CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 225/20
In the matter between:
GAOLATLHE SENWEDI Applicant
and
THE STATE Respondent
Neutral citation: Senwedi v The State [2021] ZACC 12
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J, Tshiqi J, Victor AJ
Judgments: Majiedt J (unanimous)
Decided on: 21 May 2021
Summary: Criminal Procedure Act 51 of 1977 — Section 276B —
non-retrospectivity of non-parole periods in terms of section 276B
— non-applicability of section 276B at the time of sentencing
Section 12(1)(a) of the Constitution — substantive and procedural
requirements — fatal misdirection where no opportunity to make
representations on non-parole period
ORDER
2
On appeal from the Supreme Court of Appeal Court (hearing an appeal from the High
Court of South Africa, Northern Cape Division, Kimberley):
1. Leave to appeal is granted.
2. The non -parole period ordered by the High Court of South Africa,
Northern Cape Division, Kimberley , on 14 May 2002 – that accused
one, Mr Gaolatlhe Senwedi, and accused two, Mr Alfred Khonyane ,
should not be considered for release on parole until they have each
served at least 25 years of their sentence of life imprisonment on count
3, murder – is set aside.
3. The Registrar of this Court is directed to forward a copy of this
judgment to the Depart ment of Justice and Correctional Services
under cover of a letter or email that indicates that this judgment be
brought to the attention of the erstwhile accused two ,
Mr Alfred Khonyane.
JUDGMENT
MAJIEDT J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J,
Theron J, Tshiqi J, Victor AJ concurring):
Introduction
[1] The applicant, Mr Gaolatlhe Senwedi, applied to the Supreme Court of Appeal
for leave to appeal against his conviction and sentence in the High Court of South
Africa, Northern Cape Division, Kimberley . The High Court had refused his
application for leave to appeal. The application in the Supreme Court of Appeal
suffered the same fate. The applicant then pursued an application for reconsideration
of the refusal of leave to appeal to the President of the Supreme Court of Appeal. The
3
application for reconsideration having also failed, the applicant sought leave to appeal
to this Court. The application in this Court is confined to a specific part of the sentence
imposed. The central issue concerns a non-parole period of 25 years ordered in respect
of a life sentence imposed on the applicant by the High Court during sentencing. What
requires determination is the validity of that order, given that the maximum non-parole
period was 20 years for such sentence at that time . That enquiry arises from the
following facts.
Background
[2] On 2 April 2001, Mr Coetzee was shot dead in the course of an armed robbery.
The applicant was arraigned in the High Court together with two co -accused for the
murder of Mr Coetzee, housebreaking, robbery with aggravating circumstances and the
illegal possession of a firearm and ammunition. On 2 May 2002, they were convicted
on all these charges, save for the housebreaking charge.
[3] On 14 May 2002, the applicant was sentenced as follows by the High Court:
(a) Count 2, robbery with aggravating circumstances : 25 years ’
imprisonment;
(b) Count 3, murder: life imprisonment;
(c) Count 4, illegal possession of a firearm: 3 years’ imprisonment; and
(d) Count 5, illegal possession of ammunition: 1 year’s imprisonment.
It was ordered that the sentences in respect of counts 2, 4 and 5 run concur rently with
the sentence of life imprisonment on the count of murder . It was further ordered “that
accused one [applicant] and two [Mr Alfred Khonyane] not be considered for release
on parole until they have each served at least 25 years of their life imprisonment
sentence”.1
1 State v Senwedi, unreported judgment of the High Court of South Africa, Northern Cape Division, Kimberley,
Case No K/S 54/2001 (14 May 2002) at paras 13.6.
4
[4] During August 2013, the Superior Courts Act 2 came into operation. After his
unsuccessful attempts in obtaining leave to appeal, the applicant was informed during
January 2017 by a fellow inmate of the possibility of an application for reconsideration
pursuant to section 17(2)(f) of that Act. On 10 June 2019, the applica nt lodged an
application for reconsideration with the Supreme Court of Appeal . The applicant
claimed that there were exceptional circumstances and prospects of success that warrant
an appeal to a Full Court. On 28 November 2019, the Registrar of the Supr eme Court
of Appeal sent a letter to the applicant informing him that the application could not be
accepted, as the application was dismissed on 26 January 2009. The Registrar informed
the applicant in the letter that “at that time the Superior Courts Act was not in force and
the [A]ct has no retrospective effect ”. It bears mention, for the sake of completeness,
that accused 3 (who was not subject to a non -parole period) also applied to the High
Court and also petitioned to the Supreme Court of Appeal, but to no avail.
[5] The applicant now seeks leave to appeal to this Court in order to remedy the
alleged infringement of his constitutional rights by the Supreme Court of Appeal in
refusing to entertain the application for reconsideration pursuant to section 17(2)(f) of
the Superior Courts Act. This application is also preceded by a condonation application
for the lengthy delay in bringing this application. The applican t submits that the
following constitutional rights were infringed:
(a) the right to equal protection under the law;3
(b) the right to access to court;4 and
(c) the right to appeal to, or review by, a higher court.5
[6] The applicant contends that when his application was dismissed by the
Supreme Court of Appeal in 2009, the possibility of lodging an application for
reconsideration was not available. The applicant claims that the refusal to consider the
2 10 of 2013.
3 Section 9(1) of the Constitution.
4 Section 34 of the Constitution.
5 Section 35(3)(o) of the Constitution.
5
application on the basis that section 17(2)(f) has no retrospective effect undermines the
purpose of the section. If his application were to be reconsidered , contend s the
applicant, it is clear that “the [High Court] was not at liberty to impose a non -parole
period prior to 1 October 2004 and he would have enjoyed his right to the least severe
sentence”.
[7] In the alternative, the applicant seeks leave to appeal the order of the High Court.
In particular, the applicant submits that the imposition of a non-parole period of
25 years’ imprisonment prior to the en actment of section 276B of the
Criminal Procedure Act6 (the CPA) infringes his constitutional rights. The applicant
notes that this i ssue was not raised in his initial application before the Supreme Court
of Appeal, but that this aspect was the only ground of appeal raised in his application
for reconsideration. In this regard, the applicant submits that when he was sentenced to
life imprisonment (on 14 May 2002) , individuals serving life sentences were required
to serve a minimum period of 20 years’ imprisonment before they became eligible for
parole. He points out that the effect of the imposition of the non -parole period by the
High Court is that he has to serve 5 years more than fellow inmates sentenced to life
imprisonment prior to 1 October 2004. The applicant argues that , since section 276B
of the CPA was introduced by section 22 of the Parole and Correctional Supervision
Amendment Act,7 operative as of 1 October 2004, any attempt to stipulate a non-parole
period in respect of an offence committed prior to the coming into operation of
section 276B, is impermissible. In this regard, the applicant relies on Zono.8
[8] The applicant c ontends that the imposition of a non-parole period prior to
1 October 2004 raises an important constitutional issue as it infringes the following
rights:
6 51 of 1977.
7 87 of 1997.
8 S v Zono [2014] ZASCA 188; 2014 JDR 2518 (SCA) (Zono) at para 6, where the Court stated that “[i]n the
absence of legislative authority to do so, it appears that courts that sought to impose such a non -parole period, as
both the sentencing court and the full court in this matter did, misdirected themselves”.
6
(a) the right not to be deprived of freedom arbitrarily and without just cause;9
and
(b) the right to benefit from the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing.10
Finally, the applicant contends that the High Court did not invite the legal
representatives to address the issue of fixing a non-parole period.
[9] This Court considered the application and issued the following directions to the
parties:
“1. The respondent is directed by Friday, 22 January 2021 to file two copies of the
complete trial record in Case No K/S 54/2001 of the High Court of South
Africa, Northern Cape Division, Kimberley.
2. The parties are directed to file written submissions of no longer than 15 pages
on the following issues:
a) Whether condonation should be granted.
i. Why did the applicant not approach this Court after his initial
petition to the Supreme Court of Appeal was dismissed on
26 January 2009?
b) Whether the non -parole period as ordered by the High Court at
paragraph 13.6 of the order is permissible.”
[10] Written submissions were received from both the applicant and the respondent.
The respondent’s submissions support the application in respect of the applicant’s
alternative contentions regarding the imposition of the non -parole period. The State
readily concedes that the length of the non-parole period imposed by the High Court
was invalid. This matter is being determined without oral argument.
9 Section 12(1)(a) of the Constitution.
10 Section 35(3)(n) of the Constitution.
7
Condonation
[11] The applicant first applied for leave to appeal to the Supreme Court of Appeal
on 26 January 2009, and his application for reconsideration was only filed on
10 June 2019 – more than ten years later. That application was refused on
28 November 2019. Four months later, in March 2020, a national l ockdown was
announced, due to the Corona virus pandemic. The present application was only filed
on 29 September 2020 in this Court.
[12] The applicant applies for condonation for this extensive delay. He explains that
he is a lay person with little education and no history of fixed employment. Further, he
did not have legal representation between 2009 and 2018, and only became aware in
2017 of the possibility of an application for reconsideration in terms of section 17(2)(f)
of the Superior Courts Act. This information emanated from a fellow inmate.
In addition, he is currently incarcerated, and was not able to see his legal representative
during the lockdown.
[13] The applicant concedes that he has not provided very good reasons to justify the
extensive delay, but submits that his case is important as it raises important
constitutional issues, and that there are significant prospects of success. The respondent
does not oppose the applicant’s condonation ap plication, and in fact argues in the
applicant’s favour. It refers to Mzizi11 on the importance of prospects of success for
condonation to be granted, and considers the applicant’s case to have good prospects of
success, as the 25 year period of non-parole was legislated only after the imposition of
sentence on the applicant.
[14] While the applicant’s justification of his delay i s somewhat tenuous, the strong
prospects of success 12 and the importance of the constitutio nal rights involved,
11 S v Mzizi [2009] ZASCA 32; 2009 JDR 0267 (SCA) at para 9.
12 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2)
SA 472 (CC); 2 008 (4) BCLR 442 (CC) at para 20 and S v Van der Westhuizen [2009] ZASCA 48; 2009 (2)
SACR 350 (SCA) at para 4.
8
compensate for that shortcoming. Further, the respondent does not oppose condonation.
In the premises, condonation ought to be granted.
Jurisdiction and leave to appeal
[15] The imposition of a non-parole period of 25 years prior to the enactment of
section 276B of the CPA engages this Court’s jurisdiction as a co nstitutional matter,
pursuant to section 167(3)(b)(i) of the Constitution.
[16] Section 12(1)(a) of the Constitution , which provides for the right not to be
deprived of freedom arbitrarily or without just cause, is implicated here. In Makhokha,13
the Regional Court had ordered that the applicant “must never be released on parole”.
An appeal to the High Court and an application for leave to appeal to the Supreme Court
of Appeal were unsuccessful. This Court held that ”[that] portion of the non-parole
period that is proscribed by section 276B(1)(b) [of the CPA] , 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 cause”.14 It is clear that the applicant approaches
this Court to vindicate this critical constitutional right . Freedom of the person is of
particular importance in our democratic dispensation, given the utterly reprehensible
manner in which persons were deprived of their liberty at will during the abominable
apartheid era. This Court’s jurisdiction is therefore engaged.
[17] The prospective appeal against the High Court ordering a non -parole period of
25 years prior to the enactment of section 276B has strong prospects of success, as will
be demonstrated presently. It is necessary for this injustice to be remedied and it is in
the public interest for this Court to reaffirm the legal position on fixed non -parole
periods.
13 S v Makhokha [2019] ZACC 19; 2019 (2) SACR 198 (CC); 2019 (7) BCLR 787 (CC) at para 2.
14 Id at para 14.
9
Merits
[18] The main ground contained in the application, challenging the Supreme Court of
Appeal’s refusal to reconsider its earlier decision , is devoid of merit. Section 17(2)(f)
of the Superior Courts Act15 applies to both criminal and civil proceedings.16 However,
the Superior Courts Act does not apply retrospectively. This is based on t he
well-established principle that there is a presumption against the retrospective operation
of a statute . Generally, a statute will be construed as operating prospectively , unless
the Legislature has clearly expressed a contrary intention. 17 The Supreme Court of
Appeal was therefore correct in not entertaining the application for reconsideration
under section 17(2)(f). The alternative contention – that the non -parole period of
25 years was not yet a competent order for the High Court to make – stands on an
entirely different footing.
[19] It is well established in our law that criminal liability arises on the date when the
particular crime is committed, and not when a person is either convicted or sentenced.
Similarly, the concomitant penalty for that crime is to be determined in relation to that
date, subject to the benefit conferred by section 35(3)(n) of the Constitu tion which
guarantees the least severe sentence if punishment was changed between the time of the
commission of the offence and the date of sentencing. In Phaahla, this Court explained
that “punishment, and parole eligibility, should be determined by the date of
commission of the offence” .18 An increase in penalty will ordinarily not operate with
retrospective effect in circumstances where that added sanction did not apply at the time
15 Section 17(2)(f) reads:
“The decision of the majority of the judges considering an application referred to in
paragraph (b), or the decision of the court, as the case may be, to grant or refuse the application
shall be final: Provided that the President of the Supreme Court of Appeal may in exceptional
circumstances, whether of his or her own accord or on application filed within one month of the
decision, refer the decision to the court for reconsideration and, if necessary, variation.”
16 S v Liesching [2016] ZACC 41; 2017 (2) SACR 193 (CC); 2017 (4) BCLR 454 (CC) at para 57.
17 S v Acting Regional Magistrate, Boksburg [2011] ZACC 22; 2011 (2) SACR 274 (CC); 2012 (1) BCLR 5 (CC)
at para 16 and Veldman v Director of Public Prosecutions, Witwatersrand Local Division [2005] ZACC 22; 2007
(3) SA 210 (CC); 2007 (9) BCLR 929 (CC) at paras 26-7.
18 Phaahla v Minister of Justice and Correctional Services [2019] ZACC 18; 2019 (2) SACR 88 (CC); 2019 (7)
BCLR 795 (CC) at para 70.
10
when the offence was committed. 19 This is a necessar y corollary of the principle of
legality, that no court may impose a sentence more severe than the sentence legally
permitted at the time of the commission of the relevant crime ( nulla poena sine lege ).
In this case, there was no increase in penalty between the time of the commission of the
crime and the time of sentencing. However, a penalty was applied that was not
statutorily permitted at the time of sentencing.
[20] Section 276B of the CPA reads:
“(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 th irds 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, s ubject to subsection (1) (b), fix the
non- parole-period in respect of the effective period of imprisonment.”
[21] As stated, section 276B of the CPA was introduced by section 22 of the Parole
and Correctional Supervision Amendment Act. That Act was assented to on
26 November 1997, but came into operation only on 1 October 2004. 20 In Jimmale,21
this Court extensively discussed the system of parole and described it as “an
acknowledged part of our correctional system”, and as “a vital part of reformative
treatment for the paroled person who is treated by moral suasion”. 22 This Court held
19 R v Mazibuko 1958 (4) SA 353 (A) at 357D-E; R v Sillas 1959 (4) SA 305 (A) at 311E-G; S v Mpetha 1985 (3)
SA 702 (A) at 707G-708A and 717H-718B.
20 Van der Merwe “Sentencing” in Du Toit et al Du Toit Commentary on the Criminal Procedure Act Revision
(2019); Kruger “Sentence” in Kruger Hiemstra’s Criminal Procedure Revision (2020); Terblanche A Guide to
Sentencing in South Africa 3 ed ( LexisNexis, Durban 2016) 259-60; Moses Parole in South Africa (Juta & Co
Ltd, Cape Town 2012) 40-3.
21 S v Jimmale [2016] ZACC 27; 2016 (2) SACR 691 (CC); 2016 (11) BCLR 1389 (CC) (Jimmale).
22 Id at para 1.
11
that a non -parole order should be made only in exceptional circumstances, to be
established by the investigation of salient facts, legal argument and sometimes further
evidence upon which a decision for non-parole rests.23 When it determines a non-parole
period following sentence, a court is in effect making “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”.24
[22] This Court further cautioned that “a section 276B non -parole order should not
be resorted to lightly”.25 Courts should show deference to the Parole Board and the
Department of Correctional Services officials to make assessments and decisions
regarding parole.26 That approach would also respect the principle of the separation of
powers. In citing a passage from Strydom,27 this Court observed that:
“a section 276B non -parole order [can be ] described as ‘ an order which is a
determination in the present for the future behaviour of the perso n to be affected
thereby. . . [I]t is an order that a person does not deserve bein g released on parole in
future’.”28
[23] A factor that bears consideration , when contemplating the imposition of a
non-parole period, is that section 73 of the Correctional Servi ces Act 29 – and in
particular subsection 73(6) thereof – deals with parole. A person sentenced to life
incarceration may not be placed on parole before having served at least 25 years of that
sentence.30
23 Id at para 13. See also: S v Stander [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) (Stander) at para 16.
24 Jimmale id.
25 Id at para 20 and S v Mhlongo [2016] ZASCA 152; 2016 (2) SACR 611 (SCA) (Mhlongo) at paras 6-7.
26 Jimmale n 21 above at para 20.
27 S v Strydom v S [2015] ZASCA 29; 2015 JDR 2566 (SCA) (Strydom) at para 16.
28 Jimmale n 21 above at para 13.
29 111 of 1998.
30 Section 73(6)(b)(iv) reads:
“a person that has been sentenced to – life imprisonment, may not be placed on parole or parole
until he or she has served at least 25 years of the sentence.”
12
[24] The fixing of a non -parole period constitutes an increased sentence. In
accordance with the general principle, it cannot oper ate retrospectively. Absent any
legally recognised special circumstances, no departure from this principle is warranted,
and the fixing of a non -parole period that purports to operate retrospectively, is
impermissible in law.31
[25] The applicant and his co-accused were convicted on 2 May 2002 and sentenced
on 14 May 2002, in respect of offences committed on 2 April 2001. These dates all
precede the enactment of section 276B of the CPA. That section introduced a maximum
of two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter,
for a non-parole period. Consequently, the High Court has fatally misdirected itself in
fixing a non-parole period of that length in respect of the sentence of life imprisonment
for the murder conviction. At the time of sentencing, individuals serving life sentences
were required to serve a minimum period of 20 years’ imprisonment before they became
eligible for parole. In Phaahla, this Court summarised the position as follows:
“[I]nmates sentenced to life imprisonment [for offences committed] before
1 October 2004 are eligible fo r parole after having served 20 years; and inmates
sentenced to life imprisonment [for offences committed] from 1 October 2004 onwards
must serve a minimum of 25 years before they may be considered for release on parole.
Section 136(1) [of the Correctional Services Act] thus created a dual system of
assessment . . . .”32
31 S v Mchunu [2013] ZASCA 126; 2013 JDR 2103 (SCA) at para 5; Zono above n 8 at para 6; S v Mvubu [2016]
ZASCA 184; 2016 JDR 2224 (SCA) (Mvubu) at paras 9-10; SM v S [2018] ZASCA 162 at para 8.
32 Phaahla above n 18 at paras 9 and 70. See section 136(1) of the Correctional Services Act above n 25 which
reads:
“Any person serving a sentence immediately before the commencement of this Act will be
subject to the provisions of the Correctional Services Act, 1959 (Act No. 8 of 1959), relating to
his or her placement under community corrections but the Minister may make such regulations
as are necessary to achieve a uniform policy framework to deal with prisoners who were
sentenced immediately before the commencement of this Act, and no prisoner m ay be
prejudiced by such regulations.”
13
[26] The effect of the imposition of th at non-parole period by the High Court is that
the applicant will have to serve five years more than fellow inmates who were sentenced
to life imprisonment prior to the date when section 276B came into operation,
1 October 2004. The additional five years of the applicant’s sentence would commence
during 2022.
[27] Our Courts must defend and uphold the Constitution and the rights entrenched
in it. One of the most important rights, from a historical perspective, is unquestionably
the deprivation of an individual’s liberty. This Court sa id in Ferreira that
“[c]onceptually, individual freedom is a core right in the panoply of human rights”. 33
The apartheid regime repulsively and capriciously deprived people of their freedom
under illegitimate legislation that paid no respect to the rights to freedom and security
of the person. We are therefore constrained to jealously guard the liberty of a person
under our Constitution, particular ly in terms of section 12 of the Bill of Rights . The
part of the order imposing 25 years as a non-parole period must therefore be set aside.
[28] There is another aspect that bears mention. When a sentencing court considers
ordering a non -parole period, it must afford the parties an opportunity to address that
issue.34 A failure to do so wou ld also be a fatal misdirection,35 and may well –
depending on the circumstances – amount to an infringement of an accused person’s
fair-trial rights.36 The right in section 12 consists of both substantive and procedural
elements.37 Courts play an import ant role in ensuring that procedural prescripts are
complied with.38 Here, the High Court failed to afford the parties an opp ortunity to
33 Ferreira v Levin NO; Vryenhoek v Powell N .O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1
(CC) at para 47.
34 Jimmale n 21 above at para 17; Stander n 23 above at para 20; S v Mthimkhulu [2013] ZASCA 53; 2013 (2)
SACR 89 (SCA) (Mthimkhulu) at para 21.
35 Stander n 23 above at para 22; Mhlongo above n 25 at paras 9-13; Mvubu above n 31 at para 10.
36 Mthimkhulu above n 35 above at para 21.
37 S v Coetzee [1997] ZACC 2; 1997 (3) SA 527; 1997 (4) BCLR 437 at para 159 and Bernstein v Bester N.N.O.
[1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at paras 145-7.
38 Lawyers for Human Rights v Minister of Home Affairs [2017] ZACC 22; 2017 (5) SA 480 (CC) ; 2017 (10)
BCLR 1242 (CC) at para 35
14
address the possible fixing of a non-parole period. That, too, is a fatal misdirection, but
it becomes academic in view of the first fatal misdirection that requires a setting aside
of that part of the order.
[29] The erstwhile second accused at the trial in the High Court, Mr Alfred Khonyane,
is in exact ly the same position as the applicant as far as the non -parole order is
concerned. This order ought therefore to be brought to his attention.
[30] The following order is issued:
1. Leave to appeal is granted.
2. The non -parole period ordered by the High Court of South Africa,
Northern Cape Division, Kimberley, on 14 May 2002 – that
accused one, Mr Gaolatlhe Senwedi, and accused two, Mr Alfred
Khonyane, should not be considere d for release on parole until they
have each served at least 25 years of their sentence of life
imprisonment on count 3, murder – is set aside.
3. The Registrar of this Court is directed to forward a copy of this
judgment to the Departmen t of Justice and Correctional Services
under cover of a letter or email that indicates that this judgment be
brought to the attent ion of the erstwhile accused two , Mr Alfred
Khonyane.
15
For the Applicant:
For the Respondent:
Legal Aid South Africa, Kimber ley
Local Office.
Director of Public Prosecutions,
Northern Cape.