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[2019] ZAGPJHC 259
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S P v S (109/2018) [2019] ZAGPJHC 259 (7 August 2019)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Review
CASE NO
:
109/2018
COURT
A QUO
CASE NO
:
SH97/2008
DATE
:
7
th
August 2019
In
the matter between:
S
:
P
Applicant
and
THE
STATE
Respondent
Coram:
Fisher
et
Adams JJ
Heard
:
No oral hearing
Delivered:
07 August 2019
Summary:
Criminal law –
Non-parole
order under s 276B of the Criminal Procedure Act not to be lightly
imposed unless justified by circumstances relating
to parole –
parties should be forewarned of the intention to make such an order
and
be
invited
to present oral argument on the specific issue.
Criminal
Procedure – non-parole order reviewable in terms of s 304(4) of
the CPA
.
REVIEW
ORDER
On
review from:
The
Springs Regional Court (Regional Magistrate J R Nkosi sitting as
Court of first instance):
(1)
In terms of section 304(4) of the Criminal
Procedure Act, Act 51 of 1977, the non-parole order issued on the
22
nd
of July 2008 by the Springs Regional Court in
S
v S
, under case number: SH76/2008, is
reviewed and set aside.
(2)
That part of the sentence of the Regional
Court Order of the 22
nd
of July 2008 that Mr S serves fifteen years of the twenty years
direct imprisonment imposed upon him before he becomes eligible
to be
placed on parole, is hereby set aside, and in its stead is
substituted the following:
‘
The
accused is sentenced as follows:
(1)
Count 1 (Rape): twenty years direct imprisonment.
(2)
Count 2 (Rape): twenty years direct imprisonment.
(3)
The sentences shall run concurrently, resulting in an effective
sentence of twenty years direct imprisonment.’
(3)
This sentence is antedated to the 22
nd
of July 2008.
REVIEW
JUDGMENT
Adams
J (Fisher J concurring):
[1].
This matter was referred to this court on
review by the Regional Court President (Gauteng Division) and relates
to the non-parole
portion of a sentence imposed on the accused, Mr S,
who had been convicted on two counts of rape of his twelve year old
stepdaughter.
Mr S was sentenced by the Springs Regional Court on the
22
nd
of July 2008 on each of the rape convictions to twenty years direct
imprisonment, with the sentences to run concurrently. The important
portion of the sentence, which concerned the Regional Court President
(‘the RCP’) and which caused him to refer the
matter to
this court for review, relates to the condition imposed by the
Presiding Regional Magistrate that fifteen years of the
sentence
imposed on the accused was ordered to be ‘non-parolable’.
I read this to mean that, according to the order
of the Regional
Court, the accused was not to be placed or released on parole or to
be considered for parole before he had served
fifteen years of his
effective sentence of twenty years direct imprisonment.
[2].
The accused subsequently attempted to
appeal his conviction and sentence. In his application for leave to
appeal and the subsequent
petition to this court the accused
indicated his intention to appeal the sentence primarily on the basis
that the effective sentence
of twenty years direct imprisonment was
shockingly inappropriate and that the sentencing court did not take
into account his personal
circumstances. His application for leave to
appeal was refused by the Regional Court on the 19
th
of September 2008, as was his subsequent petition to this court
(Msimeki
et
Ebersohn JJ), which was refused on the 3
rd
of April 2009. That seems to have been the end of the attempts by
Mr S to appeal his sentence.
[3].
This matter again came to the fore during
November 2018 presumably because the accused, who by then had served
more than half of
his effective sentence, enquired from the
Department of Correctional Services as to when he would be considered
for release on
parole. The department then noticed the non-parole
period imposed by the Springs Regional Court and queried with that
court the
lawfulness of this portion of the sentence. The Regional
Court, in turn, referred this matter to this Court for a special
review
and setting aside of the non-parole portion of the sentence.
The RCP expressed the view that ‘the sentence imposed by the
Regional Magistrate does not comply with
section 276B
of the
Criminal
Procedure Act 51 of 1977
’. Therefore, implicit in the referral
by the RCP for a review was an acknowledgment by him that the
imposition of a non-parole
period was a serious misdirection and an
irregularity.
[4].
This review is before us in terms of the
provisions of
section 304
(4) of the
Criminal Procedure Act, Act
51
of 1977 (‘the CPA’), which provides as follows:
‘
(4)
If in any criminal case in which a magistrate's court has imposed a
sentence which is not subject to review in the ordinary
course in
terms of
section 302
or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial or local
division having jurisdiction
or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or
judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge
in terms of
section 303
or this section.’
[5].
This provision in the Act should be read in
conjunction with s 22 of the Superior Courts Act, Act 10 of 2013
(‘the Superior
Courts Act’), which provides thus:
'22
Grounds for review of proceedings of Magistrates’ Court
(1)
The grounds upon which the proceedings of any Magistrates’
Court may be brought under review before a court of a Division
are—
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
(2)
This section does not affect the provisions of any other law relating
to the review of proceedings in Magistrates’ Courts.’
[6].
Even when the requirements of s 22 are not
met, the High Courts have frequently noted their inherent powers of
review, based on
common-law principles. These principles have been
bolstered to some extent by s 173 of the Constitution, which reads as
follows:
'The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.’
[7].
However, for purposes of this judgment the
provisions of s 304 (4) of the CPA are important and find
application. This section provides
for a special or exceptional
review process in the case of criminal matters concluded before the
Magistrates Court. The section
states that this court has the power
to review the proceedings of a lower Court if it is brought to the
attention of this court
that the proceedings were not in accordance
with justice.
[8].
In light of the advices from the RCP the
provisions of s 304(2)(a) of the CPA are rendered inapplicable.
This subsection prescribes
a procedure which requires this court,
when it believes that the proceedings in the Regional Court were not
in accordance with
justice, to obtain from the judicial officer who
presided at the trial a statement setting forth his reasons for
convicting the
accused and for the sentence imposed. In any event, as
will be elaborated on later on in this judgment, I was of the
opinion
that the sentence imposed by the sentencing court was clearly
not in accordance with justice and that the accused would be severely
prejudiced if the record of the proceedings was not forthwith
placed before this court, being the Full Bench of this Division.
[9].
This is clearly a case in which the
proceedings were not in accordance with justice. The Regional
Magistrate who presided over the
proceedings misdirected himself in
that he imposed the non-parole period of imprisonment, which, by all
accounts, was unlawful.
There are two difficulties with the
imposition of the non-parole period by the Regional Court. Firstly,
the non-parole period exceeds
the maximum period allowed by the
provisions of s 276B of the CPA, and secondly the Regional Court did
not forewarn the accused
that it was contemplating the imposition of
a non-parole period. I deal with these two concerns in more detail
later on in this
judgment.
[10].
The Regional Magistrate imposed the
non-parole period of imprisonment pursuant to the provisions of s
276B of the CPA, which provides
as follows:
‘
276B
Fixing of non-parole-period
‘
(1)
(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 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.
(2)
If a person who is convicted of two or more offences is sentenced to
imprisonment and the court directs that the sentences of
imprisonment
shall run concurrently, the court shall, subject to subsection
(1)(b), fix the non-parole-period in respect of the
effective period
of imprisonment.
[S
276B inserted by s 22 of Act 87 of 1997.]’
[11].
In terms of s 276B(1)(b) at worst Mr S
could not be eligible for parole before serving 13.33 years’
imprisonment. That means
the Regional Court simply did not have the
power to fix a non-parole period of fifteen years in respect of the
effective sentence
of twenty years direct imprisonment.
[12].
That portion of the non-parole period that
is not prescribed by s 276B(1)(b), namely the portion in excess of
two thirds of twenty
years’ imprisonment, constitutes an
infringement of the accused’s right under section 12(1)(a) of
the Constitution:
the right not to be deprived of freedom arbitrarily
or without just cause. It is so that it is not a foregone conclusion
that a
sentenced prisoner will be released on parole. But then a
sentenced prisoner who would have been entitled to be released on
parole
may end up serving a term of imprisonment in excess of a term
which he should serve purely because of an unlawful non-parole
period.
That will happen contrary to the express provisions of
section 276B(1)(b) which outlaw a non-parole period in excess of two
thirds
of the effective term of imprisonment. That is
antithetical to the rule of law, a founding value of our
Constitution, and
thus at odds with the provisions of section
12(1)(a) of the Constitution. In
S
v
Boesak,
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC),
Langa DP held that
‘[a]s far as the substantive aspect of [the section 12(1)(a)]
right is concerned, “just cause”
must be grounded upon
and consonant with the values expressed in section 1 of the
Constitution and gathered from the provisions
of the Constitution as
a whole’.
[13].
For these reasons, the non-parole period is
not only in conflict with the statute but constitutionally invalid
and falls to be set
aside.
[14].
In
Jimmale &
another v The State
,
[2016] ZACC 27
;
2016 (11) BCLR 1389
(CC);
2016 (2) SACR 691
(CC), the Constitutional
Court after referring to various cases such as
Strydom
v S
,
[2015] ZASCA 29
;
S
v Stander
,
[2011] ZASCA 211
;
2012 (1)
SACR 537
(SCA); and
S v Mthimkhulu
,
[2013] ZASCA 53
;
2013 (2) SACR 537
(SCA), concluded that these cases
made it clear that a s 276B non-parole order should not be resorted
to lightly. It held at para
20:
‘
Precedent
makes it clear that a section 276B non-parole order should not be
resorted to lightly. Courts should generally allow the
parole board
and the officials in the Department of Correctional Services, who are
guided by the Correctional Services Act, and
the attendant
regulations, to make parole assessments and decisions. Courts should
impose a non-parole period when circumstances
specifically relevant
to parole exist, in addition to any aggravating factors pertaining to
the commission of the crime for which
there is evidential basis.
Additionally, a trial Court should invite and hear oral argument on
the specific question before the
imposition of a non-parole period.’
[15].
It is abundantly clear from a reading of
the trial court record that the trial court did not invite and hear
oral argument on whether
it was appropriate to impose a non-parole
period. The SCA in
S v Mhlongo
2016 (2) SACR 611
(SCA) para 9, emphasised that the fixing of a
non-parole period was part of a criminal trial and that in accordance
with the dictates
of a fair trial, an accused person should be given
notice of the court’s intention to invoke s 276B and to be
heard before
a non-parole period is fixed. The SCA accordingly held
that failure to comply with these procedural requirements constitutes
a
misdirection.
[16].
The trial court committed a serious
misdirection by imposing the fifteen year non-parole period without
first establishing whether
there existed exceptional circumstances
for that order to be made. Furthermore, it did not invite the parties
to make submissions
in that regard, as it should have done.
[17].
In the circumstances the imposition of the
non-parole order falls to be set aside. All of this, in turn, leads
me to conclude, ineluctably
so, that the sentencing proceedings in
the Regional Court relating to Mr S ‘were not in accordance
with justice’. The
sentence therefore stands to be reviewed in
terms of the provisions of s 304 (4) of the CPA.
[18].
The next question is whether the matter
should be referred back to the trial court for it to comply with the
provisions of s 276B.
In this regard I am of the view that it is fair
and equitable that the matter be finalised. I do not think it
necessary to remit
the matter to the Regional Court. That is because
of what the Constitutional Court held in
Jimmale
about circumstances in which it is
appropriate to impose a non-parole period. That court held that
a sentence with a non-parole
period should be imposed—
‘
only
in exceptional circumstances, which can be established by
investigation of salient facts, legal argument and sometimes further
evidence upon which a decision for non-parole rests. In determining a
non-parole period following punishment, a court in effect
makes a
prediction on what may well be inadequate information as regards the
probable behaviour of the accused. Therefore,
a need for
caution arises because a proper evidential basis is required.’
[19].
Jimmale
further
quoted with approval what the Supreme Court of Appeal said in
Stander (supra)
about section 276B:
“
[I]ts
enactment does not put the court in any better position to make
decisions about parole than it was in prior to its enactment.
Therefore the remarks by this court prior to section 276B still hold
good. An order in terms of section 276B should therefore only
be made
in exceptional circumstances, when there are facts before the
sentencing court that would continue, after sentence, to
result in a
negative outcome for any future decision about parole.
Mshumpa
offers a good example of such facts, namely, undisputed evidence that
the accused had very little chance of being rehabilitated.’
[20].
The Constitutional Court also cited with
approval the judgment in
S v Strydom
,
2015 ZASCA 29
, at para 16, in which it was held that a non-parole
period should be imposed only in exceptional circumstances, the
determination
of which had to entail an investigation into all
factors that have relevance to the decision for the imposition of a
non-custodial
sentence. By all accounts, this process was not
followed by the Springs Regional Court
in
casu
. This is apparent from a reading
of the court record.
[21].
The Regional Magistrate dealt at length
with the factors relevant to sentence. Mr S had four previous
convictions, which went back
as far as 1979, 1980, 1985 and 1987 on
charges of assault, theft, assault with intent to do grievous bodily
harm and theft respectively.
At the time he was sentenced, Mr S was
48 years old and unmarried, with four adult children. At the time of
his arrest, he had
been employed for a period of five months by a
construction company. His highest level of education was standard
five and he had
been in custody since his arrest during or about
February 2008. The Regional Magistrate found that there existed
substantial and
compelling circumstances which warranted a deviation
from the prescribed minimum sentences of direct imprisonment for life
applicable
in respect of both the charges. The substantial and
compelling circumstances the Regional Court found in the fact that,
according
to the court, it had not been proven that the complainant
in the rape charges was injured in the assaults on her person,
although
the Magistrate did comment that this was not to say that the
child had not been psychologically traumatised. We are not convinced
that the approach adopted by the trial court was correct. However,
this issue is not before us.
[22].
None of the factors considered relevant by
the sentencing court constituted, in our judgment, exceptional
circumstances warranting
the imposition of a non-parole period. More
importantly, in the circumstances of this case, we cannot conceive of
exceptional circumstances
suddenly popping up upon remittal.
Thus remittal will be an exercise in futility. This matter has been
outstanding for a
long time. Interests of justice dictate that it be
brought to finality now.
[23].
In conclusion, the non-parole order falls
short of the more stringent tests in terms of the law. The non-parole
order granted by
the trial court is inappropriate, not in accordance
with the interest of justice and must be set aside.
Order
Accordingly,
I make the following order:-
(1)
In terms of
section 304(4)
of the
Criminal
Procedure Act, Act
51 of 1977, the non-parole order issued on the
22
nd
of July 2008 by the Springs Regional Court in
S
v S
, under case number: SH76/2008, is
reviewed and set aside.
(2)
That part of the sentence of the Regional
Court Order of the 22
nd
of July 2008 that Mr S serves fifteen years of the twenty years
direct imprisonment imposed upon him before he becomes eligible
to be
placed on parole, is hereby set aside, and in its stead is
substituted the following:
‘
The
accused is sentenced as follows:
(1). Count 1 (Rape): twenty years
direct imprisonment.
(2) Count 2 (Rape): twenty years
direct imprisonment.
(3) The sentences shall run
concurrently, resulting in an effective sentence of twenty years
direct imprisonment.’
(3)
The sentence is antedated to the 22
nd
July 2008.
________________________________
L R ADAMS
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
I agree,
__________________________
D FISHER
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
HEARD
ON:
No
oral hearing – section 304(2)(a) of the CPA
JUDGMENT
DATE:
7
th
August 2019
FOR
THE APPLICANT:
Not
applicable
FOR
THE RESPONDENT:
Not
applicable