S v Jimmale and Another

JurisdictionSouth Africa
JudgeMogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Judgment Date30 August 2016
Citation2016 (2) SACR 691 (CC)
Docket NumberCCT 223/15 [2016] ZACC 27
Hearing Date30 August 2016
CounselNo appearance for the applicants. NE Gcingca for the state.
CourtConstitutional Court

Nkabinde J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J and Zondo J concurring): D

Introduction

[1] Parole is an acknowledged part of our correctional system. It has E proved to be a vital part of reformative treatment for the paroled person who is treated by moral suasion. This is consistent with the law: that everyone has the right not to be deprived of freedom arbitrarily or without just cause and that sentenced prisoners have the right to the benefit of the least severe of the prescribed punishments. As courts are F now clothed with the power to postpone consideration of parole for sentenced offenders, the public interests demand that they have full knowledge of the offender's transgression and personal circumstances, including knowledge of the offender's conditions, when parole is considered. In other words, knowledge and an assessment by courts of facts relevant to the conduct of the prisoner, after the imposition of sentence, G are usually a must.

[2] The issue for determination in this application for leave to appeal relates to the power of a trial court to grant a non-parole order — that is — an order by the trial court that the person sentenced should not be H considered for parole before a stated portion of the sentence has been served. Leave to appeal is sought against the decision of the High Court of South Africa, Limpopo Local Division, Thohoyandou [1] (trial court), issuing a non-parole order immediately after convicting and sentencing the applicants. The applicants ask this court to set aside that order. They also ask for condonation of the late filing of this application. The respondent did not file opposing affidavits but filed written submissions I on certain issues, as was directed by the court.

Nkabinde J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J and Zondo J concurring)

[3] The applicants had appealed against the conviction, sentence and the A non-parole order by the trial court. On 17 February 2016 this court granted condonation for the late filing of the application but dismissed the application for leave to appeal against conviction and sentence. It directed the parties to file written submissions on the power of the trial court to deny the applicants the opportunity to be considered for parole before serving 20 years of their sentences. [2] B

[4] The applicants, who act in person, [3] are currently serving a custodial term at Kutama Sinthumule Correctional Centre, in Louis Trichardt, Limpopo. The respondent is the Director of Public Prosecutions, Limpopo. Having decided not to file written submissions in response to C the first directions issued by this court, [4] the respondent was directed again to lodge written submissions on whether, in the light of the decisions in Gcwala, [5] Mthimkulu [6] and Stander, [7] the non-parole order by the trial court should be set aside. [8] The respondent did file submissions. This court now decides the issue regarding the non-parole order without an oral hearing. D

Nkabinde J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J and Zondo J concurring)

Background A

[5] The applicants were charged with murder and attempted murder. They, together with four others, had driven to the deceased's store. One of them was armed with a large knife and the rest with pangas. They stormed the store without warning and viciously attacked the B deceased, stabbing him multiple times. One of the occupants was attacked and lost consciousness.

[6] The trial court convicted them of murder but acquitted them on the count of attempted murder. On 12 June 2012 a custodial term of 25 years was imposed on each accused. The trial court further ordered C that the accused would be eligible for parole only after 20 years. Leave to appeal against the conviction and sentence was dismissed on 15 June 2012 by the trial court and so was the petition to the Supreme Court of Appeal on 22 September 2014.

In this court D

[7] On 18 November 2015 the applicants sought leave to appeal against the conviction and sentence. The applicants contended that the trial court 'erred grossly in law in the non-parole order [it] made'. They also asked for the non-parole order to be set aside and for the belated E lodgement of the application to be condoned. The application for leave to appeal was filed a year late, after the Supreme Court of Appeal dismissed the petition on 22 September 2014. The applicants explained that they had run out of funds and that Legal Aid, despite its undertaking to assist them, failed to lodge the application. They sought the assistance of a fellow inmate.

F [8] After the order dated 17 February 2016, what remains for determination is whether the non-parole order as part of the sentence by the trial court was appropriate and whether it should be set aside. The court directed the parties to file written submissions on the power of the trial court to deny the applicants the opportunity to be considered for parole G before serving 20 years of their sentence. The applicants filed another application on 5 April 2016, seeking leave to appeal against the non-parole order and that it be set aside. Again, they sought condonation for the late filing of the application. [9]

[9] I deal first with leave to appeal and the law regarding the granting of H parole.

Leave to appeal

[10] This matter raises an important constitutional issue regarding the I power of trial courts to grant non-parole orders. The non-parole order by

Nkabinde J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mhlantla J and Zondo J concurring)

the trial court here denies the applicants the opportunity to be considered A for parole before four-fifths of their sentence are served, whereas, in law, the maximum period for which a non-parole order can be granted is two-thirds of the sentence. Needless to say, that order has the potential of infringing the applicants' right not to be deprived of freedom arbitrarily or without just cause, in terms of s 12(1)(a) [10] of the Constitution, or to the benefit of the least severe of the prescribed punishments. B [11] There are prospects of success. It is thus in the interests of justice to grant leave to appeal.

The law regarding imposition of a non-parole order

[11] Originally, the decision to grant parole remained the exclusive field C of the Department of Correctional Services, and courts recognised the need for that because of the principle of separation of powers [12] and the fact that courts obtain their sentencing...

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13 practice notes
  • 2016 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...(CC) ................. 257S v Jezile 2015 (2) SACR 452 (WCC) ................................................... 173-179S v Jimmale 2016 (2) SACR 691 (CC) .................................................. 366S v Jordan (Sex Worker Education and Advocacy Task Force as Amici Curiae) 2002 (6)......
  • Phaahla v Minister of Justice and Correctional Services and Another
    • South Africa
    • Invalid date
    ...S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): dictum in para [26] applied G S v Jimmale 2016 (2) SACR 691 (CC) (2016 (11) BCLR 1389; [2016] ZACC 27): considered S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [199......
  • S v Senwedi
    • South Africa
    • Invalid date
    ...1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): dictum in para [159] applied S v Jimmale and Another 2016 (2) SACR 691 (CC) (2016 (11) BCLR 1389; [2016] ZACC 27): referred S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): referr......
  • S v Senwedi
    • South Africa
    • Invalid date
    ...1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): dictum in para [159] applied S v Jimmale and Another 2016 (2) SACR 691 (CC) (2016 (11) BCLR 1389; [2016] ZACC 27): referred S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): referr......
  • Request a trial to view additional results
11 cases
  • Phaahla v Minister of Justice and Correctional Services and Another
    • South Africa
    • Invalid date
    ...S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): dictum in para [26] applied G S v Jimmale 2016 (2) SACR 691 (CC) (2016 (11) BCLR 1389; [2016] ZACC 27): considered S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [199......
  • S v Senwedi
    • South Africa
    • Invalid date
    ...1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): dictum in para [159] applied S v Jimmale and Another 2016 (2) SACR 691 (CC) (2016 (11) BCLR 1389; [2016] ZACC 27): referred S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): referr......
  • S v Senwedi
    • South Africa
    • Invalid date
    ...1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): dictum in para [159] applied S v Jimmale and Another 2016 (2) SACR 691 (CC) (2016 (11) BCLR 1389; [2016] ZACC 27): referred S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): referr......
  • S v Senwedi
    • South Africa
    • Constitutional Court
    • 21 May 2021
    ... ... That Act was assented to on 26 November 1997, but came into operation only on 1 October 2004. [20] In Jimmale [21] this court extensively discussed the system of parole and described it as 'an acknowledged part of our correctional system', and as 'a vital ... The part of the order imposing 25 years as a non-parole period must therefore be set aside ... [28] There is another aspect that bears mention. When a sentencing court considers ordering a non-parole period, it must afford the parties an opportunity to address that ... ...
  • Request a trial to view additional results
2 books & journal articles
  • 2016 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...(CC) ................. 257S v Jezile 2015 (2) SACR 452 (WCC) ................................................... 173-179S v Jimmale 2016 (2) SACR 691 (CC) .................................................. 366S v Jordan (Sex Worker Education and Advocacy Task Force as Amici Curiae) 2002 (6)......
  • Deciding on parole for offenders serving life sentences
    • South Africa
    • Sabinet SA Crime Quarterly No. 2017-59, April 2017
    • 5 April 2017
    ...to parole in South Africa, Potchefstroom Electronic Law Journal, 14:5, 2011, 205–228. 57 Ibid., 209.58 Agole Abdi Jimmale and Another 2016 (2) SACR 691 (CC), para 13. See also Strydom v S [2015] ZASCA 29 at para InSTITuTe foR SecuRITy STuDIeS & unIVeRSITy of cApe Town2659 Ibid., para 13. 60......

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