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[2015] ZAGPPHC 213
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Mtintso v S (A1038/2013) [2015] ZAGPPHC 213 (21 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
A1038/2013
DATE: 21 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ANDILE
NHLANHLA
MTINTSO
...................................................................................................
Appellant
and
THE
STATE
.....................................................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1. The appellant was
convicted in a regional court of murder. He pleaded guilty to
murdering the deceased on 6 December 2009 at
about 23h30 after the
deceased, the appellant and others had left a tavern at which they
had been drinking. There was an argument
during which the appellant
caused the death of the deceased by stabbing him in the neck with a
knife.
2.
The appellant was sentenced to 8 years imprisonment and was declared
unfit to possess a firearm. In addition, the court
a
quo
ordered
that the appellant had to serve two thirds of his sentence before he
could be considered for parole.
3. The appellant has
no quarrel with the sentence of 8 years or the declaration in
relation to firearms but appeals, with the leave
of this court
granted on petition, against that part of the sentence restricting
his right to be considered for parole until he
had served two thirds
of his sentence.
4. The order under
consideration was made pursuant to the provisions of
s 276B
of the
Criminal Procedure Act, 51 Of 1977
the relevant provisions of which
read as follows:
(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.
5.
The regional magistrate gave no reasons for the non-parole order he
made. In S
v
Stander
2012
1 SACR 537
SCA, after referring in para 9 to the salutary principle
that the function of a sentencing court is to determine the maximum
term
of imprisonment a convicted person may serve and has no control
over the minimum or actual period served or to be served, the SCA
held at para 12 in relation to nonparole orders that despite the fact
that
s 276B
grants courts the power to venture onto the terrain
traditionally reserved for the executive, it remains generally
desirable for
a court not to exercise that power. The SCA held at
para 13 that the authorities vested with the power to detain
offenders in prison
and release them on parole are far better suited
than a sentencing court to make decisions about the release of a
prisoner on parole
and that it remains desirable to respect the
principle of the separation of powers in this regard.
6.
Stander
,
para 22 is further authority for the proposition that a court which
is considering whether to make a non-parole order must give
the
parties an opportunity to be heard on the issue. Failure by a court
to hear the parties before making a non-parole order constitutes
a
misdirection.
7. Where a
sentencing court’s discretion as to an appropriate sentence is
vitiated by misdirection, an appeal court is at
large to substitute
its own assessment of an appropriate sentence for that of the court
below.
8.
In the present case, there was simply no material before the court a
quo
to
justify a non-parole order. In addition, the parties were not heard
on the question before the non-parole order was made. The
court a
quo
thus
misdirected itself. There was nothing before the court a
quo
and
there is nothing before us to justify a departure from the general
rule that it is for the correctional and parole authorities
and not
the court to determine when, if at all, a prisoner should be released
on parole. To this extent the order of the court
a
quo
cannot
stand.
9. I make the
following order:
1. The order that
the appellant, Andile Nhlanhlo Mtintso, may not be released on parole
before he has served two thirds of his sentence
is set aside;
2. The balance of
the sentence, ie that the appellant must serve a sentence of 8 years
imprisonment and that the appellant is declared
unfit to possess a
firearm, is confirmed.
NB Tuchten
Judge of the High
Court
17 April 2015
I agree.
SP Mothle
Judge of the High
Court
20 April 2015