duty or not;
(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; or
(iii) a person under the age of eighteen years;
Uncommenced amendment
(b) the victim was—
(i) a law enforcement officer performing his or her functions as such, whether on duty or not;
(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; or
(iii) a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023;
[Schedule 2, Part I, item 1(b) substituted by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
(c) 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 compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; or
Uncommenced amendment
(i) Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023; or
[Schedule 2, Part I, item 1(c)(i) substituted by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
(ii) robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977);
Uncommenced amendment
(ii) robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) or if the victim of the robbery was a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023;
[Schedule 2, Part I, item 1(c)(ii) substituted by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
(d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy;
(e) the victim was killed in order to unlawfully remove any body part of the victim, or as a result of such unlawful removal of a body part of the victim;
(f) the death of the victim resulted from, or is directly related to, any offence contemplated in section 1(a) to (e) of the Witchcraft Suppression Act, 1957 (Act No. 3 of 1957); or
(g) the death of the victim resulted from physical abuse or sexual abuse, as contemplated in paragraphs (a) and (b) of the definition of “domestic violence” in section 1 of the Domestic Violence Act, 1998 (Act No. 116 of 1998), by the accused who is or was in a domestic relationship, as defined in section 1 of that Act, with the victim.
[Schedule 2, Part I, "Murder" amended by s 5 of Act 38 of 2007; substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
Attempted murder, in circumstances referred to in paragraphs (a) to (g) of the offence of "murder".
[Schedule 2, Part I, "Attempted murder" inserted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
Rape as contemplated in Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007—
(a) when committed—
(i) in the circumstances where the accused is convicted of the offence of rape and evidence adduced at the trial of the accused proves that the victim was also raped by—
(aa) any co-perpetrator or accomplice; or
(bb) a person, who was compelled by any co-perpetrator or accomplice, to rape the victim, as contemplated in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007,
irrespective of whether or not the co-perpetrator or accomplice has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question;
(ii) in the circumstances where the accused is convicted of the offence of rape on the basis that the accused acted in the execution or furtherance of a common purpose or conspiracy and evidence adduced at the trial of the accused proves that the victim was raped by more than one person who acted in the execution or furtherance of a common purpose or conspiracy to rape the victim, irrespective of whether or not any other person who so acted in the execution or furtherance of a common purpose or conspiracy has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question;
(iii) by the accused who—
(aa) has previously been convicted of the offence of rape or compelled rape; or
(bb) has been convicted by the trial court of two or more offences of rape or the offences of rape and compelled rape,
(aaa) whether the rape of which the accused has so been convicted constitutes a common law or statutory offence;
(bbb) the date of the commission of any such offence of which the accused has so been convicted;
(ccc) whether the accused has been sentenced in respect of any such offence of which the accused has so been convicted;
(ddd) whether any such offence of which the accused has so been convicted was committed in respect of the same victim or any other victim; or
(eee) whether any such offence of which the accused has so been convicted was committed as part of the same chain of events, on a single occasion or on different occasions; or
(iv) by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;
[Schedule 2, Part I, (a) “Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007” substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
(b) where the victim—
(i) is a person under the age of 18 years;
(iA) is an older person as defined in section 1 of the Older Persons Act, 2006 (Act No. 13 of 2006);
(ii) is a person with a disability who, due to his or her disability, is rendered vulnerable;
Uncommenced amendment
(ii) is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable;
[Schedule 2, Part I, item 2[sic](b)(ii) substituted by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
(iii) is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or
(iv) is or was in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998, with the accused; or
Uncommenced amendment
(iv) is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023; or
[Schedule 2, Part I, item 2[sic](b)(iv) added by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
[Schedule 2, Part I, (b) “Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007” amended by s 25 of Act 8 of 2017; substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
(c) involving the infliction of grievous bodily harm.
[Schedule 2, Part I, (c) “Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007” substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
Compelled rape as contemplated in Section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007—
(a) when committed—
(i) in the circumstances where the accused is convicted of the offence of compelled rape and evidence adduced at the trial of the accused proves that the victim was also raped—
(aa) as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by any co-perpetrator or accomplice; or
(bb) by a person, who was compelled by any co-perpetrator or accomplice, to rape the victim,
irrespective of whether or not the co-perpetrator or accomplice has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question;
(ii) in the circumstances where the accused is convicted of the offence of compelled rape on the basis that the accused acted in the execution or furtherance of a common purpose or conspiracy and evidence adduced at the trial proves that the victim was raped by more than one person who acted in the execution or furtherance of a common purpose or conspiracy to rape the victim, irrespective of whether or not any other person who so acted in the execution or furtherance of a common purpose or conspiracy has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question;
(iii) by the accused who—
(aa) has previously been convicted of the offence of compelled rape or rape; or
(bb) has been convicted by the trial court of two or more offences of compelled rape or the offences of compelled rape and rape,
(aaa) whether the rape of which the accused has so been convicted constitutes a common law or statutory offence;
(bbb) the date of the commission of any such offence of which the accused has so been convicted;
(ccc) whether the accused has been sentenced in respect of any such offence of which the accused has so been convicted;
(ddd) whether any such offence of which the accused has so been convicted was committed in respect of the same victim or any other victim; or
(eee) whether any such offence of which the accused has so been convicted was committed as part of the same chain of events, on a single occasion or on different occasions; or
(iv) under circumstances where the accused knows that the person who is compelled to rape the victim has the acquired immune deficiency syndrome or the human immunodeficiency virus;
[Schedule 2, Part I, (a) “Compelled rape as contemplated in Section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007” substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
(b) where the victim—
(i) is a person under the age of 18 years;
(iA) is an older person as defined in section 1 of the Older Persons Act, 2006 (Act No. 13 of 2006);
(ii) is a person with a disability who, due to his or her disability, is rendered vulnerable;
(iii) is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or
(iv) is or was in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998, with the accused; or
[Schedule 2, Part I, (b) “Compelled rape as contemplated in Section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007” substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
(c) involving the infliction of grievous bodily harm.
[Schedule 2, Part I, (c) “Compelled rape as contemplated in Section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007” substituted by s 15 of Act 12 of 2021 with effect from 5 August 2022.]
Uncommenced amendment
(iv) is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023; or
[Schedule 2, Part I, item 3[sic](c)(iv) added by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
Any offence referred to in Section 2, 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the aforementioned sections) of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004, when it is proved that the offence has—
(a) endangered the life or caused serious bodily injury to or the death of, any person, or any number or group of persons;
(b) caused serious risk to the health or safety of the public or any segment of the public; or
(c) created a serious public emergency situation or a general insurrection.
Trafficking in persons as provided for in section 4(1) and involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.
[Schedule 2, Part I, “Trafficking in persons” substituted by s 48 of Act 7 of 2013 with effect from 9 August 2015.]
Any offence referred to in Part I or II of Schedule 1 to the Implementation of the Rome Statue of the International Criminal Court Act, 2002 (Act No. 27 of 2002).
[Schedule 2, Part I, “Any offence referred to in Part I or II of Schedule 1 to the Implementation of the Rome Statue of the International Criminal Court Act, 2002 (Act No. 27 of 2002)” added by s 22 of Act 66 of 2008 with effect from 17 February 2009.]
Uncommenced amendment
Any offence referred to in section 3 of the Prohibition of Mercenary activities and Regulation of certain Activities in Country of Armed Conflict Act, 2006;
[Schedule 2, Part II amended by s 14 of Act 27 of 2006 with effect from a date to be proclaimed.]
Murder in circumstances other than those referred to in Part I.
(a) when there are aggravating circumstances; or
(b) involving the taking of a motor vehicle.
Uncommenced amendment
(a) when there are aggravating circumstances;
(b) involving the taking of a motor vehicle; or
(c) where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023.
[Schedule 2, Part II, item 2 substituted by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
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 R10 000,00 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 officer.
Any offence relating to—
(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, extortion, fraud, forgery, uttering, theft or any offence in Part 1 to 4 or Section 17, 20 or 21 (insofar as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt activities Act, 2004—
[Schedule 2, Part II, “Any offence relating to exchange control”, words preceding (a), amended by s 36 of Act 12 of 2004 with effect from 27 April 2004.]
(a) involving amounts of more than R500 000,00;
(b) involving amounts of more than R100 000,00, 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 R10 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.
Any offence referred to in Section—
(a) 2, 5, 6, 7, 8, 9, 10 or 14 (in so far as it relates to the aforementioned sections) of the Protection of Constitutional Democracy Against Terrorist and related Activities Act, 2004, in circumstances other than those referred to in Part 1; or
[Schedule 2, Part II “Any offence referred to in Section—” added by s 27 of Act 33 of 2004 with effect from 20 May 2005.]
Any offence referred to in section 2, 4, 5 or 6 of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998), which relates to an offence involving ferrous or non-ferrous metal which formed part of essential infrastructure, as defined in section 1 of the Criminal Matters Amendment Act, 2015.
[Schedule 2, Part II "Any offence referred to in section 2, 4, 5 or 6 of the Prevention of Organised Crime Act 121 of 1998" added by s 6 of Act 18 of 2015 with effect from 1 June 2016.]
Theft of ferrous or non-ferrous metal which formed part of essential infrastructure, as defined in section 1 of the Criminal Matters Amendment Act, 2015—
(i) interference with or disruption of any basic service, as defined in section 1 of the aforementioned Act, to the public; or
(ii) damage to such essential infrastructure; or
(b) if the offence was committed by or with the collusion or assistance of—
(i) a law enforcement officer as defined in section 51(8);
(ii) a security officer, as defined in section 1 of the Private Security Industry Regulation Act, 2001 (Act No. 56 of 2001), who was required to protect or safeguard such essential infrastructure;
(iii) an employee of, or contractor appointed by, the owner or the person in charge of such essential infrastructure; or
(iv) a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy.
[Schedule 2, Part II "Theft of ferrous or non-ferrous metal" added by s 6 of Act 18 of 2015 with effect from 1 June 2016.]
An offence referred to in section 3 of the Criminal Matters Amendment Act, 2015.
[Schedule 2, Part II "An offence referred to in section 3 of the Criminal Matters Amendment Act, 2015" added by s 6 of Act 18 of 2015 with effect from 1 June 2016.]
A contravention of section 8, 9 or 10 of the Cybercrimes Act, 2020—
(a) involving amounts of more than R500 000,00;
(b) involving amounts of more than R100 000,00, if it is proven that the offence was committed—
(i) by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or
(ii) by a person or with the collusion or assistance of another person, who as part of his or her duties, functions or lawful authority was in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system of another person in respect of which the offence in question was committed; or
(c) if it is proven that the offence was committed by any law enforcement officer—
(i) involving amounts of more than R10 000; 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; or
(iii) with the collusion or assistance of another person, who as part of his or her duties, functions or lawful authority was in charge of, in control of, or had access to data, a computer program, a computer data storage medium or a computer system of another person in respect of which the offence in question was committed.
[Schedule 2, Part II "A contravention of section 8, 9 or 10 of the Cybercrimes Act, 2020" added by s 58 of Act 19 of 2020 with effect from 1 December 2021.]
Attempted murder in circumstances other than those referred to in Part I.
[Schedule 2, Part II "Attempted murder" added by s 16 of Act 12 of 2021 with effect from 5 August 2022.]
Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, in circumstances other than those referred to in Part I.
[Schedule 2, Part II "Rape or compelled rape contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007" added by s 16 of Act 12 of 2021 with effect from 5 August 2022.]
Sexual exploitation of a child or sexual exploitation of a person who is mentally disabled as contemplated in section 17 or 23, or using a child for child pornography or using a person who is mentally disabled for pornographic purposes, as contemplated in section 20(1) or 26(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
[Schedule 2, Part II "Sexual exploitation of a child or sexual exploitation of a person" added by s 16 of Act 12 of 2021 with effect from 5 August 2022.]
Uncommenced amendment
Arson, housebreaking, whether under the common law or a statutory provision, with the intention to commit an offence or an offence referred to in section 1 of the Intimidation Act, 1982 (Act 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023.
[Schedule 2, Part II, item “arson” added by s 11 of Act 16 of 2023 with effect from a date to be proclaimed.]
[Schedule 2, Part III substituted by s 68 of Act 32 of 2007 with effect from 16 December 2007.]
[Schedule 2, Part III "Rape or compelled rape" deleted by s 17 of Act 12 of 2021 with effect from 5 August 2022.]
[Schedule 2, Part III “Sexual exploitation of a child or sexual exploitation of a person” deleted by s 17 of Act 12 of 2021 with effect from 5 August 2022.]
Assault with intent to do grievous bodily harm on a child under the age of 16 years.
Assault with intent to do grievous bodily harm—
(i) under the age of 16 years; or
(ii) either 16 or 17 years of age and the age difference between the child and the person who has been convicted of the offence is more than four years; or
(b) where the victim is or was in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998, with the accused.
[Schedule 2, Part III “Assault with intent to do grievous bodily harm” inserted by s 17 of Act 12 of 2021 with effect from 5 August 2022.]
Any offence in contravention of section 36 of the Arms and Ammunitions 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.
[Schedule 2, Part III "Any trafficking related offence by a commercial carrier" deleted by s 48 of Act 7 of 2013 with effect from 9 August 2015.]
[Schedule 2, Part IV substituted by s 5 of Act 38 of 2007.]
Any of the following offences, 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—
Robbery, other than a robbery referred to in Part I or II of this Schedule;
An offence involving an assault, when a dangerous wound is inflicted with a firearm, other than an offence referred to in Part I, II or III of this Schedule;
Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence;
Escaping from lawful custody.
Any offence referred to in—
(a) section 54(1) of the International Trade Administration Act, 2002 (Act No. 71 of 2002); or
(b) section 32(1) (a), (b), (c), (d), (k) in so far as that paragraph relates to section 21(1), (1), (m) or (o) of the Second-Hand Goods Act, 2009 (Act No. 6 of 2009),
involving ferrous or non-ferrous metal which formed part of essential infrastructure, as defined in section 1 of the Criminal Matters Amendment Act, 2015.
[Schedule 2, Part IV "Any offence referred to in—" added by s 7 of Act 18 of 2015 with effect from 1 June 2016.]
[Schedule 2, Part V added by s 8 of Act 18 of 2015 with effect from 1 June 2016.]
Any offence referred to in section 36 or 37 of the General Law Amendment Act, 1955 (Act No. 62 of 1955), involving ferrous or non-ferrous metal which formed part of essential infrastructure, as defined in section 1 of the Criminal Matters Amendment Act, 2015.
Theft, involving ferrous or non-ferrous metal which formed part of essential infrastructure, as defined in section 1 of the Criminal Matters Amendment Act, 2015, which is not covered in Part II of this Schedule.