Jimmale and Another v S (CCT223/15) [2016] ZACC 27; 2016 (11) BCLR 1389 (CC); 2016 (2) SACR 691 (CC) (30 August 2016)

Jimmale and Another v S (CCT223/15) [2016] ZACC 27; 2016 (11) BCLR 1389 (CC); 2016 (2) SACR 691 (CC) (30 August 2016)

The Constitutional Court held that the trial court materially misdirected itself by imposing a non-parole order without establishing exceptional circumstances and without inviting the parties to make submissions. The order exceeded the statutory maximum period and was prejudicial to the applicants, infringing their constitutional rights. Precedent requires that non-parole orders be made only in exceptional circumstances, with a proper evidential basis and after hearing the parties. The respondent conceded the error. Accordingly, the non-parole order was set aside, and the applicants will be eligible for parole after serving half their sentences, as prescribed by law.

Citation
[2016] ZACC 27
Parties
Applicant: Agolle Abdi Jimmale; Applicant: Mohammed Muqtaar Jimmale; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
30 August 2016
Case Number
CCT223/15
Procedural Posture
Leave to Appeal / Constitutional Court Review of High Court Non Parole Order
Judges
Mogoeng, Moseneke, Bosielo, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Nkabinde, Zondo
Legal Topics
Non Parole Order, Sentencing Discretion, Section 276b Criminal Procedure Act, Section 12 Constitution, Exceptional Circumstances, Fair Trial Rights
Criminal Law Constitutional Law Non Parole Order Sentencing Discretion Section 276b Criminal Procedure Act Section 12 Constitution Exceptional Circumstances Fair Trial Rights

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Parties

Agolle Abdi Jimmale

Applicant

Mohammed Muqtaar Jimmale

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Review of High Court Non Parole Order

Legal Issues

  1. 1 Whether the trial court had the power to issue a non-parole order under section 276B(1) of the Criminal Procedure Act.
  2. 2 Whether the non-parole order infringed the applicants' constitutional rights under section 12(1)(a) and section 35(3)(n) of the Constitution.
  3. 3 Whether exceptional circumstances existed to justify the non-parole order.

Ratio Decidendi

The Constitutional Court held that the trial court materially misdirected itself by imposing a non-parole order without establishing exceptional circumstances and without inviting the parties to make submissions. The order exceeded the statutory maximum period and was prejudicial to the applicants, infringing their constitutional rights. Precedent requires that non-parole orders be made only in exceptional circumstances, with a proper evidential basis and after hearing the parties. The respondent conceded the error. Accordingly, the non-parole order was set aside, and the applicants will be eligible for parole after serving half their sentences, as prescribed by law.