Mchunu and Another v S (825/2012) [2013] ZASCA 126 (25 September 2013)

Mchunu and Another v S (825/2012) [2013] ZASCA 126 (25 September 2013)

The Supreme Court of Appeal held that the fixing of a non-parole period under section 276B of the Criminal Procedure Act constitutes an increase in penalty. Since the offences were committed before the section came into operation, the imposition of a non-parole period amounted to a retrospective penalty, which is impermissible under South African law. The court found no special circumstances to justify a departure from the established principle that penalties cannot be applied retrospectively. Accordingly, the order of the court below fixing a period to be served before parole eligibility was incorrectly made and had to be set aside.

Citation
[2013] ZASCA 126
Parties
Appellant: Vamile Michael Mchunu; Appellant: Cecilmagida; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 September 2013
Case Number
825/2012
Procedural Posture
Criminal Appeal / Appeal Against Sentence (non Parole Period)
Outcome
Appeal upheld; order fixing non-parole period set aside.
Judges
Maya, Shongwe, Pillay, Willis, Zondi
Legal Topics
Non Parole Period, Retrospective Penalty, Sentencing Principles, Murder, Attempted Robbery
Criminal Law Non Parole Period Retrospective Penalty Sentencing Principles Murder Attempted Robbery

Case Brief

Summary, issues, holding and outcome

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Parties

Vamile Michael Mchunu

Appellant

Cecilmagida

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (non Parole Period)

Legal Issues

  1. 1 Whether the court below 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 fixing of a non-parole period constitutes an impermissible retrospective penalty.

Ratio Decidendi

The Supreme Court of Appeal held that the fixing of a non-parole period under section 276B of the Criminal Procedure Act constitutes an increase in penalty. Since the offences were committed before the section came into operation, the imposition of a non-parole period amounted to a retrospective penalty, which is impermissible under South African law. The court found no special circumstances to justify a departure from the established principle that penalties cannot be applied retrospectively. Accordingly, the order of the court below fixing a period to be served before parole eligibility was incorrectly made and had to 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 appellants may be released on parole is set aside.