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[2019] ZASCA 3
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Tutton v S (294/18) [2019] ZASCA 3 (20 February 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 294/18
In
the matter between:
JOHN
TUTTON APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Tutton
v The State
(294/18)
[2019] ZASCA 03
(20 February 2019)
Coram:
Tshiqi, Saldulker,
Zondi and Schippers JJA and Dlodlo AJA
Heard:
No oral hearing in
terms of
s 19(a)
of the
Superior
Courts Act 10 of 2013
.
Delivered:
20 February 2019
Summary:
Non-parole order
under s 276B of the Criminal Procedure Act not to be lightly imposed
unless justified by circumstances relating
to parole - parties should
be forewarned of the intention to make such an order
and
be
invited to present oral argument on the specific issue.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg
(Koen
J, with Tshabalala JP and Govinsamy AJ concurring sitting as court of
appeal):
1.1 The appeal is upheld
to the extent reflected herein below.
1.2
The imposition of a non-parole period by the court a quo in terms
of
s 276B
of the
Criminal Procedure Act 51 of 1977
is set
aside
.
JUDGMENT
Zondi
JA (Tshiqi, Saldulker and Schippers JJA and Dlodlo AJA concurring)
[1]
This appeal concerns the propriety of the imposition of a non-parole
period of 15 years, made in terms of s 276B(2) of the Criminal
Procedure Act 51 of 1977 (the Act), by the Full Court of the
KwaZulu-Natal Division of the High Court, Pietermaritzburg (the full
court). In terms of s 276B a court has the power, when sentencing the
accused, to direct that the accused shall not qualify for
parole for
a certain period. The appeal is with the special leave of this court.
The respondent does not oppose the appeal.
[2]
The appellant, Mr John Tutton together with his erstwhile co-accused
was, on 21 December 2007, convicted in the Camperdown Regional
Court
of one count of dealing in 8.1 tons of dagga from 16 June 2006 to
August 2006, in contravention of
s 5(b)
of the
Drugs and Drug
Trafficking Act 140 of 1992
and one count of dealing in 150 kg of
cocaine from September 2006 to October 2006, in contravention of the
same Act.
[3]
The appellant was sentenced to 20 years’ imprisonment on each
count; 10 years of which were ordered to run concurrently,
resulting
in an effective period of imprisonment of 30 years. The trial court
in terms of s 276B of the Act further ordered that
the appellant
serve at least 15 years before he could be considered for release on
parole. An application for leave to appeal against
the convictions
and sentences was dismissed by the trial court. The appellant was
granted leave to appeal against sentences on
petitioning the Judge
President in terms of s 309C of the Act.
[4]
The full court (Koen J, with Tshabalala JP and Govinsamy AJ
concurring) upheld the appeal against sentences imposed to the extent
that it directed that 15 years of the sentence imposed in respect of
a count of dealing in cocaine should run concurrently with
that in
respect of dealing in dagga, resulting in an effective term of 25
years. In addition, the full court fixed a non-parole
period of 15
years in terms of s 276B(2) of the Act.
[5]
The appeal is directed at the fixing of non-parole period. The
appellant contends that prior to the setting of the non-parole
period
the trial court and subsequently the full court did not notify him of
the intention to do so and that he was on both occasions
not afforded
the opportunity to address the courts concerned before s 276B(2) was
invoked. The appellant asked this court to set
aside the order fixing
the non-parole period.
[6]
Before s 276 of the Act was amended, the decision to grant parole
remained the exclusive field of the Department of Correctional
Services, and courts recognised the need for that because of the
principle of separation of powers and the fact that courts obtain
their sentencing jurisdiction from statute. (See
Jimmale
& another v The State
[1]
)
[7]
Section 276 of the Act was amended by the
Parole and Correctional
Supervision Amendment Act 87 of 1997
by inserting
s 276B.
This
section provides:
‘
(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.’
[8]
In
Jimmale
the Constitutional Court after referring to various
cases such as
Strydom v S
[2015] ZASCA 29
;
S v Stander
[2011] ZASCA 211
;
2012 (1) SACR 537
(SCA); and
S v Mthimkhulu
[2013] ZASCA 53
;
2013 (2) SACR 537
(SCA), concluded that these
cases made it clear that a
s 276B
non-parole order should not be
resorted to lightly. It held at para 20:
‘
Precedent makes it clear that a
section 276B
non-parole order should not be resorted to lightly.
Courts should generally allow the parole board and the officials in
the Department
of Correctional Services, who are guided by the
Correctional Services Act, and the attendant regulations, to make
parole assessments
and decisions. Courts should impose a non-parole
period when circumstances specifically relevant to parole exist, in
addition to
any aggravating factors pertaining to the commission of
the crime for which there is evidential basis. Additionally, a trial
Court
should invite and hear oral argument on the specific question
before the imposition of a non-parole period.’
[9]
It is not in dispute in this case that the trial court did not invite
and hear oral argument on whether it was appropriate to
impose a
non-parole period. This court in
S v Mhlongo
2016 (2) SACR 611
(SCA) para 9, emphasised
that the fixing of a non-parole period was part of a criminal trial
and that in accordance with the dictates
of a fair trial, an accused
person should be given notice of the court’s intention to
invoke s 276B and to be heard
before a non-parole period is
fixed. This court held that failure to comply with these procedural
requirements constitutes a misdirection.
[10]
The trial court committed a serious misdirection by imposing the 15
year non-parole period without first establishing whether
there
existed exceptional circumstances for that order to be made.
Furthermore, it did not invite the parties to make submissions
in
that regard, as it should have done. The misdirection of the trial
court was perpetuated by the full court when it imposed the
15 year
non-parole period. In the circumstances the imposition of the
non-parole order falls to be set aside.
[11]
The next question is whether the matter should be referred back to
the trial court for it to comply with the provisions of
s 276B. In
this regard I agree with the appellant’s contention that it is
fair and equitable the matter be finalised. A referral
of the matter
to the trial court would result in further costs to the appellant.
Besides the costs consideration, the appellant
has already served
almost 11 years of the 25 year sentence. To refer the matter back to
the trial court may result in further delays.
In any event, the
appeal is not opposed by the State.
[12]
In the result the following order is made:
1.1 The appeal is upheld
to the extent reflected herein below.
1.2
The imposition of a non-parole period by the court a quo in terms
of
s 276B
of the
Criminal Procedure Act 51 of 1977
is set aside
.
___________________
D
H Zondi
Judge
of Appeal
APPEARANCES:
Counsel
for Appellant: S Matthews
Instructed
by: Mason Incorporated
C/O
Webbers Inc, Bloemfontein
Counsel
for Respondent: A Truter
Instructed
by: Director of Public Prosecutions, Pietermaritzburg
Director
of Public Prosecutions, Bloemfontein
[1]
Jimmale & another v The
State
[2016]
ZACC 27
;
2016 (11) BCLR 1389
(CC);
2016 (2) SACR 691
(CC).