10 [10] Conduct is criminal either under the common law or by statute. In the latter case it is usual for the legislature both to define the criminal conduct and to specify the penalty or range of penalties that may be imposed by courts trying the statutory offence. Where that occurs the powers of the court in regard to sentence are, generally speaking, clear, although problems can arise.16 In the case of common law crimes the position is different, because it has never been the practice for parliament, as the only legislative body having power to deal with this question, to prescribe the sentences that courts may impose for such crimes. In such cases courts imposed sentence in the exercise of a judicial discretion within the limits of their jurisdiction. I will first examine the nature and extent of that discretion. [11] The jurisdiction of the high courts in regard to sentence for common law offences was in general not circumscribed by statute. 17 In regard to magistrates’ courts, where most criminal cases were prosecuted, the constraints within which the courts operated in imposing sentences on offenders were laid down in the statute prescribing the scope of their jurisdiction and their general powers. The relevant provision has for many years been s 92 of the Magistrates’ Courts Act 32 of 1944. That now reads: ‘Limits of jurisdiction in the matter of punishments.— (1) Save as otherwise in this Act or in any other law specially provided, the court, whenever it may punish a person for an offence— (a) by imprisonment, may impose a sentence of imprisonment for a period not exceeding three years, where the court is not the court of a regional division, or not 16 S v Van Dyk 2005 (1) SACR 35 (SCA). 17 There was a limited exception to this general rule in regard to the death sentence. Until 1935 the death sentence was mandatory for murder. Under s 277(1) of the Criminal Procedure Act 51 of 1977 the death sentence was mandatory for the crime of murder without extenuating circumstances until this provision was struck down by the Constitutional Court in S v Makwanyane & another 1995 (3) SA 391 (CC). There were a number of notorious statutory offences for which minimum sentences were prescribed.