A sentence with a non-parole period should be imposed only in exceptional circumstances established by investigation of salient facts, legal argument and further evidence upon which a decision for non-parole rests
June 10, 2019
Makhokha v State
Constitutional Court of South Africa
Case CCT 170/18
Mogoeng CJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Theron JJ, Ledwaba , Nicholls AJJ,
Reported by: Claris Njihia
Appeals-appeals to the Constitutional Court-appeals of a criminal nature-where an appeal was brought against the magnitude of a sentence-whether the constitutional court had the jurisdiction to entertain an appeal that was purely against the magnitude of sentence
Criminal Law-sentences- where a court to imposed a determinate term of imprisonment that was to commence running on completion of a term of life imprisonment-parole- where a sentence had no parole-constitutionality of -whether a sentence in respect of the whole of which there was no parole was constitutionally valid-Criminal Procedure Act 51 of 1997 section 276B-Constitution of the Republic of South Africa, section 12 (1) (a)
The Constitutional Court handed down judgment in an application for leave to appeal against a sentence imposed by the Regional Magistrates’ Court (Regional Court). In 2008, the applicant was convicted by the Regional Court of unexplained possession of a motor vehicle that was reasonably suspected to have been stolen. He was sentenced to 15 years in prison, the maximum term of imprisonment that would be imposed by a regional court under the Magistrates’ Court Act. At the time of sentence, the applicant was already serving a sentence of life imprisonment for another offence. The magistrate directed that the two sentences were to run consecutively; the 15-year sentence would only start to run after the life sentence. The magistrate also ordered that the applicant could never be released on parole. An appeal against the sentence to the High Court was unsuccessful. A subsequent approach to the Supreme Court of Appeal bore no fruit. The applicant then appealed to the Constitutional Court against the non-parole order and duration of his sentence.
- Whether the Constitutional Court had the jurisdiction to entertain an appeal that was purely against the magnitude of sentence.
- Whether a sentence in respect of the whole of which there was no parole was constitutionally valid.
- Whether it was lawful for a court to impose a determinate term of imprisonment that was to commence running on completion of a term of life imprisonment.
- Whether the order that the applicant could not be released on parole (non-parole period) ought to stand.
- Whether the provisions of section 39(2)(a)(i) of the Correctional Services Act rendered it inconsequential to remit the matter to the Regional Magistrate to consider whether to still impose a non-parole period.
Relevant Provisions of law
The Constitution of the Republic of South Africa, 1996
Section 12 (1) (a)-Freedom and security of the person
12. (1) Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause
Criminal Procedure Act 51 of 1997
Section 276 B-Fixing of non-parole –period
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 thirds 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, subject to subsection (1) (b), fix the non-parole-period in respect of the effective period of imprisonment.
Correctional Services Act 111 OF 1998.
Section 39(2)(a)(i) –Commencement, computation and termination of sentences
(2) (a) Subject to the provisions of paragraph (b), a person who receives more than one sentence of imprisonment or receives additional sentences while serving a term of imprisonment, must serve each such sentence, the one after the expiration, setting aside or remission of the other, in such order as the Commissioner may determine, unless the court specifically directs otherwise, or unless the court directs that such sentences shall run concurrently but- (i) any determinate sentence of imprisonment to be served by any person runs concurrently with a life sentence or with sentence of imprisonment to be served by such person in consequence of being declared an habitual criminal or a dangerous criminal.
- The court would not ordinarily entertain an appeal on sentence merely because there was an irregularity; there had to also be a failure of justice. where there was no claim of an irregularity and the challenge was purely against the magnitude of sentence, the constitutional Court did not have jurisdiction to interfere.
- Sentencing sometimes raised separation of powers concerns. The lack of control of courts over the minimum sentence to be served could lead to tension between the Judiciary and the Executive because the Executive action would be interpreted as an infringement of the independence of the Judiciary. There were also other tensions, such as between sentencing objectives and public resources. The question relating to the Judiciary’s true function was probably as old as civilization.
- Sentencing jurisdiction was statutory and courts were bound to limit themselves to performing their duties within the scope of that jurisdiction. 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.
- At worst, the applicant could not be eligible for parole before serving 10 years’ imprisonment. That meant that 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. That portion of the non-parole period that was proscribed by section 276B (1) (b) being the portion in excess of two thirds of 15 years’ imprisonment, constituted an infringement of the applicant’s right under section 12(1)(a) of the Constitution.
- It was not a foregone conclusion that a sentenced prisoner would be released on parole. But then a sentenced prisoner who would have been entitled to be released on parole would end up serving the entire term of imprisonment purely because of a 100 percent non-parole period. That would happen contrary to the express provisions of section 276B(1)(b) which outlawed a 100 percent non-parole period. That was antithetical to the rule of law, a founding value of the Constitution, and thus at odds with the provisions of section 12(1)(a) of the Constitution.
- As far as the substantive aspect of section 12(1)(a)] right was concerned, just cause had to be grounded upon and consonant with the values expressed in section 1 of the Constitution and gathered from the provisions of the Constitution as a whole. The non-parole period was not only in conflict with the statute but constitutionally invalid and fell to be set aside.
- 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. The Regional Magistrate’s direction exposed the applicant to the possibility of only starting to serve the 15-year term of imprisonment upon release – possibly on parole – from life imprisonment. That 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.
- The Regional Magistrate’s direction constituted a deprivation of freedom arbitrarily or without just cause in contravention of section 12(1)(a) of the Constitution. The order had put it beyond question that the term started running from the date of sentence. The order that, for the entire term of imprisonment, the applicant would not be eligible for parole and the direction that that term of imprisonment would commence to run on completion of the life term of imprisonment had to be set aside.
- The provisions of section 39(2)(a)(i) of the Correctional Services Act at face value appeared to render it inconsequential to remit the matter to the Regional Magistrate to consider whether to still impose a non-parole period. The issue was complicated by the provisions of section 39(2)(b) of the Correctional Services Act. It was not necessary to remit the matter to the Regional Court. That was because of the circumstances in which it was appropriate to impose a non-parole period. A sentence with a non-parole period should be imposed only in exceptional circumstances, which could be established by investigation of salient facts, legal argument and sometimes further evidence upon which a decision for non-parole rested.
- In determining a non-parole period following punishment, a court in effect made a prediction on what would well be inadequate information as regards the probable behaviour of the accused. Therefore, a need for caution arose because a proper evidential basis was required.
- None of the factors relevant to sentence constituted exceptional circumstances warranting the imposition of a non-parole period. There were no exceptional circumstances suddenly popping up upon remittal. Thus remittal would be an exercise in futility. That matter had been outstanding for a long time. Interests of justice dictated that it be brought to finality.
- Leave to appeal against the sentence of 15 years’ imprisonment refused.
- Leave to appeal against the orders referred to in paragraphs 4 and 5 of the order is granted.
- The order by the Regional Magistrates’ Court that for the duration of the term of 15 years’ imprisonment the applicant would not be eligible for parole was set aside.
- The order by the Regional Court that the 15-year term of imprisonment would not run concurrently with the term of life imprisonment was set aside.
- The commencement of the term of 15 years’ imprisonment was antedated to the date of sentence.
Relevance to the Kenyan Situation
Section 49 of Prison Act Chapter 90 laws of Kenya provides that release on parole should be within three months of the date upon which a prisoner serving a sentence of or exceeding four years is due for release.
In May 12,2018, thirty-two West Pokot inmates were released on parole from Kapenguria GK prison in renewed efforts to decongest prisons in the country.
The court partly held that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there were no specific provisions for the sentence of life imprisonment, because it was an indeterminate sentence. Nevertheless, it was not for the court to define what constituted a life sentence or what number of years must first be served by a prisoner on life sentence before they were considered on parole. That was a function within the realm of the legislature.
Recommendations of The Task Force On the Review of the Mandatory Death Penalty made on October 3, 2018
The Task Force proposed retaining the provision of remission for offenders serving a term of imprisonment that was less than three years, and introducing a new system of parole (replacing remission) for offenders serving a sentence of three years or more, including a life sentence Parole would not be automatic. Eligibility to apply for parole after serving a minimum period of incarceration would be determined by the sentencing court in accordance with established parameters. The period of ineligibility (i.e. the minimum time to be served before applying for parole) should include any period of pre-sentence custody.
They recommended no eligibility for parole for those convicted of aggravated murder.