Ndlovu v S

The appellant, Khumbulani Collen Ndlovu, was part of a group that planned to rob a cash pay point on 14 August 2008 in Glencoe, KwaZulu-Natal. Although he was not present at the scene during the robbery, a shoot-out occurred and a security guard was fatally shot. The appellant was arrested and charged with two counts of robbery with aggravating circumstances, one count of murder, and one count of attempted murder. He pleaded guilty under s 112(2) of the CPA to robbery with aggravating circumstances and murder, admitting that despite not being present, he was aware the robbers were armed and someone might be killed. He admitted forming a common purpose with the robbers. The trial court considered his personal circumstances including that he was a 37-year-old first offender, a widower with three minor children, gainfully employed, and had served as a police reservist. He made a confession immediately upon arrest, pleaded guilty, offered to testify against co-accused, and did not share in the spoils. The trial court found substantial and compelling circumstances to deviate from minimum sentences, sentencing him to 12 years for robbery and 20 years for murder to run concurrently. The court imposed a non-parole period of 13 years without inviting submissions from the parties.

• Whether the trial court misdirected itself in imposing a non-parole period under s 276B of the Criminal Procedure Act 51 of 1977 without first inviting the parties to make submissions
• Whether exceptional circumstances existed to justify the imposition of a non-parole period
• Whether the non-parole period should have been imposed in respect of the effective term of imprisonment rather than only the murder sentence

The appeal was upheld to a limited extent. The order of the Full Court was set aside and substituted with an order that: (a) the trial court's order fixing a non-parole period of 13 years is set aside; (b) save as aforesaid, the appeal against sentence is dismissed. Paragraph 2 of the Full Court's order concerning directions for the Department of Social Development to investigate the appellant's minor children was confirmed. The appellant remains sentenced to an effective term of 20 years' imprisonment antedated to 29 March 2011.

A court must invite both the prosecution and defence to make submissions before imposing a non-parole period under s 276B of the Criminal Procedure Act 51 of 1977. Failure to provide such opportunity may constitute a misdirection. Non-parole orders should only be made in exceptional circumstances which must be established through investigation of salient facts, legal submissions, and sometimes further evidence. Where exceptional circumstances are found to exist, the judicial officer bears the duty to explicitly state such circumstances unless they are easily ascertainable. Where concurrent sentences are imposed, a non-parole period must be fixed in respect of the effective term of imprisonment as required by s 276B(2), not merely in respect of one component of the sentence.

The court noted the historical context that prior to the enactment of s 276B in October 2004, courts had no control over the sentence actually served by a convicted person, as this fell within the purview of the Correctional Services Act 111 of 1998 and its regulations. The court observed that s 276B was enacted to give sentencing courts power to control the minimum or actual period to be served by a convicted person. The court acknowledged that a non-parole order presents a challenge as it is a "present determination" that the person will not deserve being released on parole in the future, and therefore caution must be exercised because such a determination is often made on what may be inadequate information regarding the probable future behaviour of the accused. The Full Court's directions concerning the appellant's minor children, made in accordance with MS v S (Centre for Child Law as Amicus Curiae), were confirmed, demonstrating the courts' awareness of the impact of parental incarceration on children.

This case reinforces the procedural requirements for imposing non-parole periods under s 276B of the Criminal Procedure Act. It confirms that courts must invite both the State and defence to make submissions before imposing a non-parole period, as such an order is a "present determination" that the person will not deserve parole in the future and requires a proper evidential basis. The case emphasizes that non-parole periods should only be imposed in exceptional circumstances which must be explicitly stated by the judicial officer unless easily ascertainable. It also clarifies that when concurrent sentences are imposed, the non-parole period must apply to the effective term of imprisonment rather than to individual component sentences. The judgment demonstrates the appellate courts' careful protection of procedural fairness in sentencing matters and the importance of audi alteram partem (hear the other side) even when a court exercises its discretion under s 276B.