S v Zono
Jurisdiction | South Africa |
Judge | Cachalia JA, Leach JA and Theron JA |
Judgment Date | 27 November 2014 |
Docket Number | 20182/2014 |
Court | Supreme Court of Appeal |
Hearing Date | 26 November 2014 |
Citation | 2014 JDR 2518 (SCA) |
Theron JA (Cachalia and Leach JJA concurring):
The appellant was convicted in the High Court (Local Division for the Western Circuit), Klerksdorp, on 12 June 1996, on charges of murder, attempted murder, robbery with aggravating circumstances and unlawful possession of a firearm and ammunition. The incident giving rise to these charges occurred on 24 July 1995. He was sentenced to an effective period of imprisonment of 60 years. The trial court (Grobbelaar J) further recommended that the appellant not be considered for release on parole, before having served a period of 40 years' imprisonment.
The appellant appealed to the full court of the North Gauteng High Court against his convictions and sentences. The appeal was heard on 6 June 2012. The appellant's appeal against his convictions was dismissed but the appeal against sentence was upheld. On appeal the sentence was reduced to an effective period of imprisonment of 45 years and the high court (Raulinga J with Kollapen J and Vorster AJ concurring) 'ordered that the [appellant] . . . serve a non-parole period of 25 years'. The appellant was granted special leave by this court to appeal against that part of the order of the full court pertaining to the
2014 JDR 2518 p3
Theron JA (Cachalia and Leach JJA concurring)
non-parole period of 25 years. At first blush the cumulative effect of the individual sentences imposed by the full court appear to be unusually harsh, but as they were not an issue in this appeal it is unnecessary to deal further with this.
The fixing of a non-parole period constitutes an increase in the penalty imposed on a convicted person, and thus cannot operate retrospectively. The penalty to which the convicted person is subject is that applicable at the time of the commission of the relevant crime, and not the date of either conviction or sentence. [1] This was confirmed by this court in Mchunu v the State [2] where Willis JA held:
'As has been emphasised in R v Mazibuko, it is an ancient, well-established principle of our common law that the liability for a penalty arises when the crime is committed and not when a person is either convicted or sentenced. An increase in penalty (which the fixing of a non-parole period is) will, therefore, ordinarily not operate retrospectively in circumstances where that additional burden did not apply at the time when the offence was committed . . . The crimes in question were committed before the coming into operation of s 276B of the Act. There are no special circumstances, recognised in our law, which would permit a departure from the general principle that sets its face against the retrospective operation of a penalty. The order of the court below...
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...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] S v Zono [2014] ZASCA 188 (2014 JDR 2518): referred to Van Wyk v Unitas Hospital and Another (Open ......
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...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] S v Zono [2014] ZASCA 188 (2014 JDR 2518): referred to Van Wyk v Unitas Hospital and Another (Open ......
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