Strydom v The State

Cornelia Strydom was employed by the City of Johannesburg as a Specialist Pension Administrator. Between 6 June 2007 and 30 September 2009, she colluded with one Marlene Horn in a scheme to defraud the municipality. Horn would submit false invoices for treatment not actually administered to former employees injured on duty, and Strydom would arrange payment to Horn. They would then share the proceeds. Strydom was charged with 36 counts of fraud involving a personal benefit of R375,816.92. She pleaded guilty to all charges and admitted the necessary elements in terms of section 112 of the Criminal Procedure Act. She had one previous fraud conviction from 1998 involving a former employer, for which she received correctional supervision. She testified that her offending was influenced by physical and mental abuse by her husband and his financial demands. She had three children, including a seven-year-old daughter living with her. The Regional Court convicted her and sentenced her to five years' imprisonment, with a non-parole period of three years imposed under section 276B of the CPA. The appellant was not afforded an opportunity to address the court on the imposition of the non-parole order before it was made. Her application for leave to appeal to the Regional Magistrate was dismissed, as was her petition to the Judge President.

• Whether the magistrate was obliged to give reasons for imposing a non-parole portion of the prison sentence under section 276B of the Criminal Procedure Act 51 of 1977
• What are the circumstances under which a court would be entitled to impose a non-parole order as part of a sentence
• Whether the magistrate was obliged to invite or allow argument before the imposition of a non-parole order
• Whether the failure to afford the parties an opportunity to address the court on a non-parole order constitutes a misdirection
• Whether the application for leave to appeal against sentence was correctly dismissed

The appeal was upheld. The order of the Gauteng Local Division refusing leave to appeal was set aside and replaced with an order granting the appellant special leave to appeal to the Gauteng Local Division against the sentence imposed by the Regional Court. The appellant was directed to deliver her notice of appeal by 17 March 2015 based on the findings in the judgment. The Director of Public Prosecutions was requested to place the appeal on the roll as a matter of urgency. The registrar was requested to make three copies of the record available to the appellant's attorney for use in the appeal.

A court imposing a non-parole order under section 276B(1) of the Criminal Procedure Act 51 of 1977 must afford the parties an opportunity to address the court on the making of such an order and the period thereof before imposing it. Failure to do so constitutes a misdirection. Non-parole orders should only be made in exceptional circumstances where a proper evidential basis has been laid for a finding that such circumstances exist to justify the imposition of such an order. Courts should not resort to section 276B lightly and should generally allow Correctional Services officials, guided by the Correctional Services Act and regulations, to make parole assessments and decisions. The failure to afford parties an opportunity to address the court on a non-parole order may constitute an infringement of fair trial rights, depending on the circumstances of the case.

The court noted that a number of issues in the record and judgment on sentence laid the magistrate open to criticism, but confined itself to only one aspect as it was unnecessary to deal with every aspect that gave rise to concern. The court observed that accused persons are always entitled to reasons for decisions affecting them and to understand why and how such decisions have been arrived at. While statutes do not always demand this, it is a salutary practice developed and generally adhered to over a long period of time. The court noted that giving reasons is not only fair to the accused and the State but also to the public. The court observed that section 276B orders entail a determination in the present for future behavior - an order that a person does not deserve being released on parole in future. The court noted the appellant's personal circumstances, including allegations of abuse by her husband and financial demands, and her three children including a seven-year-old daughter living with her, though these were not determinative of the appeal. The court noted it was unclear whether the appellant's previous sentence for correctional supervision included any directives to attend courses to enhance her rehabilitation.

This case is significant in South African criminal sentencing law as it clarifies and reinforces the procedural and substantive requirements for imposing non-parole orders under section 276B of the Criminal Procedure Act 51 of 1977. It establishes that: (1) courts must afford parties an opportunity to address the court before imposing a non-parole order; (2) failure to do so constitutes a misdirection and may infringe fair trial rights; (3) courts should give reasons for imposing such orders; (4) non-parole orders should only be made in exceptional circumstances with a proper evidential basis; and (5) courts should not resort to section 276B lightly but should generally leave parole decisions to Correctional Services officials and parole boards. The judgment reinforces the importance of procedural fairness in sentencing and the principle that decisions affecting accused persons must be explained and preceded by an opportunity to be heard.