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[2014] ZAGPPHC 68
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Malibe v S (A701/2013) [2014] ZAGPPHC 68 (25 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: A701
/2013
Date heard: 26
March 2014
Date of judgment:
25 April 2014
Not reportable
Not of interest
to other judges
In the matter
between:
KOOS MALI
BE
................................................................................................................................
Appellant
And
THE
STATE
....................................................................................................................................
Respondent
JUDGMENT
PHATUDI J:
[1]
The appellant enjoyed legal representation on
pro
deo
basis
when convicted by the High Court of South Africa (Circuit Local
Division of the Eastern Circuit District) held at Graskop,
Transvaal
Provincial Division (as it then was).
1
The
appellant was convicted on Counts 1,5,6,7 and 8 on his plea of
guilty.
[2]
The appellant was then sentenced to
2
Count
1: 15 years’ imprisonment
Count
2: 30 years’ imprisonment
Count
3: 30 years’ imprisonment
Count
4: 10 years’ imprisonment
Count
5: 5 years’ imprisonment
Count
6: 2 years’ imprisonment
Count
7: 3 years’ imprisonment
Count
8: 2 years' imprisonment
[3]
The appellant was thus sentenced to an effective period of 97 years
imprisonment The trial court further ordered that
‘
no
parole is to be considered until [the appellant] served at least 50
years in prison’
3
[4] Leave to appeal
was granted by Van Der Merwe DJP (as he then was) to appeal to the
Full Court of this division against sentence
only. This appeal is
thus only against the sentence imposed by Curlewis J sitting with
assessors on 20 March 1996(the trial court).
At the commencement of
the hearing of this appeal, the appellant’s counsel submits
that the crux of this appeal is basically
in respect of the sentences
in respect of counts 2 and 3 and the fixing of a nonparole period of
50 years.
[5] It is trite law
that the imposition of sentence is pre-eminently within the
discretion of the trial court. The appeal court
may only interfere
with the trial court’s sentences if the sentence is, among
other factors, disturbingly inappropriate or
the sentence is so
totally out of proportion to the magnitude of the offence that
induces a sense of shock.
[6] I find it
necessary to set out a synopsis of what happened on the night of 18
June 1994 that led to the appellant’s conviction.
The appellant
hid the whole day in the veld nearby the house occupied by the
victims. He patiently waited for the sun to set. At
about 19h50,
while the father and the son were enjoyably playing “wrestling,"
4
the appellant shot through the window from the outside. The father
was hit. He died as a result thereof. The offence is set out
in count
2. The father is hereinafter referred to as deceased 1. The 16 year
old son to deceased 1 was also shot at close range.
He was shot while
on his way out of the house towards the motor vehicle in order to
take deceased 1 to the hospital. The wife to
deceased 1 and their
daughter were then robbed off R15, 00 in cash and the “bakkie”.
The wife and daughter realised
later that the 16 year old had also
been shot (deceased 2 on count 3).
Cumulative
effect of 97 years Imprisonment
[7] Immediately
after the appellant’s personal circumstances were placed on
record and without giving the state either an
opportunity to address
the court or to submit aggravating circumstances, the trial court
said:
'Let
me say at once in a crime of such a nature as this certainly I would
have imposed a death sentence, these personal circumstances
play
little part in the assessment of my sentence.’
5
[8] The trial court
then sentenced the appellant to an effective 97 years' imprisonment
with a rider of fixing a non-parole period
of 50 years. The question
to be determined is whether the sentence imposed is shockingly
disproportionate to the offence and whether
the fixing of a
non-parole period of 50 years is in accordance with the law.
[9]
Mr Nel, for the appellant, correctly submits with reference to
S
v Makwanyane
6
that
after the abolishment of the death penalty, a sentence of life
imprisonment became the ultimate sentence that can be imposed
upon a
deserved offender.
[10]
It is trite law that an offender sentenced to life imprisonment
remains in a correctional centre for the rest of his or her
life.
7
[11]
This Supreme Court of Appeal
8
had
held that
‘
[t]hus,
under the law as it presently stands, when what one may call a
Methuselah sentence is imposed (i.e. a sentence in respect
of which
the prisoner would require something approximating to the longevity
of Methuselah if it is to be served in full) the prisoner
will have
no chance of being released on the expiry of the sentence and also no
chance of being released on parole after serving
one half of the
sentence. Such a sentence will amount to cruel, inhuman and degrading
punishment which is prescribed by s 12(1)
(e)
of
Constitution of the Republic of South Africa Act 108 of 1996: see
Bull's
case
supra
at
695c where it is pointed out that it is the possibility of parole
which saves a sentence of life imprisonment from being cruel,
inhuman
and degrading punishment”
9
[12]
The sentence of 97 years is not only shockingly disproportionate to
the offence but unconstitutional as it amounts to cruel,
inhuman and
degrading punishment which is proscribed by section 12(1 )(e) of the
Constitution of the Republic of South Africa Act
108 of 1996.
10
The
sentence is indeed a
Methuselah
sentence.
[13]
Section 32(2)(a) of the Correctional Services Act 8 of 1959
11
made
provision that the sentences of life imprisonment and all other
determinate sentences imposed must be served concurrently.
The Act
was in operation at the time when the appellant was sentenced. The
trial court failed to consider ordering all sentences
imposed to run
concurrently with each other. This in my view, constituted
misdirection that warrants this court to uphold the appeal
against
the sentences imposed.
[14]
Section 276B
of
the
Criminal Procedure Act 51 of 1977
as inserted by
section 22
of
the
Parole and Correctional Supervision Amendment Act 87 of 1997
stipulates that:
‘
(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)
x
fix
the non-parole-period in respect of the effective period of
imprisonment.' The amendment became operational on 01 October 2004.
[15]
The question that needs consideration is whether the rider in the
order that
‘
no
parole is to be considered until [the appellant] served at least 50
years in prison
constituted
misdirection on the part of the trial court bearing in mind that at
the time of the imposition of the sentences, the
amendment to the
Criminal Procedure Act was
not as yet effected.
12
In
my consideration of the submissions made, I am unable to fault the
trial court in fixing the non-parole period in his sentence
but for
the number of years so fixed.
The
provisions enacted in
section 32(2)
of Correctional Services Act 8 of
1959 did not provide for the maximum number of years that could be
fixed as a non-parole period
in a sentence.
13
There
was nothing that precluded the trial court from fixing such a
non-parole period other than giving sufficient recognition to
the
possibility of rehabilitation, even in the presence of such serious
offences having been committed.
[16]
Fixing a non-parole period in sentencing an offender should, in my
view, be made in exceptional circumstances, such as facts
before the
trial court that would continue, after sentence, which may result in
a negative outcome for any future decision about
parole. Such
circumstances should be relevant to parole and not only be
aggravating factors of the crime committed.
14
ln
addition thereto, when the trial court considers fixing a non-parole
period, the accused should be afforded the opportunity to
address the
court on the issue as to whether exceptional circumstances exist
which imperatively call for such an order to be made
and, if needs to
be invoked, what an appropriate non-parole period would be to order
in the circumstances
15
.
The
position was no different in the previous dispensation when the trial
court had to consider making a recommendation of a non-parole
period.
Failure by the trial court to afford the appellant such an
opportunity constitutes, in my view, misdirection that warrants
interference with the non-parole period sentence imposed.
[17] The appellant,
33 years of age at the time of the commission of the offence, was
married with no children. These are the only
personal circumstances
placed on record. The appellant pleaded guilty to counts 1,5,6,7 and
8. The appellant was not a first offender.
It is apparent from the
reading of the record that he had escaped from prison at the time of
the commission of this offence.
[18]
He had planned to commit the offence. He hid in the veld nearby the
victim’s home. He patiently waited there for the
night to come.
He, unprovoked and mercilessly, shot at deceased 1 and deceased 2.
This kind of murder was described in
DPP
Kwazulu-Natal v Ngcobo
as
brutal and savage.
16
The
court further stated that 'this kind of brutality is regrettably too
regularly a part of life in South Africa.’
17
[19] Considering the
personal circumstances, the personality of the appellant and the
justifiable expectations of the community
on the sentence to be
imposed, I have no doubt that it is this kind of brutality that
prompted the legislature to enact the Criminal
Law Amendment Act 105
of 1997(CLAA). Had the appellant been charged with the provisions of
the CLAA, the substantial and compelling
circumstances that warrant
deviation from the prescribed minimum sentences would undoubtedly not
have been found to exist.
[20] In these
circumstances, the sentences I am about to impose, are to be
backdated in accordance with the law. Section 282 of
Criminal
Procedure Act 51 of 1977 (CPA) as substituted by section 36 of the
CLAA provides:
Whenever any
sentence of imprisonment imposed on any person on conviction for an
offence is set aside on appeal or review and any
sentence of
imprisonment or other sentence of imprisonment is thereafter imposed
on such person in respect of such offence in place
of the sentence of
imprisonment imposed on conviction, or any other offence which is
substituted for that offence on appeal or
review, the sentence which
was later imposed may, if the court imposing it is satisfied that the
person concerned has served any
part of the sentence of imprisonment
imposed on conviction, be antedated by the court to a specified date,
which shall not be earlier
than the date on which the sentence of
imprisonment imposed on conviction was imposed shall be deemed to
have been imposed on the
date so specified.’
[21]
I indicated earlier that the Correctional Services Act 8 of 1959,
which has since been repealed, was operational at the time
of
imposition of the sentence. The credits and benefits that accrued as
provided for in terms of the provisions of the repealed
Acts are
succinctly spelt out in
Van
Vuren v Minister of Correctional Services
.
18
Of
importance is the interpretation of section 136
19
of
the
Correctional Services Act 111 of 1998
dealing specifically with
the transitional provisions. Seeing that the appellant was sentenced
prior to the promulgation of
section 276B
of the CPA as amended, I
would recommend consideration of the policy and guidelines in
existence as at 20 March 1996 when considering
placement of the
appellant on parole. I in the result I would make the following order
Order:
1. The appeal
against sentence is upheld.
2. The sentences
imposed by the trial court are set aside and replaced with the
following;
“
The
accused is sentenced to:
Count l: 15 years
imprisonment;
Count 2: Life
imprisonment;
Count 3: Life
imprisonment;
Count 4: 10 year’s
imprisonment;
Count 5: 5 years
imprisonment;
Count 6: 2 years
Imprisonment;
Count 7: 3 years
imprisonment;
Count 8: 2 years
imprisonment;
The sentences in
count 1, 3, 4, 5, 6, 7 and 8 are to run concurrently with the
sentence in respect of count 2.'
3. The sentences are
antedated in terms of
section 282
of
Criminal Procedure Act, 51 of
1977
as amended, to 20 March 1996.
4. The appellant
shall be considered for placement on parole in terms of the policy of
the Department of Correctional Services that
applied as at the 20
March 1996.
A.M.L. Phatudi
Judge of the High
Court
I agree.
C.P. Rabie
Judge of the High
Court
I agree.
P.L.C. Maseti
Acting Judge of the
High Court
On Behalf of the
Appellant: Pretoria Justice Centre
206 Church Street
2
nd
Floor
FNB Building
Pretoria
Adv. V.Z. Nel
On Behalf of the
Respondent: Director of Public Prosecutions
Church Square
Pretoria
Adv.
S. Scheepers
1
The
name has since changed to: Gauteng Division: Pretoria
2
Sentence
page 99 record
3
Ibid
4
Worded:
stoei – page 19 of record line 3
5
Record
- page 98 line 20 - 25
6
S
v Makwanyane and Another 1995(2) SACR 1 (CC)
7
Section
73
of Correctional Service Act 111 of 1998
8
S
v Nkosi and others 2003(1) SACR 91 SCA
9
S
v Nkosi para [91
10
Ibid
11
‘
When a person receives more
than one sentence of imprisonment or receives additional sentences
while serving a term of imprisonment,
each such sentence shall be
served the one after the expiration, setting aside or remission of
the other in such order as the
Commissioner may determine, unless
the court specifically directs otherwise, or unless the court
directs that such sentences
shall run concurrently: Provided that
any such sentence of imprisonment or additional sentence of
imprisonment in which solitary
confinement with or without spare
diet is imposed, shall be served first:
Provided
further that any determinate
sentence
of imprisonment to be served bv anv person shall run concurrently
with
a life sentence
or with an indeterminate sentence of imprisonment to be served
bv such person in consequence of
being declared an habitual criminal: and that
one
or more life sentences and one or more such indeterminate sentences,
or
two or more such
indeterminate sentences, shall also run concurrently. *
The Act has since been repealed.
Emphasis added
12
The
sentence was imposed on 20 March 1996 whereas section 276B was
effected on 01 October 2004
13
The
section only provides for any determinate sentence of imprisonment
to be served by any person shall run concurrently with
a life
sentence.
14
S
v Stander 2012(1) SACR 537(SCA)
15
S
v Ndlovu (A621/2013) [2014] GND (26 March 2014) paragraph [20]; S v
Mthimkhulu 2013 (2) SACR89 (SCA)
16
2009(2)
SACR 361 (SCA) at paragraph [25]
17
DPP
Kwazulu-Natal v Ngcobo paragraph [26]
18
2012
(1) SACR 103
(CC)
19
See
Van Vuren v Minister of Correctional Services (op cit) paragraphs
[47] to [61]