Makgoba v S (A12/2016) [2016] ZAGPPHC 796 (7 September 2016)

Makgoba v S (A12/2016) [2016] ZAGPPHC 796 (7 September 2016)

The court held that the sentencing court's recommendation that the appellant not be released on parole before serving 45 years was unlawful. At the time of sentencing, section 276B of the Criminal Procedure Act had not yet come into force and does not apply retrospectively. The recommendation constituted an impermissible intrusion into the executive's domain, as the determination of parole eligibility is the prerogative of the Department of Correctional Services, guided by the Correctional Services Act and its regulations. The court confirmed that sentencing jurisdiction is statutory and courts must limit themselves to their prescribed functions. The appeal succeeded and the...

Citation
[2016] ZAGPPHC 796
Parties
Appellant: Mashack Makotuma Makgoba; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 September 2016
Case Number
A12/2016
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal upheld; recommendation regarding parole set aside.
Judges
C Pretorius, P M Mabuse, M J Teffo
Legal Topics
Parole Recommendation, Sentencing Jurisdiction, Minimum Sentence, Executive Vs Judiciary, Retrospective Application, Correctional Services Act
Criminal Law Parole Recommendation Sentencing Jurisdiction Minimum Sentence Executive Vs Judiciary Retrospective Application Correctional Services Act

Case Brief

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Parties

Mashack Makotuma Makgoba

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentencing court's recommendation that the appellant not be released on parole before serving 45 years was lawful.
  2. 2 Whether section 276B of the Criminal Procedure Act applies retrospectively to the appellant's sentence.
  3. 3 Whether the sentencing court's recommendation constituted an impermissible intrusion into the executive's domain.

Ratio Decidendi

The court held that the sentencing court's recommendation that the appellant not be released on parole before serving 45 years was unlawful. At the time of sentencing, section 276B of the Criminal Procedure Act had not yet come into force and does not apply retrospectively. The recommendation constituted an impermissible intrusion into the executive's domain, as the determination of parole eligibility is the prerogative of the Department of Correctional Services, guided by the Correctional Services Act and its regulations. The court confirmed that sentencing jurisdiction is statutory and courts must limit themselves to their prescribed functions. The appeal succeeded and the...

Court Disposition

Appeal upheld; recommendation regarding parole set aside.

Orders

  • The appeal succeeds.
  • The recommendation to the Department of Correctional Services that neither the appellant nor William Phetole Mamabolo should be released on parole or otherwise before they have served at least 45 years' imprisonment is removed.