S v Stander

• Jurisdiction: South Africa
• Judge: Cloete JA, Snyders JA and Petse AJA
• Judgment Date: 29 November 2011
• Citation: 2012 (1) SACR 537 (SCA)
• Docket Number: 547/2011 [2011] ZASCA 211
• Hearing Date: 04 November 2011
• Counsel: JW Wessels for the appellant, instructed by Legal Aid. WJ de Villiers for the state.
• Court: Supreme Court of Appeal

Snyders JA (Cloete JA and Petse AJA concurring): H

[1] The appellant pleaded guilty and was convicted in the regional court, Port Elizabeth, on 22 counts of fraud involving R435 450,15. On 25 June 2009 he was sentenced to eight years' imprisonment, of which two years were conditionally suspended for five years. In terms of s 276B of the Criminal Procedure Act 51 of 1977 (the Act) the magistrate I ordered the appellant to serve at least 36 months of his sentence before he may be released on parole (the non-parole order).

[2] The appellant's application for leave to appeal against the sentence was refused by the magistrate and his petition to the Eastern Cape High Court, Grahamstown (Eksteen J and Grogan AJ), for leave to appeal met J

Snyders JA (Cloete JA and Petse AJA concurring)

A the same fate. [1] Thereafter he applied for leave to appeal to the same court against the refusal of the petition and was granted such leave to this court. [2] This change in view about the appellant's prospects of success on appeal was apparently brought about by a decision in that division to grant a petition for leave to appeal in similar circumstances, which led to B judgment in the matter of Pauls v S [2011] JOL 26717 (ECG). That matter was brought to the attention of the court a quo which remarked on it as follows:

'The learned judges who considered the petition in that matter, however, granted leave to appeal and added the following directive:

C "In addition to the grounds upon which leave to appeal was sought argument will be required as to whether or not the regional magistrate should have brought it to the attention of the accused's legal representatives that he considered fixing a non-parole period in terms of s 276B of Act 51 of 1977 in order to enable argument on this aspect to be presented. The regional magistrate's comments, if any, thereon must be D requested.'

I deal with that decision later in this judgment.

[3] The question to be answered in this appeal is whether the appellant's petition was wrongly refused and therefore whether there are reasonable E prospects of success in an appeal against his sentence. Three issues arise in this regard. First, whether the magistrate was obliged to give reasons in his judgment on sentence for imposing the non-parole order. Second, the circumstances under which a court would be entitled to impose a non-parole order as part of a sentence. Third, whether the magistrate was obliged to invite or allow argument before the imposition of a F non-parole order.

[4] The furnishing of reasons for a decision by a judicial officer is not only a long-standing and salutary practice, it serves the interests of justice. In S v Immelman 1978 (3) SA 726 (A) at 729A – C, Corbett JA G said:

'It has been decided in this Court, with reference to the verdict of the Court, that, although there is no provision in the Criminal Procedure Code for the delivery of a judgment when a Judge sits alone or with assessors (when these decisions were given the alternative system of trial by jury still obtained), in practice such a judgment is invariably H given and that it is clearly in the interests of justice that it should be given (see R v Majerero and Others 1948 (3) SA 1032 (A); R v Van der Walt 1952 (4) SA 382 (A)). It seems to me that, with regard to the sentence of the Court in cases where the trial Judge enjoys a discretion, a statement of the reasons which move him to impose the sentence I which he does also serves the interests of justice. The absence of such

Snyders JA (Cloete JA and Petse AJA concurring)

reasons may operate unfairly, as against both the accused person and A the State.' [3]

[5] The magistrate, in his judgment on sentence, did not observe the stated necessary practice and, by doing so, failed to furnish any reasons for making the non-parole order. However, in the judgment refusing the B appellant leave to appeal, the magistrate dealt with this aspect as follows:

'The only reason why the court imposed this term is to prevent the Department of Correctional Supervision from burdening the court with an application to convert the sentence before the accused has served three years of the sentence.' [4] C

The reference to the conversion of the sentence is to s 276A(3) of the Act, which allows the Commissioner of Correctional Supervision or the Correctional Supervision and Parole Board, 'if he or it is of the opinion that such a person is fit to be subjected to correctional supervision', to apply to the trial court to reconsider the sentence and either confirm the D sentence, convert it to correctional supervision or impose another appropriate sentence.

[6] The magistrate's reasoning reveals that the non-parole order was imposed for the convenience of the court and possibly even the E Department of Correctional Services. But the convenience of neither is relevant. Circumstances may arise after sentence has been imposed that render an application under s 276A(3) entirely appropriate. A court that refused to entertain such an application because it was not convenient to itself or the department would, without doubt, commit a misdirection. This gives rise to, at least, a reasonable prospect that another court F would consider that the magistrate misdirected himself.

[7] Section 276B(1) of the Act provides: [5]

'(a)

If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of G the sentence, fix a period during which the person shall not be placed on parole.

(b)

Such period shall be referred to as the non-parole-period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.' H

Snyders JA (Cloete JA and Petse AJA concurring)

A Relevant provisions of the Correctional Services Act 111 of 1998 (the CSA) have also been amended to take account of such an order by a sentencing court. [6]

[8] Prior to s 276B of the Act a decision about parole remained B exclusively within the domain of the Department of Correctional Services as an executive function and courts have persistently recognised the need for that to be so. Two principles underlie that perspective. First, the separation of powers; and, second, the fact that courts obtain their sentencing jurisdiction from statute and until s 276B no statute has empowered courts to make any orders regarding the period of imprisonment C to be served before release on parole is considered. [7]

[9] In S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185) Harms JA dealt with the topic as follows: [8]

'The function of a sentencing court is to determine the maximum term of imprisonment a convicted person may serve. The court has no D control over the minimum or actual period served or to be served. . . .

The lack of control of courts over the minimum sentence to be served can lead to tension between the Judiciary and the Executive because the Executive action may be interpreted as an infringement of the independence of the Judiciary (cf Blom-Cooper & Morris The Penalty for Murder: E A Myth Exploded [1996] Crim LR at 707, 716). There are also other tensions, such as between sentencing objectives and public resources (see Walker & Padfield (op cit at 378)). This question relating to the...