S v Senwedi

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2022 (1) SACR 229 (CC)

S v Senwedi
2022 (1) SACR 229 (CC)

2022 (1) SACR p229

Citation	2022 (1) SACR 229 (CC)
Case No	CCT 225/20; [2021] ZACC 12
Court	Constitutional Court
Judge	Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J, and Victor AJ
Heard	May 21, 2021
Judgment	May 21, 2021
Counsel	H Steynberg for the applicant, instructed by Legal Aid South Africa, Kimberley.; C Jansen (with AJ Botha) for the state.

Flynote : Sleutelwoorde

Sentence — Imprisonment — Term of — Non-parole period — Introduction of 25-year non-parole period by s 276B of Criminal Procedure Act 57 of 1977 — Effect of — Offence committed before coming into operation of provision — Fixing of non-parole period constituting increased sentence and could not operate retrospectively — Prisoner entitled to be released after 20 years.

Headnote : Kopnota

The applicant was convicted on 2 May 2002 and sentenced on 14 May 2002 for offences that were committed on 2 April 2001. Those dates preceded the enactment of s 276B of the Criminal Procedure Act 51 of 1977 (the CPA), operative as of 1 October 2004, which introduced a maximum of two-thirds of the term of imprisonment imposed, or 25 years, whichever was the shorter, for a non-parole period. He was sentenced to life imprisonment, and it was ordered that he not be released on parole until he had served a sentence of 25 years' imprisonment. In an application for leave to appeal to the Constitutional Court, he contested the order of the High Court on the basis that the imposition of a non-parole period of 25 years' imprisonment prior to the enactment of s 276B of the CPA infringed his constitutional rights. He submitted that when he was sentenced to life imprisonment, individuals serving life sentences were required to serve a minimum period of 20 years' imprisonment before they became eligible for parole. The effect of the imposition of the non-parole period was that he had to serve five years more than fellow inmates sentenced to life imprisonment prior to 1 October 2004, and that the stipulation of a non-parole period in respect of an offence committed prior to the coming into operation of s 276B was impermissible.

2022 (1) SACR p230

Held, that the fixing of a non-parole period constituted an increased sentence. In accordance with the general principle, it could not operate retrospectively. Absent any legally recognised special circumstances, no departure from this principle was warranted and the fixing of a non-parole period that purported to operate retrospectively was impermissible in law. Consequently, the High Court fatally misdirected itself in fixing a non-parole period of that length in respect of the sentence of life imprisonment for the murder conviction. At the time of sentencing, individuals serving life sentences were required to serve a minimum period of 20 years' imprisonment before they became eligible for parole. (See [24] – [25].)

Held, further, that our courts had to defend and uphold the Constitution and the rights entrenched in it. One of the most important rights was unquestionably the deprivation of an individual's liberty. The part of the order imposing 25 years as a non-parole period therefore had to be set aside. (See [27].)

Held, further, that the High Court had also committed a fatal misdirection in failing to afford the parties an opportunity to address the court concerning the possible fixing of a non-parole period. (See [28].)

Cases cited

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): dicta in paras [145] – [147] applied

Ferreira v Levin NO and Others; Vryenhoek v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [47] applied

Lawyers for Human Rights v Minister of Home Affairs and Others2017 (5) SA 480 (CC) (2017 (10) BCLR 1242; [2017] ZACC 22): referred to

Phaahla v Minister of Justice and Correctional Services and Another 2019 (2) SACR 88 (CC) (2019 (7) BCLR 795; [2019] ZACC 18): dictum in para [70] applied

R v Mazibuko 1958 (4) SA 353 (A): dictum at 357D – E applied

R v Sillas 1959 (4) SA 305 (A): dictum at 311E – G applied

S and Another v Acting Regional Magistrate, Boksburg, and Another 2011 (2) SACR 274 (CC) (2012 (1) BCLR 5; [2011] ZACC 22): dictum in para [16] applied

S v Coetzee 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 to

S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): referred to

S v Makhokha 2019 (2) SACR 198 (CC) (2019 (7) BCLR 787; [2019] ZACC 19): referred to

S v Mchunu [2013] ZASCA 126: dictum in para [5] applied

S v Mhlongo 2016 (2) SACR 611 (SCA) ([2016] ZASCA 152): referred to

S v Mpetha 1985 (3) SA 702 (A): dicta at 707G – 708A and 717H – 718B applied

S v Mthimkhulu 2013 (2) SACR 89 (SCA) ([2013] ZASCA 53): dictum in para [21] applied

S v Mvubu [2016] ZASCA 184 (2016 JDR 2224): dicta in paras [9] – [10] applied

S v Mzizi [2009] ZASCA 32 (2009 JDR 0267): referred to

S v Senwedi NCK KS 54/2001: reversed on appeal

S v SM [2018] ZASCA 162: dictum in para [8] applied

2022 (1) SACR p231

S v Stander 2012 (1) SACR 537 (SCA) ([2011] ZASCA 211): referred to

S v Strydom [2015] ZASCA 29: referred to

S v Van der Westhuizen 2009 (2014 JDR 2518) (2) SACR 350 (SCA): dictum in para [4] applied

S v Zono [2014] ZASCA 188 (2014 JDR 2518): referred to

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24): dictum in para [20] applied

Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2006 (2) SACR 319 (CC) (2007 (3) SA 210; 2007 (9) BCLR 929; [2005] ZACC 22): dicta in paras [26] – [27] applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 276B: see Juta's Statutes of South Africa 2020/21 vol 1 at 2 – 346.

Case Information

H Steynberg for the applicant, instructed by Legal Aid South Africa, Kimberley.

C Jansen (with AJ Botha) for the state.

An application for leave to appeal against a sentence imposed in the Northern Cape Division, Kimberley, of life imprisonment with a provision that parole was not to be considered before the serving of 25 years' imprisonment.

Order

1.

Leave to appeal is granted.

2.

The non-parole period ordered by the High Court of South Africa, Northern Cape Division, Kimberley, on 14 May 2002 — that accused one, Mr Gaolatlhe Senwedi, and accused two, Mr Alfred Khonyane, should not be considered for release on parole until they have each served at least 25 years of their sentence of life imprisonment on count 3, murder — is set aside.

3.

The registrar of this court is directed to forward a copy of this judgment to the Department of Justice and Correctional Services under cover of a letter or email that indicates that this judgment be brought to the attention of the erstwhile accused two, Mr Alfred Khonyane.

Judgment

Majiedt J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring):

Introduction

[1] The applicant, Mr Gaolatlhe Senwedi, applied to the Supreme Court of Appeal (the SCA) for leave to appeal against his conviction and sentence in the High Court of South Africa, Northern Cape Division, Kimberley. The High Court had refused his application for leave to appeal. The application in the SCA suffered the same fate. The applicant then pursued an application for reconsideration of the refusal of leave to appeal to the President of the SCA. The application for reconsideration having also failed, the applicant sought leave to appeal to this court. The application in this court is confined to a specific part of the sentence

2022 (1) SACR p232

Majiedt J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

imposed. The central issue concerns a non-parole period of 25 years ordered in respect of a life sentence imposed on the applicant by the High Court during sentencing. What requires determination is the validity of that order, given that the maximum non-parole period was 20 years for such sentence at that time. That enquiry arises from the following facts.

Background

[2] On 2 April 2001 Mr Coetzee was shot dead in the course of an armed robbery. The applicant was arraigned in the High Court, together with two co-accused, for the murder of Mr Coetzee, housebreaking, robbery with aggravating circumstances and the illegal possession of a firearm and ammunition. On 2 May 2002 they were convicted on all these charges, save for the housebreaking charge.

[3] On 14 May 2002 the applicant was sentenced as follows by the High Court:

(a)

Count 2, robbery with aggravating circumstances: 25 years' imprisonment;

(b)

count 3, murder: life imprisonment;

(c)

count 4, illegal possession of a firearm: three years' imprisonment; and

(d)

count 5, illegal possession of ammunition: one year's imprisonment.

It was ordered that the sentences in respect of counts 2, 4 and 5 run concurrently with the sentence of life imprisonment on the count of murder. It was further ordered 'that accused one [applicant] and two [Mr Alfred Khonyane] not be considered for release on parole until they have each served at least 25 years of their life imprisonment sentence'. [1]

[4] During August 2013 the Superior Courts Act [2] came into operation. After his unsuccessful attempts in obtaining leave to appeal, the applicant was informed during January 2017 by a fellow inmate of the possibility of an application for reconsideration pursuant to s 17(2)(f) of that Act. On 10 June 2019 the applicant lodged an application for...