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[2016] ZAGPPHC 796
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Makgoba v S (A12/2016) [2016] ZAGPPHC 796 (7 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
Case
number: A12/2016
Date:
7/9/2016
In
the matter between:
MASHACK
MAKOTUMA
MAKGOBA
.............................................................
APPELLANT
And
THE
STATE
…...............................................................................................
RESPONDENT
JUDGMENT
PRETORIUS
J
,
(1)
In this appeal against sentence the appellant is appealing
against the recommendation by the sentencing court that the appellant
should not be released on parole by the Department of Correctional
Services before he had served at least 45 years.
(2)
Leave to appeal in respect of sentence was granted on petition
by the Supreme Court of Appeal and is restricted to the legality of
the recommendation in respect of parole.
BACKGROUND:
(3)
The appellant, as accused 2 in the court a
quo,
were
convicted of the crimes of murder, robbery with aggravating
circumstances, unlawful possession of a firearm and unlawful
possession
of ammunition. The appellant was sentenced to life
imprisonment on the charge of murder,20 years' imprisonment on the
charge of
robbery, 5 years' imprisonment on the charge of unlawful
possession of ammunition. It was also recommended by Els J that the
appellant
and his co-accused should not be released from prison
before they have served 45 years of their sentence.
(4)
The appellant was legally represented during the trial in the
court a quo.
(5)
The facts of the crime are that the deceased in count 1 was
with his wife, having breakfast in their home, at 8h00, when the
appellant
and his co-accused arrived, shot the deceased and robbed
his wife. At the time the deceased was 82 years old and his wife was
78
years old, both elderly people.
SENTENCE:
(6)
At the time of sentencing the appellant was 22 years old. He
was married with two children, aged 5 and 1 years respectively, he
had passed matric and was earning R460 per fortnight, he spent 10
months awaiting trial and was a first offender. It is important
to
mention that the appellant had been sentenced on 31 October 2000 and
leave to appeal was only granted on petition on 6 August
2014.
(7)
This
case has to be dealt with according to the law as it was at the time
of sentencing. The
Criminal
Procedure Act
[1]
was
changed
significantly on 1 October 2004, when section 276B of the
Criminal
Procedure Act
[2]
became
law. Section 276B does accordingly not apply in the present
circumstances.
(8)
In
State v
Botha
[3]
there was a recommendation from the trial judge that the appellant
had to serve at least two thirds of his sentence, before being
released on parole. Ponnan AJA, held:
"One
final aspect merits mention. The trial Judge recommended that
the
appellant
serve
at
least
two-thirds
of
his
sentence
before
being
considered
for
parole.
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 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)
SA CR
515 (SCA);
[1997] 2 All
SA
185)
at 521 f
-1 (SACR))"
(Court emphasis)
(9)
This
was confirmation for the finding in
S
v Mhlakaza and
Others
[4]
where
Harms JA held:
"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 707
716). There are also other tensions, such
as between sentencing objectives and public resources (see Walker
&
Padfield op cit p 378). This question relating to the judiciary's
true function in this regard is probably as old as civilization
(windlesham Life Sentences; law, practice and release decisions,
1969-93
[1993] Crim LR 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 Krieg/er 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.
In this
regard I regard as commendable and correct the approach of Erasmus J
in S v Smith supra 254-259."
(Court emphasis)
(10)
The
State has argued that there was no order that the appellant had
to serve at
least 45 years, but that it was a mere recommendation.
The
Botha
case
[5]
also dealt with a recommendation and at paragraph 26 Ponnan AJA
found:
"Albeit,
just a recommendation, its persuasive force is not to be
underestimated. It, no doubt,
was
intended
to
be acted upon.
In making the
recommendation
which
he did,
the
trial
court
may have
imposed, by
a
different
route,
a
punishment which
in
truth
and
in
fact
was more
severe
than originally
intended.
Such
a
practice
is
not
only undesirable but
also
unfair to both an accused person
as
well
as
the correctional
services
authorities."
(Court emphasis)
(11)
In
Strydom
v The State
[6]
,
Pillay
JA
held:
"With
regard to the second
issue,
the circumstances under
which such an order could be imposed, Snyders JA, in Stander,
recognising
t
he provisions of
the
Correctional Services
Act 111 of 1998 (CSA)
as
amended, articulated the history and the development of the
courts' approach to this aspect of the imposition of
a
non-parole
order. In referring to
a
number of decisions,
she
concluded that while the legislation empowers the
courts
to
impose such an
order when sentencing,
it
should only do
so
when the circumstances
specifically relevant to parole in addition to any aggravating
factors pertaining to the commission of the
crime, and
where
a
proper, evidential
basis
had
been
laid for
a
finding that
such
circumstances exist
so as
to
justify the imposition of such
an order.
This
court held
that
a
court
should not
resort to s 276B
of
the
CPA
lightly and rather, as
this
court has
often indicated,
allow the
officials of the Department of
Correctional Services, who are guided by the CSA and the attendant
regulations, to make such assessments
and decisions as well as the
parole
board."
(Court
emphasis)
This
recent judgment confirms that a court will only impose such an order
in exceptional circumstances after a proper basis for
such an order
has been established, even in the event that section 276B applies.
(12)
It
is thus clear that even with the insertion of section 276B of the
Criminal
Procedure Act
[7]
,
that
such a recommendation may only
take place
under exceptional circumstances which are fully motivated by the
court. In
S
v Botha
[8]
and
S v
Mhlakaza
[9]
it was decided,
before
section 276B was promulgated, that sentencing is the court's duty,
but the
fixing of a term before parole may be considered as intruding on the
executive arm of the government's sphere and prerogative
to
establish when a sentenced prisoner should qualify for parole.
The
Department of Correctional Services is guided in this regard by the
Correctional
Services Act
[10
]
,
read
with the regulations, to decide when to make assessments and to
release a prisoner on
parole.
(13)
It must also be mentioned that
section 276B
has no
retrospective operation. The present appeal has to be decided
according to the law as it was on 31 October 2000, when the
appellant
was sentenced. The State did not refer to the abovementioned
decisions, but this court has considered all the facts,
decisions and
arguments relating to the appeal. It is quite clear that the
recommendation by the court a
quo
has to be set aside,
notwithstanding the State opposing the appeal.
(14)
Due to our finding that the appeal has to succeed and that the
recommendation has to be removed from the sentence, this court
invokes
its inherent powers of review in the case of the appellant's
co-accused. The order will be applicable to the sentence imposed on
William Phetole Mamabolo, being accused 1 in the court a
quo,
and who is not before this court.
(15)
In the result we make the following order:
1.The
appeal succeeds;
2.
The recommendation to the Department of Correctional Services that
neither the appellant nor William Phetole Mamabolo should
be released
on parole or otherwise before they have served at least 45 years'
imprisonment, is removed.
_________________
Judge
C Pretorius
I
agree,
________________
Judge
P M Mabuse
I
agree,
_______________
Judge
M J Teffo
Case
number
..................
: A12/2016
Matter
heard on
..............
: 12 August 2016
For
the Applicant
.............
:Adv R S
Matlapeng
Instructed
by
...................
: Pretoria Justice
Centre
For
the Respondent
.........
: Adv A J Rossouw
Instructed
by
....................
: Director of
Public Prosecutions
Date
of Judgment
[1]
Act 51 of 1977
[2]
Supra
[3]
2006(2) SACR 110 (SCA) at paragraph 25
[4]
1997(1) SACR 515 (SCA) at 521 f - i
[5]
Supra
[6]
6 (20215/14)
[2014] ZASCA 29
(23 March 2015) paragraph 15
[7]
Supra
[8]
Supra
[9]
Supra
[10]
Act 111 of 1998