THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 676/18
In the matter between:
SANDILE MAERION MOLEFE
APPELLANT
and
THE STATE

RESPONDENT
Neutral Citation:
Molefe v The State (676/18) [2018] ZASCA 162 (28
November 2018).
Coram:
Cachalia, Wallis and Makgoka JJA, and Carelse and
Matojane AJJA

Heard:

8 November 2018
Delivered:
28 November 2018
Summary: Sentence – order fixing non parole period in respect of offences
committed before s 276B of the Criminal Procedure Act of 1977 came into
operation is a misdirection.

_____________________________________________________________________________________________________
ORDER
_____________________________________________________________________________________________________
On appeal from: KwaZulu-Natal Provincial Division, Pietermaritzburg (Koen,
Pillay and Ploos van Amstel JJJ concurring sitting as court of appeal);

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.

____________________________________________________________________________________________________
JUDGMENT
_____________________________________________________________

Matojane AJA: (Cachalia, Wallis and Makgoka JJA and Carelse AJA
concurring)

[1] This is an appeal against sentence only. The appellant was convicted
in the KwaZulu-Natal Division of the High Court, Pietermaritzburg (the high
court) on charges of murder and robbery with aggravating circumstances. On
25 July 2003, he was sentenced to undergo a term of life imprisonment on the
murder conviction and fifteen years on the robbery with aggravating
circumstances conviction.

[2] The incident that led to his conviction was that of 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 when he committed these offences.

[3] The appellant appealed to the full court of the high court against his
sentence. On 14 February 2013 the full court upheld the appeal against
sentence and made the following order.

[4] In respect of the conviction for murder, the appellant was sentenced to
twenty-five (25) years’ imprisonment. In respect of the conviction of robbery

with aggravating circumstances, the appellant was sentenced to fifteen (15)
years’ imprisonment. Both sentences were antedated to run from 25 July
2003. The court directed that the ten years of the 15-year sentence imposed
in respect of the robbery with aggravating circumstances shall run
concurrently with the sentence of 25 years imposed in respect of the murder
conviction, thus giving an effective term of imprisonment of 30 years.

[5] The court fixed a non-parole period of 20 years in terms of section
276B (2) of the Criminal Procedure Act 51 of 1977 (the Act).

[6] The appellant after that sought leave from this court to appeal against
the imposition of the non-parole period. On 27 January 2016, this Court
granted him special leave to appeal against that part of the order of the Full
Court about the non-parole period.

[7] Section 276B (1) of the Act was inserted by s 221 of the Parole and
Correctional Supervision Amendment Act 87 of 1997.  It provides for a Court
to stipulate a non-parole period when sentencing a person convicted of an
offence. The Act came into operation on 1 October 2004.

[8] The crime was committed and appellant was sentenced before the
coming into operation of s 276B of the Act.  As a general rule statutes are
presumed as having no retrospective operation unless such a construction is
expressly or by necessary implication required by the language of the
particular Act. The clear language of the section makes it apparent that the
legislature never intended s 276B to operate retrospectively. See S v
Mpetha2, R v Silas3

1 ‘276B Fixing of non-parole-period.
‘(1)(a) If a court sentences a person convicted of an offence to imprisonment for a period of
two years or longer, the court may as part of 10 the sentence, fix a period during which the
person shall not be placed on parole.
(b) Such period shall be referred to as the non-parole-period, and may not exceed two thirds
of the term of imprisonment imposed or 25 years, whichever is the shorter.’
2 S v Mpetha 1985 (3) 702 at 717 -718.
3 R v Silas 1959 (4) SA 305 at 311 E-G.

[9] It appears that the attention of the full court was not drawn to the fact
that the crime was committed before the coming into operation of s 276(B)(2)
of the Act. Accordingly, the order setting a non-parole period falls to be set
aside.

[10]  At the time of his sentence, parole was within the discretion of the
executive in terms of the Correctional Services Act 8 of 1959. In terms of s
22A4 of the said Act, a prisoner may earn credits by observing the rules which
applies in the prison amounting to no more than half of the period of
imprisonment that he or she has served. The appellant has already served
almost fifteen years of his custodial sentence and is entitled to be considered
for parole as he has served half of his effective sentence, subject to any
‘credits’ earned under s 22A of the said Act.

[11] Having regard to the period of imprisonment the appellant has already
served and the fact that he would have been considered for parole by now, he
would suffer prejudice if the matter is remitted to the court a quo to determine
the appropriateness of the imposition of the non-parole order.

[12] For these reasons the following order is made:

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.

4The section provided:‘(1) A prisoner may earn credits to be awarded by an institutional
committee, by observing the rules which apply in the prison and by actively taking part in the
programmes which are aimed at his treatment, training and rehabilitation. Provided that–
(a) A prisoner may not earn credits amounting to more than half of the period of
imprisonment which he has served
(2) The number of days and months earned by a prisoner as credits may be taken into
account in determining the date on which a parole board may consider the placement of such
a prisoner on parole.’

___________________________
Acting Judge of Appeal
E Matojane

APPEARANCES

For the Appellant :
P Marimuthu
Instructed by:

Justice Centre, Pietermaritzburg

c/o Justice Centre, Bloemfontein

For the Respondent:
S Singh
Instructed by:

Director of Public Prosecutions Pietermaritzburg.

c/o Director of Public Prosecutions,Bloemfontein