Rossouw v S (CA&R201/2011) [2011] ZAECGHC 76 (8 December 2011)

Rossouw v S (CA&R201/2011) [2011] ZAECGHC 76 (8 December 2011)

The court held that the regional magistrate committed a misdirection by imposing a non-parole period under section 276B of the Criminal Procedure Act without affording the appellant and the State an opportunity to address the court on the matter. The imposition of such an order requires the existence of exceptional circumstances, which must be determined on the facts of each case and supported by a proper evidential basis. The failure to invite submissions from both parties may result in substantial injustice and cannot be justified by departmental policy. The appeal was upheld and the non-parole order was deleted from the sentence.

Citation
[2011] ZAECGHC 76
Parties
Appellant: Fransie Rossouw; Respondent: The State
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
8 December 2011
Case Number
CA&R201/2011
Procedural Posture
Criminal Appeal / Appeal Against Sentence (s 276 B Order)
Outcome
Appeal upheld; non-parole order deleted from sentence.
Judges
J.D. Pickering, E. Revelas
Legal Topics
Sentencing, Non Parole Period, Exceptional Circumstances, Procedural Irregularity
Criminal Law Sentencing Non Parole Period Exceptional Circumstances Procedural Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

Fransie Rossouw

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (s 276 B Order)

Legal Issues

  1. 1 Whether the regional magistrate erred by imposing a non-parole period under section 276B of the Criminal Procedure Act without affording the appellant an opportunity to address the court.
  2. 2 Whether exceptional circumstances existed to justify the imposition of a non-parole period.
  3. 3 Whether failure to invite submissions from both the State and the defence constitutes a misdirection.

Ratio Decidendi

The court held that the regional magistrate committed a misdirection by imposing a non-parole period under section 276B of the Criminal Procedure Act without affording the appellant and the State an opportunity to address the court on the matter. The imposition of such an order requires the existence of exceptional circumstances, which must be determined on the facts of each case and supported by a proper evidential basis. The failure to invite submissions from both parties may result in substantial injustice and cannot be justified by departmental policy. The appeal was upheld and the non-parole order was deleted from the sentence.

Court Disposition

Appeal upheld; non-parole order deleted from sentence.

Orders

  • The order in terms of section 276B of the Criminal Procedure Act, 51 of 1977, is deleted from the sentence imposed upon the appellant.