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[2018] ZAKZPHC 42
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Yalo v S (AR 644/2017) [2018] ZAKZPHC 42 (31 August 2018)
IN THE
KWAZULU-NATAL HIGH COURT
PIETERMARITZBURG
REPUBLIC OF
SOUTH AFRICA
CASE NUMBER: AR
644/2017
DATE: 31 AUGUST
2018
NHLAKANIPHO CYRIL YALO
versus
THE STATE
BEFORE
THE
HONOURABLE JUDGE MBATHA
and
THEHONOURABLE
JUDGE CHILI
FOR THE APPELLANT ADVOCATE
(MS) Z ANAST ASIOU
FOR THE RESPONDENT:
ADVOCATE (MS) G SHANGE
TRANSCRIBER: KERRY
DICKINSON
DATE TRANSCRIBED: 19
SEPTEMBER 2018
JUDGMENT
(31 AUGUST
2018)
MBATHA J
1.
The appellant
was convicted by the regional court, Port Shepstone, on 18 September
2012 for one count of housebreaking with intent
to rape and rape in
contravention of Section 3 of the Criminal Law (Sexual
Offences and
Related
Matters)
Amendment
Act
(the
Sexual
Offences
Act).
2.
He
was subsequently sentenced to fifteen years' imprisonment. It was
further ordered that in terms of Section 276B of the Criminal
Procedure Act that the appellant not be considered for a fixed term
of 10. ten years imprisonment.
3.
The crisp
issue on this appeal is whether the trial court was correct in
imposing a non-parole period in terms of Section 276B of
the Criminal
Procedure Act without inviting the parties to make submissions before
doing so. Furthermore, if there were exceptional
circumstances which existed and justified
the
imposition
of
the non-parole
period.
4.
The
complainant in the court
a quo
related
that on the day
in question
while she was asleep she awoke to the presence of the appellant. This
took
her by
sur
p
.rise
as she
had
secured
the
premises,
as
well as
the room where she
was sleeping that night. She was subsequently raped by the
appellant
who
was
known
to
her.
5.
The State
also led the evidence of Sabelo Sikobi who testified that at about
02:59 he noticed a missed call from the complainant.
When Sabelo
phoned her back he learnt from the complainant that she had been
raped. Sabelo then immediately left for the Margate
Police Station to
report that
the complainant
had
been
raped. Doctor Kabanga, who examined the
complainant, testified for the defence and confirmed that rape could
not be ruled out as
there were bruises on the lower part of the
vagina of the complainant.
6.
The
DNA analysis report handed in by consent also corroborated the
State's case in that the appellant's DNA matched the DNA in the
articles worn by the
complainant.
7.
The
appellant did not testify in his defence, although his defence was
that sexual intercourse between himself and the complainant
was
consensual.
8.
The
court a
quo
found
the appellant guilty as
charged.
9.
In
sentencing the appellant the court took into consideration that he
was twenty years old, that he was a first offender and·
also
considered the seriousness of the offence. Though not specifically
stated it is clear from the court a
quo's
judgment and sentence that it deviated from
imposing the prescribed life sentence and sentenced the appellant to
fifteen years'
imprisonment. The court a
quo
then went on to fix a non-parole period of
ten years in terms of Section 276B of the Criminal Procedure Act.
10.
The basis of
the appeal is that the trial court misdirected itself when it made an
order in terms of Section 276B of the Criminal
Procedure Act
by fixing the non-parole period of ten years in
respect of his sentence without inviting the parties to make
submissions before
doing so. It 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 as follows -
"(1)(a) lf 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 twenty-five 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 sha11>subject to subsebti6h (1)(b), fix
the non parole-period in respect of the
effective
period of imprisonment."
11.
Section 2768
of the Criminal Procedure Act 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, as he then was, said in
S v Botha
–
"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 thatought 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 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
and Another
1997 (1) SACR 515
(SCA)
(1997) 2
All SA 185
at 521
(f)-(i))'
12.
The
Supreme Court of Appeal has confirmed that
Section 276B
was enacted to give sentencing courts power to
control the minimum or actual period to be served by a
convicted person. In the same vein it has
highlighted the challenge presented by the non-parole order, stating
that such an order
is, as stated in
S v Pakane
and Others
2008 (1) SACR 518
(SCA) 47,
-
"A present determination that the person would not
deserve being released on parole in the future."
13. 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,
as stated by DAMBUZA J in
S v Pauls.
This assertion by DAMBUZA
J was affirmed by the Constitutional Court in
Jimmale v S
where
it was held that -
"In
determining a non-parole period following punishment, a court in
effect makes a prediction on invaded the sanctuary of
the
complainant.”
14.
Accordingly,
I make the following order -
•
THE APPEAL IS UPHELD TO THE LIMITED EXTENT SET OUT BELOW:
(a)
THE
ORDER OF THE TRIAL COURT FIXING A NON-
PAROLE
PERIOD
OF TEN (10) YEARS IS
SET ASIDE;
(b)
SAVE
AS AFORESAID, THE APPEAL
AGAINST
SENTENCE
IS
DISMISSED.
•
THE APPELLANT IS THEREFORE SENTENCED TO AN
EFFECTIVE TERM OF FIFTEEN (15) YEARS' IMPRISONMENT ANTEDATED
TO 18 SEPTEMBER 2012.
CHILI
J
I agree. .
MBATHA J
It is so
ordered.