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[2013] ZASCA 53
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Mthimkhulu v S (547/12) [2013] ZASCA 53; 2013 (2) SACR 89 (SCA) (4 April 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 547/12
Reportable
In the matter between:
MUZIWENHLANHLA SMANGA MTHIMKHULU
......................................
APPELLANT
and
THE STATE
............................................................................................
RESPONDENT
Neutral citation:
Mthimkhulu
v The State
(547/12)
[2012] ZASCA 53
4 April 2013).
Coram:
Maya, Shongwe, Leach
and Petse JJA and Mbha AJA
Heard:
8 March 2013
Delivered: 4 April 2013
Summary: Sentence ─
Imprisonment ─ Non-parole period ─ Section 276B(2) of
Criminal Procedure Act 51 of 1977
─ Sentencing court enjoying
discretion whether or not to fix a non-parole period.
Non-parole period ─
determination of ─ parties entitled to be heard on whether or
not to fix a non-parole period and
the length of such period.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
KwaZulu-Natal
High Court, Pietermaritzburg (Koen J sitting as court of first
instance):
1 The appeal is upheld.
2 The order of the court below fixing
a non-parole period of 13 years is set aside.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETSE JA (Maya, Shongwe, Leach JJA
and Mbha AJA concurring):
[1] The principal issue for
determination in this appeal is whether s 276B(2) of the Criminal
Procedure Act 51 of 1977 (the Act)
impels a court which sentences a
person to imprisonment, following a conviction for two or more
offences where the sentences of
imprisonment are ordered to run
concurrently, to fix a non-parole period in respect of the effective
period of imprisonment. The
subsidiary issue is whether or not the
appellant had a right to be heard before the court below invoked s
276B(2) of the Act.
[2] It is necessary at the outset to
mention, by way of background, a brief narrative of certain facts and
circumstances, which
bear on the questions to be decided in this
appeal, as they emerge from the record.
[3] The appellant was convicted in the
KwaZulu-Natal High Court, Pietermaritzburg (Koen J) on one count of
murder, possession of
a fully automatic firearm (an AK47 assault
rifle) without a licence to possess such firearm and possession of
five rounds of live
ammunition (7.62 mm) without the required
licence.
[4] He was sentenced to 20 years’
imprisonment on the murder count and five years for both unlawful
possession of a prohibited
firearm and ammunition. The court below
directed that the term of five years’ imprisonment in respect
of the latter two counts
run concurrently with the 20 years’
imprisonment imposed in respect of the murder count. In fixing a
non-parole period the
court said:
‘
In
view of my order that the sentence of five years run concurrently
with that in respect of count 1 [murder] I am enjoined in terms
of
section 276B(2) of the Criminal Procedure Act 51 of 1997, to fix a
non-parole period.’
It then proceeded to fix a non-parole
period of 13 years. With leave of the court below the appellant now
appeals to this court
against that order.
[5] In granting leave to appeal to
this court the learned judge in the court below observed that:
‘
The
application of section 276B of Act 51 of 1977 has, to my knowledge,
led to some difficulties in this division and it would appear,
from
speaking to a number of my colleagues, that its application is not
always uniform.’
He continued:
‘
What
the present appeal [application for leave to appeal] raises, apart
from the applicability of section 276B(2) of Act 51 of 1977,
is also
the procedure to be adopted, should a trial court, in invoking that
section, fix a non-parole period specifically whether
the possible
likelihood of it being invoked, should be raised during the
sentencing stage, so that counsel may address the Court
fully on
whether it should apply to its full extent, that is, not exceeding
two-thirds of the sentence imposed, or then some lesser
parole
period.’
I shall return to the foregoing
remarks by the learned judge later in this judgment.
[6] It is apposite at this juncture to
emphasise that the implication of the statement by the high court
that the ‘application
of section 276B of Act 51 of 1977 has, .
. . led to some difficulties’ . . . and ‘that its
application is not always
uniform’ is that the fate or fortune
of accused persons is to a large degree dependent upon the views of
individual judges,
at least in KwaZulu-Natal.
[7] To my mind, the starting point in
the present enquiry must be the provisions of s 276B of the Act
itself. Section 276B provides:
‘
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.’
[8] As mentioned above, the high court
felt itself bound to fix a non-parole period in respect of the
effective term of 20 years’
imprisonment imposed on the
appellant. It was driven to this conclusion because it ordered the
sentences to run concurrently and
that the use of the word ‘shall’
in s 276B(2) made the fixing of a non-parole period peremptory. This
then brings to
the fore the question whether the language of
subsection 2, viewed in the context of s 276B, can sustain the
meaning attributable
to it by the court below. This is essentially a
question of interpretation of the relevant provision.
[9] In
Secretary
of Inland Revenue v Sturrock Sugar Farm (Pty) Ltd
1
Ogilvie Thompson JA said:
‘
Even
where the language is unambiguous, the purpose of the Act and other
contextual considerations may be invoked in aid of a proper
construction.’
And in
Venter
v R
,
2
Innes CJ expressed himself in these
terms:
‘
It
appears to me that the principle we should adopt may be expressed
somewhat in this way ─ that when to give the plain words
of the
statute their ordinary meaning would lead to absurdity so glaring
that it could lead to a result contrary to the intention
of the
Legislature, as shown by the context or by such other consideration
as the Court is justified in taking into account, the
Court may
depart from the ordinary effect of the words to the extent necessary
to remove the absurdity and give effect to the true
intention of the
Legislature.’
This approach entails that one may:
‘
(i)
look at the preamble of the Act or other express indications in the
Act as to the object that has to be achieved;
(ii)
study the various sections wherein the purpose may be found;
(iii)
look at what led to the enactment (not to show the meaning, but to
show the mischief the enactment was intended to deal with);
(iv)
draw logical inference from the context of the enactment.’
3
[10] Recently, in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
4
this court, after an in-depth analysis
of the authorities relating to the interpretation of documents
stated:
‘
.
. . Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
instrument . . . having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
. . . consideration must be given to the language used
in the light
of the rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is
diverted and
the material known to those responsible for its production. . . . A
sensible meaning is to be preferred to one that
leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document.
.
. .
The
“inevitable point of departure is the language of the provision
itself” read in context and having regard to the
purpose of the
provision and the background to the preparation and production of the
document.’
[11] Moreover, when courts interpret
statutes or any statutory instrument they must adopt a construction
that is consistent with
the Constitution. And in the context of a
criminal trial courts are duty-bound to prefer an interpretation that
promotes the accused’s
fair-trial rights. This imperative was
expressed in these terms in
Fraser
v Absa Bank Ltd (National Director of Public Prosecutions as Amicus
Curiae)
5
by the Constitutional Court:
‘
.
. . Section 39(2) requires more from a Court than to avoid an
interpretation that conflicts with the Bill of Rights. It demands
the
promotion of the spirit, purport and objects of the Bill of Rights.
These are to be found in the matrix and totality of rights
and values
embodied in the Bill of Rights. It could also in appropriate cases be
found in the protection of specific rights, like
the right to a fair
trial in s 35(3), which is fundamental to any system of criminal
justice . . . The spirit, purport and objects
of the protection of a
right to a fair trial therefore have to be considered.’
[12] Section 276B of the Act was
introduced by the Parole and Correctional Supervision Amendment Act
6
which came into operation on 1 October
2004. It was introduced after this court had expressed disapproval
about sentencing courts
fixing non-parole periods, which practice it
characterised as ‘an undesirable incursion into the domain of
another arm of
the state’ with a potential ‘to cause
tension between the Judiciary and the Executive.’
7
In similar vein Harms JA had earlier
remarked that:
‘
sentencing
jurisdiction is statutory and courts are bound to limit themselves to
performing their duties within the scope of that
jurisdiction.’
8
[13] In
S
v Pakane and Others
9
this court said that ‘. . . the
legislature enacted the provisions [s 276B] to address precisely the
concerns raised therein
[
S v
Mhlakaza & another
;
S
v Botha
] by clothing
sentencing courts with power to control the minimum or actual period
to be served by the convicted person . . .’.
Consequently it
went on to fix a non-parole period.
[14] Notably, in the preamble to the
Parole and Correctional Supervision Amendment Act
10
one of the stated objectives of this
Act is ‘. . . to make provision that a court sentencing an
offender to a period of imprisonment
may
fix a non-parole period . . .’
(My emphasis.) The legislature’s use of the word ‘may’
strongly suggests
its intention to give courts overall latitude in
deciding whether or not to fix a non-parole period.
[15] Accordingly, if one approaches
statutory interpretation in the manner adopted in
Secretary
of Inland Revenue v Sturrock Sugar Farm (Pty) Ltd
11
ie –
(a) studies the terms of s 276B of the
Act;
(b) examines what led to the enactment
to ascertain the object it was intended to achieve (to clothe a
sentencing court with the
discretion to fix a non-parole period); and
(c) draws logical inference from the
context of the whole of s 276B and the use, in s 276B(2) of the
definite article ‘the’,
in the phrase ‘fix the
non-parole period’ which can only denote the non-parole period
determined in terms of s276B(1)(a)
of the Act; it becomes evident
that the legislature did not intend to fetter the discretion
conferred on a sentencing court by
s 276B(1)(a) of the Act in
the way that the court below postulated.
[16] In short, s 276B(2), properly
construed, does not oblige a sentencing court to fix a non-parole
period in respect of the effective
period of imprisonment as a matter
of routine whenever it has ordered two or more sentences imposed on a
convicted person to run
concurrently. What s 276B(2) in fact does is
to enjoin a sentencing court, once it has exercised its discretion
under s 276B(1)
(a)
against the convicted person, to then
fix the non-parole period in respect of the effective period of
imprisonment taking cognisance
of the provisions of s 276B(1)
(b)
.
[17] I now turn to deal with the
subsidiary issue concerning whether or not the appellant’s
fair-trial rights dictated that
he should have been heard first on at
least two interrelated issues before the high court invoked s 276B(2)
of the Act. First,
whether s 276B ought to be invoked at all. And if
that question is answered in the affirmative, what the length of the
non-parole
period should be. Before us counsel were
ad
idem
that the appellant was
not heard in relation to both issues before the court fixed a
non-parole period.
[18] The argument advanced before us
on behalf of the appellant, with reference to sound authority,
12
was essentially this:
(a) a sentencing court must first
determine whether there are exceptional circumstances that
imperatively call for the invocation
of s 276B of the Act;
(b) if such exceptional circumstances
are found to exist a determination must be made as to what the length
of the non-parole period
should be; and
(c) that the facts of this case
militated against the invocation of s 276B for the high court itself
had found the appellant ‘to
be a good candidate for
rehabilitation’ and that the commission of the offences of
which he had been convicted was ‘probably
brought about by a
unique and exceptional set of facts which [the appellant] faced and
had to deal with constituting as it did
a threat to [his life]. . .
.’
[19] In
Stander
13
this court expressed itself on this
score in these terms (para 16):
‘
.
. . s 276B is an unusual provision and its 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 s 276B still hold good. An order in terms of
s 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] As to the consequences of the
sentencing court failing to afford the parties a hearing before
invoking s 276B of the Act this
court said the following in
Stander
14
(para 22):
‘
.
. . At least two questions arise when such an order [non-parole
order] is considered: first, whether to impose such an order and,
second, what period to attach to the order. In respect of both
considerations the parties are entitled to address the sentencing
court. Failure to afford them the opportunity to do so constitutes a
misdirection.’
[21] In the context of fair-trial
rights of accused persons, the failure to afford the parties the
opportunity to address the sentencing
court might, depending on the
facts of each case,
15
well constitute an infringement of
such fair-trial rights.
[22] As I have said, it is common
cause that the parties were not afforded the opportunity to be heard
in regard to the non-parole
period it remains to decide what the
consequences of that failure should be. Counsel were both agreed that
if we found that the
court below should have afforded the parties the
opportunity to address it, as we have, it would be proper to remit
the case to
the court below for it to hear the parties on this aspect
in the light of this judgment. Although this would ordinarily be the
proper course to adopt the peculiar circumstances of this case are
such that the interests of justice will not be served by doing
so.
[23] As already mentioned, a court
should only exercise its discretion to impose a non-parole period in
exceptional cases. In this
case there are numerous factors which
operate against the exercise of the discretion against the appellant.
He was a first offender,
some 45 years of age at the time he was
sentenced. He pleaded guilty, a fact which the high court found
indicated that he accepted
responsibility and remorse for his
actions. Although he had acted unlawfully in killing the deceased,
the appellant had done so
as he had feared for the lives of himself
and his family and, in these circumstances, the high court went on to
find that the fatal
incident was ‘not part of a routine
criminal life but an exceptional circumstance’. It also found
that the appellant
was a candidate for rehabilitation. This is
clearly a factor of paramount importance in assessing whether to
impose a non-parole
period.
[24] In the light of these facts,
there do not appear to be any of the exceptional circumstances
present which would justify the
high court exercising its discretion
under s 276B(1)
(a)
to fix a non-parole period. Indeed the
very opposite appears to be the case. Moreover, it is not without
significance, that the
high court granted leave to appeal to this
court. If it had been of the view that the facts of the case were
such that it would
in any event have exercised its discretion against
the appellant, leave
. to appeal would surely not have been
granted.
[25] For the foregoing reasons the
following order is made:
1 The appeal is upheld.
2 The order of the court below fixing
a non-parole period of 13 years is set aside.
_________________
X M PETSE
JUDGE OF APPEAL
LEACH JA (Shongwe JA concurring)
[26] I have read the judgment of my
colleague Petse JA and agree with his conclusion that, properly
construed,
s 276B(2)
of the
Criminal Procedure Act 51 of 1977
does
not oblige a sentencing court, in the event of it imposing sentences
of imprisonment to run concurrently, to fix a non-parole
period in
respect of the effective period of imprisonment as a matter of
course. The section clearly only becomes operative once
the court, in
the exercise of its discretion under
s 276B(1)(
a
), has decided
to impose a non-parole period in respect of a sentence of
imprisonment which is to run concurrently with another
period of
imprisonment. Although my learned colleague reaches the same
conclusion, I feel I should set out my reasoning on the
issue in the
hope it may be of assistance to any person interested in the issue.
[27] The determination of an
appropriate sentence for a convicted offender has historically been
regarded as the function of the
court while the parole of a prisoner
has been a function of the executive exercised through parole boards
and officers. However
the situation was altered by the enactment of
s
276B
, sub-section 1(
a
) of which provides that a court, when
imposing a sentence of imprisonment for a period of two years and
longer, ‘may as part
of the sentence fix a period during which
the person shall not be placed on parole’. The use of the word
‘may’
in that sub-section clearly gives a discretion to
the sentencing court to decide whether or not to fix such a
non-parole period
as part of the sentence. As pointed out by this
court in
Stander,
16
a court should only fix a non-parole period in exceptional
circumstances when there are facts ‘that would continue, after
sentence, to result in a negative outcome for any future decision
about parole’.
[28]
Section 276B(2)
goes on to
provide that where an offender is convicted of two or more offences
in respect of which sentences of imprisonment running
concurrently
are imposed, ‘the court shall . . . fix the non-parole period
in respect of the effective period of imprisonment’.
It was
this provision that persuaded the court a quo that in all cases in
which sentences of imprisonment are to run concurrently
it is
necessary to fix a non-parole period in respect of the effective
period of imprisonment. But in my view that is not what
the section
prescribes.
[29] In contradiction to 276B(1)(
a
),
there is in
s 276B(2)
no reference to a time period in respect of the
sentences of imprisonment which are mentioned. However the
legislature cannot have
intended to refer merely to any sentences of
imprisonment, especially given the restrictions of
s 276B(1)
in
regard to non-parole sentences.
Section 276B(2)
must be read in
context, particularly the provisions of 276B(1)(
a
) which
limits a court’s discretion to sentences of imprisonment of at
least two years before a non-parole period may be imposed.
Clearly,
the ‘sentences of imprisonment’ running concurrently, to
which reference is made in
s 276B(2)
, must include at least one
sentence which the court in exercising its discretion under
s 276B(1)(
a
) has determined should be subject to a
non-parole period.
[30] Any possible doubt about this is
dispelled by the use of the definite article ‘the’ in the
phrase ‘the effective
period of imprisonment’ in
s
276B(2).
This indicates that a decision to fix a non-parole period
has already been made,
17
and it can only have been made under
s 276B(1)(
a
).
[31] Absurd consequences would follow
if a court was obliged to impose a non-parole period in all cases in
which sentences of imprisonment
are to run concurrently. It would
mean that if a court wished to extend the benefit to an offender of
ordering sentences to run
concurrently, it would in the same breath
be obliged to penalise the offender by imposing a non-parole period
as part of the sentence.
And, although a non-parole period should
only be fixed in exceptional circumstances, it would also result in a
sentencing court
being obliged to impose a non-parole period when
ordering sentences to run concurrently, even if it was of the view
that such a
period was wholly inappropriate and not in accordance
with justice.
[32] It is clear from this that on a
proper construction of
s 276B
as a whole, a sentencing court’s
obligation to ‘fix the non-parole period in respect of the
effective period’
under 276B(2) only arises once the court,
after convicting the offender on two or more offences for which
imprisonment is to be
imposed, has decided to exercise its discretion
under
s 276B(1)(
a
) to impose a non-parole period in respect of
at least one of the sentences. That was not the case in the present
matter.
[33] It is for these reasons that I
feel the court a quo erred and that its judgment on the non-parole
period should be set aside.
___________________
L E LEACH
JUDGE OF APPEAL
Appearances:
Appellant: L Barnard
Instructed by:
Kunene Attorneys, Pietermaritzburg
Honey Attorneys, Bloemfontein
Respondent: S S Sankar
Instructed by:
The Director of Public Prosecutions,
Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein
1
Secretary
of Inland Revenue v Sturrock Sugar Farm (Pty) Ltd
1965 (1) SA
897
(A) at 903.
2
Venter
v R
1907 TS 910
at 914-5.
3
E
A Kellaway
Principles of legal interpretation of statutes,
contracts and wills
1995 at 69;
Jaga v Dönges NO and
Another; Bhana v Dönges NO and Another
1950 (4) SA 653
(A)
at 662;
Aetna Insurance Co v Minister of Justice
1960 (3) SA
273
(A) at 284.
4
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA
593
(SCA) para 18.
5
Fraser
v Absa Bank Ltd (National Director of Public Prosecutions as Amicus
Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
(2007 (3) BCLR 219)
para 47.
6
Parole
and Correctional Supervision Amendment Act 87 of 1997
.
7
S
v Botha
2006 (2) SACR 110
(SCA) para 25.
8
S
v Mhlakaza and Another
1997 (1) SACR 515
(SCA) ([1997]
2 All SA
185)
at 521g-h.
9
S
v Pakane and Others
2008 (1) SACR 518
(SCA) para 47.
10
Footnote
9.
11
Footnote
1.
12
S
v Stander
2012 (1) SACR 537
(SCA) para 16;
S v Mshumpa &
another
2008 (1) SACR 126
(ECD) para 79;
S v Pauls
2011
(2) SACR 417
(ECG) para 15.
13
Footnote
13.
14
Footnote
13.
15
See
eg
Key v Attorney-General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996 (2) SACR 113
(CC) para 13 in which it was stated: ‘What
the Constitution demands is that the accused be given a fair trial.
Ultimately
. . . fairness is an issue which has to be decided upon
the facts of each case, and the trial Judge is the person best
placed
to take that decision.’
16
S
v Stander
2012 (1) SACR 537
(SCA) para 16.
17
Compare
Telkom SA Ltd v ZTE Mzanzi (Pty) Ltd
(383/12)
[2013] ZASCA 14
(18 March 2013) para 11.