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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2015] ZAKZPHC 39
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Mtshali v S (AR 629/14) [2015] ZAKZPHC 39 (11 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR 629/14
DATE: 11 AUGUST 2015
NOT REPORTABLE
In the matter between:
SIFUNDO
MTSHALI
........................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered on: Tuesday, 11 August
2015
OLSEN J (SISHI J and SEEGOBIN J
concurring)
[1] The appellant in this matter was
granted leave to appeal against the fixing of a non-parole period in
respect of sentences imposed
on him amounting to an effective term of
imprisonment of 30 years following his conviction on 2 counts of
murder and 2 counts of
robbery with aggravating circumstances. The
trial Judge found that there were substantial and compelling
circumstances justifying
sentences of imprisonment less than the
minimum ones set out in the
Criminal Law Amendment Act 105 of 1997
.
[2] In S v Stander
2012 (1) SACR 537
the Supreme Court of Appeal endorsed the proposition that a
non-parole period should only be ordered in exceptional
circumstances,
and that these circumstances should be relevant to the
question of parole, and not only looked for in aggravating factors of
the
crime committed. There must be a proper evidential basis for a
finding that such circumstances exist.
[3] In this matter there was a brief
address by counsel for the appellant and the State at the instance of
the trial Judge after
the sentences had been imposed. The trial
Judge raised the question of the imposition of a non-parole period.
The only subject
canvassed earlier was the severity of the crimes of
which the appellant had been convicted. There was no consideration
of factors
going to parole (i.e. what the future might hold) and no
attempt to identify or debate exceptional circumstances.
Accordingly,
and putting aside the apparent conflict between the
finding that substantial and compelling circumstances justified
sentences below
the minimum, and the finding that exceptional
circumstances justified a non-parole period, the decision to impose
such a restriction
on the grant of parole to the appellant was not
made in accordance with law.
[4] The State concedes this and
supports the appellant’s contention that the order fixing a
non-parole period should be set
aside.
[5] The following order is made.
(1) The Appeal against the imposition
of a non-parole period of 20 years ordered on 27 September 2012 is
upheld.
(2) The order that the appellant should
not be eligible for parole until such time as he has served at least
20 years of the terms
of imprisonment imposed by the trial Court on
27 September 2012 is set aside.
OLSEN J
SISHI J
SEEGOBIN J