S v Stander

• Jurisdiction: South Africa
• Citation: 2012 (1) SACR 537 (SCA)

S v Stander
2012 (1) SACR 537 (SCA)

2012 (1) SACR p537

Citation	2012 (1) SACR 537 (SCA)
Case No	547/2011; [2011] ZASCA 211
Court	Supreme Court of Appeal
Judge	Cloete JA, Snyders JA and Petse AJA
Heard	November 4, 2011
Judgment	November 29, 2011
Counsel	JW Wessels for the appellant, instructed by Legal Aid.; WJ de Villiers for the state.

Flynote : Sleutelwoorde

Sentence — Imprisonment — Term of — Non-parole period — Section 276B of Criminal Procedure Act 51 of 1977 — Such order should not be imposed for convenience of court or even Department of Correctional Services — Their convenience irrelevant — Circumstances arising after sentence may render C application in terms of s 276A(3) for conversion of sentence entirely appropriate — Court, refusing to entertain such application because it is not convenient to itself or Department, committing irregularity.

Sentence — Imprisonment — Term of — Non-parole period — Section 276B of Criminal Procedure Act 51 of 1977 — Such order should only be made D where there are exceptional circumstances justifying it — As what are exceptional circumstances cannot be spelled out in advance, court should determine whether such order should be made on facts of each case — These should be facts relevant to parole and not only aggravating factors of crime committed — Proper evidential basis to be laid for finding that such circumstances exist.

Sentence — Imprisonment — Term of — Non-parole period — Section 276B of E Criminal Procedure Act 51 of 1977 — In determining whether to impose such order, and what period to attach to order, parties entitled to address sentencing court — Failure to afford parties such opportunity constituting misdirection.

Headnote : Kopnota

A non-parole order in terms of s 276B of the Criminal Procedure Act 51 of 1977 F should not be imposed for the convenience of the court and possibly even the Department of Correctional Services. The convenience of neither is relevant. Circumstances may arise after sentence has been imposed that render an application under s 276A(3), for reconsideration for the purpose G

2012 (1) SACR p538

A of placing the offender under correctional supervision, entirely appropriate. A court that refuses to entertain such an application because it is not convenient to itself or the Department would, without doubt, commit a misdirection. (Paragraph [6] at 541e–f.)

A court, before making a non-parole order in terms of s 276B, should carefully B consider whether exceptional circumstances exist justifying the order. Exceptional circumstances cannot be spelled out in advance in general terms, but should be determined on the facts of each case. These should be circumstances that are relevant to parole and not only aggravating factors of the crime committed, and a proper evidential basis should be laid for a finding that such circumstances exist. (Paragraph [20] at 546c–d.)

At least two questions arise when a non-parole order is being considered: first, C 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. (Paragraph [22] at 547a–b.)

Cases cited

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253): dictum in paras [111] – [113] considered D

Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) ([2003] 2 All SA 148): dictum in paras [31] and [32] applied E

S v Botha 2006 (2) SACR 110 (SCA): dictum in paras [25] – [26] applied

S v Bull and Another; S v Chavulla and Others 2001 (2) SACR 681 (SCA) (2002 (1) SA 535; 2002 (6) BCLR 551): considered and compared

S v Immelman 1978 (3) SA 726 (A): dictum at 729A – C applied

S v Khoasasa 2003 (1) SACR 123 (SCA) ([2002] 4 All SA 635): dictum in para [12] applied F

S v Makena 2011 (2) SACR 294 (GNP): considered

S v Matlala 2003 (1) SACR 80 (SCA): dictum in para [7] applied

S v Matshona [2008] 4 All SA 68 (SCA): dictum in para [4] applied

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185): dictum at 521d – i applied G

S v Mokoena 2009 (2) SACR 309 (SCA): dictum in para [6] applied

S v Mshumpa and Another 2008 (1) SACR 126 (E): dicta in paras [81] and [82] applied

S v Mthembu 2012 (1) SACR 517 (SCA): distinguished

S v N 1991 (2) SACR 10 (A): dictum at 16a – d applied H

S v Nkosi (1); S v Nkosi (2); S v Mchunu 1984 (4) SA 94 (T): dictum at 98A – E applied

S v Pakane and Others 2008 (1) SACR 518 (SCA): considered and not followed

S v Williams; S v Papier 2006 (2) SACR 101 (C): dictum in para [15] applied

Shinga v The State and Another (Society of Advocates (Pietermaritzburg Bar) Intervening as Amicus Curiae); S v O'Connell and Others 2007 (2) SACR 28 (CC) (2007 (4) SA 611; 2007 (5) BCLR 474): referred to. I

Pauls v S [2011] JOL 26717 (ECG): approved. J

2012 (1) SACR p539

Legislation cited

Statutes A

The Criminal Procedure Act 51 of 1977, ss 276A(3) and 276B: see Juta's Statutes of South Africa 2010/11 vol 1 at 2-399 and 2-400.

Case Information

On appeal from the Eastern Cape High Court, Grahamstown (Eksteen J and Grogan AJ sitting as a court of appeal). B

JW Wessels for the appellant, instructed by Legal Aid.

WJ de Villiers for the state.

Cur adv vult.

Postea (November 29). C

Order

1.

The appeal is upheld.

2.

The order of the court below refusing the appellant leave to appeal D is set aside and replaced with the following:

'The applicant is granted leave to appeal to the Eastern Cape High Court, Grahamstown, against the sentence imposed by the regional court.'

3.

The appellant is directed to deliver a notice of appeal on or before E 15 December 2011 based on the findings made in this judgment and containing such further grounds of appeal as may be permitted by the court of appeal.

4.

The Director of Public Prosecutions, Eastern Cape, is requested to place this appeal on the roll as a matter of urgency on a date to be arranged with the appellant's counsel. F

5.

The registrar of this court is requested to make three copies of the record filed in this court available to the appellant's attorney for use in the appeal to the Eastern Cape High Court, Grahamstown, should the Judge President of that division sanction this arrangement.

6.

In the event of any further appeal those copies of the record are to G be returned to this court, and, together with the two remaining copies in this court, are to be supplemented insofar as may be necessary.

Judgment

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

2012 (1) SACR p540

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)...