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[2013] ZAGPPHC 269
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Mahlatsi v S (A396/2012) [2013] ZAGPPHC 269; 2013 (2) SACR 625 (GNP) (26 July 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
CASE NUMBER: A396/2012
DATE:26/07/2013
Coram
:
De Vos J; Lamprecht
et
Phatudi AJJ
In
the matter between:
MZOLISI
ZOLLA
MAHLATSI
..................................................................
APPELLANT
AND
THE
STATE
...............................................................................................
RESPONDENT
JUDGMENT
________________________________________________________________
LAMPRECHT, AJ
[1] At approximately 21h00 on the 15th
of July 2001, Ms Nompunelelo Nyakale returned home to 12 Adolf Scheil
street, Thaba Tshwane,
in her motor vehicle (a green Citi Golf) - her
child sleeping in the back of the vehicle. When she stopped at the
gate and alighted
to open it, another vehicle arrived. Appellant
1
(in a military uniform) and another, taller one, alighted from that
vehicle and forced Ms Nyakale at gunpoint to surrender her
vehicle
and the contents thereof, including her cellular phone. She barely
managed to pull her son out of the back seat before
appellant and his
fellow robbers waiting in the other vehicle then sped off with both
cars.
[2] The very next day, at about 13h15,
the vehicle that appellant took from Ms Nyakale was used in another
robbery, this time in
the Carletonville area. Appellant and Ms
Florence Grootboom
2
carefully waited and watched as Ms SA De Beer and Mr KJ Viljoen left
their Caltex filling station at Welverdiend near Carletonville
on
their way to the First National Bank, Carletonville, to deposit the
income that they have generated that day. Appellant and
Grootboom
then phoned their fellow robbers and informed them of the vehicle and
the route it traveled. The fellow robbers in the
green Citi Golf
belonging to Ms Nyakale, with a blue light on its roof, used their
police appearance to pull over the vehicle that
Ms De Beer and
Viljoen were travelling in. One of them,
3
approached Ms De Beer and, after she refused to alight anywhere but
at a police station, he put a gun to her head, and forced her
and
Viljoen to hand over R25, 400.00 in cash, a revolver and a number of
other items, including her purse containing a further
R2, 000.00 in
cash, motor keys, a cellular phone and two cheques to the value of
approximately R92, 000.00. When all was over,
he told her to close
her eyes, the gun still aimed at her head. She looked away, fearing
that at any moment he might pull the trigger,
but he walked
backwards, they got into the Golf and, eventually, they drove off. It
is only then that Ms De Beer could ask for
help from other vehicles
passing.
[3] On the 18th of August 2001 at
approximately 19h15, Mr and Mrs De Sousa were traveling home from
their shop, Black Ace Cafe in
Carletonville. They were with Ms De
Ponte (an employee), whom they gave a lift home as usual. They had
approximately R20, 000.00
cash in their possession. When they stopped
at Ms De Ponte's house to drop her off at about 19h20, they were
approached by a number
of gun-wielding men, including appellant.
4
Appellant and his fellow gun-bearing robbers then robbed the
occupants of the vehicle of the vehicle, the money, a celllular phone
and a 9mm pistol before driving off with the vehicle, with Mrs De
Sousa still in it. After a while they stopped, forced Mrs De
Sousa
into the boot of the car and drove a further distance before
abandoning the car with her still locked inside the boot. Fortunately
she managed to free herself and summoned help.
[4] For his role in the aforementioned
incidents, appellant, was convicted of three counts of robbery with
aggravating circumstances
5
and one count of kidnapping (of Mrs De Sousa).
6
On 28 September 2004, he was sentenced to the minimum sentence of
fifteen (15) years imprisonment
7
on each of the robbery counts and five (5) years imprisonment on the
count of kidnapping. None of the sentences were ordered to
run
concurrently - the effective sentence therefore being fifty (50)
years imprisonment.
[5] After an unsuccessful application
to the trial court for leave to appeal his convictions and sentences,
appellant successfully
petitioned the Supreme Court of Appeal
8
,
leave was granted to appeal only his sentences to the Full Court of
this Division. He has however remained inside of prison pending
the
outcome of his appeal ever since he was sentenced - he has thus
already served almost nine (9) years of his gaol term to date.
In
the heads of argument for the appellant, Adv Henzen-Du Toit,
9
also drew our attention to the fact that he had also spent two (2)
years and two (2) months in prison awaiting trial before he
and his
co-accused were eventually convicted and sentenced.
[6] Sentencing, famously,
10
is a matter pre-eminently falling squarely within the purview of the
trial court's discretion, which should not lightly be interfered
with. A sentence should only be interfered with on appeal where, (i)
an irregularity occurred; (ii) the trial court materially
misdirected
itself on the question of sentence; or, (iii) the sentence could be
described as so disturbing that it induces a sense
of shock. The mere
fact that any or all the judges sitting on an appeal would have
imposed another sentence, be it heavier or more
lenient, if he
presided in first instance, is not enough reason for a court of
appeal to interfere with the sentence imposed.
11
This much is trite.
[7] On the three counts of robbery
with aggravating circumstances, the trial court reportedly had no
choice but to impose fifteen
(15) years imprisonment per count,
simply because the court found that no substantial and compelling
circumstances existed justifying
the imposition of a lesser sentence
than the one called for in terms of
section 51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
as amended (the Minimum
Sentencing Act).
12
In respect of the kidnapping count, no minimum sentence is
prescribed. The presiding judge correctly had regard to existing
jurisprudence
and guidelines as regards the determination of whether
substantial and compelling circumstances justified a deviation from
the
prescribed minimum sentences,
13
and further considered, as was required, the personal circumstances
of the appellant, the seriousness of the offences of which
he was
convicted and the interests of society before imposing the sentences,
effectively resulting in a gaol term of fifty (50)
years.
[8] In our opinion, it cannot be
argued with any measure of conviction that the trial court
misdirected itself in any way, or that
the sentences imposed on each
count individually could be regarded as so shockingly heavy that
interference is warranted. Robbery,
especially where aggravating
circumstances are present as in this case and robbery of motor
vehicles appear to have become an industry
country-wide, akin to a
disease that has spread and gotten out of hand. This is emphasized by
the fact that no less than seven
(7) accused persons stood trial in
this matter, for gang activities involving nineteen (19) counts of
robberies, murders, attempted
murders, kidnapping and the unlawful
possession of fire arms and ammunition that played off during the
period September 2000 to
August 2001 in the region of Pretoria,
Carletonville and Oberholzer. It appeared that all the accused
persons operated in a gang,
but due to lack of identifying evidence,
not all the accused were convicted on all counts. Most of them
however were convicted
on most counts, as I will set out in more
detail below. In some instances some of the accused persons pretended
to be members of
the armed forces and did not hesitate to use
military uniforms and blue lights (normally only used by the police)
and fire arms
to commit their dastardly deeds and, during this time,
two people were killed, one nearly killed and one kidnapped.
[9] Ordinary citizens cannot be blamed
for constantly living in fear for their lives, never mind only for
the safety of their possessions,
so much so that they either spend
thousands of Rands to, try and create safe havens to live in and
vehicles to travel in; emigrate;
take the law into their own hands;
or, simply cringe at the thought of venturing the streets or even to
stay at home because it
would appear that there is nowhere to hide
and no way in which one can properly defend oneself. According to
many psychiatrists
and psychologists, the psychiatric condition or
illness known as post traumatic stress disorder (PTSD) has become the
order of
the day, not only as a result of people having served in the
armed forces or the police, but also for having fallen victim to
robberies
and murders, rapes and other rapacious violence that they
witness or are forced to witness. Quite often PTSD leads to sufferers
thereof committing crimes themselves, which goes to show how sick
society that we live in has become. I can only imagine what fears
must go through someone's mind when a gun is pressed against his head
before he is killed, before someone else is killed in front
of him,
or just knowing that there is a possibility of him or someone else
being killed. How must it feel to be bundled into the
boot of one's
own car by a bunch of armed thugs, not knowing whether further
torture or the ultimate price of death is merely being
delayed?
[10] It is therefore not surprising
that Parliament has decided to call for consistent heavy sentences
(called 'minimum sentences')
to be imposed by courts whenever people
are convicted of crimes like these. It is also not surprising that
courts tend to up sentences
for such crimes and that, sometimes,
courts are tempted to make sure that convicted criminals are never
again allowed to roam the
streets, still being able to commit crimes.
One must remember that before the death penalty
14
was held to be unconstitutional,
15
robbery with aggravating circumstances was still regarded as a
capital crime for which the ultimate penalty could be (and sometimes
was) imposed, failing which, life imprisonment or, at least, lengthy
periods of imprisonment in excess of the minimum sentences
that are
currently called for by law were often imposed. These considerations,
and the constant increase in South Africa of these
kinds of brutal
crimes, have at occasion led to the Supreme Court of Appeal
increasing sentences on appeal.
16
[11] The only attack against the
sentence imposed on appellant that has, at least, some merit, is that
the cumulative effect thereof
could arguably be perceived to be too
heavy. The effective gaol term, as we have seen, is fifty (50) years
imprisonment, which
is an exceptionally long time by anyone's
standard. This concerns the debate on what, ideally, the maximum term
of imprisonment
should be that can be imposed if life imprisonment is
not imposed, or where a convicted person has not been declared an
habitual
criminal or a dangerous criminal in terms of sections 286,
286A and 286B of the Criminal Procedure Act
17
(the Criminal Procedure Act). (The effect of the latter orders will
however not be considered since they were neither considered
nor
imposed
a quo
- since the need did not arise.) It must however be said here that a
distinction is to be drawn between the 'sum total' of various
sentences imposed and the 'effective' sentence imposed taking into
account the cumulative effect of the sentences. In some instances,
like here, the length of the individual sentences individual
sentences might be legally unassailable, but, the effective term of
imprisonment might tend to shock, justifying interference on appeal.
[12] Before the death penalty was
abolished, life imprisonment was seldom imposed and almost never
served to the end of a person's
natural life. Originally, such a
sentence was regarded as a sentence equal to twenty (20) years
imprisonment, simply because someone
sentenced to life imprisonment
(lifer) could be considered for parole after having served twenty
(20) years imprisonment. Notably
after the abolition of the death
penalty, this perception led to some judicial officers resorting to
the imposition of what may
be called 'Methuselah sentences. These are
single sentences
18
or effective sentences
19
running, for example, to periods in excess of twenty five (25) or
even a hundred (100) or a thousand (1,000) years - just to make
sure,
where he is considered a danger to society, that a convicted person
is not released on parole after having served only twenty
(20) years.
This constitutes a practice which, at more than one occasion, the
Supreme Court of Appeals has warned against and intervened
with.
20
[13] This stance of the Supreme Court
of Appeals has now changed somewhat come the judgment of
S
v Mafoho
,
21
a judgment which has been handed down in March this year and only
recently reported. It would appear that the Supreme Court of
Appeals
is now prepared to uphold so-called 'Methuselah sentences' just
because Parliament has now determined that all persons
serving
extremely lengthy sentences must now, like people who have been
sentenced to life imprisonment (lifers), be considered
for release on
parole at a much earlier date.
22
I will deal with this judgment, its impact and binding or non-binding
nature, and criticism that can be leveled against that judgment
in
more detail below.
[14] Theoretically a High Court can
impose any term of imprisonment besides life imprisonment; but, in
practice,
23
and based on the perception that existed before the new legislation
that entrenches policies of parole saw the light of day,
24
that a life sentence can be equated to twenty (20) years
imprisonment, a sentence of twenty five (25) years has been regarded
as so long that it was rarely imposed, almost never exceeded, and
only in the most exceptional cases.
25
Obviously, therefore, if an effective sentence of imprisonment
imposed on one or on more than one count exceeds twenty five (25)
years, eyebrows in the Appeal Court would normally rise; and, more
often than not, courts of appeal would intervene if that was
the case
and if the exceptionally long period of imprisonment cannot be
justified.
26
I will deal with the current non-parole period for lifers below and
the concomitant adjustment of the 'outer bound' of prison sentences
other than life.
[15] Professor Bekker expresses the
view that life imprisonment is not the most severe sentence that a
High Court, or even a Regional
Court nowadays under the Minimum
Sentencing Act, can impose.
27
In the light of the current legislation regulating the parole system
for sentenced prisoners, which I will elaborate on in more
detail
below, I do not think that his proposition is still correct in every
sense, except in the case where someone is declared
to be a dangerous
criminal, which might result in someone actually being detained until
the end of his or her natural life where
the courts refuse to set him
or her free.
28
But, assuming that he is, the question however remains what the
maximum period of effective imprisonment is that a court can (or
rather should) impose today for the sentence to remain a balanced,
sensible and proper one in terms of judicial policy - which
is of
course aimed at protecting society at large and to instill confidence
in the criminal legal system of this country, but also
at the humane
treatment of sentenced prisoners.
[16] In post-Methuselah Biblical
terms, no person can usually live beyond the age of one hundred and
twenty (120) years,
29
but the Biblical norm is that an age of only in the region of seventy
(70) to eighty (80) years is generally reached.
30
We all know that for someone today to reach an age of, say, ninety
five (95) or a hundred (100) years would be regarded as an extreme
blessing,
31
and an age beyond that, a wonder of some sorts. In South Africa
today, generally speaking, life expectancy of individuals is in
the
region of 59.6 years.
32
So what, might one ask, is the purpose of sentencing a forty (40)
year old individual like the appellant to an effective term of
fifty
(50) years imprisonment if one is not going to sentence him to life
imprisonment? And, if that is too much, what would a
more appropriate
term of effective imprisonment be? If he serves the full sentence, he
would be ninety (90) years old when he is
released.
[17] These questions are not easy to
answer, but, in the light of the current trend by some courts to
impose unreasonably long prison
sentences, perhaps the time has come
for courts of appeal to determine where the outer bounds of
appropriateness lie or should
lie; and, to provide guidance to
sentencing courts in this regard without being too prescriptive and
binding. Besides determining
the outcome of the appeal, this is what
this judgment further aims at.
[18] Before attempting to make this
determination, one perhaps has to muse at the fact that, in addition
to life imprisonment for
murder, some of appellant's co-accused
received astronomical sentences of imprisonment in addition to life -
accused no 1, one
hundred and seventy (170) years;
33
accused no 2, one hundred and five (105) years;
34
accused no 3, one hundred and forty eight (148) years;
35
accused no 4, one hundred and ten (110) years imprisonment;
36
and, accused no 7, one hundred and five (105) years imprisonment.
37
Accused no 6, Grootboom, was, like the appellant, not convicted of
any of the counts of murder and, therefore, she did not receive
a
sentence of life imprisonment. She was however convicted on two of
the same counts of robbery with aggravating circumstances
as was
appellant, for which she received fifteen (15) years imprisonment on
each count; and, on the same count of kidnapping, for
which she
received five (5) years imprisonment. As in the case of appellant,
her sentences were not ordered to run concurrently,
meaning that her
effective sentence is one of thirty five (35) years imprisonment.
Although most of them, including Grootboom,
petitioned the Supreme
Court of Appeal, none of the mentioned accused persons received leave
to appeal their sentences, only the
appellant did.
[19] Mr Tlake argued on strength of
the heads of argument drawn up by his colleague that appellant's
effective sentence should be
reduced to no more than twenty (20)
years imprisonment; but, after he has reconsidered the seriousness of
the offences and the
effective sentences imposed on the co-accused
persons who did not receive leave to appeal, he conceded that it
should be reduced
to a more reasonable period. Ms Scheepers (for the
state)
38
argued that the imposed sentence is an appropriate one, but, if the
Court does reduce the effective sentence of appellant, it should
not
be reduced to less than the sentence that accused no 6, Grootboom,
received and that his effective sentence should then be
in the region
of between thirty five (35) and fifty (50) years imprisonment. In the
light of what was said above, and, in the light
of the fact that
courts should always strive to obtain parity of sentences as far as
co-perpetrators convicted of the same offence
are concerned,
39
Ms Scheepers' argument appears to be the more acceptable of the two.
[20] This still leaves one with the
question as to what the correct sentence in appellant's case should
be and what guidance, if
any, should be given to sentencing courts as
to what, ideally, should the longest (effective)
40
term of imprisonment be that is usually to be imposed besides life
imprisonment or the indeterminate sentences of habitual criminals
and
dangerous criminals.
[21] In our opinion, the answer
should partially lie in what the current effect and/or perception of
life imprisonment is. No sentence
of imprisonment should, logically,
be longer than what life imprisonment is, otherwise one can just as
well coin another phrase
to refer to what is known as 'life
imprisonment' today and discard the idea that it is to be regarded as
the heaviest sentence
that can be imposed in the Republic of South
Africa.
41
The other accused persons that were mentioned above, who received
sentences of life imprisonment besides the astronomical sentences
of
imprisonment imposed on other counts, will have to serve no more than
life imprisonment since all other sentences of imprisonment
imposed
together with a sentence of life imprisonment, are automatically
absorbed by the sentence of life imprisonment; or, in
other words,
are being served concurrently with any sentence of life, simply
because life imprisonment is the ultimate sentence
that can be
imposed.
42
It also matters not whether a convicted person receives one or more
terms of life imprisonment in any one case - he will serve
only one
period of life imprisonment. In practice, whether one has received
one or twenty terms of life imprisonment, effectively,
it will be
regarded by the relevant authorities as only one sentence of life
imprisonment.
[22] This begs the question as to
what life imprisonment really is. In terms of section 73(1)(b) of the
Correctional Services Act,
43
a person sentenced to life imprisonment remains in prison for the
rest of his or her natural life. Now that sounds rather unambiguous.
But, as most of the time where punishment is concerned, things are
not always as they seem. If a prisoner sentenced to life imprisonment
remains alive for quite some time and, if he or she is not already an
old person when he or she is sentenced to life imprisonment,
the
possibility of parole before one dies was always almost omnipresent.
As was stated above, life imprisonment in the past was
for this very
reason in practice regarded as a sentence of twenty (20) years
imprisonment,
44
and, if something longer was imposed, it would only be twenty five
(25) years imprisonment, the outer limit reserved for exceptional
cases.
45
The Nett effect of this approach is that criminal jurisprudence in
this country would dictate that sentences of non-life imprisonment
should usually not be in excess of approximately five (5) years more
than what life imprisonment effectively in practice boils
down to
taking parole policies and practice into account..
[23] Today, life imprisonment still
holds the promise of early release on parole,
46
although the law has changed somewhat, most probably because the
Constitutional Court in
Makwanyane
and the Supreme Court of Appeal in
Silulatle
,
alluded to above, held that life imprisonment could be regarded as an
effective alternative for the death penalty as the ultimate
punishment that can be imposed; and, that it should therefore,
ideally, mean that a person should remain in prison for the rest
of
his natural life as the term implies. This is, however, where the
problem is exasperated. Although section 73(1) of the Correctional
Services Act
47
creates the impression at first read that a person sentenced to life
imprisonment remains in prison for the rest of his or her
life and,
in addition, that other sentenced prisoners remain in prison for the
full period of the sentence, a proviso in that section
makes the
provision subject to other portions of the Act. It reads:
"(1)
Subject
to the provisions of this Act
-
(a) a sentenced prisoner remains in
prison for the full period of sentence; and
(b) a prisoner sentenced to life
imprisonment remains in prison for the rest of his or her
life." (Own italics.)
[24] The other provisions of the Act
that this provision is made subject to, of course relate to the
current parole release policies
incorporated into legislation, of
which the ones relating to parole where life imprisonment was imposed
were clearly inserted into
law to still the fears of the public (and
the courts) that prisoners serving life sentences would be released
at a too early stage
- in other words, before they have been
rehabilitated or rendered more or less harmless as far as the
commission of serious crimes
are concerned. As we have seen, in the
past, life sentences were for this very reason regarded as equivalent
to a sentence of twenty
(20) years imprisonment, and, therefore,
today it should be regarded as the equivalent of twenty five (25)
years imprisonment.
The parole provisions in the Correctional
Services Act that are relevant for this judgment can be summarized as
follows:
(1) A person sentenced to
life
imprisonment
may not be
placed on parole until he or she has served at least
twenty
five (25) years
of the
sentence; but such a
prisoner may, on reaching the age of sixty five (65) years,
be placed on parole after he has served
at least fifteen (15)
years of the sentence.
48
Most importantly, however, a lifer is not released on
parole by the Parole Board as in other cases, the
Minister
may on application release him or her on parole after
considering the Board's recommendation.
49
It must be noted here already that this option has not
been statutorily entrenched for other sentences of
imprisonment as is the case of life sentences. In such
cases, sentenced prisoners are released by the Parole Board
itself, without the Minister
intervening.
(2) In
other
cases
(imprisonment other
than life imprisonment), the following apply:
(a) When the sentencing court makes
no order regarding parole, the non-parole period is usually
half
of the sentence
; but,
parole
must in all cases
(regardless of whether the relevant prisoner is serving individual
sentences or cumulative sentences)
be
considered
after
the expiry of
twenty five
(25) years
,
50
and may
be
considered in cases where the prisoner reaches the age of sixty
five (65) years, provided that he or she has already served
at
least fifteen (15) years of the sentence.
51
When the court has however ordered a non-parole period to be
applicable in terms of section 276B of the Criminal Procedure
Act,
parole may generally not be considered at all before the expiry of
that period, but section 276B(1)(b) of the latter
Act again
contains similar limitations than the Correctional Services Act,
namely, the maximum non-parole period that can
be fixed is either
two thirds
of the sentence or
twenty five (25) years
,
whichever is the shorter.
52
Section 276B(1)(c) of the same Act further makes it clear that,
where sentences on more than one count are ordered to run
concurrently, the non-parole period, if ordered,
53
shall make the non-parole period applicable to the
effective
period of imprisonment, not to individual sentences. The latter
proviso appears to be of no assistance in this matter
since the
presiding judge did not order appellant's sentences to run
concurrently, which is exactly the question that we should
decide,
namely whether concurrent running should be ordered.
54
(b) In the case of offences
contemplated in section 51 of the Minimum Sentencing Act (as is
the position with the three counts
of robbery with aggravating
circumstances that the appellant had been convicted of) the
offender may not be placed on parole
before at least
four
fifths
of the sentence
has been served
or
twenty five
(25) years
,
whichever is the shorter period; but the court may order that he or
she be considered for parole after he or she has served
two
thirds
of such term.
55
[25] From the emphasis added to the
above observations it is abundantly clear that, at least as far as
the parole policies of the
Department of Correctional Services (an
extension of the executive arm of government); and, also as far as
the leeway afforded
sentencing courts to interfere with parole
policies by ordering non-parole periods in terms of section 276B of
the Criminal Procedure
Act are concerned, the maximum effective term
of imprisonment that must be served before a convict
must
be considered for release on parole, is twenty five (25) years. In
other words, it does not matter what the effective length of
the
sentence is, whether life imprisonment, thirty one and a quarter
(31,25) years in the case of minimum sentences under the Minimum
Sentencing Act, fifty (50) or more years under normal circumstances
(where section 51 of the Minimum Sentencing Act is not applicable)
or
where a sentencing court has ordered a non-parole period, the
intention of the Executive arm of government is clear, all prisoners
that have served at least 25 years behind bars,
must
be considered
for
release on parole
.
[26] This is what influenced the
Supreme Court of Appeal in
Mafoho
not to interfere with an effective sentence of two hundred and
seventy five (275) years imprisonment.
56
With the greatest of respect, and with all due deference to the
stature of the Supreme Court of Appeals, however, it appears from
the
Mafoho
judgment that the Court did not have regard to two very important
things:
(1) Although all prisoners serving
determinate sentences of imprisonment (not life imprisonment or
declaration as habitual criminal
or dangerous criminal) must now in
terms of current legislation be
considered
for release on parole after the expiry of twenty five (25) years, no
guarantee exists that such prisoners will necessarily be
released on
parole when their cases are considered by the Parole Board. In the
discretion of the Parole Board, for example, where
such prisoners
have not been rehabilitated or where the complainants / victims
request their non- release, the Board may refuse
parole and order
that the prisoner serve the entire sentence. The Board's decision is
usually regarded as final, except if the
Minister or Commissioner
refers the matter to the Parole Review Board.
57
(2) The Minister and all the high
officials in the Department of Correctional Services are involved in
deciding whether lifers
should be granted parole, and one would
expect that everyone involved will see to it that the legislative
prescripts in this
regard are observed. This is not the case where
other sentences of imprisonment are concerned. What would now happen
if the Parole
Board or employees of the Department of Correctional
Services omits to consider someone's release (perhaps by
miscalculating
the non-parole period where different sentences by
different courts have been imposed); or, for flimsy reasons, decide
not to
release someone on parole? This would mean that, unless a
High Court exercises its inherent power to review a decision of the
Parole Board not to release a specific prisoner, such a prisoner
might find himself in a spot of trouble if the Parole Board
refuses
to order his release. If this happens in
Mafoho
's
instance, where would he be able to obtain redress for being treated
worse than a lifer?
The Court's opinion that the issue has
become academic so that interference is not necessarily required in
the case of Methuselah
sentences can therefore not be supported.
This, coupled with the fact that the Court has not expressly
overturned
Nkosi
,
58
but, instead, hinted that the Regional Court's effective sentence
cannot necessarily be regarded as 'appropriate', to our mind
brings
about a situation where the
Mafoho
judgment does not provide for binding precedent. Furthermore, the
Supreme Court of Appeal's jurisprudence thus far have always
been
that a sentencing court should not consider the possibility of
release on parole when determining an appropriate sentence,
but that
the sentence imposed must be one which the court intends as the
ultimate punishment that should be served, and that release
on parole
is a function of the Executive arm of government that courts should
not lightly interfere with.
59
These earlier decisions of the Supreme Court of Appeal have also not
been overturned, and remain binding - which in itself questions
the
binding nature of
Mafoho
.
Moreover, the facts in the current matter differ from the facts in
Mafoho
,
and the latter case might be in need for reconsideration.
[27] As was already hinted above, the
Department of Correctional Services, the Parole Board or their
employees are empowered to
consider such things as recommendations
for parole, might not interpret the parole legislation correctly or
refuse parole for flimsy
reasons, which means that a person, although
legally entitled to be considered for release on parole, might not
be released when
he should. This is not a far-fetched speculative
hypothesis as the premature release of some of the so-called
'Waterkloof Four'
due to a miscalculation of the legislative
requirements bears testimony. The same mistake can just as easily be
made regarding
an omission to consider or refusal to release on
parole. Once again, therefore, sentencing and appeal courts should
not rely on
the current parole provisions and policies when
determining an appropriate sentence. While the date for consideration
to be released
on parole is now the same for everyone, lifers or
people sentenced to otherwise unreasonably long periods of
imprisonment such
as one hundred (100) years, the fact remains that
some of them might not be so considered or released, and their
remedies might
be limited to obtain redress. No one can lose sight
hereof, especially not sentencing courts or courts of appeal. Parole
is the
function of the Executive arm of government, and the courts
should steer well clear of interfering unless authorized by law to do
so.
[28] Nevertheless, the aforementioned
measures pertaining to parole for lifers and other sentenced
prisoners clearly convey the
impression that Parliament has intended
to decree that, just like a sentence of life imprisonment has been
regarded as equivalent
to twenty (20) years imprisonment under the
dispensation before the new Correctional Services Act became
effective, so that a heavier
punishment than twenty five (25) years
were almost unthinkable at the time;
60
life imprisonment today should be regarded as equivalent to twenty
five (25) years imprisonment
,
so that a heavier punishment than thirty (30) years should not be
lightly considered.
61
[29] We are fortified in this
conclusion because of the fact that, where a Regional Court
(concededly not a High Court) acts under
section 51(1) of the Minimum
Sentencing Act,
62
and it finds that substantial and compelling circumstances exist
justifying the imposition of a lesser sentence than life
imprisonment,
the jurisdiction of a Regional Court is not extended to
an unlimited period of imprisonment such as the High Court
theoretically
may impose, but to a maximum of thirty (30) years
imprisonment.
63
This, effectively means that, taking into account that where minimum
sentences are concerned, at least four fifths of the sentence
must be
served, the effective non-parole period would be twenty four (24)
years if the maximum of thirty (30) years is imposed
by a Regional
Court - one (1) year less than what would have entitled someone
sentenced to life imprisonment to be considered for
parole. It is
also interesting to muse at the fact that the maximum term of
imprisonment that can be imposed by a Regional Court
under section
51(2) of the Minimum Sentencing Act, which does not require life
imprisonment, is thirty (30) years imprisonment
in the case of a
third or subsequent offender convicted of an offence mentioned in
Part II of Schedule 2 of the Minimum Sentencing
Act.
64
[30] I find it instructive that
Parliament has decided to limit the maximum penal jurisdiction of the
regional courts, otherwise
entrusted with the power to impose life
imprisonment in certain circumstances, to thirty (30) years
imprisonment in cases where
life imprisonment is not imposed. Is
Parliament not trying to tell us something? That, where minimum
sentences are concerned, one
should ideally not impose more than
thirty (30) years imprisonment, even where a High Court imposes such
sentence, unless, of course,
a High Court utilizes its discretion to
impose life imprisonment? There is by the way no prohibition for a
High Court to impose
the maximum penalty for any crime, which should
be life imprisonment now that the death penalty has been abolished,
especially
in the case of robbery with aggravating circumstances
that, pre-
Makwanyane
,
65
was still regarded as a capital crime for which the death penalty
could be imposed.
66
In this regard it is important to note that in the case of
Nkosi
and Others
alluded to
above,
67
even where one of the appellants in a 'taxi violence' matter was not
convicted of murder like the other appellants that received
'Methuselah sentences' of one hundred and twenty (120) and sixty five
(65) years imprisonment,
68
and who was sentenced to an effective term of forty five (45) years
for having committed two offences under the Riotous Assemblies
Act,
69
his sentence was, like that of his co-appellants set aside and
replaced with the ultimate penalty, life imprisonment. In our view,
this judgment pronounced a basic principle - the Supreme Court of
Appeal is (or was) of the opinion that no sentence of imprisonment
should perceivably exceed what life imprisonment would effectively
mean for a person to be released on parole.
[31] It is also instructive to note
that, while the provisions referred to above, besides perhaps section
276B(1)(c) of the Criminal
Procedure Act alluded to above,
70
do not refer to 'effective' terms of imprisonment, meaning that the
cumulative effect of sentences have to be taken into account.
It is
quite clear from the intention of the legislature, the Constitutional
Court in
Makwanyane
and the Supreme Court of Appeal in
Nkosi
and Others
alluded to
above, that no sentence of imprisonment should perceivably be higher
than what life imprisonment effectively entails.
Life imprisonment
should remain the ultimate sentence that a South African court can
impose today.
71
Furthermore, in our view, the Supreme Court of Appeal has also
already expressed itself in
Mhlakaza,
in
Maseola
and in
Johaar
that,
normally effective sentences on cumulative counts of between forty
(40) and fifty (50) years would exceed 'acceptable limits'
of
imprisonment other than life imprisonment; and, therefore effective
sentences of thirty (30) years in
Maseola
;
thirty eight (38) years in
Mhlakaza;
and thirty (30) years in
Johaar
were held to be within the 'norm' that should be imposed (either
a
quo
or on appeal) where
life imprisonment is not imposed.
72
[32] In the light of the above, I am
of the opinion that, when a court, be it a High Court, a Regional
Court or even a District
Magistrate's Court in the case of multiple
counts where the maximum of three (3) years imprisonment can
sometimes be imposed per
count, sentencing courts should be wary of
taking into account the parole legislation and policies expounded on
above. This is
so, particularly because, even when considered, a
prisoner might not necessarily qualify for release on parole.
Sentencing courts
should further not impose effective sentences (as
opposed to individual sentences on each count) of imprisonment that
exceed the
above guidelines. In other words, effective sentences (as
opposed to individual sentences on each count) imposed under section
51(1) or (2) of the Minimum Sentencing Act should not perceivably
exceed life imprisonment.
73
(In other words thirty one (31) years and three (3) months
imprisonment.)
74
Effective sentences (as opposed to individual sentences on each
count) imposed in any other circumstance should not exceed a period
of fifty (50) years imprisonment, because after half has been served
- twenty five (25) years - the prisoner will in any event
become
entitled to parole, just like someone sentenced to life imprisonment.
The Supreme Court of Appeal has however already indicated
that
sentences of between forty (40) and fifty years (50) would usually be
regarded as inappropriate,
75
meaning that effective sentences of between thirty (30) and forty
(40) years should rather be considered.
[33] A further consideration is of
importance, namely the general life expectancy of people in South
Africa today, namely almost
sixty (60) years; as well as the fact
that a lifer or other sentenced prisoner that has reached the age of
sixty five (65) years
76
during his imprisonment is entitled to be considered for release on
parole much earlier than others.
77
Would it make sense, therefore, that a sentencing court should impose
an effective sentence of fifty (50) years imprisonment on
a person
that is already forty (40) years old. If he is not released on
parole, and examples like these exist, for example the
Derby-Lewis
matter,
78
such a person might be ninety (90) years old before he is released -
that is if he does not die before. On an optimistic assumption
that
someone in the position of the appellant might reach an age of eighty
(80) years, his effective sentence should in the light
of what has
been said above not have been more than forty (40) years
imprisonment, just in case he is not released on parole when
considered after twenty five (25) years as the law requires he should
be considered. After twenty five (25) years he would already
be
sixty five (65) years old. As a general guideline, therefore, we
would venture that, where a sentencing court imposes sentences
that
do not include life imprisonment, the cumulative effect of which
would be above thirty (30) years, the court should ideally
not impose
an effective sentence that, added to the convict's age at the time of
sentencing, would exceed eighty (80) years so
that, if he is not
released on parole after having been considered for such release, he
or she will only be released at the age
of eighty (80), should he be
so fortunate.
[34] The public yearning for
retribution, prevention and deterrence of crimes will still be
satisfied where it learns via the media
that a person has, for
example, been sentenced to a total of one hundred (100) years, but,
that his or her effective sentence will
be that, if he is not
released on parole, he will only leave prison at the age of sixty
(60), seventy (70) or eighty (80). It however
becomes ludicrous if a
person (even a teenager) is sentenced to one hundred (100) years
imprisonment.
[35] Thus, it does not matter whether
the sum total of the sentences imposed on individual counts, as in
this matter, exceeds the
effective sentences that have been expressed
above to be desirable, a sentencing court should always be mindful to
bring the effective
sentences to a period within these guidelines.
This is exactly why section 280 of the Criminal Procedure Act has
been placed on
the statute book.
79
Even though the language in section 280 has been couched in a way
providing for a discretion to order concurrent running, if
legislative,
judicial and juridical policy dictates, as I think it
does, that no effective sentence (as opposed to sentences imposed on
individual
counts) should be above what the perceived effect of life
imprisonment is, I am of the opinion that courts are enjoined to
utilize
section 280 of the Criminal Procedure Act to bring the total
effective sentence in line with these guidelines.
[36] In the light of what was said
above, especially taking into account the legislative and policies
surrounding release on parole,
we are of the opinion that the trial
court
in casu
could just as well have imposed sentences of life imprisonment on
both the appellant and Grootboom, who was sentenced to an effective
term of thirty five (35) years imprisonment, but did not receive
leave to appeal the sentences as did the appellant. But then
again,
would it be fair if he is also sentenced to life imprisonment like
his co-accused who have been convicted of many more counts,
including
murder? Grootboom's case is much closer to the ideal effective
sentence advocated above should have been the maximum
that the trial
court should have considered than what appellant's is. Applying
normal principles applicable to parole, she would
have to serve four
fifths of the thirty (30) years imprisonment imposed on the two
counts of robbery with aggravating circumstances
- i.e., twenty four
(24) years - and half of the five (5) year sentence imposed on the
kidnapping count - i.e., two and a half
(2,5) years. This amounts to
a total non-parole period of twenty six and a half (26,5) years,
which is close enough to the maximum
non-parole period of twenty five
(25) years, as is the case with life imprisonment, and will not
really raise eyebrows in a court
of appeal. Applying normal parole
principles to appellant's matter, however, boils
down to the following. He will have to
serve four fifths of the forty five (45) years imposed on the three
robbery with aggravating
circumstances count - i.e., thirty six (36)
years - and half of the five (5) year sentence for kidnapping - i.e.,
two and a half
(2,5) years. The total non-parole period would
therefore in his case amount to thirty eight and a half (38,5) years,
which is more
than twelve (12) years above the threshold compared to
what his co-accused, that have been sentenced to life imprisonment,
would
have to serve. As it is said in Afrikaans: 'Dit skree tog ten
hemele.'
[37] Fortunately, in the cases of
Grootboom and appellant, the legislative framework surrounding parole
release policy discussed
above, would in the end mean that the two of
them will also be considered for parole after twenty (25) years, just
like their co-accused
that have been sentenced to life imprisonment.
The persuasive force on the Department of Correctional Services that
the imposition
of extremely lengthy sentences, or the fixing of
non-parole periods, whether impliedly or in terms of section 276B of
the Criminal
Procedure Act, or even a recommendation of a non-parole
period before section 276B became operative, should not be
underestimated
and is a practice that should be applied with
caution.
80
In any event, a non-parole period, with a maximum of twenty five (25)
years, should not be considered and ordered by a sentencing
court in
terms of section 276B before allowing Counsel for the state and the
accused to address the court on that issue, and after
having properly
considered the fact that the trial court's purpose is pre-eminently
to determine a proper sentence of what the
trial court thinks should
be served, and not to prescribe to the Executive arm of government
how the execution of sentences should
be done.
81
[38] In the light of the above it is
proposed that an order in the following terms be made:
(1) The appeal in respect of sentence
succeeds in as far as the effective sentence of fifty (50) years
imprisonment is inappropriate
and induces a sense of shock.
(2) The sentence of fifteen (15) years
imprisonment imposed on each of counts 13, 14 and 17 is confirmed.
It is, however, ordered
that five (5) years of the sentence on count
14 and five (5) years of the sentence on count 17 should run
concurrently with the
sentence on count 13. An effective term of
thirty five (35) years imprisonment is therefore imposed in terms of
section 51(2)(a)(i)
of the Criminal Law Amendment Act 105 of 1997.
(3) The sentence of five (5) years
imprisonment imposed on count 19 is confirmed. It is ordered that
three (3) years of the sentence
on this count run concurrently with
the sentence on count 17. An effective term of two (2) years
imprisonment is therefore imposed
in terms of section 276(1)(b) of
the Criminal Procedure Act 51 of 1997.
(4) The total effective sentence is
therefore thirty seven (37) years imprisonment. Appellant shall be
considered for parole after
a period of twenty five (25) years has
been served, subject to the Correctional Services Act, 111 of 1998.
(5) The sentences mentioned above
are, in terms of
section 282
of the
Criminal Procedure Act 51 of
1977
, antedated to the date of the original sentence, namely 28
September 2004.
(6) A copy of this whole judgment be
supplied to the Department of Correctional Services.
____________________________
AA LAMPRECHT
ACTING JUDGE OF THE NORTH GAUTENG
HIGH COURT
I
agree
____________________________
MG
PHATUDI
ACTING JUDGE OF THE NORTH
GAUTENG HIGH COURT
I
agree and it is so ordered
Representation
for the applicant
:
Counsel: Adv E Tlake
Instructed
by: Legal Aid South Africa
Pretoria
Justice Centre
2
nd
Floor FNB Building
206
Church Street
Pretoria
Representation
for respondent
Counsel: Adv S Scheepers
Instructed
by: Director of Public Prosecutions
High
Court
Pretoria
1
Accused no 5 in the court
a
quo
- Van der Byl AJ presiding.
2
Accused no 6 in the Court
a
quo
.
3
Accused no 1 in the Court
a
quo
.
4
And accused no 1 in the Court
a
quo
.
5
Counts 13, 14 and 17 in the Court
a
quo.
6
Count no 19 in the Court
a
quo
.
7
Imposed in terms of
s 51(2)(a)(i)
of the
Criminal
Law Amendment Act 105 of 1997
as amended, the so-called 'Minimum
Sentencing Act', Van der Byl AJ having found that no substantial and
compelling circumstances
existed justifying a lesser sentence..
8
Heher JA and Bertelsmann AJA on 18 August 2010.
9
The matter was however argued by Adv E Tlake from
the Legal Aid Board since Henzen-Du Toit could not make it to court
for some
or other undisclosed reason.
10
S v De Jager and Another
1965 (2) SA 616
(A);
S v Rabie
1975 (4) SA 855
(A);
S v Petkar
1988 (3) SA 571
(A) at 574C.
11
S v Pillay
1977
(4) SA 531
(A) at 535E-G;
S v Holder
1979 (2) SA 70
(A). See also
S v
Mhlakaza and Another
1997 (1) SACR 515
(SCA).
12
See s 51(3)(a) of the Minimum Sentencing Act.
13
S v Malgas
2001
(2) SA 1222
(SCA) at 1235F-1236E;
S v
Riekert
2002 (1) SACR 566
(T) at
570b-571a.
14
This judgment has nothing to do with the debate
on whether the death penalty should be reintroduced and this
argument is employed
solely to emphasise the seriousness of the
crime of robbery where aggravating circumstances are involved.
15
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC).
16
E.g.,
DPP,
KwaZulu-Natal v Ngcobo
2009 (2) SACR
361
(SAC) 361 - a sentence of 18 years imprisonment for murder and
12 years for robbery with aggravating circumstances substituted
with
sentences of life and 15 years imprisonment respectively.
17
Act 51 of 1977 as amended.
18
E.g., a Judge may have decided to impose, say 100
years imprisonment for murder instead of life.
19
E.g., Judges,
Regional Magistrates (and even
District Court Magistrates) deciding to impose effective sentences
on various individual counts
of up to or even exceeding 100 years
imprisonment without ordering concurrent running.
20
E.g., see
S v Nkosi and Others
2003 (1) SACR 91
(SCA)
effective sentences of 120 years, 65 years and 45 years imposed on
various appellants set aside and replaced with sentences
of life
imprisonment.
21
S v Mafoho
2013 (2) SACR 179
(SCA) - a decision of which we
were unaware and our attention has been drawn to it for the first
time during argument by Adv
Scheepers arguing the matter for the
Respondent.
22
In the latter matter, the SCA (after an unsuccessful appeal to two
Judges of this Division (Makgoba J and Davis AJ) upheld a
Methuselah
effective sentence emanating from the Regional Court, Polokwane, of
275 years! The SCA rejected appellant's submission
that he, like the
appellants in
Nkosi and Others supra
footnote 17, qualified
for substitution of his effective sentence of 275 years with life
imprisonment so that he could qualify
for parole after 25 years,
mainly because the Regional Court did not have the jurisdiction,
even under the Minimum Sentencing
Act to impose life imprisonment on
any of the counts of which appellant was convicted (60 counts of
robbery with aggravating
circumstances, attempted murder, rape,
attempted rape, kidnapping and pointing of a fire arm). After
considering that the appellant
would in any event under the new
parole legislation qualify for release on parole after 25 years have
been served, just like
someone sentenced to life imprisonment, the
Court (Mbha AJA - Mthiyane DP, Shongwe JJA, et Schoeman, Swain AJJA
concurring) further
remarked at para [21] of the judgment: "
The
appellant is entitled to be considered for parole once he has served
25 years of his term of imprisonment. There is accordingly
no need
to interfere with the sentence imposed in order to ameliorate its
effect. This is not to say the sentence imposed by
the regional
court is appropriate (it clearly being a Methuselah sentence) but to
interfere with it would, in the circumstances
of this case, be
purely academic because, as I have already indicated, the
legislature has stepped in to ameliorate the position
of the person
subjected to that sentence, by directing that he or she will be
considered for parole once 25 years of the sentence
has been served.
The appeal against sentence must therefore fail."
23
Based thereon that, earlier, life imprisonment
was regarded as the equivalent of 20 years.
24
To be dealt with
infra
.
25
R v Mzwakalala
1957 (4) SA 273
(A) at 278E;
S v Whitehead
1970(4) SA 424 (A) at 438F-H;
S v Sibiya
1973 (2) SA 51
(A);
S v
Skenyana
1985 (3) SA 51
(A) at 55H-I; S
v M
1993 (1) SACR 126
(A) at 134a-i; and
S v Nkosi
1993 (1) SACR
709
(A) at 717b-c. See also the American Bar Association Standards
Relating to Sentencing, Alternatives and Procedures (1968) 56, 59:
"A term of 25 years should be the 'outside limit for extreme
cases'."
26
S v Nkosi and Others supra
footnote 20. There are various other examples where the SCA or High
Courts intervened in cases where the effective sentences
were
regarded as too high. E.g.,
S v
Mhlakaza and Another
1997 (1) SACR 515
(SCA) - determinate sentence of one appellant reduced from 47 years
to the same sentence than that the other appellant received,
namely
38 years imprisonment. Notably the SCA held that life imprisonment
would have been a more appropriate sentence that could
have been
imposed before holding: "In any event, had I not considered a
life sentence to be justified I would have regarded
an effective
sentence of 47 years as exceeding acceptable limits." See also
S v Maseola
2010 (2) SACR 311
(SCA) where the SCA, referring to
Mahlakaza
,
reduced an effective sentence of 43 years imprisonment to 30 years.
In
S v Johaar
2010
(1) SACR 23
(SCA), the SCA commended the regional magistrate for
utilizing
s 280
of the
Criminal Procedure Act to
ameliorate the
effect of long sentences by ordering concurrent running so that a
total sentence of 58 years was reduced to an
effective term of 30
years, and one of 26 years was reduced to 16 years, which resulted
in the appeal being dismissed and the
sentences upheld. In
S
v Schrich
2004 (1) SACR 360
(C), a
total effective sentence of 33 years for six counts of attempted
murder and fire arm offences was considered as too heavy
and reduced
to 20 years.
27
Peet M Bekker "The maximum length of
imprisonment by South African Courts: Life, dangerous criminal or 60
years?"
2002 (15)
SACJ
207
at 222. See also in general Peet M Bekker "The maximum
length of imprisonment imposed by South African courts after the
constitutional abolition of the death penalty: a comparative note in
the position in the United States of America" 2000
CILSA
136.
28
S 286B
of the
Criminal Procedure Act.
29
Gen 6:3
30
Ps 90:9-10.
31
That is ìf one can regard reaching such an
age a blessing, especially where one lacks the means for proper
medical care
and sustenance.
32
http://www.health24.com/Medical/HIV-AIDS/News/One-in-10-in-SA-HIV-positive-20130514.
33
He was convicted of 15 counts altogether: 2
counts of murder for which he received two terms of life
imprisonment and 9 counts
of robbery with aggravating circumstances
(including the same three counts on which appellant was convicted
and sentenced as
above) for which he received 15 years imprisonment
on each count, 1 count of attempted robbery with aggravating
circumstances
for which he received 10 years, 1 count of unlawful
possession of fire arms - 5 years imprisonment and 1 count of
kidnapping
(as was appellant) - 5 years imprisonment.
34
He was convicted of 10 counts altogether: 1 count
of murder - life imprisonment, 6 counts of robbery with aggravating
circumstances
- 15 years imprisonment on each count, 1 count of
attempted murder - 15 years imprisonment, 1 count of attempted
robbery with
aggravating circumstances - 10 years imprisonment and 1
count of unlawful possession of fire arms - 5 years imprisonment.
35
That is for 2 counts of murder - life
imprisonment on each count, 8 counts of robbery with aggravating
circumstances - 15 years
on each count, 2 counts of unlawful
possession of fire arms - 5 and 3 years respectively, 1 count of
attempted murder - 15 years
imprisonment and 1 count of attempted
robbery with aggravating circumstances - 10 years imprisonment. Two
of the counts of robbery
with aggravating circumstances were the
same as two of the counts on which appellant was convicted and
sentenced as above.
36
I.e., 2 counts of murder - life imprisonment on
each count, 5 counts of robbery with aggravating circumstances - 15
years on each
count and 1 count of attempted murder - 15 years
imprisonment. One of the counts of robbery with aggravating
circumstances coincides
with one of the counts on which appellant
was convicted and sentenced as above.
37
I.e., 1 count of murder - life imprisonment, 5
counts of robbery with aggravating circumstances - 15 years on each
count, 1 count
of robbery with aggravating circumstances - 10 years
imprisonment (it is not certain why he received only 10 years on
count 7,
whereas the others convicted of the same count received 15
years), 1 count of attempted murder - 15 years imprisonment and 1
count of unlawful possession of fire arms - 5 years imprisonment.
38
Adv S Scheepers stood in for Adv FC Roberts who
is seriously indisposed.
39
S v Giannoulis
1975 (4) SA 867
(A);
S v Marx
1989 (1) SA 222
(A) - referred to in Mr Roberts' heads of argument
for the state at para 9.3 thereof. See also
S
v Vermeulen
2004 (2) SACR 174
(SCA).
40
Remember that, when one has to do with the
cumulative effect of sentences, one has to do with the ultimately
effective sentence,
and not with the appropriateness of a sentence
on individual counts - see
section 280
of the
Criminal Procedure Act
and
the discussion of A Kruger
Hiemstra's
Criminal Procedure
- loose leaf
edition at 28-38(1) to 28-42.
41
The Supreme Court of Appeal held
S v Silulatle
en 'n Ander
1999 (2) SACR 102
(SCA)
that life imprisonment is the longest term of imprisonment that a
court can impose. See also in general
S
v Makwanyane supra
footnote 14; JJ
Neser "Mandatory minimum sentences in the South African
context" available at http://www.crisa.org.za/downloads/vvs.pdf
under the heading: "Relation between life imprisonment and long
term imprisonment". Incidentally, his perception is
also that a
very long sentence in South Africa today, where lifers are entitled
to parole after 25 years - see
infra
- is 30 years imprisonment, 5 years more than the non-parole period
for lifers. See also para [14]
supra
for the position before the current parole policies and legislation
saw the light of day.
42
S v Mhlakaza
supra
footnote 26 at 523j: "Determinate sentences, in any event, run
concurrently with a life term."
43
Act 111 of 1998.
44
Supra
para [12].
45
Supra
para [14].
46
S v De Kock
1997
(2) SACR 171
(T) at 211f-g. See also
S
v Tcoeib
1996 (7) BCLR 996
(NmS),
1996
(1) SACR 390
(NmS) at 402d-e and 403c-d.
47
Act no 111 of 1998.
48
S 73(6)(b)(iv) of the Act.
49
S 73(5)(a)(ii)
,
75
(1)(c),
78
of the
Correctional Services Act.
Before
amendment these provisions gave the courts the power to
release or not release lifers on parole.
"In broad terms it provides that the court, having considered
the record of proceedings of the Board and its recommendations
in
the case of a lifer, may grant parole to such prisoner subject to
the provisions of
section 73(6)(b)(iv)
which provides that a lifer
may not be placed on parole until he or she has served at least
twenty five years of the sentence
but that the prisoner, on reaching
the age of 65 years, may be placed on parole if he or she has served
at least fifteen years
of such sentence." - Per Van Der Merwe J
in
Derby-Lewis v
Minister of Correctional Services and Others
2009 (2) SACR 522
(GNP).
50
S 73(6)(a) of the Act.
51
S 73(6)(b)(vi) of the Act.
52
S 276B(1)(b)
of the
Criminal Procedure Act.
53
Note that, despite the word 'shall' used in this
subsection, it is not compulsory for the court to order a non-parole
period in
terms of this section once it has ordered concurrent
running of sentences - it still has a discretion whether to order
same,
and then only after hearing both parties on the issue. See
S
v Mthimkulu
2013 (2) SACR 89 (SCA).
54
S 276B(1)(c)
of the
Criminal Procedure Act is
however subject to some controversy. Why should a non-parole period
be determined according to what the effective sentence is,
only when
the sentences have been ordered to run concurrently? Why should the
injunction not be applicable where a court considers
fixing
non-parole periods for each individual sentence that it imposed?
This, however, is a debate for another day and another
forum, since
the issues of neither concurrent running nor the fixing of a
non-parole period have arisen in this case.
55
S 73(6)(b)(v) of the Act.
56
S v Mafoho supra
footnotes 21 and 22.
57
S 75(8)
of the
Correctional Services Act.
58
S
v Nkosi and Others supra
footnote
20.
59
S v Botha
2006
(2) SACR 110
(SCA) at paras [25]-[26]. See also
S
v Matlala
2003 (1) SACR 80
(SCA). See
also
S v Mthimkulu supra
footnote 53.
60
Para [14]
supra
.
61
Compare Neser
loc
cit
footnote 44. Compare also the
rationes
of
the SCA in
Mhlakaza, Maseola
and
Johaar supra
footnote
26.
62
Where it holds concurrent jurisdiction with the
High Courts to impose life imprisonment, albeit as a minimum
sentence and not
really a 'discretionary' one as the title of the
provision
s51
suggests: "
Discretionary
minimum sentences for certain
serious offences"
- own italics.
63
See the proviso in s 51(3)(a) of the Minimum
Sentencing Act: "... Provided that if a regional court imposes
such a lesser
sentence in respect of an offence referred to in Part
I of Schedule 2, it shall have jurisdiction to impose a term of
imprisonment
for a period not exceeding 30 years."
64
Although s 51(2)(a)(iii) decrees a minimum of 25
years to be imposed, the proviso extends the jurisdiction of a
Regional Court
(not a High Court) to 30 years imprisonment max:
"Provided that the maximum term of imprisonment that a regional
court may
impose in terms of this subsection shall not exceed the
minimum term of imprisonment that it must impose in terms of this
subsection
by more than five years."
65
Supra
footnote
15.
66
The now repealed
s 277
of the
Criminal Procedure
Act.
67
Supra
footnote
20.
68
Another thing that the SCA overlooked in
Mafoho
supra
footnote 21 when stating the
facts of
Nkosi
in order to distinguish the two cases to escape the effect of the
rule of
stare decisis
.
69
Act 17 of 1956.
70
Supra
at para
[25] (2)(a).
71
S v Silulatle en 'n Ander supra
footnote 41.
72
Mhlakaza,
Maseola
and
Johaar supra
footnote 26.
73
Where the prisoner will be considered for release
on parole after a minimum of 25 years have been served (the
exception applicable
to prisoners who reach the age of 65 excluded).
74
Which would mean that a person who receives such
an effective sentence would have to serve four fifths of his
sentence (i.e.,
25 years) before becoming eligible for release on
parole - the same as a person sentenced to life imprisonment.
75
Mhlakaza
and
Maseola supra
footnotes 26, 72; and in the main text of this judgment at para
[31].
76
The so-called pensionable age.
77
As indicated
supra
they are entitled to be considered for parole after 15 years,
whereas other lifers are only entitled to be so considered after
25
years.
78
Supra
footnote
49.
79
E.g., see the
ratio
in
Johaar supra
footnote 26 where the regional magistrate was commended for having
ordered sentences to run concurrently to bring down the effective
sentences to within judicially acceptable norms.
80
S v Botha supra
footnote 59. See also
S v Matlala supra
footnote 59 where, for this same
reason, an effective sentence of 40 years imprisonment with a
recommendation that the accused
should not be released on parole
before 30 years have expired, was set aside and substituted with an
effective sentence of 30
years imprisonment without any
recommendation of a non-parole period.
81
S
v Mthimkulu supra
footnote 53;
S
v Botha
and
S v Matlala supra
footnote 59;
and main text of judgment at para [26].