Senwedi v The State

On 2 April 2001, Mr Coetzee was shot dead during an armed robbery. The applicant, Gaolatlhe Senwedi, and two co-accused were arraigned in the High Court for murder, housebreaking, robbery with aggravating circumstances, and illegal possession of a firearm and ammunition. On 2 May 2002, they were convicted on all charges except housebreaking. On 14 May 2002, the applicant was sentenced to life imprisonment for murder, 25 years for robbery with aggravating circumstances, and concurrent sentences for firearm and ammunition offences. The High Court ordered that the applicant and accused two (Alfred Khonyane) not be considered for parole until they had each served at least 25 years of their life imprisonment sentence. The applicant unsuccessfully sought leave to appeal from the High Court and the Supreme Court of Appeal. In 2019, he applied for reconsideration under section 17(2)(f) of the Superior Courts Act, which was refused on the basis that the Act had no retrospective effect. The applicant then sought leave to appeal to the Constitutional Court, challenging primarily the validity of the 25-year non-parole period.

• Whether condonation should be granted for the extensive delay in bringing the application to the Constitutional Court
• Whether section 17(2)(f) of the Superior Courts Act applies retrospectively to allow reconsideration of applications dismissed before the Act came into operation
• Whether the imposition of a 25-year non-parole period on 14 May 2002 was legally permissible given that section 276B of the Criminal Procedure Act only came into operation on 1 October 2004
• Whether the imposition of the non-parole period infringed the applicant's constitutional rights under sections 12(1)(a) and 35(3)(n) of the Constitution
• Whether the failure to afford the parties an opportunity to make representations on the fixing of a non-parole period constituted a fatal misdirection and infringed fair trial rights

1. Leave to appeal is granted. 2. The non-parole period ordered by the High Court of South Africa, Northern Cape Division, Kimberley, on 14 May 2002 – that accused one, Mr Gaolatlhe Senwedi, and accused two, Mr Alfred Khonyane, should not be considered for release on parole until they have each served at least 25 years of their sentence of life imprisonment on count 3, murder – is set aside. 3. The Registrar of the Constitutional Court is directed to forward a copy of the judgment to the Department of Justice and Correctional Services to bring it to the attention of the erstwhile accused two, Mr Alfred Khonyane.

1. Section 276B of the Criminal Procedure Act, which introduced non-parole periods with a maximum of 25 years for life sentences, came into operation on 1 October 2004 and cannot be applied retrospectively to offences committed before that date. 2. Criminal liability and punishment must be determined by the date of commission of the offence, in accordance with the principle of nulla poena sine lege. 3. The fixing of a non-parole period constitutes an increased sentence and cannot operate retrospectively absent legally recognized special circumstances. 4. At the time of sentencing for offences committed before 1 October 2004, individuals sentenced to life imprisonment were eligible for parole after serving 20 years, not 25 years. 5. The imposition of a 25-year non-parole period for an offence committed before 1 October 2004 constitutes a fatal misdirection and infringes section 12(1)(a) of the Constitution (the right not to be deprived of freedom arbitrarily or without just cause). 6. A sentencing court must afford parties an opportunity to address the issue of fixing a non-parole period before making such an order; failure to do so constitutes a fatal misdirection and may infringe fair trial rights. 7. Section 12 of the Constitution contains both substantive and procedural elements that courts must enforce. 8. Section 17(2)(f) of the Superior Courts Act does not apply retrospectively to applications dismissed before the Act came into operation.

The Court made several important observations beyond the binding principles: 1. It reiterated guidance from Jimmale that non-parole orders should not be resorted to lightly and should be made only in exceptional circumstances based on investigation of salient facts, legal argument, and sometimes further evidence. 2. Courts should show deference to the Parole Board and Department of Correctional Services officials in making assessments and decisions regarding parole, in respect of the separation of powers principle. 3. A section 276B non-parole order is "a determination in the present for the future behaviour of the person to be affected thereby" and "an order that a person does not deserve being released on parole in future." 4. Parole is "an acknowledged part of our correctional system" and "a vital part of reformative treatment for the paroled person who is treated by moral suasion." 5. The Court emphasized the historical context and particular importance of the right to liberty in South Africa's constitutional democracy, stating that "individual freedom is a core right in the panoply of human rights" and that the apartheid regime "repulsively and capriciously deprived people of their freedom under illegitimate legislation." This historical backdrop requires courts to "jealously guard the liberty of a person under our Constitution, particularly in terms of section 12 of the Bill of Rights."

This case is significant in South African law because it clarifies the principle that non-parole periods introduced by section 276B of the Criminal Procedure Act cannot be imposed retrospectively for offences committed before 1 October 2004 when the section came into operation. It reaffirms the fundamental principle of nulla poena sine lege (no punishment without law) and the constitutional prohibition against arbitrary deprivation of liberty under section 12(1)(a) of the Constitution. The case also emphasizes the procedural requirement that courts must afford parties an opportunity to make representations before fixing a non-parole period, and that failure to do so constitutes a fatal misdirection. The judgment underscores the Constitutional Court's commitment to jealously guarding individual liberty, particularly given South Africa's apartheid history of arbitrary deprivation of freedom. It also contributes to the jurisprudence on when non-parole orders should be made, emphasizing that they should not be resorted to lightly and that courts should show deference to the Parole Board and Department of Correctional Services in making parole assessments.