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[2014] ZASCA 188
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Zono v S (20182/2014) [2014] ZASCA 188 (27 November 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
20182/2014
Not
Reportable
In
the matter between:
THABANG
SIDWELL
ZONO
................................................................................................
Appellant
and
THE
STATE
............................................................................................................................
Respondent
Neutral
citation:
Zono v The State
(20182/2014)
[2014] ZASCA 188
(27 November 2014)
Coram:
Cachalia, Leach and Theron JJA
Heard:
26 November 2014
Delivered
27 November 2014
Summary:
Sentence – imprisonment – term of – non-parole
period – order fixing a non-parole period in respect
of
offences committed before the promulgation of
s 276B
of the
Criminal
Procedure Act 51 of 1977
is improper.
ORDER
On
appeal from:
North Gauteng
High
Court, Pretoria (Raulinga J (Kollapen J and Vorster AJ concurring)
(sitting as court of appeal):
1
The appeal is upheld.
2
The order of the full court fixing a non-parole period is set aside.
JUDGMENT
Theron JA
(Cachalia and Leach JJA concurring):
[1]
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.
[2]
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 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.
[3]
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
fixing a period of time before
the appellants may be released on
parole was therefore incorrectly made.’
[4]
As at July 1995, when these offences were committed, there was no
legislative provision for a court to stipulate a non-parole
period.
Rather, parole was within the discretion of the executive (in the
form of the Correctional Supervision and Parole Board).
This was in
terms of ss 22A and 65 of the Correctional Services Act 8 of 1959.
Sections 22A
[3]
provides that a
prisoner may earn credits amounting to no more than half of the
period of imprisonment which he or she has served
while s 65(4)(
a
)
[4]
stipulates that a prisoner serving a determinate sentence shall not
be considered for parole until he or she has served half of
the term
of imprisonment and that the date for consideration of parole can be
brought forward by the number of credits earned.
In terms of this
legislation, the appellant was entitled to be considered for parole
after having served half of his effective
sentence, subject to any
‘credits’ earned pursuant to s 22A.
[5]
Criticism by this court to the imposition of non-parole periods
[5]
appear to have caused the legislature to enact
s
276B
of the
Criminal Procedure Act 51 of 1977
, which deals with the
power of a court to determine a non-parole period.
[6]
Section 276B
was introduced by way of the
Parole and Correctional
Supervision Amendment Act 87 of 1997
, operative as at 1 October 2004.
In this matter, the offences were committed on 24 July 1995, with
judgment on conviction and sentence
handed down by the trial court on
12 and 13 June 1996 respectively. As the offences under consideration
were committed prior to
the coming into operation of
s 276B
that
provision is accordingly not of application in this matter.
[6]
In my view the effect of the recent judgment of this court in
Mchunu
above, renders any attempt to stipulate a non-parole period in a
matter involving a crime committed prior to the coming into operation
of
s 276B
, impermissible. In the absence of legislative authority to
do so, it appears that courts that sought to impose such a non-parole
period, as both the sentencing court and the full court in this
matter did, misdirected themselves. In the circumstances this court
is obliged to set aside that imposition of a non-parole period.
[7]
[7]
For these reasons the following order is made:
1 The appeal is
upheld.
2 The order of the
full court fixing a non-parole period is set aside.
_________________
L V Theron
Judge of Appeal
APPEARANCES
For
Appellant: VZ Nel
Instructed
by:
Justice
Centre, Pretoria
Justice
Centre, Bloemfontein
For
Respondent: JJ Kotze
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions,
Bloemfontein
[1]
E
du Toit, FJ de Jager, A Paizes, A St Quintin Skeen & S van der
Merwe
Du
Toit: Commentary on the
Criminal Procedure Act
(2014
)
at 28-10x.
[2]
Mchunu
v State
(825/2012)
ZASCA 126 (25 September 2013) para 5.
[3]
Section
22A
, in relevant part, provides that ‘[a] prisoner may earn
credits, to be awarded by an institutional committee, by observing
the rules which apply in the prison and by actively taking part in
the programmes which are aimed at his treatment, training
and
rehabilitation’.
[4]
Section
54(4)(
a
)
reads: ‘A prisoner serving a determinate sentence or any of
the sentences contemplated in subparagraphs (ii) and (iii)
of
paragraph (
b
)
shall not be considered for placement on parole until he has served
half of his term of imprisonment: Provided that the date
on which
consideration may be given to whether a prisoner may be placed on
parole may be brought forward by the number of credits
earned by the
prisoner’.
[5]
S
v Mhlakaza & another
1997
(1) SACR 515
(SCA) at 521c-d;
S
v Botha
2006
(2) SACR 110
(SCA) paras 25-26.
[6]
See
S
v Mthimkulu
2013
(2) SACR 89
(SCA) para 12 where it is stated that
s 276B
was
introduced ‘after this court had expressed disapproval about
sentencing courts fixing non-parole periods’.
Section
276B
, in relevant part, provides: ‘(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’.
[7]
See
Mchunu
above
para 7.