Makhokha v State

In 2008, Mr Khathutshelo Oupa Makhokha was convicted by the Sibasa Regional Magistrates' Court of possession of a motor vehicle reasonably suspected to have been stolen (an offence under section 36 of the General Law Amendment Act 62 of 1955). He was sentenced to 15 years' imprisonment, the maximum term imposable by a Regional Court under section 92(1)(a) of the Magistrates Court Act. The Regional Magistrate ordered that the applicant "must never be released on parole" (a 100% non-parole period). At the time of sentencing, the applicant was already serving a sentence of life imprisonment. The Regional Magistrate directed that the two sentences were to run consecutively, meaning the 15-year sentence would only start after completion of the life sentence. The High Court dismissed the appeal, and the Supreme Court of Appeal application was unsuccessful. The applicant, acting in person, eventually approached the Constitutional Court for leave to appeal, seeking condonation for the late lodgement.

• Whether a sentence with a 100% non-parole period (no eligibility for parole for the entire term) is constitutionally valid and lawful
• Whether it is lawful for a court to impose a determinate term of imprisonment to commence running only after completion of a life sentence
• Whether the sentencing orders violated the applicant's constitutional right not to be detained arbitrarily or without just cause under section 12(1)(a) of the Constitution
• Whether the sentencing orders violated section 276B of the Criminal Procedure Act 51 of 1977 which limits non-parole periods
• Whether the sentencing orders violated section 39(2)(a)(i) of the Correctional Services Act 111 of 1998 which provides that determinate sentences run concurrently with life sentences

1. Leave to appeal against the sentence of 15 years' imprisonment was refused. 2. Leave to appeal against the non-parole and consecutive sentencing orders was granted. 3. The appeal was upheld. 4. The order that for the duration of the 15-year term Mr Makhokha would not be eligible for parole was set aside. 5. The order that the 15-year term would not run concurrently with the life imprisonment was set aside. 6. The commencement of the 15-year term was antedated to the date of the original sentence (meaning it runs concurrently with the life sentence from the date of sentencing).

The binding legal principles established are: (1) A court cannot lawfully impose a non-parole period exceeding two-thirds of a sentence of imprisonment or 25 years (whichever is shorter) as this violates section 276B(1)(b) of the Criminal Procedure Act. A 100% non-parole period is unlawful and constitutionally invalid as it deprives a person of liberty arbitrarily or without just cause in violation of section 12(1)(a) of the Constitution and the rule of law. (2) A court cannot lawfully order that a determinate sentence of imprisonment commence after completion of a life sentence. Section 39(2)(a)(i) of the Correctional Services Act mandates that any determinate sentence runs concurrently with a life sentence. An order to the contrary is beyond the court's legal competence and violates section 12(1)(a) of the Constitution. (3) Sentencing orders that unlawfully extend a person's period of incarceration beyond what is statutorily permitted constitute arbitrary deprivation of liberty contrary to section 12(1)(a) of the Constitution and the rule of law as a founding constitutional value.

The Court made several obiter observations: (1) The Court acknowledged the complexity of interpreting section 39(2)(b) of the Correctional Services Act regarding whether non-parole periods must be served consecutively when multiple periods of imprisonment include a life sentence, but declined to rule definitively on this issue as it was not argued. (2) The Court reiterated warnings from Mhlakaza and Jimmale about separation of powers concerns in sentencing, noting that courts must not attempt to usurp executive functions by imposing inappropriate sentences to counteract executive decisions on parole and early release. (3) The Court noted that while it decided the matter without oral argument under rule 11(4), it was grateful for the assistance of counsel appointed by the Johannesburg Bar to assist the unrepresented applicant. (4) The Court emphasized that "a person has one life and a sentence of life imprisonment is the ultimate penal provision" when explaining the logic of section 39(2)(a)(i). (5) The Court observed that remittal would be futile where no exceptional circumstances existed in the original sentencing to warrant a non-parole period, and none could be conceived of arising on remittal, particularly given the lengthy delay already experienced.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies and enforces the statutory limits on non-parole periods under section 276B of the Criminal Procedure Act, confirming that courts cannot impose 100% non-parole periods. (2) It reinforces the mandatory operation of section 39(2)(a)(i) of the Correctional Services Act, which requires determinate sentences to run concurrently with life sentences. (3) It demonstrates that sentencing irregularities that result in unlawful deprivation of liberty engage constitutional rights under section 12(1)(a) and the rule of law. (4) It reiterates the principle from Jimmale that non-parole periods should only be imposed in exceptional circumstances with proper evidential basis. (5) It reinforces separation of powers principles in sentencing, clarifying the respective roles of the judiciary and executive in determining actual time served. (6) The case provides important guidance on when the Constitutional Court will exercise jurisdiction over sentencing matters - not for mere disproportion, but where constitutional rights are violated.