The applicant, Mr Khathutshelo Oupa Makhokha, was convicted in 2008 by the Sibasa Regional Magistrates’ Court of possession of a motor vehicle reasonably suspected to have been stolen, in contravention of section 36 of the General Law Amendment Act 62 of 1955. He was sentenced to 15 years’ imprisonment, the maximum sentence within the Regional Court’s jurisdiction. At the time, he was already serving a sentence of life imprisonment. The Regional Magistrate ordered that the 15-year sentence would not run concurrently with the life sentence and would commence only after completion of the life sentence. The Magistrate further ordered that the applicant would not be eligible for parole for the entire duration of the 15-year sentence. Appeals to the High Court and an attempted appeal to the Supreme Court of Appeal were unsuccessful, after which the applicant approached the Constitutional Court.
Leave to appeal against the 15-year sentence was refused. Leave to appeal against the non-parole and consecutive-sentence orders was granted. The appeal was upheld. The order imposing a full non-parole period and the order directing that the 15-year sentence run consecutively to the life sentence were set aside. The commencement of the 15-year sentence was antedated to the date of sentence.
This case clarifies the constitutional and statutory limits on sentencing courts’ powers to impose non-parole periods and consecutive sentences involving life imprisonment. It affirms that a 100% non-parole period is unlawful and unconstitutional, reinforces the separation of powers in sentencing and parole decisions, and confirms that determinate sentences are subsumed by life imprisonment under the Correctional Services Act. The judgment strengthens the protection against arbitrary deprivation of liberty under section 12(1)(a) of the Constitution.