Zono v The State

The appellant was convicted in the High Court, Klerksdorp, on 12 June 1996, on charges of murder, attempted murder, robbery with aggravating circumstances and unlawful possession of a firearm and ammunition. The offences were committed on 24 July 1995. He was sentenced to an effective period of imprisonment of 60 years, and the trial court recommended that he not be considered for release on parole before having served 40 years. The appellant appealed to the full court of the North Gauteng High Court against his convictions and sentences. The appeal was heard on 6 June 2012. The appeal against convictions was dismissed but the appeal against sentence was upheld. The sentence was reduced to an effective period of 45 years' imprisonment and the high court ordered that the appellant serve a non-parole period of 25 years. The appellant was granted special leave by the Supreme Court of Appeal to appeal against the non-parole period of 25 years.

• Whether a court may fix a non-parole period in respect of offences committed before the promulgation of section 276B of the Criminal Procedure Act 51 of 1977
• Whether the imposition of a non-parole period for offences committed prior to 1 October 2004 constitutes a retrospective application of penalty
• Whether the fixing of a non-parole period constitutes an increase in penalty that cannot operate retrospectively

The appeal was upheld. The order of the full court fixing a non-parole period of 25 years was set aside.

The fixing of a non-parole period constitutes an increase in penalty which cannot operate retrospectively. The penalty to which a convicted person is subject is that applicable at the time of the commission of the crime, not the date of conviction or sentence. A court may not impose a non-parole period in respect of offences committed before the coming into operation of section 276B of the Criminal Procedure Act 51 of 1977 on 1 October 2004, as this would constitute an impermissible retrospective application of penalty. Where there is no legislative authority to impose a non-parole period at the time an offence was committed, a court that imposes such a period misdirects itself.

The court noted that at first blush the cumulative effect of the individual sentences imposed by the full court appeared to be unusually harsh, but as the sentences themselves were not an issue in the appeal, it was unnecessary to deal further with this aspect. The court also observed that section 276B of the Criminal Procedure Act was introduced after the Supreme Court of Appeal had expressed disapproval about sentencing courts fixing non-parole periods, suggesting that the legislature responded to judicial criticism by providing a statutory framework for non-parole periods.

This case is significant in South African criminal law as it confirms and applies the fundamental principle against retrospective operation of penalties. It clarifies that section 276B of the Criminal Procedure Act 51 of 1977, which empowers courts to fix non-parole periods, cannot be applied to offences committed before its commencement on 1 October 2004. The judgment reinforces the constitutional and common law principle that criminal liability, including penalties, is determined by the law in force at the time the offence was committed, not at the time of conviction or sentence. It provides important guidance to sentencing courts on the limits of their powers regarding non-parole periods and prevents courts from retrospectively imposing harsher penalty regimes on offenders.