By Nicholas Mgedeza and Dumisani Masuku
In practice there are judicial officers who impose a sentence that the accused will undergo a certain period of imprisonment and will not be eligible for parole. In the matter of S v Mpharu (FB) (unreported case no 147/2014, 4-9-2014) (Pohl AJ), the matter was brought under special review, after the accused in the matter had been charged on 23 June 2014 with ‘housebreaking with the intent to steal and theft.’ He was legally represented and pleaded guilty to the charge and was duly convicted. Subsequently, the magistrate imposed a sentence of three months’ imprisonment and further made an order that the accused would not be eligible for parole. In this article, we scrutinise whether the magistrates’ courts are vested with the powers to impose a sentence where parole is denied? What does the Criminal Procedure Act 51 of 1977 and the authorities say in this regard? What factors does the judicial officer need to take into account in determining a sentence that the prisoner should not be entitled to be paroled or have his sentence remitted?
Law and analysis
Section 276(1) of the CPA provides that: ‘(1) Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed on a person convicted of an offence, namely –
(a) …
(b) Imprisonment, including imprisonment for life or imprisonment for an indefinite period as referred to in section 286B(1);
(c) periodical imprisonment;
(d) declaration as a habitual criminal;
(e) committal to any institution established by law;
(f) a fine;
(g) …
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board.’
At the first instance, the statute does not provide for circumstance where the court can order the accused not to be entitled to parole. Section 276B(1) and (2) of the CPA provides that:
‘(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.’
Undoubtedly, this section confers the court the right to curtail the time of which the prisoner must be kept in detention prior to being eligible for parole. By way of illustration, the matter of S v Kodisang (GP) (unreported case no A421/15, 20-6-2015) (Thobane AJ), which was brought to the High Court under special review. The synopsis of the mischief is that after the accused pleaded guilty to the charge of fraud, the magistrate sentenced the accused to 36 months’ imprisonment and simultaneously ordered that the accused will not be eligible for parole for a period of 36 months. The court held that the fact that the order of non-parole covered the entire term of imprisonment was misdirection. On this point alone the magistrate’s order of imposing of non-parole sentence was accordingly set aside. The court further held that the approach to be adopted by the sentencing court that wishes to impose the non-parole period is to make a determination as to whether exceptional circumstances are present and in casu such circumstances did not exist. Furthermore, in the matter of S v Pauls 2011 (2) SACR 417 (ECG), pursuant to plea of guilty to a charge of theft, the regional magistrate sentenced the appellant to undergo eight years of imprisionment, two of which were suspended for five years on certain conditions. The magistrate also imposed a further condition, in terms of s 276B of the CPA that the appellant had to serve a minimum of four years of the sentence before he could be considered for parole. The court held that s 276B should be invoked in exceptional circumstances, and the court must exercise proper care and caution when considering whether exceptional circumstances exist. Moreover, the court held that the proper judicial considerations can only be considered where both the state and the defence have made submissions on the issue; and where exceptional circumstances are found to exist in a particular case; it is the duty of the judicial officer to set them out explicitly in the judgment or they must be apparent therefrom (see also S v Mogaga 2014 JDR 0582 (GSJ)). Both of the aforementioned cases, confirm the position that prior to the imposition of s 276B sentence, discernible exceptional circumstances must be present and must emanate from both the state’s and the defence’s submissions and the judicial officer must set them out in the judgment.
The right to be heard and to be given the opportunity or to be considered to be eligible for parole is to a certain extent circumscribed by the aforementioned sections in that the prisoner will have to be incarcerated for a stipulated period before the issue of parole can be condisered. Our submission is that this does not confer automatic right to parole, but places the prisoner in a position to be considered for a parole by the Parole Board. In the matter S v Stander 2012 (1) SACR 537 (SCA) at para 12 and 13 respectively, the court held that: ‘Despite the fact that s 276B grants courts the power to venture onto the terrain traditionally reserved for the executive, it remains generally desirable for a court not to exercise that power. … Ultimately, the case-management committee submits a report on each prisoner to the relevant Correctional Supervision and Parole Board. The report deals with the conduct, disciplinary record, adaptation, training, aptitude, industry, physical and mental state of the prisoner and the likelihood of his or her relapse into crime. In order to fulfil these functions the Department employs suitably skilled people. The Correctional Supervision and Parole Board considers the report submitted to it and also takes into account the views of the complainant in certain identified instances of serious crime. Such a complainant has the right in terms of s 299A of the Act to attend the meeting of the Correctional Supervision and Parole Board and make representations when the parole of the perpetrator is considered. This serves to illustrate 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. This short summary of the statutory procedure prescribed for the consideration of a prisoner’s release on parole illustrates why the Department, and not a sentencing court, is far better suited to make decisions about the release of a prisoner on parole and why it remains desirable to respect the principle of the separation of powers in this regard.’
Likewise in S v Mahlatsi 2013 (2) SACR 625 (GNP), at para 27, the court held that:
‘As was already hinted above, the Department of Correctional Services, the parole board or their employees are empowered to consider such things as recommendations for parole. They might not interpret the parole legislation correctly or refuse parole for flimsy reasons, which means that a person, although legally entitled to be considered for release on parole, might not be released. This is not a far-fetched, speculative hypothesis, as the premature release of some of the so-called “Waterkloof Four” due to a miscalculation of the legislative requirements bears testimony. The same mistake can just as easily be made regarding an omission to consider, or refusal to release on, parole. Once again, therefore, sentencing and appeal courts should not rely on the current parole provisions and policies when determining an appropriate sentence. While the date for consideration to be released on parole is now the same for everyone, lifers or people sentenced to otherwise unreasonably long periods of imprisonment such as 100 years, the fact remains that some of them might not be so considered or released, and their remedies might be limited to obtain redress. No one can lose sight hereof, especially not sentencing courts or courts of appeal. Parole is the function of the executive arm of government, and the courts should steer well clear of interfering, unless authorised by law to do so.’
In principle, the issue of whether the prisoner is eligible for the parole falls exclusively within the purview of the executive, not the judiciary. The executive has to follow certain procedures and processes in formulating an opinion whether to confer parole to the prisoner (see also S v Tcoeib 1996 (1) SACR 390 (NmS) at 394 B – C).
Separation of powers outlook
Section 8(1) of the Constitution provides that ‘The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.’ Accordingly, the courts fall under the ambit of judiciary. Furthermore, s 165(2) of the Constitution provides that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. Without a shadow of a doubt, the Constitution applies and binds the courts. Moreover, s 12(1)(e) of the Constitution, provides for the right ‘not to be treated or punished in a cruel, inhuman or degrading way’. As a point of departure, the courts that impose a sentence, which has the express provision that the prisoner will undergo a certain period of direct imprisonment and is not entitled to remission or parole, is arbitrary and is a flagrant disregard of the constitutional right of a prisoner as it contravenes s 12 of the Constitution. Prof Devenish A commentary on the South African Constitution 6ed (Durban: LexisNexis 2004) at 240 provides the following: ‘The judiciary dare not to usurp the function and role of the legislature. This will constitute a violation of the doctrine of separation of powers. The creative role of the judiciary in interpreting and applying the Constitution and other statute law must be exercise within the clearly defined parameters.’
The main objective of the separation of powers is to enforce the notion of checks and balances and the Constitution depicts the legislature, the executive and the judiciary as separate entities, each with a distinctive backdrop. Thus, when the court imposes a sentence which provides that the prisoner is not entitled to parole, it is usurping and encroaching on the executive function, to wit, Correctional Services Department, the latter being an entity vested with the right by the legislature to entertain the dynamics of parole.
Conclusion
The sentence, which provides that the prisoner is not eligible for parole, is in contravention of the principles of legality, the doctrine of separation of powers and is arbitrary. It stands to be severed from the sentence and the parole board (executive) will deal with the issue of parole at the appropriate time. Where a magistrate seeks to invoke the s 276B sentence, they must determine whether there are exceptional circumstances and they must spell them out in their judgments. Lastly, in order to militate the encumbrance of the High Court, judges with legion special reviews, the magistracy needs to exercise great caution when applying s 276B sentence and must utterly obviate imposing the sentences without parole, as this is not distinctive from encroaching on the executive terrain.
Nicholas Mgedeza BProc (Unisa) is a state attorney in Pretoria. Dumisani Masuku LLB (University of Zululand) is an advocate in Boksburg.
This article was first published in De Rebus in 2016 (Sept) DR 26.
