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[2013] ZASCA 126
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Mchunu and Another v S (825/2012) [2013] ZASCA 126 (25 September 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 825/2012
Not Reportable
In
the matter between:
VAMILE
MICHAEL MCHUNU
......................................................
First
Appellant
CECILMAGIDA
..........................................................................
Second
Appellant
and
THE
STATE
..............................................................................
Respondent
Neutral citation:
Mchunu v
the State (
825/2012)
ZASCA 126 (25 September
2013)
Coram:
Maya, Shongwe, Pillay and Willis JJA and Zondi AJA
Heard:
5 September 2013
Delivered:
25 September 2013
Summary: Sentence – appeal by
the appellants against an order fixing a non-parole period of 20
years’ imprisonment for
each of the appellants – crimes
committed before the promulgation of
s276B
of the
Criminal Procedure
Act 51 of 1977
– appeal upheld – order was incorrectly
made and set aside.
ORDER
On appeal from:
KwaZulu-Natal
High Court, Durban (Patel JP, Gorven and Vahed JJ concurring, sitting
as a court of appeal):
The appeal is upheld;
The order of the court below fixing a
period of time to be served before the appellants may be released on
parole is set aside.
JUDGMENT
WILLIS JA ( MAYA,
SHONGWE, PILLAY JJA and ZONDI AJA concurring):
[1] The appellants were both arraigned
before the KwaZulu-Natal High Court in Durban (Levinsohn J), each on
two counts of murder
and one count of attempted robbery with
aggravating circumstances, as defined in
s 1(1)(
b
) of the
Criminal Procedure Act 51 of 1977
, as amended (the Act). The offences
were committed on Friday 8 August 1997 at a factory known as Sanjon
Chemicals, at 4 Martin
Drive, Queensmead Industrial Area (Malvern),
in the district of Pinetown. The trial commenced on 7 May 1999. On 25
May 1999 the
High Court found the two appellants, together with their
co-accused, MduduziMkhize, guilty on all three counts. The trial
judge
sentenced the first appellant to 20 years’ imprisonment
on count 1, 20 years’ imprisonment on count 2 and 15 years’
imprisonment on count 3. The second appellant was sentenced to 20
years’ imprisonment on count 1, 20 years’ imprisonment
on
count 2 and 10 years’ imprisonment on count 3. The trial judge
made no order as to the concurrent serving of any portion
of the
sentences in question. The first appellant was thus given an
effective sentence of 55 years’ imprisonment and the
second
appellant 50 years’ imprisonment. The trial judge dismissed the
appellants’ application for leave to appeal
on both conviction
and sentence.
[2] For reasons that are not apparent
from the record it took several years before the appellants
petitioned this court for leave
to appeal. The petition was directed
against sentence only. On 28 September 2007 this court granted the
first appellant leave to
appeal to the full court of what was then
known as the Natal Provincial Division. On 29 November 2011 this
court granted similar
leave to the second appellant.
[3] On appeal, the full court, on 10
February 2012, increased the sentence to life imprisonment on both
the murder counts in respect
of each of the appellants and dismissed
the appeal on the count of attempted robbery. That court further
directed that the appellants
were to serve a minimum of 20 years’
imprisonment before they might be considered for parole. In fixing
the non-parole period,
the court relied on the provisions of
s 276B
of the Act. This section was inserted by
s 22
of the
Parole and
Correctional Supervision Amendment Act 87 of 1997
which, although
assented to on 26 November 1997, came into operation only on 1
October 2004.
1
The appellants then successfully petitioned this court yet again for
special leave to appeal against the sentence of the full court.
In
this court the argument on sentence was confined solely to the fixing
of a non-parole period.
[4] The murder victims, Mr and Mrs
Hayes, operated a small family business for the manufacture and sale
of household detergents.
In doing so they provided employment to
several other people. The staff was paid weekly in cash every Friday.
The purpose of the
attack on the business premises where the victims
were killed was to effect a heist of the cash that was to be paid to
the staff
later that day. The victims were shot dead in the presence
of their two young daughters, one of whom, Misty, testified in court
as to the incident when she was 13 years of age. The full court
clearly endeavoured, in fixing the non-parole period, to take into
account the heinous nature of the crimes and to respond to the acute
sense of outrage which the facts and circumstances of this
case
arouse.
[5] As has been emphasised in
R v
Mazibuko
,
2
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
3
and
S v Mpetha
.
4
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.
[7] The following is the order of the
court:
1. The appeal is upheld.
2. The order of the court below fixing
a period of time to be served before the appellants may be released
on parole is set aside.
_______________________
NP WILLIS
JUDGE OF APPEAL
APPEARANCES:
For the Appellant: T.P.Pillay
Instructed by:
Durban Justice Centre
For the Respondent: S.Mcanyana
Instructedby:
Director of Public Prosecutions,
Durban,
and
The Director of Public Prosecutions,
Bloemfontein
1
Government
Gazette
No. 26808 of 1 October 2004.
2
R
v Mazibuko
1958 (4) SA 353
(A) at 357E.
3
R
v Sillas
1959 (4) SA 305
(A) at 311E-G.
4
S
v Mpetha
1985 (3) SA 702
(A) at 707H-708A and
717I-718B.