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[2016] ZAGPJHC 378
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Komana v S (A559/2015) [2016] ZAGPJHC 378 (22 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Appeal
Case No. A559/2015
In
the matter between:
ALFRED
ALLIE
KOMANA
Appellant
and
THE
STATE
Respondent
Summary:
Sentence – appeal by the appellant against an order fixing a
non-parole period of 40 years’ imprisonment
– crimes
committed before the promulgation of
s 276B
of the
Criminal Procedure
Act 51 of 1977
– appeal upheld – order was incorrectly
made and set aside.
JUDGMENT
MEYER
J (PRINSLOO and LOUW concurring)
[1]
The appellant, Mr Alfred Allie Komana, and two co-accused were
arraigned before the Local Circuit Division for the Northern
Circuit
District of the High Court (Els J), each on one count of murder and
one count of robbery with aggravating circumstances
as defined in s 1
of the Criminal Procedure Act 51 of 1977 (the CPA). The offences were
committed on 16 November 1999 at Huggelheim
in the district of
Pietersburg. On 9 February 2001 the High Court found the
appellant, together with his two co-accused guilty
on both counts.
The trial judge sentenced the appellant to imprisonment for life
pursuant to his conviction of murder and to 18
years’
imprisonment pursuant to his conviction of robbery with aggravating
circumstances. The trial judge fixed a period
of at least 40
years during which the appellant shall not be placed on parole.
Identical sentences were imposed upon the
appellant’s two
co-accused. The trial judge dismissed the appellants’
application for leave to appeal on both
convictions and sentences.
The appellants then successfully petitioned the Supreme Court of
Appeal for special leave to appeal
against the sentence of the full
court. The SCA limited the leave to appeal to the order
relating to parole.
[2]
The victim, Mr Russel Glen Jooste, was assaulted and tied up in the
cottage at the Huggelheim Guest House where he resided on
16 November
1999. He was robbed of certain of his possessions. He
died as a result of the attack. His cause of
death was ‘BLUNT
FORCE INJURIES TO THE HEAD’.
[3]
Section 276B(1) of the Criminal Procedure Act 51 of 1977 (the CPA)
Act provides that ‘[i]f 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 the sentence, fix a period
during which the
person shall not be placed on parole.’ Such period, in
terms of that sub-section, is ‘. . .
the non-parole-period, and
may not exceed two thirds of the term of imprisonment imposed or 25
years, whichever is the shorter.’
This provision was inserted
into the CPA by
s 22
of the
Parole and Correctional Supervision
Amendment Act 87 of 1997
, which was promulgated on 12 December 1997
but only put into operation on 1 October 2004. 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. As was
held in
Stander
v The State
2012 (1) SACR 537
(SCA) paras 7-8, prior to
s 276B
of the CPA a
decision about parole remained 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.
[4]
The Supreme Court of Appeal in
Mchunu v The State
(825/2012)
ZASCA 126, para 5, held as follows:
‘
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. This principle was reaffirmed in R v
Sillas and S v Mpetha. 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.’
(Footnotes
omitted.)
[5]
The offences in question were committed before the coming into
operation of s 276B of the CPA. The order of the court
below
fixing a period of time before the appellants may be released on
parole was therefore incorrectly made.
[6]
The following order is made:
(a)
The appeal
is upheld.
(b)
The order
of the court below fixing a period of time to be served before the
appellant may be released on parole is set aside.
WRC
PRINSLOO
JUDGE
OF THE HIGH COURT
PA
MEYER
JUDGE
OF THE HIGH COURT
JW
LOUW
JUDGE
OF THE HIGH COURT
Date
of hearing: 22 April 2016
Date
of judgment: April 2016
Appellant’s
counsel: LA van Wyk
Instructed
by: Legal Aid SA, Pretoria
Respondent’s
counsel: P Vorster
Instructed
by: Director of Public Prosecutions, Pretoria