About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 49
|
|
Mafoho v S (149/2012) [2013] ZASCA 49; 2013 (2) SACR 179 (SCA) (28 March 2013)
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 149/2012
Reportable
In the matter between:
MICHAEL MAFOHO
.......................................................................................
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
Neutral citation:
Mafoho v The State
(149/12)
[2012] ZASCA 49
(28 March 2013).
Coram:
Mthiyane DP, Shongwe
JA, Schoeman, Swain et Mbha AJJA
Heard:
12 March 2013
Delivered:
28 March 2013
Summary: Parole – the
Parole and Correctional
Supervision Amendment Act 87 of 1997
– eligibility to parole of
prisoners serving determinate sentences – a prisoner serving a
determinate sentence must
be considered for parole after having
served half of his or her sentence, provided that no such prisoner
shall serve more than
25 years of imprisonment.
ORDER
On
appeal from:
North Gauteng High Court, Pretoria (Makgoba J et
Davis AJ sitting as court of appeal):
The appeal against sentence is dismissed.
JUDGMENT
MBHA AJA (MTHIYANE DP, SHONGWE JJA ET SCHOEMAN, SWAIN
AJJA CONCURRING)
[1] This is an appeal against the judgment and order of
the North Gauteng High Court (per Makgoba J et Davis AJ), in terms of
which
a sentence of 275 years’ imprisonment that was imposed by
the regional magistrate court, Pietersburg (the trial court), was
upheld.
[2] The appellant was convicted by the trial court,
consequent to his plea of guilty, on 60 counts involving robbery
committed with
aggravating circumstances, attempted murder,
kidnapping, rape, attempted rape and pointing a firearm. This appeal,
which is against
sentence only, is with the leave of this court.
[3] The appeal raises the important issue of the
appropriateness of the sentence imposed and the impact of the
relevant provisions
of the applicable legislation governing the
eligibility to parole of prisoners serving determinate sentences, on
such sentence.
Ultimately, what has to be determined, is what parole
period should apply to the appellant’s determinate sentence.
[4] The appellant’s complaint is that, as he was
sentenced on 17 January 2001, his eligibility to be considered for
parole
is governed by the provisions of s 65(4) of the Correctional
Services Act 8 of 1959 (the old Act), which means that he will only
be considered for parole after serving half of his sentence, unless
the date for considering parole is brought forward as a result
of
credits earned. He contends, further, that the long period of
incarceration of 275 years’ imprisonment to which he is
subject, amounts to cruel, inhuman and degrading punishment and
consequently, the sentence cannot stand. He accordingly submits
that
in view of the seriousness of the offences for which he was
convicted, it would be appropriate if this court substituted his
sentence with that of life imprisonment. If his sentence is
substituted with life imprisonment, so he argues, then he would in
terms of s 136(3)
(a)
of
the Correctional Services Act 111 of 1998 (the new Act), read
together with para 59 of the Constitutional Court’s judgment
in
Van Vuren v Minister of Correctional
Services
1
,
be entitled to be considered for parole after serving a period of
imprisonment of 20 years, unless the date for parole is brought
forward as a result of credits earned, in which case it will be
earlier. The appellant relies, in this respect, on the Constitutional
Court’s ruling in
Van Vuren
that
s 136(3)
(a)
of the new
Act preserved such an entitlement of a prisoner sentenced to life
imprisonment between the period 1 March 1994 or 3 April
1995, and the
commencement of the new Act on 3 July 2004.
2
[5] Before I commence to deal with the issues for
determination in this appeal, it is apposite to first give a brief
background
on the nature and seriousness of the offences committed by
the appellant, and the modus operandi used in their commission.
In his plea explanation, the appellant admitted
operating as part of a gang of which he was the leader. The offences
were committed
along the N1 highway between Polokwane and Makhado.
The modus operandi used by the gang was to target heavily laden
vehicles at
night whose occupants were mostly foreigners, whilst
pretending to be law enforcement officers. Vehicles were brought to a
standstill
using a flashlight and potential resistance from the
occupants was overcome by the pointing of a firearm at them. In one
instance
a victim was shot. The victims were robbed of various items
including cash and vehicles. In certain instances the female victims
were callously raped in front of their partners and family members.
It is clear that the appellant and his gang committed a series
of
serious, premeditated offences on at least 20 occasions during the
period between May 1998 until May 2000.
[6] The trial court, in considering an appropriate
sentence, found that there were no substantial and compelling
circumstances present
under the Criminal Law Amendment Act 105 of
1997 (the Minimum Sentences Act) justifying the imposition of a
lesser sentence. The
trial court also had regard to the cumulative
effect of the sentences imposed. Conscious of this cumulative effect,
the trial court
attempted to ameliorate the sentences imposed on the
appellant by ordering that certain of the sentences should run
concurrently.
The appellant, in the result, was sentenced to a
determinate period of imprisonment amounting to 275 years.
[7] The appellant’s submission that it is within
this court’s competence to substitute the sentence imposed by
the trial
court of 275 years’ imprisonment with life
imprisonment, cannot succeed. It is common cause that the trial court
did not
have jurisdiction to impose a sentence of life imprisonment
at the time. In the circumstances, this court cannot substitute a
sentence
for one which the trial court did not have the competency to
impose at the time. In
S v Smith
,
3
M T Steyn AJA quoted with approval Rabie JA’s
dicta in
S v Crawford
1979
(2) SA 48
(A), saying (at 56B-C):
‘
. . . Counsel for both
parties suggested that a lesser sentence than the one imposed by the
magistrate would meet the justice of
the present case and that
consideration should be given to the question whether the amending
provision is applicable to the present
case. It seems to be clear,
however, that the provision is not of application to the present
case, and this Court cannot on appeal
impose a sentence which would
at the time of the respondents conviction not have been a competent
sentence for the magistrate to
impose.’
[8] In any event, life imprisonment is not the
prescribed sentence for any of the offences for which the appellant
was convicted.
It follows that the appellant’s reliance on
S
v Nkosi
4
is misplaced. In that case the four appellants had been
convicted in the Bophuthatswana High Court on multiple charges of
murder,
which ordinarily, carried a prescribed minimum sentence of
life imprisonment. The decision of the Constitutional Court in
Van
Vuren
similarly cannot avail the appellant as
that case concerned convictions by a high court for, inter alia,
murder for which life imprisonment
was prescribed.
[9] I now turn to consider the various parole provisions
applicable to this case. Section 65(4)
(a)
of the old Act, provides that ‘A prisoner serving
a determinate sentence . . .
(b)
shall not be considered for placement on parole until he
has served half of his term of imprisonment’. The appellant
would,
on the basis of this provision, be eligible to be considered
for parole after he had served approximately 135 years of his
sentence,
because he was sentenced in 2001 before the new Act came
into operation.
[10] As the Constitutional Court observed in
Van
Vuren
(supra) para 24, the new Act, which
commenced on 31 July 2004, was ‘gradually brought into
operation with the simultaneous
abolition and repeal of the
corresponding parts of the old Act’. Certain parts in the old
Act still applied to parole. Section
137 of the new Act, read with
the Schedule, makes provision for the repeal or amendment of the old
Act to the extent set out in
the Schedule. The Short Title in s 138
makes provision for the commencement of the new Act and that the
commencement of the repeal
of the old Act shall be by proclamation.
Importantly, it provides that the new Act shall come into operation
on different dates
fixed by the President by proclamation in the
Government Gazette for the repeal of the different provisions of the
old Act. As
a result a number of sections of the new Act were brought
into operation and a number of sections in the old Act were repealed,
with effect from 19 February 1999, in terms of Proclamation R20,
1999, published in GN20,
GG
19778,
19 February 1999. The sections of the Act that came into operation
include that of s 136 while those sections of the old
Act which were
repealed included ss 61 and 64. Significantly, s 65, relevant to this
case, was not similarly repealed.
[11] Section 73(6)
(a)
of the new Act which falls under Chapter 7 came into
operation on 1 October 2004 and provides that a sentenced offender
serving
a determinate sentence, or cumulative sentences of more than
24 months, may not be placed on parole until such sentenced prisoner
has served half of his or her sentence, but parole must be considered
whenever a sentenced offender has served 25 years of a sentence,
or
cumulative sentences. As this provision applies to sentences imposed
after the commencement of the new Act, it obviously would
not apply
to the appellant.
[12] Section 136(1) of the new Act provides that any
person serving a sentence of incarceration (that is offenders serving
determinate
and indeterminate sentences immediately before the
commencement of the new Act), is subject to the provisions of the old
Act. Clearly,
this section preserves the policy and guidelines that
applied at any time before the new Act came into operation in 2004.
Furthermore,
s 136(2) of the new Act, provides that when considering
the release of a sentenced offender, who is serving a determinate
sentence
of incarceration as contemplated in subsection (1), such
sentenced offender must be allocated the maximum number of credits in
terms of s 22A of the old Act.
[13] It is therefore clear that in terms of ss 136(1)
and (2) of the new Act, the parole provisions applicable to the
appellant
were those set out in s 65(4)
(a)
of the old Act namely, that a prisoner serving a
determinate sentence imposed prior to July 2004, is not considered
for parole before
having served half of the sentence, unless the date
for considering parole is brought forward as a result of credits
earned. The
matter does not, however, simply end there.
[14] On 1 October 2004 the Parole and Correctional
Supervision Amendment Act 87 of 1997 (the 1997 Act) came into
operation. The
1997 Act amended s 65(4)
(a)
of the old Act
5
by providing that a prisoner serving a determinate
sentence shall not be considered for placement on parole, unless he
has served
half of his term of imprisonment, provided that no such
prisoner shall serve more than 25 years before being considered for
parole.
Of particular relevance to this case is that the 1997 Act
also amended, in s 9(d)
(iv)
thereof, the old Act by providing that in respect of
imprisonment contemplated in s 52(2) of the Minimum Sentences Act,
the prisoner
shall not be placed on parole unless he has served at
least four fifths of the term of imprisonment imposed or 25 years,
whichever
is the shorter.
[15] On the same date the 1997 Act came into operation
(ie 1 October 2004), by way of Proclamation R38 in
GG
26626, 30 July 2004, s 65 of the old Act was repealed
and substituted by the provisions contained in the 1997 Act.
[16] In my view, s 9 of the 1997 Act is intended to
ensure legal continuity and to prevent a hiatus developing.
6
Clearly, the repeal of s 65 of the old Act and its
substitution in terms of the 1997 Act, ensured that there was no gap
in continuity
between the provisions of s 65 as contained in the old
Act, and as substituted in terms of the 1997 Act. In addition,
because not
all of the old Act was repealed, the court is entitled to
examine the repealed portions to determine the meaning of what
remains.
7
Clearly the repealed portion of the statute constitutes
part of the context in which the unrepealed portion was enacted.
[17] The issue accordingly, is the effect of the
amendment of the parole period in s 65(4) of the old Act, upon the
appellant’s
right to parole. By virtue of the fact that s 65(4)
of the old Act, was amended on the same date that the provisions of s
73(6)
(a)
of the new
Act were brought into operation, it is clear that the intention of
the legislature was to create equality amongst those
prisoners
eligible for parole, irrespective of whether they were sentenced
before or after the passing of the new Act. The right
to parole,
whether the prisoner is sentenced to a determinate sentence, or to
life imprisonment, is the same regardless of the
date the prisoner
was sentenced.
[18] In
Van Vuren
(supra)
8
the Constitutional Court made it clear that the
retrospective operation of a change in parole policy which deprives
the subject
of rights, would offend against the foundational values
of constitutional supremacy in the rule of law, which the
Constitutional
Court would not countenance.
[19] It is trite that a statute may apply
retrospectively where it is expressly stated to operate as such, or
where it impliedly
does so.
9
Thus the provisions of the 1997 Act which substituted
certain provisions of the old Act, which were simultaneously
repealed, must
have been intended to operate retrospectively to deal
with the rights of prisoners to parole, who were sentenced before the
new
Act came into force.
[20] An exception to the presumption that legislation
does not apply retrospectively, is where it benefits the subject.
However
this is only so if all persons subject to its provisions,
would benefit from reliance on it.
10
In the present case the amendment is indeed beneficial
to prisoners serving determinate sentences because they must be
considered
for parole after serving 25 years and not only after they
have served half of their sentences.
[21] The appellant is entitled to be considered for
parole once he has served 25 years of his term of imprisonment. There
is accordingly
no need to interfere with the sentence imposed in
order to ameliorate its effect. This is not to say the sentence
imposed by the
regional court is appropriate (it clearly being a
Methuselah sentence) but to interfere with it would, in the
circumstances of
this case, be purely academic because, as I have
already indicated, the legislature has stepped in to ameliorate the
position of
the person subjected to that sentence, by directing that
he or she will be considered for parole once 25 years of the sentence
has been served. The appeal against sentence must therefore fail.
[22] The appellant also sought to introduce, in this
appeal, new evidence to enable this court to reconsider the whole
question
of sentence afresh. This ‘new’ evidence consists
of affidavits and testimonials about the appellant’s character
and conversion to Christianity which has been on-going in prison from
the date of his arrest on 7 September 2007.
[23] The record shows that similar evidence was placed
before the trial court when it considered an appropriate sentence.
Furthermore,
such evidence merely testifies to the appellant’s
on-going success at rehabilitation and fell outside the ambit of the
trial
court when it considered an appropriate sentence for the
appellant.
[24] In the result, the following order is made:
The appeal against sentence is dismissed.
B H MBHA
ACTING JUDGE OF APPEAL
APEARANCES:
FOR APPELLANT: ADV B STUDTI
Instructed by:
Edelstein-Bosman Attorneys, New Muckleneuk
Webbers Attorneys, Bloemfontein
FOR RESPONDENT: ADV S SCHEEPERS
Instructed by:
The National Director of Public Prosecutions, Pretoria
The National Director of Public Prosecutions,
Bloemfontein
1
Van
Vuren v Minster of Correctional Services
2012(1) SACR 103 (CC)
para 59.
2
Above
para 59.
3
S
v Smith
(2)
1987 (4) SA 768
(A) at 771D-G.
4
S
v Nkosi
2003 (1) SACR 91
(SCA).
5
Van
Vuren v Minister of Correctional Services
(supra) at 123
footnote 51.
6
G
E Devenish
Interpretation of Statutes
1 ed (1992) at 252.
7
Devenish
supra at 253.
8
Van
Vuuren
(supra) para 60.
9
The
Law of South Africa
(2 ed) vol 25 para 341(a) at 342.
10
The
Law of South Africa
(supra) at 341.