S v Moloantoa (342/17) [2018] ZAGPPHC 222 (22 January 2018)

S v Moloantoa (342/17) [2018] ZAGPPHC 222 (22 January 2018)

The trial magistrate erred by ordering that the entire term of imprisonment be served without parole, contrary to s 276B(1)(b) of the Criminal Procedure Act, which restricts the non-parole period to two thirds of the sentence. Furthermore, the magistrate failed to follow the required procedure by not investigating the appropriateness of the non-parole order, not warning the accused, and not affording him an opportunity to address the court on this issue. These procedural failures constitute a misdirection. The conviction and sentence are confirmed, but the non-parole order is set aside.

Citation
[2018] ZAGPPHC 222
Parties
Respondent: The State; Applicant: George JHN Moloantoa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 January 2018
Case Number
342/17
Procedural Posture
Review Application / Special Review
Outcome
Conviction and sentence confirmed; non-parole order set aside.
Judges
C J Van der Westhuizen, AJ Bam
Legal Topics
Sentencing Procedure, Non Parole Orders, Criminal Procedure Act, Misdirection, Review of Magistrate Decisions
Criminal Law Sentencing Procedure Non Parole Orders Criminal Procedure Act Misdirection Review of Magistrate Decisions

Case Brief

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Parties

The State

Respondent

George JHN Moloantoa

Applicant

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the order that the entire term of imprisonment be served without parole is lawful under s 276B(1)(b) of the Criminal Procedure Act.
  2. 2 Whether the trial magistrate followed the correct procedure in imposing a non-parole period.
  3. 3 Whether the accused was afforded an opportunity to address the court regarding the non-parole order.

Ratio Decidendi

The trial magistrate erred by ordering that the entire term of imprisonment be served without parole, contrary to s 276B(1)(b) of the Criminal Procedure Act, which restricts the non-parole period to two thirds of the sentence. Furthermore, the magistrate failed to follow the required procedure by not investigating the appropriateness of the non-parole order, not warning the accused, and not affording him an opportunity to address the court on this issue. These procedural failures constitute a misdirection. The conviction and sentence are confirmed, but the non-parole order is set aside.

Court Disposition

Conviction and sentence confirmed; non-parole order set aside.

Orders

  • The conviction is confirmed.
  • The sentence of three years of imprisonment is confirmed.