S v Senwedi
Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
Judge | Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J, and Victor AJ |
Judgment Date | 21 May 2021 |
Court | Constitutional Court |
Hearing Date | 21 May 2021 |
Citation | 2022 (1) SACR 229 (CC) |
Counsel | H Steynberg for the applicant, instructed by Legal Aid South Africa, Kimberley. C Jansen (with AJ Botha) for the state. |
Docket Number | CCT 225/20 [2021] ZACC 12 |
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
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:
Count 2, robbery with aggravating circumstances: 25 years' imprisonment;
count 3, murder: life imprisonment;
count 4, illegal possession of a firearm: three years' imprisonment; and
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 reconsideration with the SCA. The applicant claimed that there were exceptional circumstances and prospects of success that warranted an appeal to a full court. On 28 November 2019 the registrar of the SCA sent a letter to the applicant, informing him that the application could not be accepted, as the application had been dismissed on 26 January 2009. The registrar informed the applicant in the letter that 'at that time the Superior Courts Act was not in force and the (A)ct has no retrospective effect'. It bears mention, for the sake of completeness, that accused 3 (who was not subject to a non-parole period) also applied to the High Court and also petitioned the SCA, but to no avail.
Majiedt J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)
[5] The applicant now seeks leave to appeal to this court in order to remedy the alleged infringement of his constitutional rights by the SCA in refusing to entertain the application for reconsideration pursuant to s 17(2)(f) of the Superior Courts Act. This application is also preceded by a condonation application for the lengthy delay in bringing this application. The applicant submits that the following constitutional rights were infringed:
The right to equal protection under the law; [3]
the right to access to court; [4] and
the right to appeal to, or review by, a higher court. [5]
[6] The applicant contends that when his application was dismissed by the SCA in 2009, the possibility of lodging an application for reconsideration was not available. The applicant claims that the refusal to consider the application on the basis that s 17(2)(f) has no retrospective effect undermines the purpose of the section. If his application were to be reconsidered, contends the applicant, it is clear that 'the [High Court] was not at liberty to impose a non-parole period prior to 1 October 2004 and he would have enjoyed his right to the least severe sentence'.
[7] In the alternative, the applicant seeks leave to appeal the order of the High Court. In particular, the applicant submits that the imposition of a non-parole period of 25 years' imprisonment prior to the enactment of s 276B of the Criminal Procedure Act [6] (the CPA) infringes his constitutional rights. The applicant notes that this issue was not raised in his initial application before the SCA, but that this aspect was the only ground of appeal raised in his application for reconsideration. In this regard the applicant submits that when he was sentenced to life imprisonment (on 14 May 2002), individuals serving life sentences were required to serve a minimum period of 20 years' imprisonment before they became eligible for parole. He points out that the effect of the imposition of the non-parole period by the High Court is that he has to serve five years more than fellow inmates sentenced to life imprisonment prior to 1 October 2004. The applicant argues that, since s 276B of the CPA was introduced by s 22 of the Parole and Correctional Supervision Amendment Act, [7] operative as of 1 October 2004, any attempt to stipulate a non-parole period, in respect of an offence committed prior to the coming into operation of s 276B, is impermissible. In this regard the applicant relies on Zono. [8]
Majiedt J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)
[8] The applicant contends that the imposition of a non-parole period prior to 1 October 2004 raises an important constitutional issue as it infringes the following rights:
The right not to be deprived of freedom arbitrarily and without just cause; [9] and
the right to benefit from the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. [10]
Finally, the applicant contends that the High Court did not invite the legal representatives to address the issue of fixing a non-parole period.
[9] This court considered the application and issued the following directions to the parties:
The respondent is directed by Friday, 22 January 2021 to file two copies of the complete trial record in Case No K/S 54/2001 of the High Court of South Africa, Northern Cape Division, Kimberley.
The parties are directed to file written submissions of no longer than 15 pages on the following issues:
Whether condonation should be granted.
Why did the applicant not approach this Court after his initial petition to the Supreme Court of Appeal was dismissed on 26 January 2009?
Whether the non-parole period as ordered by the High Court in paragraph 13.6 of the order is permissible.'
[10] Written submissions were received from both the applicant and the respondent. The respondent's submissions support the application in respect of the applicant's alternative contentions regarding the imposition of the non-parole period. The state readily concedes that the length of the non-parole period imposed by the High Court was invalid. This matter is being determined without oral argument.
Condonation
[11] The applicant first applied for leave to appeal to the SCA on 26 January 2009, and his...
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