The appellant, aged 18 years, and three co-accused were convicted of murder in the Benoni Regional Court arising from an incident on 17 June 2006 that resulted in the death of Joseph Mbane. In the early morning hours, the deceased was seen running towards a convenience shop at a filling station, pursued by the appellant and co-accused who arrived in a motor vehicle. They caught the deceased and assaulted him severely, kicking him with booted feet and punching him. The appellant was armed with a snooker cue which he used to strike the deceased over the head. The attack was prolonged and vicious, continuing despite intervention by a bystander (Mr Bezuidenhout). The deceased was eventually left lying on the ground with no pulse. Post mortem examination revealed bruises on the head and shoulders, lacerations on the head, swelling of the brain, blood in the mouth and trachea, and pin-point bleedings in the lungs and heart indicating lack of oxygen. The deceased had been beaten to death. The trial court imposed the prescribed minimum sentence of 15 years' imprisonment under s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997, and immediately ordered a non-parole period under s 276B of the CPA that two-thirds of the sentence (10 years) be served before parole eligibility, without conducting any inquiry or hearing representations.
1. The order of the trial court imposing a non-parole period under s 276B of the Criminal Procedure Act 51 of 1977 was set aside. 2. The appeal was otherwise dismissed and the appellant's sentence of 15 years' imprisonment was confirmed.
The binding legal principles established are: (1) An accused who intends to persuade a court to impose a sentence less than the prescribed minimum must pertinently raise substantial and compelling circumstances for consideration, and although there is no onus on the accused, failure to testify means the court cannot speculate about mitigating factors not established by other evidence (following S v Roslee 2006 (1) SACR 537 (SCA) para 33). (2) It is a fatal misdirection to impose a non-parole period under s 276B of the CPA without first conducting an inquiry as to the desirability of such an order and hearing argument on the issue. (3) The power to impose non-parole periods should be sparingly exercised as the grant of parole is properly an executive function best left to officials charged with considering and deciding upon parole (following S v Stander 2012 (1) SACR 537 (SCA) para 20 and S v Botha 2006 (2) SACR 110 (SCA) para 27).
The Court expressed surprise that the necessity of conducting an inquiry before imposing a non-parole period under s 276B is so trite, yet this issue has had to be dealt with by the SCA on several recent occasions. The Court also observed that there was nothing in the record indicating that this was an appropriate case for a non-parole period to be imposed, especially upon a young man who had hopefully been rehabilitated by his period of imprisonment. The Court expressed concern that the three co-accused who received the same sentence still labored under an improperly imposed non-parole period, noting this was unjust but that the Court had no jurisdiction to ameliorate their plight as they were not before it. The Court commended the legal representatives for undertaking to immediately address this issue to find an equitable solution as a matter of urgency. The Court also noted that for reasons unexplained, no mention was made of the non-parole issue when the matter went on appeal to the high court.
This case reinforces important principles regarding sentencing procedure in South African criminal law: (1) it clarifies the evidentiary burden on accused persons seeking to establish substantial and compelling circumstances to avoid prescribed minimum sentences - specifically that an accused who does not testify cannot rely on mitigating factors not otherwise established by evidence; (2) it reaffirms the established principle that courts must exercise the power to impose non-parole periods under s 276B sparingly and only after conducting a proper inquiry and hearing representations; (3) it emphasizes that the grant of parole is primarily an executive function and courts should not lightly interfere with it; and (4) it demonstrates that failure to follow proper procedure in imposing a non-parole period constitutes a fatal misdirection warranting setting aside of such order. The judgment also highlights the practical injustice that can arise when co-accused in the same trial do not all appeal improper orders, leaving some to continue suffering under invalid non-parole periods.