Summary of Judgment

Introduction

The proceedings took the form of an application in the High Court (Northern Cape Division, Kimberley) in which the applicant, Mr Dingaan Alpheus Khalo, sought what he described as a “reconsideration of sentence” and relief from what he characterised as a “non-parole order” said to have been made by a Full Bench on appeal. The respondent was the State.

The matter had an extended procedural history. The applicant was originally sentenced on 21 June 2001 to an aggregate term of imprisonment totalling 84 years, which—due to concurrency—translated into an effective sentence of 56 years, together with a recommendation that he not be considered for parole before serving 35 years. On appeal, a Full Bench of the same court confirmed the sentences on 9 September 2002, but altered the concurrency order, producing an effective term of 41 years, and recommended that the applicant serve at least 20 years of that effective term before being considered for parole. The applicant’s further petition for leave to appeal against sentence was refused by the Supreme Court of Appeal on 1 April 2003.

Subsequent to those appeal processes, the applicant attempted further litigation steps, including a purported approach to the Constitutional Court in 2009 (apparently concerning conviction) and an earlier, incomplete application seeking antedating of sentence based on pre-trial detention. The present application, launched in September 2012 and heard on 7 November 2013, challenged aspects of the sentence and the parole recommendation notwithstanding the finalisation of the appeal process.

The general subject-matter of the dispute was whether the High Court could revisit, through an application procedure, aspects of a sentence and parole-related recommendations previously dealt with by the trial court and by a Full Bench on appeal, and whether the applicant was entitled to antedating of sentence or relief from the parole recommendation.

Material Facts

The court treated as established background facts that the applicant had been convicted on charges including theft, robbery with aggravating circumstances, attempted murder, and illegal possession of firearms, and that the sentencing court imposed substantial custodial sentences culminating (after concurrency) in an effective term of 56 years, together with a recommendation concerning parole consideration.

It was also common cause on the record before the High Court that the Full Bench, in its appellate judgment delivered on 9 September 2002, confirmed the sentences but adjusted the concurrency order to yield an effective term of 41 years’ imprisonment, and included a statement framed explicitly as a recommendation that the applicant not be considered for parole before serving 20 years of the effective term.

The applicant’s later litigation steps formed part of the factual matrix relevant to jurisdiction and procedural availability of relief. The papers included reference to an earlier purported notice of motion dated 22 June 2009 seeking condonation and antedating (to 21 June 2001) based on time spent awaiting trial (about one year and four months). The court accepted that this “application” apparently never proceeded to hearing.

A later notice of motion dated 25 September 2012 initiated the present proceedings, in which the applicant’s essential factual premise was that the Full Bench had “imposed” or “fixed” a non-parole period of 20 years, and that his sentence should be antedated (in argument ultimately said to be to the date of arrest). The court further noted the existence of a letter dated 4 September 2013 from the chairperson of a Case Management Committee indicating an understanding that the applicant could normally be considered for parole after serving a third of his sentence, and requesting “reconsideration” of what the committee described as a court “recommendation or instruction” said (in that letter) to require service of three-quarters of the sentence.

Where the court identified error, it did so as a matter of interpretation rather than factual dispute: it regarded the applicant (and possibly the committee) as operating under the mistaken impression that a binding non-parole order existed, whereas the Full Bench had made a non-binding recommendation.

Legal Issues

The court was required to determine, first, whether it had jurisdiction and an available procedural mechanism to entertain an application seeking “reconsideration” of sentence and alteration of parole-related aspects after the completion of the ordinary appeal processes.

Second, the court had to determine whether the applicant could obtain antedating of sentence in terms of section 282 of the Criminal Procedure Act 51 of 1977, and in particular whether that provision permitted antedating beyond the date on which the original sentence was imposed, and whether antedating was competent in circumstances where the Full Bench had not set aside and substituted the original custodial sentences.

Third, the court had to address whether the Full Bench’s statement that parole not be considered before 20 years amounted to an impermissible non-parole order (as opposed to a recommendation), and whether any relief could competently be granted in relation to that statement.

These issues primarily concerned questions of law (jurisdiction and statutory competence) and the application of law to fact (whether the statutory requirements for antedating were met; and whether the parole statement was an order or merely a recommendation).

Court’s Reasoning

The court’s reasoning proceeded from the premise that the applicant had already exhausted the remedies ordinarily available after conviction and sentence, namely appeal to a Full Bench and petition to the Supreme Court of Appeal. Counsel for the applicant correctly conceded that the court did not have jurisdiction to entertain the present “reconsideration” application. The court accepted that there was no procedural provision authorising an application of this kind to challenge the prior orders of both the trial court and the Full Bench, and it held that such complaints could and should have been pursued in the established appeal process. On that basis, the lack of jurisdiction was dispositive of the application.

Although that conclusion was sufficient to dispose of the matter, the court briefly addressed the two substantive complaints to clarify misunderstandings that appeared to be driving the application.

On antedating, the court applied section 282 of the Criminal Procedure Act 51 of 1977 and held that it “absolutely” confined antedating to no earlier than the date on which the original sentence was imposed. The court further reasoned that section 282 operates only where a sentence of imprisonment is set aside and a sentence of imprisonment is thereafter imposed in its place, and that such antedating is competent only in the context of appeal or review. The court found these jurisdictional and substantive prerequisites absent: the Full Bench had not set aside the applicant’s original sentences nor imposed new sentences in substitution. The court also rejected reliance on section 1(11) of the Criminal Law Amendment Act 105 of 1997 as misplaced, because that provision concerns imprisonment substituted for death sentences, and in any event would not have permitted antedating earlier than the date on which the death sentence was imposed.

On the “non-parole” complaint, the court treated the applicant’s argument as turning on a misreading of the Full Bench judgment. It held that neither the trial court nor the Full Bench had imposed or fixed a non-parole period by way of binding order. Instead, each had made a recommendation regarding when parole should be considered. The court relied on the Full Bench’s own express distinction between an order and a recommendation, and endorsed the approach reflected in S v Maseko 1998(1) SACR 451 (T), namely that a recommendation is not a binding directive to correctional authorities but an indication of judicial opinion.

The court further observed that, prior to the coming into operation of section 276B of the Criminal Procedure Act (introduced with effect from 1 October 2004), a court would not have been competent to fix a period of parole ineligibility; however, it emphasised that this was not what had been done in the applicant’s case. While the desirability of such recommendations could be debated (with reference to later authority), the court stated that it had not, in its view, been held that such recommendations were wrong in law or unconstitutional. The applicant had also failed to explain how a non-binding recommendation would, in practice, obstruct consideration of parole.

Given the apparent misunderstanding reflected both in the applicant’s papers and potentially in the Case Management Committee letter, the court concluded that it would be in the interests of justice for its judgment to be brought to the attention of the committee chairperson to clarify that the Full Bench’s statement was a recommendation rather than an instruction.

Outcome and Relief

The court dismissed the application in its entirety.

In addition, it ordered that the Registrar furnish a copy of the judgment to the chairperson of the Case Management Committee at the relevant correctional facility and to the applicant himself.

The judgment did not make a costs order.

Cases Cited

Khalo v S (KS 56/00) [2002] ZANCHC 26.

S v Maseko 1998(1) SACR 451 (T).

S v Makena 2011 (2) SACR 294 (GNP).

S v Stander 2012 (1) SACR 537 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 282.

Criminal Procedure Act 51 of 1977, section 276B (inserted by section 22 of Act 87 of 1997, with effect from 1 October 2004).

Criminal Law Amendment Act 105 of 1997, section 1(11).

Correctional Services Act 111 of 1998, section 42.

Rules of Court Cited

The judgment referred generally to the Rules of the Constitutional Court in the context of the applicant being advised about the requirements for a direct application, without identifying a specific rule number.

Held

The court held that it lacked jurisdiction to entertain an application seeking reconsideration of sentence and related relief after the applicant had exhausted ordinary appeal remedies and where no procedural mechanism existed for such a challenge.

It held further that section 282 of the Criminal Procedure Act 51 of 1977 did not permit antedating on the facts of the matter because antedating is competent only where a sentence of imprisonment has been set aside and replaced, and in any event may not be antedated earlier than the date of the original sentence; additionally, the Full Bench had not set aside and substituted the original sentences.

It held that the Full Bench did not impose or fix a binding non-parole period, but merely made a non-binding recommendation concerning parole consideration, which did not amount to an instruction to the executive authorities. The application was dismissed, and the Registrar was directed to distribute the judgment to the Case Management Committee chairperson and the applicant.

LEGAL PRINCIPLES

A High Court does not have a free-standing power to “reconsider” sentences by way of application once the sentence has been confirmed on appeal and leave to appeal has been refused, absent a recognised procedural basis conferring jurisdiction (such as appeal or review).

Section 282 of the Criminal Procedure Act 51 of 1977 permits antedating only within its defined scope: it applies where a sentence of imprisonment is set aside and a new sentence of imprisonment is thereafter imposed in substitution, and antedating cannot extend earlier than the date on which the original sentence was imposed; such relief is ordinarily available only in appeal or review proceedings.

A judicial statement recommending that parole not be considered before a specified portion of a sentence has been served is, in principle, distinct from a binding non-parole order. A recommendation does not purport to direct correctional authorities and is not, without more, equivalent to an order prescribing parole ineligibility.