CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 118/23

In the matter between:



MANDLAKAYISE ENOS SITHOLE Applicant

and

THE STATE Respondent



Neutral citation: Sithole v S [2024] ZACC 31

Coram: Madlanga ADCJ, Kollapen J, Majiedt J, Mhlantla J, Rogers J,
Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J


Judgments: Mhlantla J (unanimous)

Decided on: 20 December 2024

Summary: Criminal Procedure Act 51 of 1977 — section 276B — fixing of
non-parole-period — failure to notify parties and failure to
establish exceptional circumstances — misdirection




ORDER

2
On appeal from the Full Court of the High Court of South Africa, KwaZulu -Natal
Division, Pietermaritzburg (hearing an appeal from the High Court of South Africa,
KwaZulu-Natal Division, Pietermaritzburg). The following order is made:
1. Leave to appeal against the imposition of the non -parole order
issued by the High Court of South Africa, KwaZulu-Natal
Division, Pietermaritzburg, is granted.
2. The appeal succeeds and the imposition of the non -parole period
is set aside.
3. Save as aforesaid, leave to appeal against the convictions and
sentences is refused.



JUDGMENT




MHLANTLA J (Madlanga ADCJ, Kollapen J, Majiedt J, Rogers J, Seegobin AJ,
Theron J, Tolmay AJ and Tshiqi J concurring):


Introduction
[1] This application concerns the validity of a non -parole period of a sentence of
imprisonment which was fixed without affording the accused an opportunity to make
submissions on whether the non -parole period should be fixed. The applicant,
Mr Mandlakayise Enos Sithole, also applies for leave to appeal against the convictions
and sentences imposed by the High Court, KwaZulu-Natal Division, Pietermaritzburg
(High Court).

Background and litigation history
[2] On 2 February 2006 the applicant, in concert with three others, committed
robbery at the Camperdown Post Office where they forcibly stole an amount of
R110 000, various items with an estimated value of R3 099 and two revolvers.
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During the course of the robbery, the applicant and his accomplices fired at police
officers who attempted to foil the armed robbery.

[3] One of the perpetrators was arrested at the scene of the crime, after having been
wounded in the gun battle with the police. A cellular phone was recovered from the
arrested person and a number of calls were directed to this cellular phone enquiring
about the whereabouts of the arrested person . One of the police officers pretended to
be the arrested person, and requested the suspected co -conspirators to come and
rescue him. It is through this resourceful operation that the applicant was found and
arrested on suspicion of having been involved in the commission of the offences.

[4] The applicant and one Mr Mandla Alfred Ndlovu were charged with one count
of robbery with aggravating circumstances and four counts of attempted murder,
before the High Court. The applicant pleaded not guilty and did not disclose the basis
of his d efence. The State adduced evidence implicating the applicant. One of the
witnesses, Inspector Khumalo, knew the applicant as someone who lived in the Cato
Ridge area. The inspector, who was present at the scene of the crime, identified the
applicant as one of the individuals in the vehicles that were used in the robbery. The
applicant elected not to testify in his defence.

[5] The High Court, per Patel J, made factual findings that the nature of the
applicant’s arrest in the ploy to rescue his wounded co -conspirator was sufficient to
establish his involvement in the commission of the robbery and the gun battle with
police. The Court noted that the coincidence of the applicant coming to the aid of the
arrested accused was so remarkable that it could lead to no other inference other than
that he was part of the gang that robbed the staff at the Post Office. Further, the Court
was satisfied by the identification of the applicant by Inspector Khumalo.

[6] Furthermore, the Court held that the applicant’s alibi, that he was at a bank in a
different location making a deposit during the relevant period, emerged late in the
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proceedings. The High Court rejected it as not reasonably possibly true and
concluded that the applicant was at the scene of the crime.

[7] On 27 August 2006, the applicant was convicted and sentenced on one count of
robbery with aggravating circumstances , resulting in a sentence of
20 years’ imprisonment, and four counts of attempted murder, where a sentence of
10 years’ imprisonment on each count was imposed. The Court ordered that the
sentences for attempted murder run concurrently. Therefore, the effective sentence to
be served was 30 years’ imprisonment – being the ten years for four counts of
attempted murder plus 20 years for robbery. Without affording the parties an
opportunity to address it on the non -parole issue, the High Court recommended that
the applicant should not be considered for parole until he had served a minimum of 20
years of his sentence.

[8] On 28 August 2006, the High Court granted the applicant leave to appeal
against the convictions to the Full Court of the Pietermaritzburg High Court. On
20 July 2010, the Full Court dismissed the appeal and confirmed the conviction s. The
applicant thereafter applied for leave to appeal against his sentence at the High Court.
On 9 September 2011, the application was dismissed.

[9] The applicant petitioned the Supreme Court of Appeal and applied for
condonation and special leave to appeal. 1 On 18 July 2016, Maya DP and
Mathopo JA granted condonation, but dismissed the application for special leave to
appeal on the basis that there were no special circumstances meriting a further appeal
to that Court.


1 Ordinarily, the application for special leave would be against the convictions as the Full Court had dismissed
his appeal against convictions. Since his application for leave to appeal against sentence had been dismissed by
the High Court, the applicant should have petitioned the Supreme Court of Appeal for leave to appeal against
the sentences. However, he launched one application for special leave which appears to be in respect of both the
convictions and sentences.
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[10] The applicant then filed an application for reconsideration by the President of
the Supreme Court of Appeal. However, this application was not accepted by the
Registrar as the Deputy President of the Supreme Court of Appeal had since been
appointed as the President of the Court and, as she had been one of the Justices that
had considered the initial application for leave to appeal, she could not reconsider her
own decision.

[11] The applicant, who is unrepresented, filed an application for leave to appeal in
this Court. His application was filed more than six years after the decision of the
Supreme Court of Appeal. The applicant submits that the delay was due to the
difficulty of securing legal assistance while incarcerated, as well as delays occasioned
by the onset of the Covid-19 pandemic. He requests that the late filing be condoned.

[12] With respect to the merits, the applicant primarily attacks the factual findings
made by the High Court. The applicant avers that the victims and witnesses did not
identify him, his alibi evidence was not fully taken into consideration and that the
investigating officer did not testify against him.

[13] On sentence, he is aggrieved by the inclusion of an order that he should serve a
minimum sentence of 20 years’ imprisonment before being considered for parole. He
submits that the Court was unfair in making that order.

[14] The respondent does not oppose condonation. However, it opposes the relief
sought by the applicant with respect to the convictions and supports the judgment of
the High Court.

[15] The respondent concedes that the decision of the High Court when it declared
that the applicant should not be eligible for parole until he has served 20 years cannot
stand. The respondent submits that there were no exceptional circumstances to
warrant such an order and the parties were not afforded an opportunity to address the
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High Court on this point. The re spondent relies on Jimmale,2 and records that it does
not oppose the application for the removal of the non -parole period fixed by the
High Court.

Issues
[16] This Court has to determine the following issues:
(a) whether its jurisdiction is engaged and, if so;
(b) whether leave to appeal should be granted;
(c) whether the appeal should be upheld;
(d) whether the non-parole order or recommendation as part of the sentence
by the High Court was appropriate; and
(e) what is an appropriate remedy.

Analysis
[17] This matter has been decided without a hearing. Before dealing with the issues
and for the sake of completeness, it is apposite to address the High Court’s
phraseology of the non-parole order.

[18] After sentencing the applicant and Mr Ndlovu, Patel J stated that “it is further
recommended that both the accused not be considered for parole until such time they
have served twenty (20) years of their sentence”. The issue is whether this is a
non-parole order for purposes of section 276B of the Criminal Procedure Act 3 (CPA)
or a mere recommendation that could be ignored by the Department of Correctional
Services with no legal consequences.

[19] This issue was not ventilated, no submissions were made and this Court did not
direct the parties to submit written submissions on it. Accordingly, without deciding
the point, I will assume that it is an order for purposes of section 276B as it has been

2 S v Jimmale [2016] ZACC 27; 2016 (2) SACR 691 (CC); 2016 (11) BCLR 1389 (CC) at para 24.
3 51 of 1977.
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understood as such by at least two of the parties involved in its enforcement – the
applicant and the respondent.

[20] Further, it is not necessary to comment on the competency of a High Court to
make such a recommendation (if it intended for it to be a mere recommendation); the
appropriateness of the recommendation; and whether the respondent or the
Department of Correctional Services could and should have sought clarity from the
High Court on the nature of the phrase . It suffices to say that it is trite that courts
should strive to make clear orders that can be enforced without the need for affected
parties to revert to the court for clarity.4

Condonation
[21] The application was filed more than six years after the dismissal of the
application for special leave to appeal by the Supreme Court of Appeal. In essence,
the applicant submits that the circumstances of his incarceration prevented him from
bringing the application timeously. The explanation for the delay is tenuous.
However, I am inclined to accept his explanation about the difficulties encountered
due to the fact that he is serving a sentence, which can be a significant obstacle for
timeous filing of an application to this Court. Furthermore, the respondent does not
oppose condonation and the granting thereof will not prejudice the respondent.
Therefore, condonation is granted.

Jurisdiction and leave to appeal
[22] The applicant complains about various factual findings made by the
High Court. It is trite that this Court cannot entertain disputes of fact, as these do not
engage our jurisdiction. Therefore, the application for leave to appeal against the
convictions falls to be dismissed.


4 Ex parte Minister of Home Affairs [2023] ZACC 34; 2024 (1) BCLR 70 (CC); 2024 (2) SA 58 (CC) at para 38
and KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal [2013] ZACC 10; 2013 (4)
SA 262 (CC); 2013 (6) BCLR 615 (CC) at para 162.
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[23] The only issue that warrants this Court’s consideration is the order concerning
the imposition of the non -parole period. Section 276B of the CPA, titled “Fixing of
non-parole-period”, provides:

“(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), fix the
non-parole-period in respect of the effective period of imprisonment.”5

[24] In Jimmale, the applicants were charged with murder and attempted murder. 6
They, together with four others, were armed with pangas and a large knife. 7 They
stormed the deceased’s store and viciously attacked the deceased by stabbing him

5 It is worth noting that s ection 276B of the CPA authorises the imposition of a non -parole period where an
offender “is convicted of an offence ”, meaning one offence. It goes on to provide that 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 fix the non -parole-period “in respect of the eff ective
period of imprisonment”. In the present case, the applicant was convicted on five offences. In respect of four of
the offences (attempted murders), the four sentences of ten years each were ordered to run concurrently, so a
non-parole period in respect of those four offences would have been determined in respect of the effective
sentence of 10 years. In respect of the sentence for armed robbery, 20 years, it was not ordered to run
concurrently with any other sentence. Section 276B does not appear to contemplate a non -parole period in
respect of cumulative effective result of two sentences which do not run concurrently. If so, it means that in the
present case the High Court, if it had justification for imposing a non -parole period, needed to do so separately
in respect of the effective ten concurrent years (for the four counts of attempted murder) and in respect of the
separate sentence o f twenty years (for armed robbery). Conceivably, in such a case, the court might find
exceptional circumstances in respect of the one sentence but not the other. See also section 39(2)(b) of the
Correctional Services Act 111 of 1998 (Correctional Services Act), which may support this view as it provides:
“In the case of the imposition of more than one period of incarceration, the non -parole period
or periods, fixed by the court must be served consecutively before a sentenced offender
becomes eligible for parole.”
Needless to say, I leave this open as it is not an issue before this Court in the present case.
6 Jimmale above n 1 at para 5.
7 Id.
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multiple times.8 One of the occupants was also attacked and lost consciousness. 9 The
trial Court convicted the applicants of murder and acquitted them on the count of
attempted murder. 10 They were sentenced to 25 years’ imprisonment.11 The
trial Court ordered that the accused would be eligible for parole only after serving
20 years.12

[25] The applicants in Jimmale had sought to appeal against the non -parole order on
the basis that they were not afforded an opportunity to make submissions and the
trial Court had not established exceptional circumstances warranting the order. 13 This
Court, when considering whether its jurisdiction was engaged and whether leave to
appeal should be granted, held that the matter raised an important constitutional issue
regarding the power of trial courts to grant non-parole orders and said:

“The non-parole order by the trial court here denies the applicants the opportunity to
be considered for parole before four -fifths of their sentence are served whereas, in
law, the maximum period for which a non-parole order can be granted is two-thirds of
the sentence. Needless to say that order has the potential of infringing the applicants’
right not to be deprived of freedom arbitrarily or without just cause, in terms of
section 12(1)(a) of the Constitution , or to the benefit of the least severe of the
prescribed punishments.14

[26] In the matter before us, the issue also concerns the power of trial courts to
make a non -parole order and this is a constitutional issue. Therefore, this Court’s
jurisdiction is engaged.


8 Id.
9 Id.
10 Id at para 6.
11 Id.
12 Id.
13 Id at paras 7 and 19.
14 Id at para 10.
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[27] Two requirements must be met before a trial court may invoke the fixing of
non-parole period provisions. These are : the trial court must establish exceptional
circumstances that warrant an order for a non-parole period,15 and it must have invited
the parties to make submissions in that regard before granting such an order.16 Failure
by the trial court to give effect to both these requirements is a material misdirection.17

[28] In Mhlongo,18 the Full Court of the Pietermaritzburg High Court, upheld an
appeal against a sentence of life imprisonment and substituted it with a sentence of
18 years’ imprisonment and a non-parole period of 12 years in terms of s ection 276B
of the CPA. The appellant attacked the non -parole order on the basis that, amongst
others, he was not given notice that s ection 276B w ould be invoked and the parties
were not afforded an opportunity to present argument s in this regard.19 The Supreme
Court of Appeal held:

“The fixing of a non -parole period is part of a criminal trial and it must thus accord
with the dictates of a ‘fair trial’ that an accused person be given notice of the court’s
intention to invoke section 276B of the CPA, and to be heard before a non -parole
period is fixed. Failure to do so amounts to a misdirection by the sentencing court.”20

[29] In the matter before us, the applicant was sentenced to an effective term of
30 years’ imprisonment, and the period of ineligibility for parole was set at 20 years.
This represents two-thirds of the sentence and is in accordance with section 276B(2)
of the CPA. However, there is nothing on the record that indicates that the High Court
afforded the parties an opportunity to be heard before invoking section 276B. In
terms of section 73(6)(a) of the Correctional Services Act , the applicant would have

15 Id at para 13.
16 Id at para 24.
17 Id.
18 S v Mhlongo [2016] ZASCA 152; 2016 (2) SACR 611 (SCA).
19 Id at para 2.
20 Id at para 9.
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been entitled to be considered for parole after serving half of the sentence, being
15 years.

[30] The respondent conceded that the High Court misdirected itself and its decision
must be set aside as none of the parties had made any representation s and there were
no exceptional circumstances that warranted the imposition of a non-parole period.

[31] The High Court erred when it imposed a non -parole period in circumstances
where the applicant and the respondent were not given notice, or an opportunity , to
make representations. Having failed to grant the parties an opportunity to make
representations, it is irrelevant whether the High Court had established the existence
of exceptional circumstances warranting the non -parole order. It appears that the
Department of Correctional Services acted in accordance with the non-parole order as
the applicant has to date served 18 years’ imprisonment and has not yet been
considered for parole. But for the order, it is possible that he would have been
considered for parole after serving half of his sentence.

[32] It follows that the appeal against the sentence must succeed to the extent that
the High Court was not entitled to impose a non-parole period.

Conclusion
[33] Therefore, the application for leave to appeal against the convictions and
sentences must be dismissed, save to the extent set out in the preceding paragraph.

Order
[34] In the result, the following order is made:
1. Leave to appeal against the imposition of the non -parole order
issued by the High Court of South Africa, KwaZulu -Natal
Division, Pietermaritzburg, is granted.
2. The appeal succeeds and the imposition of the non -parole period
is set aside.
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3. Save as aforesaid, leave to appeal against the convictions and
sentences is refused.



For the Applicant:


For the Respondent:
Unrepresented


S Singh instructed by the Director of
Public Prosecutions