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[2016] ZACC 27
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Jimmale and Another v S (CCT223/15) [2016] ZACC 27; 2016 (11) BCLR 1389 (CC); 2016 (2) SACR 691 (CC) (30 August 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 223/15
In
the matter between:
AGOLLE
ABDI
JIMMALE
First Applicant
MOHAMMED
MUQTAAR
JIMMALE
Second Applicant
and
THE
STATE
Respondent
Neutral
citation:
Jimmale
and Another v S
[2016] ZACC 27
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Nkabinde J and Zondo
J
Judgments:
Nkabinde J (unanimous)
Decided
on:
30 August 2016
Summary:
non-parole order —
section
276B(1)
of the
Criminal Procedure Act 51 of 1977
—
section
12(1)(a)
and section 35(3)(n) of the Constitution — discretion
of trial court to issue non-parole order — establishment of
exceptional
circumstances
ORDER
The
following order is made:
1.
Leave to appeal is granted.
2.
The appeal against the non-parole order issued by the High Court of
South Africa,
Limpopo Local Division, Thohoyandou, is upheld.
3.
The non-parole order under case number CC05/2012 is set aside.
JUDGMENT
NKABINDE
J (Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta
J, Khampepe J, Madlanga J, Mhlantla J and Zondo J):
Introduction
[1]
Parole is an acknowledged part of
our correctional system. It has proved to be a vital part of
reformative treatment for the
paroled person who is treated by moral
suasion. This is consistent with the law; that everyone has the
right not to be deprived
of freedom arbitrarily or without just cause
and that sentenced prisoners have the right to the benefit of the
least severe of
the prescribed punishments. As courts are now
clothed with the power to postpone consideration of parole for
sentenced offenders,
the public interests demand that they have full
knowledge of the offender’s transgression and personal
circumstances, including
knowledge of the offender’s
conditions, when parole is considered. In other words,
knowledge and an assessment by courts
of facts relevant to the
conduct of the prisoner, after the imposition of sentence, is usually
a must.
[2]
The
issue for determination in this application for leave to appeal
relates to the power of a trial court to grant a non-parole
order –
that is – an order by the trial court that the person sentenced
should not be considered for parole before
a stated portion of the
sentence has been served. Leave to appeal is sought against the
decision of the High Court of South
Africa, Limpopo Local Division,
Thohoyandou
[1]
(trial Court) issuing a non-parole order immediately after convicting
and sentencing the applicants. The applicants ask this
Court to
set aside that order. They also ask for condonation of the late
filing of this application. The respondent
did not file
opposing affidavits but filed written submissions on certain issues,
as was directed by the Court.
[3]
The
applicants had appealed against the conviction, sentence and the
non parole order by the trial Court. On 17 February
2016
this Court granted condonation for the late filing of the application
but dismissed the application for leave to appeal against
conviction
and sentence. It directed the parties to file written
submissions on the power of the trial Court to deny the
applicants
the opportunity to be considered for parole before serving 20 years
of their sentences.
[2]
[4]
The
applicants, who act in person,
[3]
are currently serving a custodial term at Kutama Sinthumule
Correctional Centre, in Louis Trichardt, Limpopo. The
respondent
is the Director of Public Prosecutions, Limpopo.
Having decided not to file written submissions in response to the
first
directions issued by this Court,
[4]
the respondent was directed again to lodge written submissions on
whether, in the light of the decisions in
Gcwala
,
[5]
Mthimkhulu
[6]
and
Stander
[7]
,
the non-parole order by the trial Court should be set
aside.
[8]
The respondent did file submissions. This Court now decides the
issue regarding the non-parole order without an oral
hearing.
Background
[5]
The applicants were charged with
murder and attempted murder. They, together with four others,
had driven to the deceased’s
store. One of them was armed
with a large knife and the rest with pangas. They stormed the
store without warning and
viciously attacked the deceased, stabbing
him multiple times. One of the occupants was attacked and lost
consciousness.
[6]
The trial Court convicted them of
murder but acquitted them on the count of attempted murder. On
12 June 2012, a custodial
term of 25 years was imposed on each
accused. The trial Court further ordered that the accused would
be eligible for parole
only after 20 years. Leave to appeal
against the conviction and sentence was dismissed on 15 June 2012 by
the trial Court
and so was the petition to the Supreme Court of
Appeal on 22 September 2014.
In
this Court
[7]
On 18 November 2015 the applicants
sought leave to appeal against the conviction and sentence. The
applicants contended that
the trial Court “erred grossly in law
in the non-parole order [it] made.” They also asked for
the non-parole
order to be set aside and for the belated lodgement of
the application to be condoned. The application for leave to
appeal
was filed a year late, after the Supreme Court of Appeal
dismissed the petition on 22 September 2014. The applicants
explained
that they had run out of funds and that Legal Aid, despite
its undertaking to assist them, failed to lodge the application.
They sought the assistance of a fellow inmate.
[8]
After
the order dated 17 February 2016, what remains for determination is
whether the non-parole order as part of the sentence by
the trial
Court was appropriate and whether it should be set aside. The
Court directed the parties to file written submissions
on the power
of the trial Court to deny the applicants the opportunity to be
considered for parole before serving 20 years of their
sentences.
The applicants filed another application on 5 April 2016, seeking
leave to appeal against the non parole
order and that it be set
aside. Again, they sought condonation for the late filing of
the application.
[9]
[9]
I deal first with leave to appeal
and the law regarding the granting of parole.
Leave
to appeal
[10]
This
matter raises an important constitutional issue regarding the power
of trial courts to grant non-parole orders. 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
is
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)
[10]
of the Constitution or to the benefit of the least severe of the
prescribed punishments.
[11]
There are prospects of success. It is thus in the
interests of justice to grant leave to appeal.
The
law regarding imposition of a non-parole order
[11]
Originally,
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
[12]
and the fact that courts obtain their sentencing jurisdiction from
statute.
[13]
In
Mhlakaza
[14]
the Supreme Court of Appeal, per Harms JA, said:
“
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 . .
.
The
lack of control of courts over the minimum sentence to be served can
lead to tension between the Judiciary and the Executive
because the
executive action may be interpreted as an infringement of the
independence of the Judiciary . . . There are also other
tensions,
such as between sentencing objectives and public resources.
This question relating to the judiciary’s true
function in this
regard is probably as old as civilisation . . . Our country is not
unique. Nevertheless, 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 long convicted persons
should be detained . . .
courts should also refrain from attempts, overtly or covertly, to
usurp the functions of the [E]xecutive
by imposing sentences that
would otherwise have been inappropriate.”
[12]
Section
276 of the Criminal Procedure Act
[15]
(Criminal Code or CPA) was amended by the Parole and Correctional
Supervision Amendment Act
[16]
(Amendment Act) by inserting section 276B.
[17]
Section 276B(1) 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.”
[13]
The
section 276B non-parole order is described as “an order which
is a determination in the present for the future behaviour
of the
person to be affected thereby. . . . [I]t is an order that a person
does not deserve being released on parole in future.”
[18]
The order should be made only in exceptional circumstances, which can
be established by investigation of salient facts, legal
argument and
sometimes further evidence upon which a decision for non-parole
rests.
[19]
In determining a non-parole period following punishment, a court in
effect makes a prediction on what may well be inadequate
information
as regards the probable behaviour of the accused. Therefore, a
need for caution arises because a proper evidential
basis is
required.
[20]
[14]
Following
the Amendment Act and its coming into operation, several trial courts
ordered that sentenced accused should serve at least
two-thirds of
their sentences before being considered for parole but the decisions
were reversed on appeal.
[21]
In
Botha
,
the Supreme Court of Appeal, per Ponnan AJA, relying on
Mhlakaza
,
remarked that the recommendation by the trial court was—
“
an
undesirable judicial incursion into the domain of another arm of
State which is bound to cause tension between the Judiciary
and the
[E]xecutive”.
[22]
Judicial
interference – even where it manifests itself in the form of a
mere “recommendation” as was the case
in
Botha
– is unacceptable in that it is unfair to both an accused
person as well as the correctional services authorities.
[15]
In
Stander
,
the Supreme Court of Appeal said that the section 276B enactment is
unusual and that:
“
[I]ts
enactment does not put the court in any better position to make
decisions about parole than it was in prior to its enactment.
Therefore, the remarks by this Court prior to section 276B still hold
good.
An
order in terms of section 276 should therefore only be made in
exceptional circumstances, when there are facts before the sentencing
court that would continue, after sentence, to result in a negative
outcome for any future decision about parole.
Mshumpa
offers a good example of such facts, namely, undisputed evidence that
the accused had very little chance of being rehabilitated.”
[23]
[16]
The
Court remarked further that “the consideration of 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”.
[24]
It endorsed
Pauls
,
[25]
and said that exceptional circumstances cannot be spelled out in
advance in general terms, but should be determined on the facts
of
each case. The Court said that there “should be
circumstances that are relevant to parole and not only aggravating
factors of the crime committed, and a proper evidential basis should
be laid for a finding that such circumstances exist.”
[26]
The Supreme Court of Appeal said that two issues arise when a court
considers imposing a non-parole period:
“
[F]irst,
whether to impose such an order and, second, what period to attach to
the order. In respect of both considerations
the parties are
entitled to address the sentencing court. Failure to afford
them the opportunity to do so constitutes a misdirection.”
[27]
[17]
In
Mthimkhulu
the
Supreme Court of Appeal dealt with an order of a non parole
period imposed in terms of section 276B(2).
[28]
There, the trial Court failed to invite the parties to address the
Court before it imposed the non-parole order. The
Court said
that the failure might well, depending on the case, constitute an
infringement of the accused’s fair-trial rights.
[29]
[18]
In
Gcwala
,
the Supreme Court of Appeal said that the period spent in custody
while awaiting trial should be taken into account and should
be
deducted when calculating the date on which the sentence is to expire
for purposes of considering parole. The Court stressed
that the
non-parole order should be made only in exceptional
circumstances.
[30]
Is
the non-parole order appropriate?
[19]
The applicants contended that the
trial Court erred grossly in law in issuing the non-parole order.
They said that they were
not afforded an opportunity to make
submissions and that the trial Court made no findings as to the
existence of exceptional circumstances
to warrant the non-parole
order. The trial Court found, without establishing the factual
bases, that the murder was premeditated.
This, they argued,
constituted a misdirection on the part of the trial Court. The
trial Court without more ordered the applicants
to serve 20 years of
the custodial term of 25 years before being eligible for parole.
[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.
[31]
Additionally, a trial Court should invite and hear oral argument on
the specific question before the imposition of a non-parole
period.
[32]
[21]
Here the trial Court did not invite
oral argument on these issues. It should have done so.
This is so because the imposition
of that kind of an order has a
drastic impact on the sentence to be served.
[22]
Section 276B(1)(b) sets a limit that
where a non-parole period is ordered it may not exceed two-thirds of
the sentence imposed.
Having been sentenced on 12 June 2012,
the applicants have served approximately four years of their
sentence. The
respondent conceded in its written submissions
that the trial Court erred in imposing a non-parole order. It
submitted that
there was no basis to contend that exceptional
circumstances existed for the order.
[23]
Notably,
the trial Court imposed the non-parole period before considering the
requirements set out by the Supreme Court of Appeal
in
Stander
.
[33]
The trial Court seems to have operated from the premise that the
applicants are incorrigible and beyond redemption from a
life of
crime and beyond rehabilitation. That does not follow from the
fact that they committed a horrendous crime.
[34]
Their incorrigibility had to be established, as a further fact,
relevant to the later consideration of parole. The
non-parole
order is clearly prejudicial to the applicants. If it stands,
the applicants will be denied the opportunity to
be considered for
parole before four-fifths of their sentences are served instead of
the statutorily prescribed maximum period
of two-thirds of their
sentence had proper non-parole orders been granted.
[24]
The trial Court misdirected itself.
Additionally, that Court materially misdirected itself by imposing
the 20 year non-parole
period without first establishing the
exceptional circumstances necessary for that order to be made.
Furthermore, the Court
did not invite the parties to make submissions
in that regard, as it should have done. That also constitutes a
material misdirection.
[25]
In
conclusion, the non-parole order falls short of the more stringent
tests in terms of the law. The non-parole order granted
by the
trial Court is inappropriate and must be set aside. That being
so, in terms of section 73(6)(a)
[35]
of the Correctional Services Act the applicants will be required to
serve at least half their sentences before being eligible for
parole.
Order
[26]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal against the non-parole order issued by the High Court of
South Africa,
Limpopo Local Division, Thohoyandou, is upheld.
3.
The non-parole order under case number CC05/2012 is set aside.
For
the Applicants:
Unrepresented
For
the Respondent:
N E Gcingca instructed by the Director of Public Prosecutions
[1]
S v
Jimmale and Others
,
unreported judgment of the High Court of South Africa, Limpopo Local
Division, Thohoyandu, Case No CC05/2012 (12 June 2012).
[2]
The order
and directions dated 17 February 2016 read:
“
1.
The application for condonation is granted.
2.
The application for leave to appeal against the conviction
and
sentence is dismissed, subject to the directions in paragraph 3
below.
3.
The Court directs that written argument on the power
of the
sentencing court to deny the applicants the opportunity to be
considered for parole before serving 20 years of their sentence
may
be lodged by—
(i)
the applicants, on or before Thursday, 25 February 2016; and
(ii)
the respondent, on or before Thursday, 3 March 2016.”
[3]
The
applicants are assisted by a fellow inmate, who is studying law
while in prison.
[4]
Above n 2.
[5]
DPP,
North Gauteng v Gcwala and Others
[2014]
ZASCA 44; 2014 (2) SACR 337 (SCA).
[6]
S v
Mthimkhulu
[2013]
ZASCA 53; 2013 (2) SACR 89 (SCA).
[7]
S v
Stander
[2011]
ZASCA 211; 2012 (1) SACR 537 (SCA).
[8]
The
directions issued by the Chief Justice and dated 25 May 2016 read:
“
1.
The National Director of Public Prosecutions is directed to file
written argument of not more than 10 pages, on or before 3 June
2016, addressing the issue of whether, in the light of the Supreme
Court of Appeal’s judgments in
DPP,
North Gauteng v Gcwala and Others
2014
(2) SACR 337
(SCA);
S v Mthimkulu
2013
(2) SACR 89
(SCA); and
S v Stander
2012
(1) SACR 537
(SCA), this Court should grant the relief sought by the
applicants to set aside the non-parole order of the High Court.
2.
Further directions may be issued.”
[9]
It seems
the applicants mistakenly thought that the directions of this Court
required them to file another application, rather
than just
submissions on the non-parole order. In any event, the papers
filed do indeed contain submissions on the non-parole
order and so
the procedural error is excusable, especially as the applicants are
unrepresented.
[10]
Section
12(1)(a) provides:
“
Everyone
has the right to freedom and security of person, which includes the
right—
(a)
Not to be deprived of freedom arbitrarily or without just cause.”
[11]
See s
ection
35(3)(n) of the Constitution which provides:
“
Every
accused person has a right to a fair trial, which includes the
right—
(n)
to the benefit of the least severe punishment if the prescribed
punishment for the offence has been changed between the time that
the offence was committed and the time of sentencing”.
[12]
See
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa
(1996)
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at
paras 111-3.
[13]
Stander
above n 7
at para 8.
[14]
S v
Mhlakaza and Another
[1997]
ZASCA 7
;
1997 (1) SACR 515
(SCA) at 521D-I.
[15]
51 of 1977.
[16]
87 of
1997. It came into force on 1 October 2004; see GG 26808 of 1
October 2004.
[17]
This
amendment was through the insertion of section 22 of the 1997
Amendment Act.
[18]
Strydom
v S
[2015]
ZASCA 29
at para 16.
[19]
Id.
[20]
Stander
above
n 7 at para 20
.
[21]
See for
example
Stander
above n 7
,
Gcwala
above n 5 and
Mthimkhulu
above n 6. For the position before the Amendment Act came into
force see
S
v Botha
2006 (2) SACR 110
(SCA).
Botha
was decided in May 2004, before the Amendment Act came into force.
See also
S
v Makena
2011 (2) SACR 294
(GNP). The case dealt with the law as it was
before 1 October 2004.
[22]
Botha
above n 21
at para 25.
[23]
Stander
above n 7
at para 16. The Supreme Court of Appeal referred to the case
of
S
v Mshumpa and Another
[2007] ZAECHC 23
;
2008 (1) SACR 126
(E) (
Mshumpa
).
[24]
Id at para
12.
[25]
S v
Pauls
2011
(2) SACR 417 (ECG).
[26]
Stander
above n 7
at para 20.
[27]
Id at para
22.
[28]
Section
276B(2) provides:
“
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.”
[29]
Mthimkhulu
above n 6 at para 21.
[30]
Gcwala
above n 5
at para 21.
[31]
Stander
above n 7
at para 20.
[32]
Strydom
above n 18
at para 16.
[33]
At
[15] above.
[34]
See in this
regard the decision of the Full Court in
S
v Makena
above
n 21 at 299E.
[35]
Section
73(6)(a) of the Correctional Services Act provides:
“
[A]
sentenced offender serving a determinate sentence . . . of more than
24 months may not be placed on day parole or parole until
such
sentenced offender has served either the stipulated non-parole
period, or
if no non-parole period was
stipulated, half of the sentence
, but
day parole or parole must be considered whenever a sentenced
offender has served 25 years of a sentence or cumulative sentences.”