Mkhize v S (A357/2016) [2017] ZAGPPHC 567 (25 August 2017)

Mkhize v S (A357/2016) [2017] ZAGPPHC 567 (25 August 2017)

The court found that the Magistrate did not exercise proper care and caution in considering whether exceptional circumstances existed to justify the imposition of a non-parole period. There was no evidence that both the State and the defence made submissions on the issue, nor did the Magistrate explicitly set out any exceptional facts. The order restricting parole eligibility was therefore arbitrary and contravened the principles of legality and separation of powers. The appeal was upheld, and the sentence was substituted to remove the non-parole order.

Citation
[2017] ZAGPPHC 567
Parties
Appellant: Simphiwe Mduduzi Mkhize; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 August 2017
Case Number
A357/2016
Procedural Posture
Criminal Appeal / Appeal Against Sentence (limited to Parole Order)
Outcome
Appeal against sentence (limited to parole order) upheld; sentence substituted to remove non-parole restriction.
Judges
Mokose, Tlhapi
Legal Topics
Sentencing, Parole Eligibility, Separation of Powers, Exceptional Circumstances
Criminal Law Sentencing Parole Eligibility Separation of Powers Exceptional Circumstances

Case Brief

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Parties

Simphiwe Mduduzi Mkhize

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (limited to Parole Order)

Legal Issues

  1. 1 Whether the Magistrate misdirected herself by ordering a non-parole period before the appellant could be considered for parole.
  2. 2 Whether exceptional circumstances existed to justify invoking Section 276B of the Criminal Procedure Act 51 of 1977.
  3. 3 Whether the parole order infringed the principles of legality and separation of powers.

Ratio Decidendi

The court found that the Magistrate did not exercise proper care and caution in considering whether exceptional circumstances existed to justify the imposition of a non-parole period. There was no evidence that both the State and the defence made submissions on the issue, nor did the Magistrate explicitly set out any exceptional facts. The order restricting parole eligibility was therefore arbitrary and contravened the principles of legality and separation of powers. The appeal was upheld, and the sentence was substituted to remove the non-parole order.

Court Disposition

Appeal against sentence (limited to parole order) upheld; sentence substituted to remove non-parole restriction.

Orders

  • The appellant is sentenced to twelve years imprisonment.
  • The appellant is declared unfit to possess a firearm.