S v Mokoena and Others (93/2013) [2013] ZAFSHC 123 (4 July 2013)

S v Mokoena and Others (93/2013) [2013] ZAFSHC 123 (4 July 2013)

The sentencing court committed serious misdirections by imposing a non-parole period exceeding the statutory maximum and by failing to provide reasons or allow the accused's legal representative to address the court on the issue. No exceptional circumstances justified the imposition of a non-parole period. The review court confirmed the convictions but set aside the non-parole period, substituting sentences of five years' imprisonment without a non-parole period, antedated to the original sentencing date.

Citation
[2013] ZAFSHC 123
Parties
Applicant: The State; Respondent: Tefo Mokoena and 11 Others
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 July 2013
Case Number
93/2013
Procedural Posture
Criminal Review / Special Review Under S 304(4) of the Criminal Procedure Act
Outcome
Convictions confirmed; sentences reviewed and substituted; non-parole period set aside.
Judges
J.P. Daffue, C. Van Zyl
Legal Topics
Sentencing, Non Parole Period, Correctional Services Act, Exceptional Circumstances, Judicial Misdirection
Criminal Law Sentencing Non Parole Period Correctional Services Act Exceptional Circumstances Judicial Misdirection

Case Brief

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Parties

The State

Applicant

Tefo Mokoena and 11 Others

Respondent

Procedural Posture

Criminal Review / Special Review Under S 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the sentencing court was competent to fix a non-parole period exceeding two-thirds of the term of imprisonment imposed.
  2. 2 Whether exceptional circumstances existed to justify the imposition of a non-parole period.
  3. 3 Whether the accused's legal representative was afforded an opportunity to address the court on the non-parole period.

Ratio Decidendi

The sentencing court committed serious misdirections by imposing a non-parole period exceeding the statutory maximum and by failing to provide reasons or allow the accused's legal representative to address the court on the issue. No exceptional circumstances justified the imposition of a non-parole period. The review court confirmed the convictions but set aside the non-parole period, substituting sentences of five years' imprisonment without a non-parole period, antedated to the original sentencing date.

Court Disposition

Convictions confirmed; sentences reviewed and substituted; non-parole period set aside.

Orders

  • The convictions of all twelve accused are confirmed.
  • The sentences imposed are reviewed, set aside and substituted with sentences of five years' imprisonment in terms of section 276(1)(b) of Act 51 of 1977 for all twelve accused.