THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORT ABLE: NO (I)
(2) OF INTEREST TO OTH ER JUDGES:
(3)
NO
REV lSED :NO
03/09/2025
DATE
EVELINA MOLOI
and
THE STATE
---SIGNATURE
Case No: A225/2024
APPELLANT
RESPONDENT
Delivered: By transmission to the parties via em ail and uploading
onto Case Lines the Judg m ent is deem ed to be delivered.
JUDGMENT
Coram: SENYATSI J, HASSIM J (Ms) and MBOWENI AJ(Ms)
A. Introduction:
[1] This is an appeal, with leave granted by Mokgoatlheng J, against
the non-parole provision imposed by the court a quo on 31 January
1996 by Curlewis J, now deceased Ms. Evelina Moloi, the appellant,
was convicted of murder and armed robbery. She received a sentence
of thirty (30) years' imprisonment for murder and another thirty (30)
years for armed robbery. Curlewis J ordered that these sentences be
served consecutively, resulting in a total effective sentence of sixty (60)
years' imprisonment. Additionally, the court a quo directed that parole
should not be considered until fifty years had been served. This appeal
is specifically concerned with the challenge to the non-parole provision.
B. Background:
[2] For nearly thirty years, the applicant sought appellate relief from
prison but faced obstacles like missing records and limited legal
support. The court, per Mokgoatlheng J, condoned the late applica tion
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for leave to appeal and granted her leave to appeal on 24 February
2024.
[3] The appellant's co-accused has been released on parole.
[4] The only issue we must consider is whether the trial court erred in
rendering the appellant ineligible for parole before she had served 50
years of the 60-year prison sentence. The State does not oppose the
appeal. It is common cause that the part of the sentence imposing a
non-parole period of 50 years must be deleted.
Legal Framework: Non-Parole Periods and Parole Eligibility
[5] Section 2768 of the Criminal Procedure Act 51 of 1977 came into
operation on 1 October 2004. It permits a sentencing court, when
imposing a term of imprisonment of two years or more , to fix as part of
the sentence a period during which the offender shall not be placed on
parole. The non-parole period may not exceed two-thirds of the term
of imprisonment or twenty-five (25) years, whichever is the shorter.
Section 73(6)(a) of the Correctional Services Act 111 of 1998 provides
that, absent such an order, an offender becomes eligible for
consideration for parole after serving half the sentence. However , the
appellant was sentenced eight (8) years before section 2768 was
placed on the statute books. Prior thereto the sentencing court was
not empowered to dictate the minimum term of imprisonment that a
convicted person serves.
[6] A non-parole order is exceptional. It is a judicial intrusion into the
ordinary executive domain of parole management and must therefore
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be approached with circumspection. In S v Mhlakaza and Another1,
the Supreme Court of Appeal emphasized that parole is an executive
function, and courts should not sentence in a manner that seeks to
remove parole from consideration altogether. The SCA furthermore
held that non-parole periods must not undermine the executive's role
in parole. A trial court is restrained. Harms JA aptly put it thus:
"The function of a sentencing court is to determine the maximum
term of imprisonment a convicted person may serve. The court has
no control over the minimum or actual period served or to be
served ... " 2
And cautioned -
" ... sentencing jurisdiction is statutory and courts are bound to limit
themselves to performing their duties within the scope of that
jurisdiction. Apart from the fact that courts are not entitled to
prescribe to the executive branch of government as to how and how
long convicted persons should be detained (see the clear exposition
by Kriegler Jin S v Nkosi (1), S v Nkosi (2), S v Mchunu 1984 (4) SA
94 (T)) courts should also refrain from attempts, overtly or covertly,
to usurp the functions of the executive by imposing sentences that
would otherwise have been inappropriate." 3
[7] The trial court has, in our view, overstepped its sentencing
jurisdiction. In imposing sentencing the trial court remarked -
" .... the politicians have done way with one of the most potent
weapons against crime, that is to say the death penalty, it must be
brought home that that does not mean that people can simply commit
1 1997 (1) SACR 515 (SCA)
2 S v Mhlakaza 521 D-E.
3 s V Mhlakaza 521 G-1.
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crimes of this nature or any nature and expect to get out of jail on
some , let out by some bureaucrat on parole as it is called or some
other nature and be lightly treated.
I hardly need mention that it is common cause that crime in this
country is in a shocking state of affairs, this particular type of crime
has to be properly dealt with and I certainly, as long as I sit on this
bench, I shall see to it that appropriate sentences are passed for this
type of crime"
[8] Sentences must remain proportionate and individualized. The
Constitutional Court in S v Dodo 4 reaffirmed that punishments must
not be grossly disproportionate and that sentencing discretion must be
exercised judicially, with due regard to the triad of the crime, the
offender and the interests of society. The trial court took the
seriousness of the crime into account but not the interests of the
offenders. The trial exercised its sentencing discretion improperly in
the circumstances Apart from not having the jurisdiction to impose a
non-parole period, remarkably the trial court did not alert the accused
persons that it intended to impose a non-parole period. This failure
strikes at the heart of the constitutional right to a fair trial. Sine the
introduction of section 276B the SCA decisions has on a number of
occasions stressed adherence to procedural fairness before fixing a
non-parole period, the accused must be alerted to the possibility of
such an order and heard on the point; reasons must be given; and the
order must be clearly pronounced and recorded. Where those
requirements are not met, a non-parole order is liable to be set aside
4 2001 (3) SA 382 (CC)
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on appeal. This affirms the constitutional requirement that sentences
be proportionate and individualized.
Discussion and Reasons:
[9] Counsel for the appellant, Mr. Alberts, and counsel for the State,
Mr. Jacobs, have both indicated that the appellant's continued
incarceration does not align with current sentencing standards and
interests of justice. They propose that the non-parole provision be
removed to allow the Executive to consider the appellant for parole.
The court acknowledges this position.
[1 O] The applicant has now spent nearly thirty years in custody. It is
evident that the fifty-year non-parole period reflected on the warrant
conflicts with both the sentencing transcript and the statutory limits,
rendering it excessive based on the principles articulated above.,
Imposing a non-parole period of fifty years on a sixty-year effective
sentence would closely approach the statutory maximum and would
necessitate substantial justification. Such justification does not appear
in the record.
[11] This approach is consistent with legal requirements and the
constitutional rights to freedom, personal security, and a fair trial (see
sections 12 and 35 of the Constitution). Accordingly, we are of the
view that the appeal must be upheld.
Order:
[12] In the result the following order is made:
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(a) The appeal is upheld.
(b) Paragraph 3 of the order on sentencing made on 2 February
1996 which reads as follows is deleted:
"3. Beskuldigde mag nie oorweeg word vir parool voor ten
minste vyftig (50) jaar uitgedien is nie"
MBOWENI AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
I agree
ML SENY ATSI J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
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Date of Hearing:
Date of Judgment:
Appearances:
For the Appellant:
Instructed by
I agree
SK HASSIM
JUDGE OF THE HIGH OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
01 September 2025
03 September 2025
Adv. L Alberts
Legal Aid South Africa
Pretoria Local Office
4th Floor, Locarno House
317 Francis Baard Street,
Pretoria.
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For the Respondent:
Instructed by:
Adv. J .J Ja cobs
Director of Public Prosecutions
Pretoria
VB 11/2025
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