n South African Journal of Criminal Justice - Defining exceptional extenuating circumstances : statutory omission or judicial opportunity?

Volume 24, Issue 2
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



In 2004, the Botswana legislature introduced section 27(4) into the Penal Code as a means to temper the rigours of minimum mandatory sentences. Section 27(4) allowed presiding officers in criminal trials leeway to depart from prescribed minimum sentences where 'exceptional extenuating circumstances' justifying a lesser sentence were proven to exist. Since then, judges, practitioners and academics have grappled with the meaning of the phrase, 'exceptional extenuating circumstances'. Judicial officers have attached to the phrase a myriad of interpretations which are both tacit and express. This article explores the rationale for minimum mandatory sentences in Botswana and the use of section 27(4) in decided cases. It investigates whether the courts have settled on an acceptable interpretation of the phrase 'exceptional extenuating circumstances' and explores the effects of any lack of uniformity in the use of section 27(4). It then considers similar legislation in South Africa, examining responses to the legislation and the efficacy of the judicial test developed to assist presiding officers in their interpretation of such legislation. Finally, the article proposes a similar test for Botswana tailored for our unique circumstances. It is hoped that this article will trigger conversation on the appropriateness of a judicial test to determine the existence of exceptional extenuating circumstances.

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