Makhokha v S (CCT170/18) [2019] ZACC 19; 2019 (7) BCLR 787 (CC); 2019 (2) SACR 198 (CC) (3 May 2019)

Makhokha v S (CCT170/18) [2019] ZACC 19; 2019 (7) BCLR 787 (CC); 2019 (2) SACR 198 (CC) (3 May 2019)

The Constitutional Court held that the Regional Magistrate's order denying parole eligibility for the entire 15-year sentence was both statutorily and constitutionally invalid. Section 276B(1)(b) of the Criminal Procedure Act limits non-parole periods to two-thirds of the sentence or 25 years, whichever is shorter, and the order exceeded this limit. Furthermore, the direction that the 15-year sentence would run consecutively to a life sentence contravened section 39(2)(a)(i) of the Correctional Services Act, which requires that determinate sentences run concurrently with life sentences. Both orders amounted to an arbitrary deprivation of freedom, infringing the applicant's rights under...

Citation
[2019] ZACC 19
Parties
Applicant: Khathutshelo Oupa Makhokha; Respondent: State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
3 May 2019
Case Number
CCT 170/18
Procedural Posture
Leave to Appeal / Constitutional Court Appeal From High Court (venda Provincial Division), Which Heard an Appeal From the Regional Court, Sibasa
Outcome
Leave to appeal against the sentence of 15 years' imprisonment is refused; leave to appeal against the impugned orders is granted and the appeal is upheld.
Judges
Mogoeng, Cameron, Froneman, Jafta, Khampepe, Ledwaba, Madlanga, Mhlantla, Nicholls, Theron
Legal Topics
Sentencing, Non Parole Period, Consecutive Sentences, Arbitrary Detention, Rule of Law
Criminal Law Constitutional Law Sentencing Non Parole Period Consecutive Sentences Arbitrary Detention Rule of Law

Case Brief

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Parties

Khathutshelo Oupa Makhokha

Applicant

State

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Appeal From High Court (venda Provincial Division), Which Heard an Appeal From the Regional Court, Sibasa

Legal Issues

  1. 1 Whether a sentencing court may lawfully impose a non-parole period covering the entire determinate sentence.
  2. 2 Whether a determinate sentence may lawfully be ordered to run consecutively to a life sentence.
  3. 3 Whether the applicant's constitutional right not to be deprived of freedom arbitrarily or without just cause was infringed.

Ratio Decidendi

The Constitutional Court held that the Regional Magistrate's order denying parole eligibility for the entire 15-year sentence was both statutorily and constitutionally invalid. Section 276B(1)(b) of the Criminal Procedure Act limits non-parole periods to two-thirds of the sentence or 25 years, whichever is shorter, and the order exceeded this limit. Furthermore, the direction that the 15-year sentence would run consecutively to a life sentence contravened section 39(2)(a)(i) of the Correctional Services Act, which requires that determinate sentences run concurrently with life sentences. Both orders amounted to an arbitrary deprivation of freedom, infringing the applicant's rights under...

Court Disposition

Leave to appeal against the sentence of 15 years' imprisonment is refused; leave to appeal against the impugned orders is granted and the appeal is upheld.

Orders

  • The order that Mr Khathutshelo Oupa Makhokha will not be eligible for parole for the duration of the 15-year sentence is set aside.
  • The order that the 15-year sentence will not run concurrently with the life sentence is set aside.