CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 170/18
In the matter between:
KHATHUTSHELO OUPA MAKHOKHA Applicant
and
STATE Respondent
Neutral citation: Makhokha v State [2019] ZACC 19
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ, Theron J.
Judgments: Madlanga J (unanimous)
Decided on: 3 May 2019
ORDER
On appeal from the High Court of South Africa, Venda Provincial Division (hearing an
appeal from the Regional Court, Sibasa):
1. Leave to appeal against the sentence of 15 years’ imprisonment is refused.
2. Leave to appeal against the orders referred to in paragraphs 4 and 5 of this
order is granted.
3. The appeal is upheld.
2
4. The order by the Sibasa Regional Magistrates’ Court (Regional Court)
that for the duration of the term of 15 years’ imprisonment
Mr Khathutshelo Oupa Makhokha will not be eligible for parole is set
aside.
5. The order by the Regi onal Court that the 15 -year term of imprisonment
will not run concurrently with the term of life imprisonment is set aside.
6. The commencement of the term of 15 years’ imprisonment is antedated
to the date of sentence.
JUDGMENT
MADLANGA J ( Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Mhlantla J, Nicholls AJ, Theron J concurring)
Introduction
[1] At issue here is a 15-year term of imprisonment in respect of the whole of which
the sentencing Regional Magistrate ruled that the applicant wo uld not be eligible for
parole. The 15 -year term was to start running on completion of a term of life
imprisonment that the accused was serving at the time of its imposition. The questions
that arise are: whether a sentence in respect of the whole of which there is no parole is
constitutionally valid; and whether it is lawful for a court to impose a determinate term
of imprisonment that is to commence running on completion of a term of li fe
imprisonment.
[2] In 2008 the applicant, Mr Khathutshelo Oupa Makhokha, was convicted by the
Sibasa Regional Magistrates’ Court of possession of a motor vehicle that was
reasonably suspected to have been stolen and in respect of which he was unable to give
Madlanga J
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a reasonable explanation of his possession. 1 He was sentenced to 15 years’
imprisonment, the maximum term of imprisonment that may be imposed by a Regional
Court under section 92(1)(a) of the Magistrates Court Act. 2 The Regional Magistrate
ordered that the applicant “must never be released on parole”. At the time of sentence
the applicant was serving a sentence of life imprisonment. The Regional Magistrate
also directed that the two sentences were to run consecutively; that is, the 15 -year
sentence would only start to run after the life sentence.3
[3] The High Court of South Africa, Venda Provincial Division (High Court)
dismissed the appeal. An approach to the Supreme Court of Appeal did not bear fruit.
Now the applicant applies to this Court for leave to appe al his sentence and seeks
condonation of the late lodgement of this application.
[4] We are deciding this matter without oral argument. 4 Ms Estelle Kilian SC, Mr
Cliff McKelvey and Ms Palesa Mafisa were appointed by the Johannesburg Bar at this
Court’s request to assist the applicant. This Court is indebted to them for their written
submissions.
Condonation
[5] The applicant, a layperson who was not legally represented when he lodged this
application, says that after his appeal had been struck from the r oll by the Supreme
Court of Appeal, he believed that it would still be re-enrolled without him lifting a finger
and then determined on the merits. It was only recently that he got to understand the
real import of the order. He then began to prepare an application for lodgement in this
Court. In doing so, he encountered difficulties in getting all the documents he required.
Although the period of the delay is very long, in the circumstances of this case it is
1 This is an offence in terms of section 36 of the General Law Amendment Act 62 of 1955.
2 32 of 1944.
3 That, of course, must have been premised on the reality that life imprisonment does not always mean that the
sentenced person will be incarcerated for life.
4 We may do this in terms of rule 11(4) of the Rules of this Court.
Madlanga J
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proper to grant condonation. Circumstances that singularly dictate that condonation be
granted are what egregiously went wrong with the sentencing . I demonstrate this
shortly. Condonation is granted.
Jurisdiction and leave to appeal
[6] At the outset, let me dispel any notion that we have jurisdicti on to entertain an
appeal that is purely against the magnitude of sentence. This Court has held that it “will
not ordinarily entertain an appeal on sentence merely because there was an irregularity;
there must also be a failure of justice”.5 It must follow more strongly that, where there
is no claim of an irregularity and the challenge is purely against the magnitude of
sentence, this Court does not have jurisdiction to interfere. Indeed, in Bogaards
Khampepe J held:
“[T]his Court does not ordinarily hear appeals against sentence based on a trial court’s
alleged incorrect evaluation of facts. For instance, this Court will not, in the ordinary
course, hear matters in relation to sentence merely because the sentence was
disproportionate in the circumstances. Something more is required.”6
[7] Thus leave to appeal against the 15-year term of imprisonment is refused.
[8] Here as I will soon show, there is not just a contention that the period of
imprisonment was disproportionately lengthy in the circumstances but that there was
also a failure of justice and more. The applicant’s constitutional right not to be detained
arbitrarily or without just cause7 is implicated.8 Needless to say, this is a constitutional
matter. Thus we have jurisdiction.
5 S v Bogaards [2012] ZACC 23; 2013 (1) SACR 1 (CC); 2012 (12) BCLR 1261 (CC) (Bogaards) at para 42.
6 Id.
7 Section 12(1)(a) of the Constitution.
8 See S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) (Boesak) at paras 37-8; De Lange
v Smuts N.O. [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) (Smuts) at paras 22-5.
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[9] The issues raised by the applicant are of some import. A combination of this and
the fact that the 15 -year term of imprisonment is to commence running only on
completion of the term of life imprisonment compellingly make it to be in the interests
of justice to grant leave to appeal.
The appeal
[10] The questions we must determine are: first, whether the order that the applicant
must not be released on parole (non-parole period) ought to stand; and second, whether
the determination that the 15 -year term of imprisonment and life imprisonment are to
run consecutively is legally competent.
The non-parole period
[11] Sentencing sometimes raises separation of powers concerns. In Mhlakaza Harms
JA considered this in a context that did not involve a non -parole period, but concerned
a disturbingly high cumulative effect of several sentences. He cautioned against the
possible temptation of courts to impose sentences that seek to counteract the
ameliorative effects of decisions by the Executive on the actual length of terms to be
served in prison. He 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 ove r 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 sentenc ing ob jectives 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 governm ent as to how long convicted persons should be
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detained . . . 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.”9 (References omitted.)
Nkabinde J quoted these words of caution with approval in Jimmale.10
[12] An important innovation for present purposes is the 1997 amendment11 to the
Criminal Procedure Act.12 In section 276B of this Act the amendment curbs the power
of courts to impose non-parole periods. 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] In terms of section 276B(1)(b) at worst the applicant could not be eligible for
parole before serving 10 years’ imprisonment.13 That means the Regional Court simply
did not have the power to fix a 100 percent non-parole period in respect of the 15-year
term of imprisonment.
[14] That portion of the non -parole period that is proscribed by section 276B(1)(b),
namely the portion in excess of two thirds of 15 years’ imprisonment, constitutes an
infringement of the applicant’s right under section 12(1)(a) of the Constitution: the right
not to be deprived of freedom arbitrarily or without just c ause.14 It is so that it is not a
9 S v Mhlakaza [1997] ZASCA 7; 1997 (1) SACR 515 (SCA) (Mhlakaza) at 521D-I
10 S v Jimmale [2016] ZACC 27; 2016 (2) SACR 691 (CC); 2016 (11) BCLR 1389 (CC) (Jimmale) at para 11.
11 This amendment took effect on 1 October 2004 in terms of Proc R45 GG 26808 of 1 October 2004.
12 51 of 1977.
13 Obviously, 10 years is two-thirds of 15 years.
14 See Boesak above n 8 at paras 37-8; Smuts above n 8 at paras 22-5.
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foregone conclusion that a sentenced prisoner will be released on parole. But then a
sentenced prisoner who would have been entitled to be released on parole may end up
serving the entire term of imprisonment purely becau se of a 100 percent non -parole
period. That will happen contrary to the express provisions of section 276B(1)(b) which
outlaw a 100 percent non -parole period. That is antithetical to the rule of law, a
founding value of our Constitution, 15 and thus at odd s with the provisions of section
12(1)(a) of the Constitution. In Boesak Langa DP held that “[a]s far as the substantive
aspect of [the section 12(1)(a)] right is concerned, ‘just cause’ must be grounded upon
and consonant with the values expressed in sec tion 1 of the Constitution and gathered
from the provisions of the Constitution as a whole”.16
[15] For these reasons, the non -parole period is not only in conflict with the statute
but constitutionally invalid and falls to be set aside.
Sentences to be consecutive
[16] Turning to the direction that the applicant’s sentences run consecutively, this is
contrary to the provisions of section 39 of the Correctional Services Act. 17
Section 39(2)(a) provides:
“Subject to the provisions of paragraph (b), a person who rece ives more than one
sentence of incarceration or receives additional sentences while serving a term of
incarceration, must serve each such sentence, the one after the expiration, setting aside
or remission of the other, in such order as the National Commissioner may determine,
unless the court specifically directs otherwise, or unless the court directs that such
sentences shall run concurrently but—
15 In t his regard, section 1 of the Constitution provides that the Republic of South Africa is one sovereign,
democratic state founded on, amongst others, the value of the supremacy of the Constitution and the rule of law.
16 Boesak above n 9 at para 38. To explain the reference to the substantive aspect of the section 12(1)(a) right, in
paragraph 37 the Court held that the section “entrenches two different aspects of the right to freedom, the
substantive and the procedural. The substantive aspect is the right not to be deprived of freedom arbitrarily or
without just cause . . . The procedural aspect is implicit in section 12(1) and guarantees a fair trial.”
17 111 of 1998.
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(i) any determinate sentence of incarceration to be served by any person runs
concurrently with a life sentence or with a sentence of incarceration to be
served by such person in consequence of being declared a dangerous
criminal . . .”
[17] In Mashava here is what the Supreme Court of Appeal said of paragraph (a)(i)
of the section:
“The provision is clear. Any determin ate sentence of incarceration, imposed in
addition to life imprisonment, is subsumed by the latter. This is logical and practical.
A person has one life and a sentence of life imprisonment is the ultimate penal
provision.”18
[18] Thus the Regional Magistrate lacked the legal competence to direct that the
15-year term of imprisonment should commence to run after completion of the sentence
of life imprisonment. To that extent, the Regional Magistrate’s direction exposes the
applicant to the possibility of only starting to serve the 15 -year term of imprisonment
upon release – possibly on parole – from life imprisonment. This, in circumstances
where – because of the lack of competence to make the direction – the 15-year term of
imprisonment would have commenced to run on the date of sentence and concurrently
with the term of life imprisonment. For reasons express ed earlier, the Regional
Magistrate’s direction constitutes a deprivation of freedom arbitrarily or without just
cause in contravention of section 12(1)(a) of the Constitution.
Remedy
[19] As indicated, we will not interfere with the 15 -year term of imprisonment. But
the order must put it beyond question that this term started running from the date of
sentence. The order that, for this entire term of imprisonment, the applicant will not be
eligible for parole and the direction that this term of imprisonment will commence to
run on completion of the life term of imprisonment must be set aside.
18 S v Mashava [2013] ZASCA 200; 2014 (1) SACR 541 (SCA) (Mashava) at para 7.
Madlanga J
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[20] Do the provisions of section 39(2)(a)(i) of the Correctional Servi ces Act render
it inconsequential to remit the matter to the Regional Magistrate to consider whether to
still impose a non-parole period? At face value they appear to. But the answer is not
all that easy. The issue is complicated by the provisions of se ction 39(2)(b) of the
Correctional Services Act. This section provides that in the case of the imposition of
more than one period of imprisonment, the non -parole period or periods fixed by the
court must be served consecutively before a prisoner becomes e ligible for parole. To
reach a conclusion of inconsequentiality, I would have to interpret “more than one
period of imprisonment” to exclude life imprisonment, with the result that there would
be no question of the non -parole period being served after lif e imprisonment. I am
uncomfortable to adopt that interpretation in a judgment where we have not had the
benefit of argument on that question.
[21] That said, I still do not think it necessary to remit the matter to the
Regional Court. That is because of what we held in Jimmale19 about circumstances in
which it is appropriate to impose a non -parole period. We held that a sentence with a
non-parole period should be imposed—
“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. 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
19 Jimmale above n 10.
20 Id at para 13.
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[22] Jimmale further quoted with approval21 what the Supreme Court of Appeal said
in Stander22 about section 276B:
“[I]ts enactment does not put the court in any better position to make dec isions 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 s ection 276B 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 parol e. Mshumpa offers a good example of such facts, namely,
undisputed evidence that the accused had very little chance of being rehabilitated.”
[23] The Regional Magistrate dealt at length with the factors relevant to sentence.
None of them constituted exceptional circumstances warranting the imposition of a non-
parole period. 23 In the circumstances of this case, I cannot conceive of exceptional
circumstances suddenly popping up upon remittal. Thus remittal will be an exercise in
futility. This matter has been outstanding for a long time. Interests of justice dictate
that it be brought to finality now.
Order
[24] In the result, the following order is made:
1. Leave to appeal against the sentence of 15 years’ imprisonment is refused.
2. Leave to appeal against the orders referred to in paragraphs 4 and 5 of this
order is granted.
3. The appeal is upheld.
4. The order by the Sibasa Regional Magistrates’ Court that for the duration
of the term of 15 years’ imprisonment Mr Khathutshelo Oupa Makhokha
will not be eligible for parole is set aside.
21 Id at para 15.
22 S v Stander [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) at para 16 , referring to S v Mshumpa [2007]
ZAECHC 23.
23 Compare Jimmale above n 10 at para 13.
Madlanga J
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5. The order by the Regional Court that the 15 -year term of imprisonment
will not run concurrently with the term of life imprisonment is set aside.
6. The commencement of the term of 15 years’ imprisonment is antedated
to the date of sentence.
For the Applicant E Kilian SC, C McKelvey and P Mafisa