Molefe v The State

On 20 February 2002, the appellant and his co-perpetrator robbed and killed an occupant of a farmhouse while he was asleep and stole money, firearms and other valuables. The appellant was a minor at the time of commission of these offences. He was convicted in the KwaZulu-Natal Division of the High Court, Pietermaritzburg on charges of murder and robbery with aggravating circumstances. On 25 July 2003, he was sentenced to life imprisonment for murder and fifteen years for robbery with aggravating circumstances. The appellant appealed to the full court, which on 14 February 2013 reduced the sentence to 25 years for murder and 15 years for robbery (with 10 years running concurrently), giving an effective sentence of 30 years. The full court also fixed a non-parole period of 20 years in terms of section 276B(2) of the Criminal Procedure Act.

• Whether a court can impose a non-parole period in terms of section 276B of the Criminal Procedure Act 51 of 1977 for offences committed before the section came into operation
• Whether section 276B operates retrospectively
• What relief is appropriate where a non-parole period was improperly imposed

1. The appeal against the order fixing a non-parole period is upheld. 2. The order of the court below fixing a non-parole period is set aside.

Section 276B of the Criminal Procedure Act 51 of 1977 does not operate retrospectively. A court cannot impose a non-parole period in terms of section 276B for offences committed before the section came into operation on 1 October 2004. The general rule that statutes are presumed to have no retrospective operation applies unless such a construction is expressly or by necessary implication required by the language of the particular Act. The clear language of section 276B demonstrates that the legislature never intended it to operate retrospectively.

The Court observed that at the time of the appellant's original sentence, parole was within the discretion of the executive in terms of the Correctional Services Act 8 of 1959, and that under section 22A of that Act, a prisoner could earn credits by observing prison rules amounting to no more than half of the period of imprisonment served. The Court noted that the appellant had already served almost fifteen years of his custodial sentence and was entitled to be considered for parole, having served half of his effective sentence, subject to any 'credits' earned. The Court further observed that the appellant would suffer prejudice if the matter was remitted to the court a quo to determine the appropriateness of the imposition of a non-parole order, given the period already served.

This case is significant in South African criminal law as it clarifies the principle of non-retrospectivity of penal legislation. It establishes that section 276B of the Criminal Procedure Act 51 of 1977, which allows courts to fix non-parole periods, does not apply retrospectively to offences committed before the section came into operation on 1 October 2004. The judgment reinforces the constitutional principle that legislation, particularly in the criminal justice context, does not operate retrospectively unless expressly stated or necessarily implied. It protects the rights of offenders to be sentenced according to the law in force at the time of the commission of the offence and prevents the imposition of more onerous conditions after the fact. The case also demonstrates the importance of ensuring that courts are properly informed about the temporal applicability of sentencing provisions.