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[2017] ZASCA 26
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Ndlovu v S (925/2016) [2017] ZASCA 26 (27 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 925/2016
In
the matter between:
KHUMBULANI
COLLEN NDLOVU
APPELLANT
and
THE STATE
RESPONDENT
Neutral
citation:
Ndlovu v S
(925/2016)
[2017] ZASCA 26
(27 March
2017)
Coram:
Tshiqi, Petse and Mbha JJA and Fourie and Mbatha
AJJA
Heard
:
15 February 2017
Delivered
:
27 March 2017
Summary:
Imposition of non-parole period in
terms of
s 276B
of the
Criminal Procedure Act 51 of 1977
: sentence :
misdirection by trial court in imposing a non-parole period : appeal
upheld.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Jappie DJP and Steyn and Nkosi JJ
sitting as court of appeal):
1 The appeal is
upheld to the limited extent set out below.
2 The order of the
Full Court is set aside and substituted as follows:
‘
(a) The
order of the trial court fixing a non-parole period of 13 years is
set aside;
(b) Save as
aforesaid, the appeal against sentence is dismissed.’
3
Paragraph 2 of the order of the full court is confirmed.
4
The appellant is therefore sentenced to an effective term of 20
years’ imprisonment antedated to 29 March 2011.
JUDGMENT
Mbatha
AJA (Tshiqi, Petse and Mbha JJA and Fourie AJA concurring)
[1]
The issue in this appeal is whether the trial court was correct in
imposing a non-parole period in terms of s 276B of the Criminal
Procedure Act 51 of 1977 (the CPA), without inviting the parties to
make submissions before doing so.
[2]
The appellant, Mr Khumbulani Collen Ndlovu, was part of a group that
planned to rob a cash pay point on 14 August 2008, in Glencoe,
KwaZulu–Natal. He was not present at the scene during the
robbery, but a shoot-out ensued and a security guard was shot and
killed. He was arrested and charged in the KwaZulu-Natal Division of
the High Court, Pietermaritzburg with two counts of robbery
with
aggravating circumstances, one count of murder and one count of
attempted murder. He tendered a plea of guilty in terms of
s 112(2)
of the CPA to the counts of robbery with aggravating circumstances
and murder. The prosecutor accepted the guilty pleas
tendered by the
appellant and withdrew the charges relating to the other counts.
[3]
In his s 112(2) statement the appellant said that although he was not
present at the scene of the robbery, he was aware that
the robbers
were heavily armed and that someone might get killed during the
commission of the robbery. In spite of that knowledge,
he continued
his involvement in the planning of the robbery and did not distance
himself from it. He admitted that he had consequently
formed a common
purpose with the robbers to commit the crimes. He was convicted of
robbery with aggravating circumstances and murder.
[4]
Before imposing the sentence, the trial court had regard to the
personal circumstances of the appellant. These included the
fact that
he was a 37 year old first offender; that he was a widower and a
father to three minor children; that at the time of
the conviction he
was gainfully employed and earned a salary of R2000 per month; and
that he had done community service as a police
reservist. Moreover,
the trial court considered that the appellant made a confession to a
magistrate immediately upon his arrest;
that he had tendered a plea
of guilty; that he had offered to testify against his erstwhile
co-accused in their trial; and that
he had not shared in the spoils
of the robbery.
[5]
The trial court took the following aggravating factors into account:
firstly, that the crimes were planned and premeditated;
secondly,
that they were committed in a public place where elderly persons were
collecting their pension; thirdly, that a security
guard was fatally
shot; fourthly, that a sum of R1 215 110, seven firearms
and a motor vehicle were stolen; and finally,
that the crimes were
motivated by nothing else other than greed. The court, however, found
that there were substantial and compelling
circumstances present,
entitling it to deviate from the prescribed minimum sentences. It
sentenced the appellant to undergo 12
and 20 years’
imprisonment on the counts of robbery and murder respectively. These
two sentences were ordered to run concurrently.
In respect of the
sentence of 20 years’ imprisonment imposed on the murder
conviction, the court fixed a non-parole period
of 13 years.
[6]
With leave having been granted by the trial court, the appellant
appealed to the court a quo against the sentence imposed. Notably,
he
was also granted leave to lead further evidence in relation to his
status as the primary caregiver to his minor children. The
court a
quo dismissed his appeal on sentence, but accepted the further
evidence and, in line with the Constitutional Court in
MS
v S
(Centre
for Child Law as Amicus Curiae)
,
[1]
gave the following directions concerning the children:
2.1.
That the Department of Social Development investigate the
circumstances of the appellant’s minor children, to wit Aphiwe
Ndlovu and Philasande Ndlovu, without delay and investigate whether:
2.1.1.
The children are in need of care and protection as envisaged in
section 150 of the Children’s Act 38 of 2005, and if
so, to
take the necessary steps required by the Act:
2.1.2.
The children remain in contact with the appellant during his
incarceration and have contact with him, insofar as it is permitted
by the Department of Correctional Services.’
[7]
With special leave having been granted by this court, the appellant
appeals against his sentence. The basis of the appeal is
that the
trial court misdirected itself when it made an order in terms of s
276B of the CPA, fixing a non-parole period of 13 years
in respect of
his sentence for murder without inviting the parties to make
submissions before doing so. It is further contended
that no
exceptional circumstances existed; therefore, the court’s
exercise of its discretion to fix a non-parole period was
not
justified. Section 276B reads:
‘
(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]
Section 276B of the CPA
came into effect in October 2004. Prior to this, the issue of parole
fell squarely within the purview of
the
Correctional Services Act 111
of 1998
and its regulations. Before the enactment of this provision,
courts had no control over the sentence served by a convicted person.
As
Ponnan
AJA said in
S
v Botha
:
[2]
‘
The
function of a sentencing court is to determine the term of
imprisonment that a person, who has been convicted of an offence,
should serve. A court has no control over the minimum period of the
sentence that ought to be served by such a person. A recommendation
of the kind encountered here is an undesirable incursion into the
domain of another arm of the State, which is bound to cause tension
between the Judiciary and the executive. Courts are not entitled to
prescribe to the executive branch of government how long a
convicted
person should be detained, thereby usurping the function of the
executive.
(See
S v Mhlakaza &
Another
1997(1) SACR 515
(SCA) ([1997]
2 ALL SA 185)
AT 521f-i.)’
[3]
[9] This
court has confirmed that
s 276B
was enacted to give sentencing courts
power to control the minimum or actual period to be served by a
convicted person.
[4]
In the same vein, it has highlighted the challenge presented by a
non-parole order, stating that such an order is ‘…a
“present determination” that the person will not deserve
being released on parole in the future.’
[5]
It is for this reason that a non-parole order should only be made in
exceptional circumstances
which
can be established through the investigation of the salient facts,
legal submissions and sometimes further evidence
.
[6]
As Dambuza J explained in
S
v Pauls
[7]
‘
.
. . . a court must exercise care and caution when considering whether
exceptional circumstances in a particular case exist to
warrant a
non-parole period. A proper judicial consideration can, in my view,
only be made where both the State and the defence
have made
submissions on the issue.’
[10]
This assertion by Dambuza J was affirmed by the Constitutional Court
in
Jimmale
v S
[8]
where it was held that:
‘
In
determining a non-parole period following punishment, a court in
effect makes a prediction on what may well be inadequate information
as regards the probable behaviour of the accused. Therefore, a need
for caution arises because a proper evidential basis is required.’
[11]
Importantly, the court held that in cases where exceptional
circumstances are found to exist, the judicial officer bears the
duty
to explicitly state such circumstances, unless they are easily
ascertainable.
[9]
Where a trial court seeks to impose a non-parole order, the convicted
person is entitled to address it and that a failure to provide
such
an opportunity may constitute a misdirection.
[10]
[12] It
is common cause that the appellant and the State were not informed by
the court that it intended to invoke the provisions
of
s 276B
and
were not invited to make submissions as to whether the court should
impose the non-parole period. It is not clear from the
judgment of
the trial court what factors were taken into account in the
imposition of the non-parole period. Counsel for the State
conceded
that the court misdirected itself in this regard. The other
misdirection committed by the trial court was that it imposed
the
non-parole period only in respect of a portion of the sentence,
namely the 20 years’ imprisonment imposed in respect
of murder,
and not in respect of the effective term of imprisonment as required
by s
276B(2)
of the CPA.
[13]
Counsel for the appellant confirmed that the appeal is confined to
the imposition of the non-parole period by the trial court
and it is
thus not necessary for this court to deal with the effective term of
20 years’ imprisonment imposed upon the appellant.
It follows
that this sentence shall remain and only the imposition of the
non-parole period falls to be set aside.
[14]
For the aforegoing reasons the following order is made:
1 The appeal is
upheld to the limited extent set out below.
2 The order of the
Full Court is set aside and substituted as follows:
‘
(a) The order of the trial
court fixing a non-parole period of 13 years is set aside;
(b) Save as aforesaid, the appeal
against sentence is dismissed.’
3
Paragraph 2 of the order of the full court is confirmed,
4
The appellant is therefore sentenced to an effective term of 20
years’ imprisonment antedated to 29 March 2011.
Y T MBATHA
ACTING JUDGE OF APPEAL
Appearances
For
appellant:
L Smit
Instructed by:
Legal Aid,
Pietermaritzburg
Legal Aid, Bloemfontein
For
respondent:
N E S Buthelezi
Instructed by:
Director of Public
Prosecutions, Pietermaritzburg
Director of Public
Prosecutions, Bloemfontein
[1]
MS v S
(Centre
for Child Law as Amicus Curiae)
[2011]
ZACC 7; 2011 (2) SACR 88 (CC).
[2]
S v
Botha
2006
(2) SACR 110
(SCA) para 25.
[3]
S v Mhlakaza & onother
1997 (1) SACR 515
(SCA) at
521.
[4]
S v Pakane & others
2008 (1) SACR 518
(SCA) para 47.
[5]
S
v
Stander
2012
(1) SACR 537
(SCA) para 15.
[6]
Jimmale
& another v S
[2016] ZACC 27
,
2016 (2) SACR 691
(CC).
[7]
S v Pauls
2011 (2) SACR 417
(ECG) para 15.
[8]
Supra fn 6;
See also
Director
of Public Prosecutions North Gauteng
:
Pretoria v Gcwala &
others;
and
Mthimkulu
v The State
([2013] ZASCA
53, 2013 (2) SACR 89 (SCA).
[9]
Supra fn 7
para 16.
[10]
Supra fn 5 para 22 See also
Jimmale
& another v S
[2016] ZACC
27
,
2016 (2) SACR 691
(CC) para 16;
Mthimkulu
v The State
([2013] ZASCA
53,
2013 (2) SACR 89
(SCA) para 20; and
Mhlongo
v S
[2016] ZASCA 152
;
2016
(2) SACR 611
(SCA) para 10;
Mvubu
v S
[2016] ZASCA 184
(29
November 2016) para 10.