Komana v S (A559/2015) [2016] ZAGPJHC 378 (22 April 2016)

Komana v S (A559/2015) [2016] ZAGPJHC 378 (22 April 2016)

The offences for which the appellant was convicted were committed before section 276B of the Criminal Procedure Act came into operation. The fixing of a non-parole period constitutes an increase in penalty and, in accordance with established principles of South African criminal law, such an increase cannot operate retrospectively. There were no special circumstances justifying a departure from this principle. Accordingly, the sentencing court's order fixing a non-parole period was incorrectly made and must be set aside.

Citation
[2016] ZAGPJHC 378
Parties
Appellant: Alfred Allie Komana; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 April 2016
Case Number
A559/2015
Procedural Posture
Criminal Appeal / Appeal Against Sentence (non Parole Period)
Outcome
Appeal upheld; order fixing non-parole period set aside.
Judges
PA Meyer, WRC Prinsloo, JW Louw
Legal Topics
Non Parole Period, Retrospective Application of Penalties, Criminal Procedure Act, Parole Eligibility
Criminal Law Non Parole Period Retrospective Application of Penalties Criminal Procedure Act Parole Eligibility

Case Brief

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Parties

Alfred Allie Komana

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (non Parole Period)

Legal Issues

  1. 1 Whether the sentencing court was entitled to fix a non-parole period for offences committed before the promulgation of section 276B of the Criminal Procedure Act.
  2. 2 Whether the order fixing a non-parole period was valid in law.

Ratio Decidendi

The offences for which the appellant was convicted were committed before section 276B of the Criminal Procedure Act came into operation. The fixing of a non-parole period constitutes an increase in penalty and, in accordance with established principles of South African criminal law, such an increase cannot operate retrospectively. There were no special circumstances justifying a departure from this principle. Accordingly, the sentencing court's order fixing a non-parole period was incorrectly made and must be set aside.

Court Disposition

Appeal upheld; order fixing non-parole period set aside.

Orders

  • The appeal is upheld.
  • The order of the court below fixing a period of time to be served before the appellant may be released on parole is set aside.