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[2011] ZASCA 211
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Stander v S (547/11) [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) (29 November 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 547/11
In
the matter between:
Heinrich
Marthinus Stander
…..............................................................................
Appellant
and
The
State
…........................................................................................................
Respondent
Neutral citation:
Stander v The State
(547/11)
[2011] ZASCA 211
(29 November
2011)
Coram:
CLOETE,
SNYDERS JJA AND PETSE AJA
Heard:
4
November 2011
Delivered: 29 November
2011
Summary:
Criminal procedure – sentence – s 276B
Criminal
Procedure Act 51 of 1977
- non-parole period of sentence – only
to be imposed in exceptional circumstances
ORDER
On appeal from:
Eastern Cape High Court, Grahamstown (Eksteen J and Grogan AJ
sitting as court of appeal):
1 The appeal is upheld.
2 The order of the court
below refusing the appellant leave to appeal is set aside and
replaced with the following:
‘
The applicant is
granted leave to appeal to the Eastern Cape High Court, Grahamstown
against the sentence imposed by the Regional
Court.’
3 The appellant is
directed to deliver a notice of appeal on or before 15 December 2011
based on the findings made in this judgment
and containing such
further grounds of appeal as may be permitted by the court of appeal.
4 The Director of Public
Prosecutions, Eastern Cape, is requested to place this appeal on the
roll as a matter of urgency on a date
to be arranged with the
appellant’s counsel.
5 The Registrar of this
Court is requested to make three copies of the record filed in this
Court available to the appellant’s
attorney for use in the
appeal to the Eastern Cape High Court, Grahamstown, should the Judge
President of that Division sanction
this arrangement.
6 In the event of any
further appeal those copies of the record are to be returned to this
Court, and, together with the two remaining
copies in this Court, are
to be supplemented insofar as may be necessary.
JUDGMENT
SNYDERS JA (Cloete JA and
Petse AJA concurring):
[1] The appellant pleaded
guilty and was convicted in the Regional Court, Port Elizabeth, on 22
counts of fraud involving R435 450.15.
On 25 June 2009 he was
sentenced to 8 years’ imprisonment of which two years were
conditionally suspended for five years.
In terms of s 276B of the
Criminal Procedure Act 51 of 1977 (the Act) the Magistrate ordered
the appellant to serve at least 36
months of his sentence before he
may be released on parole (the non-parole order).
[2] The appellant’s
application for leave to appeal against the sentence was refused by
the Magistrate and his petition to
the Eastern Cape High Court,
Grahamstown (Eksteen J and Grogan AJ) for leave to appeal met the
same fate.
1
Thereafter he applied for
leave to appeal to the same court against the refusal of the petition
and was granted such leave to this
Court.
2
This change in view about
the appellant’s prospects of success on appeal was apparently
brought about by a decision in that
Division to grant a petition for
leave to appeal in similar circumstances, which led to judgment in
the matter of
Pauls
v S
[2011]
JOL 26717
(ECG). That matter was brought to the attention of the
court a quo which remarked on it as follows:
‘
The learned judges who
considered the petition in that matter, however, granted leave to
appeal and added the following directive:
“
In addition to the grounds upon
which leave to appeal was sought argument will be required as to
whether or not the Regional Magistrate
should have brought it to the
attention of the accused’s legal representatives that he
considered fixing a non-parole period
in terms of section 276B of Act
51 of 1977 in order to enable argument on this aspect to be
presented. The Regional Magistrate’s
comments, if any, thereon
must be requested.”’
I deal with that decision
later in this judgment.
[3] The question to be
answered in this appeal is whether the appellant’s petition was
wrongly refused and therefore whether
there are reasonable prospects
of success in an appeal against his sentence. Three issues arise in
this regard. First, whether
the Magistrate was obliged to give
reasons in his judgment on sentence for imposing the non-parole
order. Second, the circumstances
under which a court would be
entitled to impose a non-parole order as part of a sentence. Third,
whether the Magistrate was obliged
to invite or allow argument before
the imposition of a non-parole order.
[4] The furnishing of
reasons for a decision by a judicial officer is not only a
long-standing and salutary practice, it serves
the interests of
justice. In
S
v Immelman
1978
(3) SA 726
(A) at 729A, Corbett JA said:
‘
It has been decided in this
Court, with reference to the verdict of the Court, that, although
there is no provision in the Criminal
Procedure Code for the delivery
of a judgment when a Judge sits alone or with assessors (when these
decisions were given the alternative
system of trial by jury still
obtained), in practice such a judgment is invariably given and that
it is clearly in the interests
of justice that it should be given
(see
R v Majerero and Others
1948 (3) SA 1032
(A);
R
v Van der Walt
1952 (4) SA
382
(A)). It seems to me that, with regard to the sentence of the
Court in cases where the trial Judge enjoys a discretion, a statement
of the reasons which move him to impose the sentence which he does
also serve the interests of justice. The absence of such reasons
may
operate unfairly, as against both the accused person and the State.’
3
[5] The Magistrate, in
his judgment on sentence, did not observe the stated necessary
practice and, by doing so, failed to furnish
any reasons for making
the non-parole order. However, in the judgment refusing the appellant
leave to appeal, the Magistrate dealt
with this aspect as follows:
‘
The only reason why the court
imposed this term is to prevent the Department of Correctional
Supervision from burdening the court
with an application to convert
the sentence before the accused has served three years of the
sentence.’
4
The reference to the
conversion of the sentence is to s 276A(3) of the Act, which allows
the Commissioner of Correctional Supervision
or the Correctional
Supervision and Parole Board, ‘if he or it is of the opinion
that such a person is fit to be subjected
to correctional
supervision’ to apply to the trial court to reconsider the
sentence and either confirm the sentence, convert
it to correctional
supervision or impose another appropriate sentence.
[6] The Magistrate’s
reasoning reveals that the non-parole order was imposed for the
convenience of the court and possibly
even the Department of
Correctional Services. But the convenience of neither is relevant.
Circumstances may arise after sentence
has been imposed that render
an application under s 276A(3) entirely appropriate. A court that
refused to entertain such an application
because it was not
convenient to itself or the Department would, without doubt, commit a
misdirection. This gives rise to, at least,
a reasonable prospect
that another court would consider that the Magistrate misdirected
himself.
[7] Section 276B(1) of
the Act provides:
5
‘
(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.’
Relevant provisions of
the Correctional Services Act 111 of 1998 (the CSA) have also been
amended to take account of such an order
by a sentencing court.
6
[8] Prior to s 276B of
the Act a decision about parole remained exclusively within the
domain of the Department of Correctional
Services as an executive
function and courts have persistently recognised the need for that to
be so. Two principles underlie that
perspective. First, the
separation of powers; and second, the fact that courts obtain their
sentencing jurisdiction from statute
and until s 276B no statute has
empowered courts to make any orders regarding the period of
imprisonment to be served before release
on parole is considered.
7
[9] In
S
v Mhlakaza & another
1997
(1) SACR 515
(SCA) Harms JA dealt with the topic as follows:
8
‘
The function of a sentencing
court is to determine the maximum term of imprisonment a convicted
person may serve. The court has
no control over the minimum or actual
period served or to be served
.
. .
The lack of control of courts over the
minimum sentence to be served can lead to tension between the
Judiciary and the Executive
because the executive action may be
interpreted as an infringement of the independence of the Judiciary
(cf Blom-Cooper & Morris
The
Penalty for Murder: A Myth Exploded
[1996]
Crim
LR
at 707, 716). There are also other
tensions, such as between sentencing objectives and public resources
(see
Walker & Padfield
op cit
at
378). This question relating to the judiciary’s true function
in this regard is probably as old as civilisation (Windlesham
“
Life
Sentences: Law, Practice and Release Decisions, 1989-93”
[1993]
Crim
LR
at
644). Our country is not unique. Nevertheless, sentencing
jurisdiction is statutory and courts are bound to limit themselves
to
performing their duties within the scope of that jurisdiction. Apart
from the fact that courts are not entitled to prescribe
to the
executive branch of government as to how and how long convicted
persons should be detained (see the clear exposition by
Kriegler J in
S v Nkosi (1), S v Nkosi
(2), S v Mchunu
1984 (4) SA
94
(T)) courts should also refrain from attempts, overtly or
covertly, to usurp the functions of the executive by imposing
sentences
that would otherwise have been inappropriate.’
9
[10] Looking at s 276B
with a view to determining the extent of the statutory power being
conferred on courts, it is evident that
the only jurisdictional
requirement for the operation of the section is that the sentence
imposed should be longer than two years’
imprisonment. For the
rest, no circumstances are specified in which it would be appropriate
to impose such an order and it is therefore
for the courts to
establish those circumstances. Several judgments have dealt with s
276B, but no clear jurisprudence has emerged.
These were referred to
in
Pauls
,
starting with
S
v Williams, S v Papier
[2006] ZAWCHC 5
;
2006
(2) SACR 101
(C). In the latter H J Erasmus J, in an obiter dictum of
a single line, stated that ‘the section should only be applied
in
exceptional circumstances’.
10
Froneman J in
S
v Mshumpa & another
2008
(1) SACR 126
(E) made a non-parole order in circumstances of which he
said that ‘[i]t is difficult to conceive of a more aggravated
form
of assault on a pregnant mother than the attempted murder on Ms
Shelver in this matter’.
11
He also referred to the
undisputed evidence by a psychologist that the accused suffered from
an antisocial personality disorder
which, in lay terms, manifested as
self-centredness, deceitfulness, manipulative behaviour and a lack of
conscience, all found
to have been features of the conduct of the
accused in the commission of the crimes.
12
In para 82 the following
conclusion was arrived at:
‘
Objectively, in the case of Mr
Best, a very serious crime or series of offences has been committed
by a person who has very little
chance of being rehabilitated and who
appears will never have any conscience about what he has done.’
[11] In this Court in
S
v Pakane & others
2008
(1) SACR 518
(SCA) it was stated that the Legislature enacted s 276B
to address the concerns expressed in
Mhlakaza
,
and a non-parole order was issued without considering the
circumstances in which it would be appropriate to do so.
13
In
S
v Makena
2011
(2) SACR 294
(GNP) the full court dealt with a sentence which
contained a recommendation that the appellant not be considered for
parole until
he had served 30 years of a 50-year sentence of
imprisonment. Without reference to s 276B the court concluded that
recommendations
of such a nature should be avoided and the question
of parole was best left in the hands of the appropriate department.
[12] Despite
the fact that s 276B grants courts the power to venture on the
terrain traditionally reserved for the Executive, it
remains
generally desirable for a court not to exercise that power. I will
now proceed to illustrate that, generally, courts are
not equipped to
make decisions about the parole of a prisoner at the time when
sentence is imposed. The CSA grants the Department
of Correctional
Services the authority to incarcerate a prisoner for the full
duration of the sentence imposed,
14
but at the same time it
tasks the Department to attempt to rehabilitate prisoners and
authorises it to release them prior to the
expiry of the sentence
imposed.
Section
42 of the CSA establishes a case management committee which is
obliged to, inter alia, assess each prisoner sentenced to
more than
24 months’ imprisonment, to design a developmental program for
each individual prisoner, and to interview each
prisoner at regular
intervals to assess the suitability of the program and the prisoner’s
compliance therewith. Ultimately,
the case management committee
submits a report on each prisoner to the relevant Correctional
Supervision and Parole Board. The
report deals with the conduct,
disciplinary record, adaptation, training, aptitude, industry,
physical and mental state of the
prisoner and the likelihood of his
or her relapse into crime. In order to fulfil these functions the
Department employs suitably
skilled people.
The
Correctional Supervision and Parole Board considers the report
submitted to it and also takes into account the views of the
complainant in certain identified instances of serious crime. Such a
complainant has the right in terms of s 299A of the Act to
attend the
meeting of the Correctional Supervision and Parole Board and make
representations when the parole of the perpetrator
is considered.
This serves to illustrate that the consideration of the suitability
of a prisoner to be released on parole requires
the assessment of
facts relevant to the conduct of the prisoner after the imposition of
sentence.
[13] This short summary
of the statutory procedure prescribed for the consideration of a
prisoner’s release on parole illustrates
why the Department,
and not a sentencing court, is far better suited to make decisions
about the release of a prisoner on parole
and why it remains
desirable to respect the principle of the separation of powers in
this regard.
[14] The CSA recognises
the need, in some instances, to place facts that arose after the
imposition of sentence before the sentencing
court in order to obtain
an amendment of the sentence. One such example is the very provision
the Magistrate wanted to avoid, s
73(7)(
d
),
which provides for the conversion of a sentence from direct
imprisonment to correctional supervision in circumstances where a
prisoner is ‘fit to be subjected to correctional supervision’.
15
Another such provision is
s 75(1)(
b
).
It entitles the Correctional Supervision and Parole Board to make
recommendations to a court in respect of a person who was declared
a
dangerous criminal in terms of s 286A. Such a prisoner could only be
placed under correctional supervision by an order of court.
The
recommendation placed before a court in such an instance would be
based on the prisoner’s behavior and development since
the
sentence was imposed.
[15] The sentencing court
that considers the imposition of a non-parole order is, insofar as an
assessment of future behaviour is
to be made, in a similar position
to a court considering a declaration and sentence in terms of ss 286A
and 286B of the Act. The
two sections deal with the declaration of a
convicted person as a dangerous criminal and the imposition of an
indefinite period
of imprisonment respectively. In
S
v Bull & another; S v Chavulla & others
2001
(2) SACR 681
(SCA) Vivier ADCJ did an in-depth analysis of the two
sections and repeatedly emphasized that a ‘predictive
judgment’,
based on facts, is required to determine likely
behaviour in the future. In the words of that judgment, a non-parole
order is a
‘present determination’ that the person will
not deserve being released on parole in the future.
16
[16] Seen in this
context, 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 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.
[17] In
Pakane,
this
Court did not consider the circumstances under which it would be
appropriate to make a non-parole order. The court found compelling
mitigating factors, weighed those against the aggravating factors and
confirmed the imposition of the prescribed minimum sentence
of 15
years’ imprisonment. It added that ‘[i]n accordance with
the provisions of s 276B(2), it is ordered that the
second appellant
shall serve a non-parole period of not less than ten years’.
The aggravating factors that had been established
included the
serious nature of the crime, that it was committed by a police
officer who was under a legal duty to protect the public,
who showed
a lack of remorse, who had an iron resolve to conceal the truth, who
took elaborate steps to cover up and hamper the
police
investigations, who knowingly allowed innocent people to languish in
jail for two years, who made false statements and who
gave false
evidence. These facts, although aggravating, do not constitute
exceptional circumstances required for the imposition
of a non-parole
order and do not exclude the possibility of the rehabilitation of the
offender after sentence.
[18] It does not appear
from the judgment in
Pakane
or the heads of argument
delivered in the matter (which are in the archives of this Court)
that any of the parties asked for the
imposition of an order in terms
of s 276B by the Court on appeal. Such an order was not part of the
trial court’s order.
This Court further seems not to have taken
s 73(6)(
b
)(v)
of the CSA into account, which provides:
‘
A person who has been sentenced
to incarceration contemplated in section 51 or 52 of the Criminal Law
Amendment Act, 1997 (Act No.
105 of 1997), may not be placed on
parole unless he or she has served at least four-fifths of the term
of incarceration imposed
or 25 years, whichever is the shorter, but
the court, when imposing incarceration, may order that the sentenced
offender be considered
for placement on parole after he or she has
served two thirds of such term.’
17
[19] It appears from the
context of the judgment in
Pakane
that this Court wanted to
ensure that the second appellant would not be released on parole
until he had been in prison for at least
ten years, but,
paradoxically, that would be a lesser period than that prescribed by
the CSA, which is 12 years. For these reasons
Pakane
should not be regarded as
precedent for the imposition of a non-parole order.
[20] After having
considered all the abovementioned authorities, the court in
Pauls
came to the correct
conclusion, namely that a court, before making a non-parole order,
should carefully consider whether exceptional
circumstances exist. It
also found, correctly in my view, that exceptional circumstances
cannot be spelled out in advance in general
terms, but should be
determined on the facts of each case. These should be circumstances
that are relevant to parole and not only
aggravating factors of the
crime committed, and a proper evidential basis should be laid for a
finding that such circumstances
exist.
[21] It is not contended
by any of the parties that exceptional circumstances of the nature
that would warrant a non-parole order
exist in the present case. The
Magistrate therefore misdirected himself when such an order was
imposed and there are consequently
reasonable prospects that the
sentence would be amended on appeal. The misdirection also impacts on
the term of imprisonment imposed
as the prospect of making a
non-parole order may have influenced the period of imprisonment
imposed in the mind of the Magistrate.
I should add at this juncture
that, in addition, there are reasonable prospects of success in an
appeal against the severity of
the sentence irrespective of the
non-parole order.
[22] The third issue for
consideration is that the Magistrate gave the parties no indication
that the imposition of a non-parole
order was being considered by
him.
18
It came as a surprise to
the parties. At least two questions arise when such an 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. On
this aspect too it could be
found that there is a reasonable prospect
of success on appeal.
[23] The petition for
leave to appeal against the sentence imposed by the Regional Court
should have been granted as there are indeed
reasonable prospects of
success on appeal.
[24] The appellant has
already served 17 months of his effective sentence. But for the
non-parole order his sentence could already
have been converted in
terms of s 73(7)(
c
)(i),
read with s 73(7)(
d
)
and 276A(3) of the CPA, after 18 months ie after 24 December 2011.
Due to the order this could now happen only after 36 months
which
expires on 24 June 2012, which is also the effective date in terms of
s 73(6)(
a
)
on which he would be eligible to be considered for parole.
[25] The potential
prejudice created by the non-parole order could still be curtailed if
the appellant’s appeal is considered
as soon as possible. It is
not within this Court’s power to deal with the matter on the
merits despite the exigencies that
pertain to the case.
19
However, the order below
should facilitate a speedy appeal.
[26] The following order
is made:
1 The appeal is upheld.
2 The order of the court
below refusing the appellant leave to appeal is set aside and
replaced with the following:
‘
The applicant is
granted leave to appeal to the Eastern Cape High Court, Grahamstown
against the sentence imposed by the Regional
Court.’
3 The appellant is
directed to deliver a notice of appeal on or before 15 December 2011
based on the findings made in this judgment
and containing such
further grounds of appeal as may be permitted by the court of appeal.
4 The Director of Public
Prosecutions, Eastern Cape, is requested to place this appeal on the
roll as a matter of urgency on a date
to be arranged with the
appellant’s counsel.
5 The Registrar of this
Court is requested to make three copies of the record filed in this
Court available to the appellant’s
attorney for use in the
appeal to the Eastern Cape High Court, Grahamstown, should the Judge
President of that Division sanction
this arrangement.
6 In the event of any
further appeal those copies of the record are to be returned to this
Court, and, together with the two remaining
copies in this Court, are
to be supplemented insofar as may be necessary.
______________________
S
SNYDERS
Judge
of Appeal
APPEARANCES:
For
the Appellant: J W Wessels
Instructed
by:
Legal
Aid Board; Port Elizabeth
Legal
Aid Board, Bloemfontein
For the Respondent: W J
de Villiers
Instructed
by:
The
Director of Public Prosecutions; Port Elizabeth
The
Director of Public Prosecutions, Bloemfontein
1
This
procedure is in terms of s 309C(5)(a) read with
Shinga
v The State & another (Society of Advocates (Pietermaritzburg
Bar) Intervening as Amicus Curiae; S v O’Connell
& others
2007 (2) SACR 28
(CC) para 59.5.
2
Khoasasa
v S
[2002]
4 All SA 635
(SCA) paras 19 to 22.
3
See
also
Road
Accident Fund v Marunga
2003
(5) SA 164
(SCA) paras 31 and 32.
4
The
above quotation is my translation of the following extract from the
judgment: ‘Die enigste rede waarom die hof hierdie
bepaling
daargestel het is dat die Departement Korrektiewe Dienste nie die
hof belas met aansoeke om [om]skepping van vonnis
alvorens
beskuldigde die tydperk van drie jaar bereik nie’.
5
Inserted
by
s 22
of the
Parole and Correctional Supervision Amendment Act 87
of 1997
, promulgated on 12 December 1997 but only put into operation
on 1 October 2004.
6
See
for example
s 73(7)
of the CSA.
7
Insofar
as the principle of the separation of powers is concerned see
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996
(4) SA 744
(CC) paras 111 to 113.
8
At
521d - 521i.
9
See
also
S v Matlala
2003 (1) SACR 80
(SCA) para 7;
S v Botha
2006 (2) SACR 110
(SCA) paras 25 and 26.
S v Mokoena
2009 (2)
SACR 309
(SCA) para 6;
S v Nkosi (1); S v Nkosi (2); S v Mchunu
1984 (4) SA 94
(T) at 98A-E.
10
The
quote is my translation of an extract from the following sentence,
para 15 of the judgment: ‘Onder die omstandighede
is dit
gerade dat ek nie meer sê nie as dat die artikel slegs
in
uitsonderlike omstandighede toepassing behoort te vind, sonder om te
probeer uitspel wat uitsonderlike omstandighede sal daarstel’.
11
Para
81.
12
Paras
77 and 78.
13
Paras
47 and 48.
14
Section
73(1)(
a
).
15
S
73(7)(
d
)
of the CSA read with s 276A(3) of the Act.
16
S
v Bull & another; S v Chavulla & others
2001
(2) SACR 681
(SCA) at 692d and i; 693d and g; 697a.
17
S
73(6) came into operation on promulgation of the CSA on 31 July
2004. It has subsequently been substituted by s 48(
c
) of the
Correctional Services Amendment Act 25 of 2008
, but the date of
commencement of the new section has not yet been proclaimed. The
substituted
s 73(6)(
b
)(v) reads as follows: ‘A person
who has been sentenced to incarceration contemplated in section 51
or 52 of the Criminal
Law Amendment Act, 1997 (Act 105 of 1997), may
not be placed on parole unless he or she has served the period
determined by the
National Council in terms of section 73A.’ S
73A has also been inserted into the CSA by Act 25 of 2008 and its
date of
commencement has similarly not yet been proclaimed. The new
section adopts a more flexible and individualised approach towards
the determination of the compulsory minimum period of sentence to be
served by each prisoner.
18
This
situation is to be distinguished from that which arose in
Mthembu
v S
(206/11)
[2011] ZASCA 179
(29 September 2011).
19
S
v N
1991
(2) SACR 10
(A) at 16a-d;
S
v Khoasasa
2003
(1) SACR 123
(SCA) para 12;
Matshona
v S
[2008]
4 All SA 68
(SCA) para 4.