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[2017] ZASCA 58
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Klassen v S (57/2017) [2017] ZASCA 58; 2017 (2) SACR 119 (SCA) (24 May 2017)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 57/2017
In
the matter between:
LESHAY
KLASSEN
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Klassen
v The State
(57/2017)
[2017] ZASCA 58
(24 May 2017)
Coram:
Leach,
Saldulker, Zondi and Mathopo JJA and Coppin AJA
Heard:
4
May 2017
Delivered:
24
May 2017
Summary:
Criminal
Procedure: sentence: effect of convicted accused not testifying when
considering whether substantial and compelling circumstances
exist
justifying a sentence less than a prescribed minimum: failure to hold
an inquiry before imposing non-parole period under
s 276B
of the
Criminal Procedure Act 51 of 1977
: effect thereof.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Hartzenberg J and Vilakazi AJ
sitting as court of appeal):
It
is ordered:
1
The order of the trial court imposing a non-parole period under
s
276B
of the
Criminal Procedure Act 51 of 1977
is set aside.
2
The appeal is otherwise dismissed, and the appellant’s sentence
confirmed.
JUDGMENT
Leach
JA (Saldulker, Zondi and Mathopo JJA and Coppin AJA concurring)
[1]
The appellant was together with three others arraigned on a charge of
murder in the Benoni Regional Court. The case arose out
of an
incident that occurred in the early hours of 17 June 2006 which led
to the death of a young man, Joseph Mbane (the deceased).
The
appellant and his co-accused were convicted on the charge which
carried a prescribed minimum sentence of 15 years’ imprisonment
under the provisions of
s 51(2)
(a)
(i)
of the
Criminal Law Amendment Act 105 of 1997
. The trial court
concluded that there were no substantial and compelling circumstances
justifying a lesser sentence than the prescribed
minimum, and
proceeded to impose a sentence of 15 years’ imprisonment
on the appellant and each of his co-accused. Thereafter,
without
further ado and without making any inquiry relevant to the issue, the
trial court issued an order under s 276B of the Criminal
Procedure
Act 51 of 1977 (the CPA) that the appellant and his co-accused should
not be placed on parole before they had served
two thirds of their
sentence. The effect of this was, of course, that a period of ten
years’ imprisonment was to be served
before the appellant and
his co-accused could be paroled.
[2]
The appellant proceeded to appeal against both his conviction and
sentence to the Gauteng Division of the High Court, Pretoria.
His
appeal was dismissed on 5 June 2009. With special leave of this
Court, he now appeals against both the length of the period
of
imprisonment imposed as well as the imposition of the non-parole
period.
[3]
The evidence on record discloses that early on the morning in
question, the deceased was seen running towards a convenience
shop at
a filling station, pursued by the appellant and his co-accused who
had arrived on the scene in a motor vehicle. They caught
up with the
deceased and began to assault him all over the body, kicking him with
booted feet and punching him. The appellant was
armed with a snooker
cue which he used to strike the deceased over the head. The deceased
fell to the ground but was able to regain
his feet and break away
from his attackers. He ran across the road but lost his footing and
fell, whereupon they caught up with
him and once more severely
assaulted him. The attack upon the deceased continued despite the
intervention of a bystander, Mr Bezuidenhout,
who attempted to
come to the aid of the deceased and to persuade his attackers to
desist. His effort was in vain and in response
to his entreaties they
threatened to assault him.
[4]
The attack upon the deceased was prolonged and vicious. According to
another eye witness, Mr Morrison, the attackers kept on
kicking and
hitting the deceased despite his terrible screams. Mr Bezuidenhout
described the appellant and his co-accused as having
acted ‘like
a pack of wild dogs’.
[5]
Eventually the attack stopped and the deceased’s attackers
climbed back into their vehicle and drove away, leaving him
lying
inert on the ground. Mr Bezuidenhout immediately went to see if
he could help the deceased, but on examining him discovered
that he
had no pulse. The death of the deceased was confirmed by the
paramedics and police who arrived on the scene some time later.
During a post mortem examination, the deceased was found to have
bruises on the head and shoulders, several lacerations on the
head,
swelling of the brain and blood in his mouth and trachea. There were
pin-point bleedings in his lungs and heart, indicating
a lack of
oxygen. Essentially, he had been beaten to death.
[6]
Despite their plea of not guilty, the appellant and his co-accused
were correctly convicted of the deceased’s murder.
As I have
said, an appeal to the high court failed and the only issues before
this Court are the length of the period of imprisonment
imposed and
the non-parole period.
[7]
In regard to the prescribed minimum of 15 years’ imprisonment
that was imposed, counsel for the appellant placed emphasis
upon his
client’s age (he was about 18 years of age at the time of the
offence). This, it was contended, taken together with
the appellant
having been a first offender who was, so it was argued, heavily under
the influence of alcohol at the time, justified
a finding that there
were substantial and compelling circumstances not to impose the
prescribed minimum sentence.
[8]
I accept that the appellant was a youth of 18 years and that he was a
first offender, but one cannot find that alcohol played
any part in
the proceedings. The only evidence in that regard is that, after the
incident when the vehicle which had been used
by the appellant and
his co-accused was traced, it smelled of alcohol as did the breath of
one of his co-accused. But the appellant
himself did not testify at
the trial. In
S
v Roslee
[2006] ZASCA 14
;
2006 (1) SACR 537
(SCA) para 33 this court stated that although there
is no onus on an accused to prove the presence of substantial and
compelling
circumstances justifying a sentence less than the
prescribed minimum, ‘it must be so that an accused who intends
to persuade
a court to impose a sentence less than that prescribed
should pertinently raise such circumstances for consideration’.
This
the appellant failed to do. As he failed to give any evidence in
regard to the consumption of intoxicating liquor, and no such
evidence appears from the record, it would be impermissible
speculation to find that his actions had in any meaningful way been
influenced by his intoxication.
[9]
Bearing in mind that for the present offence a minimum of 15 years’
imprisonment is prescribed in respect of an 18
year old first
offender – and that the question of sentence is to be
approached conscious of the fact that the legislature
has ordained
that as the sentence which should ordinarily be imposed – I am
of the view that the appeal against the length
of the period of
imprisonment imposed by the trial court must fail.
[10]
That then brings me to the question of the non-parole period imposed
under s 276B of the CPA. As already mentioned, after
imposing
the sentence of 15 years’ imprisonment, the trial court
immediately proceeded to order that the appellant not be
released on
parole until he had served at least ten years of that sentence. This
was done without any inquiry as to whether such
an order was
appropriate and without hearing representations in regard to the
issue.
[11]
The grant of parole is something best left to the executive and those
officials charged with the duty of considering and deciding
upon
parole – see
S
v Stander
[2011] ZASCA 211
;
2012 (1) SACR 537
(SCA) para 20 and
S
v Botha
2006 (2) SACR 110
(SCA) para 27. Consequently, the power of a trial
court to act under s 276B should be sparingly exercised, and then
only after
holding an inquiry as to the desirability of such an order
and hearing argument on the issue. This is now well established by
the
jurisprudence not only of this court but of the Constitutional
Court – see
S
v Jimmale & another
[2016] ZACC 27
;
2016 (2) SACR 691
(CC) paras 19-25;
2016 (11 BCLR
1389)
and
Strydom
v S
(20215/2014)
[2015] ZASCA 29
(23 March 2015) para 16. Indeed the
necessity of adopting such a procedure is so trite that it is
surprising, to say the least,
that this issue has recently had to be
dealt with by this court on several occasions – see eg
Ndlovu
v S
(925/2016)
[2017] ZASCA 26
(27 March 2017),
Mvubu
v S
(518/2016)
[2016] ZASCA 184
(29 November 2016) and
Mhlongo
v S
[2016] ZASCA 152
;
2016 (2) SACR 611
(SCA) – all of which
reaffirmed that it is a fatal misdirection to impose a non-parole
period without an inquiry as to whether
it ought to be imposed.
[12]
For some reason, no mention was made of this issue when the matter
went on appeal from the trial court to the court a quo.
Be that as it
may, Ms Leonard SC, who appeared in this court on behalf of the
state, whilst supporting the 15 years’
imprisonment imposed
upon the appellant, conceded immediately and without demur that the
further order relating to non-parole had
to be set aside.
[13]
The judgment of the court a quo was delivered on 5 June 2009. It took
more than six years until the appellant applied to this
Court for
special leave to appeal and, once such leave was granted, there
appears to have been a problem in timeously obtaining
a record.
Consequently, more than nine years has passed since sentence was
imposed on the appellant in the trial court on 28 March
2008. In
these circumstances, Ms Leonard SC conceded on behalf of the state
that, in the light of this lapse of time, no purpose
would be served
in asking for the matter to be remitted to the trial court to hold
the necessary inquiry and to reconsider possibly
imposing a
non-parole period under s 276B. Not only is she clearly correct,
but there is nothing in the record itself which
indicates that this
was an appropriate case for a non-parole period to be imposed,
especially upon a young man who has hopefully
been rehabilitated by
the period of imprisonment he has already served.
[14]
A further issue of concern is that the appellant’s three
co-accused, who received the same sentence as he did, still
labour
under a non-parole period improperly imposed upon them. That this is
unjust, cannot be gainsaid: but none of the co-accused
are before
this Court which, in the circumstances, has no jurisdiction to
ameliorate their plight. We raised this with the legal
representatives of the parties who appeared before us and who gave us
the undertaking to immediately take the matter up to see
if an
equitable solution could be found as a matter of urgency. We are
grateful to them for doing so.
[15]
In the light of the above, the appeal must succeed only in regard to
the non-parole period. It is therefore ordered:
1
The order of the trial court imposing a non-parole period under
s
276B
of the
Criminal Procedure Act 51 of 1977
is set aside.
2
The appeal is otherwise dismissed, and the appellant’s sentence
confirmed.
_______________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant:
J M Mojuto
Instructed
by:
Pretoria Justice Centre, Pretoria
Bloemfontein Justice
Centre, Bloemfontein
For
the Respondent:
E Leonard SC
Instructed
by:
Director of Public Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein