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[2016] ZAGPJHC 75
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Makwela v Minister of Justice and Others (06452/2015) [2016] ZAGPJHC 75; 2016 (2) SACR 253 (GJ) (1 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case number: 06452/2015
DATE: 01 APRIL 2016
In the matter between:
MAKWELA
THABISO
............................................................................................................
Applicant
And
THE MINISTER OF
JUSTICE
..................................................................................
First
Respondent
THE MINISTER OF CORRECTIONAL
SERVICES
.........................................
Second
Respondent
THE NATIONAL COMMISSIONER
OF
................................................................
Third
Respondent
CORRECTIONAL SERVICES
THE REGIONAL COMMISSIONER
OF
..............................................................
Fourth
Respondent
CORRECTIONAL SERVICES
THE AREA
MANAGER
..............................................................................................
Fifth
Respondent
(MEDIUM “C” LEEUWKOP)
THE HEAD OF CORRECTIONAL
CENTRE
.........................................................
Sixth
Respondent
(MEDIUM “C” LEEUWKOP)
THE CHAIRPERSON OF PAROLE
BOARD
.....................................................
Seventh
Respondent
(MEDIUM “C” LEEUWKOP)
THE CASES MANAGEMENT
COMMITTEE
.....................................................
Eighth
Respondent
(MEDIUM “C” LEEUWKOP)
THE SOCIAL
WORKER
...........................................................................................
Ninth
Respondent
(MEDIUM “C” LEEUWKOP)
SUMMARY: Section 280(2) of the Criminal
Procedure Act permits a sentencing court to order one or more
sentences of imprisonment
to run concurrently, either in whole or in
part. Where a shorter sentence is ordered to run concurrently with a
longer sentence,
the former is encapsulated within the latter. In
casu, it appeared that a longer sentence was ordered to run
concurrently with
a shorter sentence and this led to the need for the
determination as to the manner in which concurrent sentences were to
be implemented
and taken into account for purposes of consideration
of early release on parole.
Applicant was sentenced to 15 years
imprisonment in May 2004; he escaped from custody that day; he was
apprehended in October 2007
and only then commenced serving his 15
year sentence; at the same time he was awaiting trial for charges of
escape and of robbery
with aggravating circumstances whilst he had
escaped; he was convicted and sentenced on 4th April 2014 to serve a
further term
of 10 years imprisonment for the robbery which sentence
was “to run concurrently with the sentence presently serving”
as well as a further sentence of 3 years imprisonment in respect of
the escape.
The Criminal Procedure Act is silent on
computation or implementation of concurrent sentences. The ordinary
meaning of “concurrent”
is that sentences will run
parallel at the same time. There is no requirement that the later
sentence should be entirely subsumed
within the earlier sentence.
Comments in Anglo-American jurisprudence, although cautiously
referred to, support this approach that
the relevant consideration is
the terminal date of the last sentence to expire.
In concluding that concurrency allows
different sentences their own lifespan and although they may,
partially, occupy the same time
span and that they are not
necessarily destined to expire together, the court held that it was
the later 10 year sentence of imprisonment
which would continue to
operate even though the earlier sentence had been completed.
JUDGMENT
SATCHWELL J:
INTRODUCTION
1. The court is asked to decide how
service of a sentence and eligibility for parole is to be calculated
when a later sentence is
ordered to run concurrently with the earlier
sentence. The facts in this case are unusual but raise an issue which
is commonplace
within the administration of the Department of
Correctional Services – namely the import of a sentence which
is to run ‘concurrently’.
2. The chronology is as follows:
a. Applicant was convicted of robbery
with aggravating circumstances and sentenced on the 11th May 2004 to
serve a term of 15 (fifteen)
years imprisonment.
b. Applicant escaped from custody on
the date of his sentencing, 11th May 2004, and accordingly served no
portion of his sentence.
c. Applicant was apprehended on 3rd
October 2007 which is the date on which he commenced serving his 15
year sentence of imprisonment.
d. However, applicant was thereafter
prosecuted, convicted and sentenced on 14th April 2014 on two
further counts; firstly, for
his escape and secondly, for another
robbery with aggravating circumstances which he committed whilst he
was on the run.
e. The sentence imposed upon him by the
Regional Magistrate at Randburg was that of 3 (three) years
imprisonment in respect of the
escape and that of 10 (ten) years
imprisonment in respect of the robbery. The latter sentence, 10 years
for robbery, was ordered
to run concurrently with the sentence he was
then serving – i.e. the 15 year sentence imposed on 11th May
2004 for robbery
but which he only commenced serving in October 2007.
3. In the ordinary course, the
computation of the sentences to be served and calculation of
eligibility for parole would not have
been very difficult. Applicant
was to serve a sentence of 15 years for robbery and a second sentence
of 10 years for robbery imposed
within that 15 year period would be
encapsulated with the first robbery sentence resulting in an
effective sentence of 15 years
imprisonment. To that sentence of 15
years would then be added the additional period of 3 years
imprisonment imposed in respect
of the escape. The total period to be
served would then be a period of 18 (eighteen) years imprisonment.
4. However, a complication has arisen.
By the time the learned magistrate, on 4th April 2014, ordered that
the 10 year sentence
which he imposed “runs concurrently with
the sentence presently servicing” there was only a period of
some 8 ½
(eight and a half) years left to run on the first
sentence. Accordingly, the later sentence of 10 years had now become
the longer
sentence and could not be encapsulated within the first
(and originally the longer) sentence.
5. The applicant approached this court
because he is of the view that he should have been considered for
release on parole based
on the fact that he has served a substantial
portion of the (2007) 15 year sentence. It is common cause that a
prisoner sentenced
in 2004 would be subject to the provisions of the
previous Correctional Services Act 8 of 1959 which would normally
have entitled
him to be considered for release on parole after he had
served one-third of his sentence. In the circumstances, I understand
why
the policy of Correctional Services militates against giving
consideration for release on parole where an offender is still
awaiting
trial for other offences. After his rearrest in 2007, the
applicant was awaiting trial and it would not have been appropriate
for
him to be considered or released on parole once he had served 1/3
of his sentence in either 2012, 2013, or 2014 because the authorities
did not know what would be the result of the impending trials.
6. At the first hearing before me on
Monday 29th February 2016, counsel for respondent had failed to
furnish heads of argument in
accordance with the provisions of the
Practice Manual and directives issued in regard thereto. I accepted
his heads of argument
but stood the matter down until the next day in
order to consider them and asked him to be prepared to argue why he
should not
bear the wasted costs of this postponement and why he
should be paid any fees for the wasted day. On the following day, it
was
apparent that counsel for respondent had not considered the
meaning or import of the use of the word “concurrent” by
the learned sentencing magistrate and had merely repeated, almost
verbatim, the phrasing of various paragraphs in the respondents’
answering affidavit. He was unable to assist me with the issues with
which I was confronted.
7. I am enormously grateful to Advocate
Rusty Mogagabe SC of the Constitutional Group of the Johannesburg Bar
whom I phoned asking
for assistance from counsel. He arranged for
Advocate Reuben Mbuli of the Duma Nokwe group to meet with me. I did
so in the presence
of respondents’ attorney, Mr Reginald Pooe.
I made it clear that I have not taken it upon myself to replace the
counsel of
respondents’ choice. I have decided that I need the
assistance of an amicus curiae. Both Advocate Mbuli and Mr Pooe
understand
that his position is that of an amicus. I am most grateful
to Advocate Mbuli who has undertaken this task and devoted time and
effort to this dispute on a pro deo basis.
CONCURRENT SENTENCES
8.
Section 280(2)
of the
Criminal
Procedure Act No 51 of 1977
provides that punishments consisting of
imprisonment shall commence one after the other “unless the
court directs that such
sentences of imprisonment shall run
concurrently”. The usual rationale for such orders is that a
sentencing court should
be mindful of the cumulative (and sometimes
harsh) impact of the imposition of more than one sentence.
9. In the present case, the learned
sentencing magistrate had regard that the accused before him had
already been sentenced to serve
a term of imprisonment and that same
was actually in the process of being served. He must therefore have
been mindful that some
portion of the first sentence of imprisonment
(15 years) had already been served and that only some portion
remained still to be
served – in this case some 8 ½
years of the first sentence.
10. The learned magistrate ordered that
the sentence which he imposed was to “run concurrently with the
sentence presently
serving”. At issue is whether or not the 10
years is encapsulated within the remaining 8 ½ years of the
first sentence
or whether it runs from 2014 parallel with the
remaining portion of the first sentence but continues beyond that
first sentence
which terminates earlier than the later sentence.
11. The
Criminal Procedure Act contains
no definition of the word “concurrent” and the commentary
on
section 280(2)
mainly deals with the impact of sentencing,
therefore the rationale for ordering sentences of imprisonment to run
concurrently.
I have been unable (and so have Advocates Mbuli and
Phanyane) to find any decisions of our courts which deal with the
manner in
which shorter and longer concurrent sentences of
imprisonment are to be implemented.
12. The Oxford English Dictionary (2
ed, vol II) provides definitions of ‘concurrent’ as
“Adj: running together in space,
as parallel lines; going on side by side, as proceedings; occurring
together, as events
or circumstances; existing or arising together;
conjoint, associated.”
“Law: covering the same ground.”
“Concurrent Lease: a lease made
before another is expired, and so existing for part of the time side
by side with the other”.
13. I had always understood that where
one entity runs “concurrently” with another there is
considered to be a parallel
relationship running in tandem. In the
case of a sentence of imprisonment this has usually meant that a
shorter sentence runs at
the same time as the longer sentence, is
encapsulated within and is usually bounded by the beginning and the
ending of the longer
sentence. However, in the present case, the
later and longer sentence cannot be encapsulated within and bounded
by the termination
date of the earlier and shorter sentence.
14. I do take note of the submissions
of Advocate Mbuli that there has been neither appeal nor review of
the sentences imposed by
the learned magistrate and that this court
should be careful not to interfere with that which was ordered by the
sentencing magistrate.
I am in agreement with his approach but do not
find that my reasoning either interferes or changes that which was
ordered by the
learned magistrate.
15. I cannot find that the later
sentence of 10 years is to terminate when the remaining portion of
the earlier sentence of 8 ½
years ends.
16. Firstly, the learned magistrate was
alive to the fact that the accused had already served 6 ½
years of the first 15 year
sentence and therefore had only 8 ½
years to serve. One cannot assume that a judicial officer was
ordering an absurd result
- i.e. that 10 years should fit within 8 ½
years.
17. Secondly, the
Criminal Procedure
Act does
not provide that the later sentence must be entirely
subsumed within the earlier sentence.
18. Thirdly, the clear meaning of the
word “concurrent” indicates that the two sentences run in
parallel while they
operate at the same time. However, when one
sentence is complete there is nothing to suggest that the remaining
sentence must or
should also then terminate. It simply has nothing
further with which to run in tandem – it now stands on its own.
The offender
has certainly benefitted by the court order of
concurrency – since the first portion of the later and longer
sentence ran
with the remaining portion of the earlier and shorter
sentence; the sentences did not run consecutively.
19. In the present case, the applicant
would serve 15 years of the first sentence and thereafter the
remaining 1 ½ years
of the 10 year sentence instead of 15
years of the first sentence and thereafter 10 years of the later
sentence. The impact of
the subsequent sentence has certainly been
ameliorated by the learned magistrate.
20. My registrar has helpfully explored
the Anglo-American jurisdictions for assistance. One must always be
careful of placing any
reliance upon the law of foreign jurisdictions
especially when it relies upon its own statutes and is also not the
common law of
the Republic of South Africa.
21. In R v Governor of Brockhill
Prison, ex p. Evans
[1997] 2 W.L.R. 236
the court had to decide
whether or not several sentences of imprisonment, whether consecutive
or concurrent, were to be treated
as a single term. The Lord Chief
Justice held that
“in the case of concurrent
sentences, the single term would in effect be the longest of the
terms except where those sentences
had been imposed on different
occasions when the term would expire on the terminal date of the last
sentence to expire” [page
282] and also “If concurrent
sentences are imposed on the same occasion, the single term will in
effect be the longest of
the concurrent terms because that will be
the last sentence to expire. Where concurrent sentences are imposed
on different occasions
they must still be treated as a single term,
but the terminal date of the sentence pronounced by the court will
not necessarily
be that of the longest of the concurrent terms; it
will, however, be the terminal date of the last sentence to expire,
which may
or may not be the longest of all the sentences. In the case
of concurrent sentences it is not, obviously, a question of adding
the relevant sentences together but of seeing which expires last”
[at page 298].
22. The Legal Aid Society of the United
States of America’s commentary on the New York Penal Code
comments that “the
time to be served on concurrent sentences is
determined by the longest of the concurrent sentences” which is
often referred
to as “the controlling sentence”. Since
“concurrent does not mean retroactive … two identical
sentences
imposed at different times may result in different release
dates” whilst “concurrent sentences, even if they are
for
the same length of time, will not necessarily begin and end at
the same time if they are imposed on different dates”.
23. Although these comments come from
different jurisdictions and in relation to different statutes and
issues, the point made is
the same. Concurrency allows different
sentences their own lifespan and although they may, partially, occupy
the same time span
they are not necessarily destined to expire
together.
24. In the result, I am in agreement
with the calculations of respondent as set out in the answering
affidavit which indicate that
the 10 year sentence runs until 3rd
April 2024 and thereafter the 3 year sentence (for escape) runs until
3rd April 2027.
25. Applicant complained of the failure
of either the learned magistrate or the Department to have antedated
one or more or all
of the sentences imposed on the grounds that he
should have been considered an awaiting trial prisoner during the
period from his
re-arrest in 2007 until his conviction and sentence
in 2014. There is no merit in this submission. Firstly, sentencing
courts are
precluded from antedating sentence; secondly, the
sentencing court determines an appropriate sentence taking into
account time
spent in custody awaiting trial; thirdly, applicant
was not awaiting trial but was serving his initial 15 year sentence
imposed
on him in 2004 which he commenced serving in 2007.
ELIGIBILITY FOR CONSIDERATION OF
RELEASE ON PAROLE
26. It is common cause that the
applicant was first sentenced in 2004 and therefore that sentence is
subject to the provisions of
the previous Correctional Services Act 8
of 1959.
27. In the ordinary course, applicant
would have been eligible for consideration for release on parole
after he had served one third
of the sentence of 15 years
imprisonment. Since he only commenced serving that sentence on 3rd
October 2007, he was only eligible
for consideration on 2nd October
2012. However, he was not so considered. No parole hearing was held
in either 2012 or 2013 or
2014. This was perhaps an irregularity on
the part of respondents who should have convened the usual hearing
but I can appreciate
that they were in a difficult position. The
offender was facing further charges and they did not know the outcome
of that prosecution.
In addition they must have had regard to the
escape by the offender which would have militated against favourable
consideration
of early release on parole.
28. Once the applicant was sentenced in
2014 the situation did change. He was still serving 15 years under
the 1959 Act but he
was now also serving a new sentence of 10 years
imprisonment which was subject to the provisions of the Correctional
services Act
111 of 1998 which came into operation on 11th July 2004.
In terms of the new legislation, an offender is eligible for
consideration
for early release on parole after he has served one
half of the sentence imposed.
29. Accordingly, the applicant will
only have served one-half of his 10 year sentence on 3rd April 2019.
Of course, that calculation
does not take into account that there is
still the sentence of 3 years imprisonment to be served – of
which he must serve
18 months before he can be considered for release
on parole. The upshot is that the applicant is only eligible to be
considered
for release on parole once he has served half of the total
of 13 years imprisonment, namely 6 and ½ years, which is on or
about 3rd October 2020.
30. I make no comment on whether or not
the applicant should at any stage be considered for early release on
parole. He must realise
that the respondents will have regard to the
further serious offence committed during the period he had escaped
and while he was
not serving the first sentence imposed upon him.
CONCLUSION
31. Insofar as costs are concerned, I
order that Advocate Panyane charge no fees in respect of the wasted
costs of 29th February
2016.
32. The application is dismissed.
DATED AT JOHANNESBURG 1st APRIL 2016
SATCHWELL J
Counsel for Applicant: Appeared in
Person
Amicus Curiae: Adv R. Mbuli
Counsel for Respondent: Adv Panyane
Attorneys for Respondent: Office of
the State Attorney
Dates of hearing: 29th February, 1st
March, 4th March, 29th March 2016.
Date of judgment: 1st April 2016