Ngcana v S (A174/2017) [2017] ZAFSHC 232 (6 December 2017)

Ngcana v S (A174/2017) [2017] ZAFSHC 232 (6 December 2017)

The court found that at the time of sentencing, there was no statutory provision authorizing the fixing of a non-parole period. The recommendation of a non-parole period was not the norm and was discouraged by higher courts, notably in S v Mhlakaza. The trial court did not exercise its discretion judicially nor provide reasons for imposing a 30-year non-parole period. Furthermore, the Correctional Services Act entitles offenders sentenced to life imprisonment before its commencement to be considered for parole after 20 years. The trial court's recommendation was therefore incompetent and unjustified, and the appeal against the non-parole period must succeed.

Citation
[2017] ZAFSHC 232
Parties
Appellant: Zongezile Ngcana; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 December 2017
Case Number
A174/2017
Procedural Posture
Criminal Appeal / Appeal Against Sentence (non Parole Period) After Leave Granted by Supreme Court of Appeal
Outcome
Appeal upheld; non-parole period recommendation set aside; life imprisonment sentence confirmed.
Judges
Molemela, Chesiwe, Lefenya
Legal Topics
Sentencing, Non Parole Period, Life Imprisonment, Judicial Discretion, Separation of Powers
Criminal Law Sentencing Non Parole Period Life Imprisonment Judicial Discretion Separation of Powers

Case Brief

Summary, issues, holding and outcome

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Parties

Zongezile Ngcana

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (non Parole Period) After Leave Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Was it competent for the trial court to recommend a non-parole period in respect of the appellant's life sentence.
  2. 2 If competent, was the recommendation of a 30-year non-parole period appropriate under the circumstances.

Ratio Decidendi

The court found that at the time of sentencing, there was no statutory provision authorizing the fixing of a non-parole period. The recommendation of a non-parole period was not the norm and was discouraged by higher courts, notably in S v Mhlakaza. The trial court did not exercise its discretion judicially nor provide reasons for imposing a 30-year non-parole period. Furthermore, the Correctional Services Act entitles offenders sentenced to life imprisonment before its commencement to be considered for parole after 20 years. The trial court's recommendation was therefore incompetent and unjustified, and the appeal against the non-parole period must succeed.

Court Disposition

Appeal upheld; non-parole period recommendation set aside; life imprisonment sentence confirmed.

Orders

  • The appeal succeeds.
  • The sentence of life imprisonment is confirmed.