S v Mhlongo

• Jurisdiction: South Africa
• Judge: Bosielo JA, Swain JA, Zondi JA, Mocumie JA and Dlodlo AJA
• Judgment Date: 03 October 2016
• Citation: 2016 (2) SACR 611 (SCA)
• Docket Number: 140/2016 [2016] ZASCA 152
• Hearing Date: 24 August 2016
• Counsel: SB Mngadi for the appellant, instructed by the Justice Centre, Durban. F van Heerden for the state.
• Court: Supreme Court of Appeal

Mocumie JA (Bosielo JA, Swain JA, Zondi JA and Dlodlo AJA concurring):

[1] On 10 March 2009 the appellant was charged with and convicted by I the regional court, Empangeni, on one count of rape. On 12 March 2009 he was sentenced to life imprisonment. Subsequently, on 8 September 2011, he applied for and was granted leave to appeal against his conviction and sentence to the full court of the KwaZulu-Natal Division, Pietermaritzburg. The full court dismissed the appeal against the conviction but upheld the appeal against the sentence of life J

Mocumie JA (Bosielo JA, Swain JA, Zondi JA and Dlodlo AJA concurring)

A imprisonment and substituted it with a sentence of 18 years' imprisonment. In addition, it fixed a non-parole period of 12 years in terms of s 276B of the Criminal Procedure Act 51 of 1977 (the CPA). The appellant appeals against the sentence imposed and the fixing of the non-parole period with special leave of this court.

B [2] In relation to the non-parole period, the appellant launched a three-pronged attack. First, he contends that there was no application made by the state to fix the non-parole period, either before the regional court or before the full court. Secondly, he was not given notice that s 276B would be invoked. Thirdly, the parties were not given an C opportunity to present argument or evidence for or against the fixing of a non-parole period. The appellant contends further that there was no basis or finding that his character could only be rehabilitated after a period of 12 years. The full court gave no reasons for fixing the non-parole period. As to the invocation of s 51(1) of part 1 of sch 2 to the D Criminal Law Amendment Act 105 of 1997 (the Criminal Law Amendment Act) by the regional court, the appellant contends that, since s 51(1) was not specified in the charge-sheet, it committed a material misdirection by imposing the sentence of life imprisonment.

E [3] A non-parole order is a determination that has serious consequences for an accused. '(I)t is an order that a person does not deserve being released on parole in future.' [1] Its effect is to ultimately restrict the liberty of a person who is sentenced to a term of imprisonment, since such a person cannot be released on parole, or correctional supervision, until F the expiry of the non-parole period. [2] The fixing of a non-parole period entails the exercise of a discretion vested in a court which, like all discretionary powers, must be judicially exercised. Especially in criminal matters where the liberty of a person is at stake, it must be exercised judiciously and in accordance with principles of fairness and justice.

G [4] In S v Pakane and Others [3] this court said that the intention of the legislature in enacting s 276B of the CPA is to invest sentencing courts with discretionary power to 'control the minimum or actual period to be served by the convicted person'. [4] Furthermore, this section provides the courts with the 'overall latitude' and flexibility in determining whether to H fix or refrain from fixing non-parole periods, but not as a matter of routine. [5] Hence, in interpreting s 276B of the Act, this court in Mthimkulu, in recognising a progression from ss (1) – (2), said that:

Mocumie JA (Bosielo JA, Swain JA, Zondi JA and Dlodlo AJA concurring)

'What s 276B(2) in fact does is to enjoin a sentencing court, once it has A exercised its discretion under s 276B(1)(a) against the convicted person, to then fix the non-parole period in respect of the effective period of imprisonment, taking cognisance of the provisions of s 276B(1)(b).' [6]

[5] The principles that determine the exercise of this exceptional order B of non-parole are well stated; first, as to why a court should exercise the discretionary power; second, as to what facts are germane to its exercise, and third, as to the procedure to be followed. In Mthimkulu [7] this court held:

'An order in terms of s 276B should therefore only be made in C exceptional circumstances, when there are facts before the sentencing court that would continue, after sentence, to result in a negative outcome for any future decision about parole.' [8]

The judiciary, within the matrix of South Africa's constitutional democracy, D stands as a bulwark against any arbitrary exercise of power and owes every citizen a duty of ensuring that every exercise of power conforms to the Bill of Rights. The principle of fair hearing enshrined in the South African Bill of Rights is a key aspect of the rule of law. [9]

[6] This court has consistently held in several reported judgments E that the provisions of s 276B must be invoked for substantial reasons. Three of these decisions warrant special mention. They are S v Strydom, [10] S v Stander [11] and S v Mthimkulu. [12] In Strydom the appellant was convicted of 36 charges of fraud involving a benefit of R375 816, 92. She was consequently sentenced to serve a term of five years' imprisonment F with the provision that in terms of s 276B of the Act the appellant serve three years of imprisonment before being placed on, or being considered eligible for, parole. On appeal this court stated the following:

'(A) court should not resort to s 276B of the CPA lightly and rather, as this court has often indicated, allow the officials of the Department of Correctional Services, who are guided by the [Correctional Services Act G

Mocumie JA (Bosielo JA, Swain JA, Zondi JA and Dlodlo AJA concurring)

A 111 of 1998] CSA and the attendant regulations, to make such assessments and decisions as well as the parole board.' [13]

[7] In Stander the appellant was sentenced to eight years' imprisonment for fraud, two years of which were conditionally suspended for five years. The trial court also ordered, in terms of s 276B of the CPA, that the B appellant serve at least 36 months of her sentence before she could be considered for parole (the non-parole order). [14] On appeal the court held that the failure of the magistrate to give reasons for the sentence made it impossible to assess what prompted the order in the first instance. On appeal this court found that a court can only invoke s 276B when C there are circumstances specifically relevant to parole, in addition to any aggravating factors pertaining to the commission of the crime, and where a proper, evidential basis had been laid for a finding that such circumstances exist so as to justify the imposition of such an order. [15]

[8] In Mthimkulu the appellant was convicted in the High Court on one D count of murder, possession of a fully automatic firearm (an AK47 assault rifle) without a licence to possess such firearm and possession of five rounds of live ammunition (7,62 mm) without the required licence. The appellant was sentenced to 20 years' imprisonment on the murder count and five years for both unlawful possession of a prohibited firearm and ammunition. The trial court directed that the term of five years' imprisonment, in respect of the latter two counts, run concurrently with the 20 years' E imprisonment imposed in respect of the murder count and fixed a non-parole period of 13 years. There was no invitation by the trial court to counsel to address it prior to the fixing of the non-parole order. This court held that the failure to afford the parties the opportunity to address the sentencing court might, depending on the facts of each case, F constitute an infringement of fair-trial rights. [16]

The procedure for fixing a non-parole period and the accused's entitlement to be heard

G [9] A trial court has a duty to impose an appropriate sentence according to long-standing principles of punishment and judicial discretion. A convicted person, generally speaking, has a reasonable expectation of being paroled after serving a portion of the term of imprisonment. Parole can therefore be regarded as an essential element in the punishment of an offender. The right of an accused to a fair trial extends throughout the H entire proceedings, including the sentencing stage. [17] The fixing of a non-parole period is part of a criminal trial and it must thus accord with

Mocumie JA (Bosielo JA, Swain JA, Zondi JA and Dlodlo AJA concurring)

the dictates of a 'fair trial' that an accused person be given notice of the A court's intention to invoke s 276B of the CPA, and to be heard before a non-parole period is fixed. Failure to do so amounts to a misdirection by the sentencing court. [18]

[10] In Stander this court stated categorically: B

'At least two questions arise when such an order [non-parole order] is considered: first, whether to impose such an order and, second, what period to attach to the order. In respect of both considerations the parties are entitled to address the sentencing court. Failure to afford them the opportunity to do so constitutes a misdirection.' [19] [My emphasis.]

[11] At the heart of the right to a fair criminal trial, and what infuses its C purpose, is for justice to be done and also to be seen to be done. Dignity, freedom and equality are the foundational values of the Constitution. In relation to sentencing, what the right to a fair trial requires, amongst other things, is a procedure which does not prevent any factor which is relevant to the sentencing process, and which could have a mitigating effect on the punishment to be imposed, from being considered by the D sentencing court. The Constitutional Court emphasised:

'In the present circumstances a fair trial would also have to ensure that, in the process of the sentencing court being put in possession of the...