NON-PAROLE PERIOD ONLY ORDERED IN EXCEPTIONAL CIRCUMSTANCES

S v NTOZINI AND ANOTHER 2017 (2) SACR 448 (ECG)

Sentence— Imprisonment — Term of — Non-parole period — Order in terms of s 276B of Criminal Procedure Act 51 of 1977 to be made only in exceptional circumstances — Court sentencing young first offenders to terms of imprisonment and specifying that they be trained in certain skills for duration of sentence — Such sentence infringing provisions ofs 276B(1) and falling foul of separation of powers doctrine.

 

The two accused, both young first offenders, were respectively convicted in a magistrates’ court of housebreaking with intent to steal and theft, and to receiving stolen property in contravention of s 37(1) of the General Law Amendment Act 62 of 1955. Accused 1 was sentenced to three years’ imprisonment and it was ordered that he serve his sentence at Cradock prison where he was to be enrolled for courses offered by the said institution ‘(w)oodwork/plumbing etc. for the duration of his sentence’. Accused 2 was sentenced to two years’ imprisonment and it was further ordered that he serve his sentence at the same prison and that he be enrolled in ‘skills/trade courses’ for the duration of his sentence. On review,

Held, that the magistrate had erred in making an order in terms of s 276B(1) of the Criminal Procedure Act 51 of 1977 (the CPA) without providing both the state and the accused an opportunity of addressing it on whether or not a non-parole period ought to be imposed. Such an order should only be made in exceptional circumstances and when the sentencing court was possessed of facts that would justify it. (See [15] – [16].)

Held, furthermore, that, in imposing the sentences, the magistrate had also exceeded the maximum non-parole period set out in s 276B(1)(b), namely two-thirds of the term of imprisonment, and had fallen foul of the separation-of-powers doctrine by prescribing where the accused person had to serve his sentence and specifying the courses to be undertaken during the serving of the sentence. (See [20] – [21].)

Held, further, that the sentences, even trimmed of the further non-parole period orders and those relating to the prison and manner in which their sentences were to be served, were shockingly severe. An appropriate sentence in respect of accused 1 would be one year’s imprisonment of which seven months were suspended for three years, and, in respect of accused 2, eight months’ imprisonment of which four months and six days were to be suspended for three years.

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