S M v S (676/18) [2018] ZASCA 162 (28 November 2018)

S M v S (676/18) [2018] ZASCA 162 (28 November 2018)

The Supreme Court of Appeal held that section 276B of the Criminal Procedure Act 51 of 1977, which allows a court to fix a non-parole period, does not apply retrospectively to offences committed before its commencement on 1 October 2004. The appellant's offences were committed and sentenced before this date. The full court erred in fixing a non-parole period, as the legislative intent and clear language of the section preclude retrospective operation. At the time of sentencing, parole eligibility was governed by the Correctional Services Act 8 of 1959, which allowed prisoners to earn credits and be considered for parole after serving half their sentence. The appellant has already served...

Citation
[2018] ZASCA 162
Parties
Appellant: S M; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2018
Case Number
676/18
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal upheld; order fixing non-parole period set aside.
Judges
Cachalia, Wallis, Makgoka, Carelse, Matojane
Legal Topics
Non Parole Period, Retrospective Application of Statute, Sentencing, Parole Eligibility
Criminal Law Non Parole Period Retrospective Application of Statute Sentencing Parole Eligibility

Case Brief

Summary, issues, holding and outcome

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Parties

S M

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the order fixing a non-parole period under section 276B of the Criminal Procedure Act 51 of 1977 was valid for offences committed before the section came into operation.
  2. 2 Whether the appellant is entitled to be considered for parole under the Correctional Services Act 8 of 1959.

Ratio Decidendi

The Supreme Court of Appeal held that section 276B of the Criminal Procedure Act 51 of 1977, which allows a court to fix a non-parole period, does not apply retrospectively to offences committed before its commencement on 1 October 2004. The appellant's offences were committed and sentenced before this date. The full court erred in fixing a non-parole period, as the legislative intent and clear language of the section preclude retrospective operation. At the time of sentencing, parole eligibility was governed by the Correctional Services Act 8 of 1959, which allowed prisoners to earn credits and be considered for parole after serving half their sentence. The appellant has already served...

Court Disposition

Appeal upheld; order fixing non-parole period set aside.

Orders

  • The appeal against the order fixing a non-parole period is upheld.
  • The order of the court below fixing a non-parole period is set aside.