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[2018] ZAKZPHC 3
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Ntamo v S (AR158/2018) [2018] ZAKZPHC 3 (16 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO:
AR158/2018
In
the matter between:
ZAKHELE
CHRISTOPHER NTAMO
Appellant
vs
THE
STATE
Respondent
APPEAL
JUDGMENT
Delivered
on 16 March 2018
MBATHA
J
[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 applicant, Mr Zakhele Christopher Ntamo, was part of the group
that conspired, planned and decided to rob the Barretts’
home
on or about 16 September 2009. He was subsequently arrested and
indicted for murder, robbery with aggravating circumstances
and
unlawful possession of a prohibited firearm and ammunition in terms
of the Firearms Control Act 60 of 2000 in the KwaZulu-Natal
Division
of the High Court, Pietermaritzburg.
[3]
He tendered a plea of guilty in terms of s 112(2) of the CPA to the
counts of robbery with aggravating circumstances, unlawful
possession
of a firearm and ammunition. The prosecutor accepted the guilty pleas
tendered by the appellant and withdrew charges
relating to the murder
count.
[4]
In his s 112(2) statement he stated that the deceased Erasmus had
given him and his co-assailants information that the Barretts
kept a
large amount of money in their safe. He had realised that they might
have to use force to achieve their objective. To this
extent they
armed themselves with firearms. Though he was present when the
firearms were distributed, he was not given a firearm.
[5]
He drove his co-assailants in a bakkie to the Barretts. Under the
pretext that they were lost, the Barretts opened the door,
and one of
his co-assailant overpowered them, pointed the firearms at them and
demanded money from them. Their co-conspirator,
Erasmus was in the
garden and firearms were pointed at him as well whilst pretending to
rob him.
They
ransacked the house and dispossessed the Barretts of their valuables,
including a cellphone. The Barretts were tied up and
locked in the
bathroom.
[6]
Before leaving, one of his co-assailants returned into the house. He
heard a single gunshot. Upon his return he informed them
that he had
to shoot Erasmus as he was angered by the fact that he did not find
the money which Erasmus had promised them to be
in the house.
[7]
On 26 September 2009 he was arrested and the 38 Astra revolver was
found together with ammunition in his room.
[8]
He admitted been involved in the planning of the robbery and acting
in concert and in furtherance of a common purpose to commit
the
crimes that he tendered a plea of guilty to.
[9]
He was subsequently convicted of robbery with aggravating
circumstances, unlawful possession of a prohibited firearm and
ammunition.
The charge of murder was withdrawn against the appellant.
[10]
Before imposing the sentence the trial court had regard to his
personal circumstances. These included the fact that he was
31 years
old, first offender, that he had demonstrated remorse, not only by
co-operating with the police, but also in ultimately
tendering a plea
of guilty at the inception of the trial. The court also took into
account the assistance which he rendered to
the police, which
resulted in the arrest of other co-accused and of certain section 204
witnesses.
[11]
The trial court took the following aggravating factors into account:
that he played an active role in the robbery, that the
occupants of
the farm were held up at gunpoint, were terrorised and robbed of
their possessions, and that the appellant had erased
the serial
number of the firearm either to sell it or perpetrate further crimes.
[12]
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 years
imprisonment on the robbery count, 10 years for possession
of a
firearm in contravention of section 4 of Act 60 of 2000, but directed
that one half of the sentence to run concurrently with
the sentence
on count 2 and 3 years’ imprisonment for unlawful possession of
ammunition, the whole of which was to run concurrently
with the
sentence imposed on possession of a prohibited firearm. The court
fixed a non-parole period of 11 years.
[13]
With leave having been granted by the Supreme Court of Appeal to the
Full Court of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg the appellant appeals against his sentence.
[14]
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 11 years in respect of his sentence 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.’
[15]
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
:
[1]
‘
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.)’
[2]
[16]
The Supreme Court of Appeal 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.
[3]
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.’
[4]
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
.
[5]
As Dambuza J explained in
S v
Pauls
[6]
‘
. . . . 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.’
[17]
This assertion by Dambuza J was affirmed by the Constitutional Court
in
Jimmale
v S
[7]
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.’
[18]
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.
[8]
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.
[9]
[19]
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.
[20]
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
17 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.
[21]
For the aforegoing reasons the following order is made:
1.
The appeal is upheld to the limited extent set out below.
2.
‘(a) The order of the trial court fixing a non-parole period of
11 years is set
aside;
(b)
Save as aforesaid, the appeal against sentence is dismissed.’
3.
The appellant is therefore sentenced to an effective term of 17
years’
imprisonment antedated to 8 September 2010.
____________________
MBATHA
J
___________________
CHETTY
J
___________________
LAW
AJ
Date
of Hearing:
16 March 2018
Date
of Judgment:
16
March 2018
(Handed
down in “D” court)
For
the Appellant
:
Adv L Barnard
For
the Respondent:
Adv A Ludick
Instructed
by:
Deputy Director of
Public Prosecution
[1]
S v Botha
2006
(2) SACR 110
(SCA) para 25.
[2]
S v Mhlakaza & onother
1997
(1) SACR 515
(SCA) at 521.
[3]
S v Pakane & others
2008 (1) SACR 518
(SCA) para 47.
[4]
S
v
Stander
2012
(1) SACR 537
(SCA) para 15.
[5]
Jimmale & another v S
[2016] ZACC 27, 2016 (2) SACR 691 (CC).
[6]
S v Pauls
2011 (2) SACR 417
(ECG) para 15.
[7]
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).
[8]
Supra fn 7 para 16.
[9]
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.