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[2013] ZAFSHC 123
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S v Mokoena and Others (93/2013) [2013] ZAFSHC 123 (4 July 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 93/2013
In the review between:-
THE STATE
and
TEFO MOKOENA AND 11
OTHERS
_______________________________________________________
CORAM:
VAN
ZYL, J
et
DAFFUE, J
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED ON:
4 JULY 2013
_______________________________________________________
[1] This is a special
review in accordance with the provisions of s 304(4) of the Criminal
Procedure Act, 51 of 1977 (“the
Act”).
[2] Twelve accused were
charged in the Witsieshoek Magistrates’ Court with escaping
from lawful custody in contravention of
s 117(a)
of the
Correctional
Services Act, 111 of 1998
. They were represented by a legal
representative who prepared statements in terms of s 112(2) of the
Act for and on behalf of each
of them. On 15 April 2011 the court
a
quo,
having been satisfied with their pleas of guilty and the
contents of their statements, convicted them as charged. They were
each
sentenced the same day to five (5) years’ imprisonment in
terms of s 276B(1)(b) of the Act and it was directed in terms of
s
276B(1)(a) that the accused had to serve four (4) years’
imprisonment before they could be considered for parole. In passing
it is noted that the court
a quo
confused the two subsections
insofar as the sentences should have been imposed in terms of
subsection (a) and the direction pertaining
to the non-parole period
should have been in terms of subsection (b).
[3] The matter came to
the attention of Lekale J in April 2013, thus two years after the
convictions and sentences. The delay cannot
be explained. On 25 April
2013 Lekale J enquired in writing as to whether the sentences were
competent insofar as s 276B(1)(b)
of the Act is clear that the
non-parole period may not exceed two-thirds of the term of
imprisonment imposed, or 25 years, whichever
is the shorter. The
court
a quo
’s response was received on 19 June 2013. The
presiding magistrate, who has retired in the meantime, acknowledged
in this
response that the sentences imposed by her did not comply
with the provisions of s 276B(1).
[4] The court
a quo
committed serious misdirections in relying on section 276B(1) of the
Act and imposing the sentences for the following two reasons:
Although it could fix a
period during which the accused shall not be placed on parole as
part of its sentence in terms of s 276B(1),
this non-parole period
could not have exceeded two-thirds of the term of imprisonment
imposed, to wit five (5) years.
In casu
the court
a quo
ordered that four of the five years, i.e. 80% of the term of
imprisonment, shall be the non-parole period and in doing so it
transgressed its statutory powers;
Secondly, no reasons
have been advanced by the court
a quo
why a non-parole period
was fixed at all, especially insofar as the record does not reflect
that the accused’s legal representative
was given an
opportunity to either address the court in this regard, or to lead
evidence why such order should not be made.
[5] Section 276B came
into operation on 1 October 2004. Prior thereto a decision about
parole remained exclusively within the domain
of the Department of
Correctional Services. In
S v Botha
2006 (2) SACR 110
(SCA), an appeal which was admittedly decided on 28 May 2004 and
prior to the coming into operation of s 276B, a recommendation
by the
trial judge that the appellant should serve at least two-thirds of
his sentence before being considered for parole has been
found by the
Supreme Court of Appeal in para [25] of the judgment as an
undesirable judicial incursion into the domain of another
arm of
State. See also
S v Mhlakaza & others
1997 (1) SACR
515
(SCA) at 521 f – i.
[6] In
S v Pauls
2011 (2) SACR 417
(ECG) at paras [14] to [18] the court relied on the
two judgments quoted above as well as
S v Williams; S v Papier
[2006] ZAWCHC 5
;
2006 (2) SACR 101
(C) for its viewpoint that exceptional
circumstances should exist before a non-parole period might be
imposed. The court concluded
that a court must exercise care and
caution when considering whether exceptional circumstances exist to
warrant a non-parole period.
In
S v Pakane and Others
2008 (1) SACR 518
(SCA) the Supreme Court of Appeal found that the
aggravating circumstances that prevailed, the seriousness of the
offences and
the fact that the appellant was a policeman warranted
the fixing of a ten year non-parole period.
[7] The latest reported
judgment on this issue is
S v Stander
2012 (1) SACR 537
(SCA). The Supreme Court of Appeal considered all the judgments
referred to herein and warned against imposing non-parole periods,
save in exceptional circumstances. It stated that it remains
generally desirable for courts not to exercise their powers in this
regard, particularly because courts are not equipped to make
decisions about the parole of a prisoner at the time when sentence
is
imposed. The suitability of a prisoner to be released on parole
requires the assessment of facts relevant to the conduct of
the
prisoner after the imposition of sentence. See paras [8] –
[20].
[8] No exceptional
circumstances were present
in casu
and given the absence of
reasons by the court
a quo
, it is difficult to understand why
it deemed it necessary to prescribe to the Department of Correctional
Services how long the
convicted persons should be incarcerated.
[9] In view of the
aforesaid misdirections this court is at liberty to reconsider
sentence afresh. Bearing in mind the seriousness
of the offence of
escaping from lawful custody, the sentences of five (5) years’
imprisonment in respect of each accused
are in order. However that
part of the sentences in terms whereof the court
a quo
directed a non-parole period of four (4) years’ imprisonment
should be deleted.
[10] Consequently the
following orders are made:
10.1. The convictions of
all twelve accused are confirmed.
10.2. The sentences
imposed are reviewed, set aside and substituted with the following:
All twelve accused are
sentenced to five (5) years’ imprisonment in terms of section
276(1)(b) of Act 51 of 1977.
10.3. The sentences are
antedated to 15 April 2011.
_____________
J.P. DAFFUE, J
I concur.
____________
C. VAN ZYL, J
/sp