Senwedi v S (CCT 225/20) [2021] ZACC 12; 2022 (1) SACR 229 (CC); 2023 (4) BCLR 449 (CC) (21 May 2021)

Senwedi v S (CCT 225/20) [2021] ZACC 12; 2022 (1) SACR 229 (CC); 2023 (4) BCLR 449 (CC) (21 May 2021)

The Constitutional Court held that the High Court was not empowered to impose a non-parole period of 25 years at the time of sentencing, as section 276B of the Criminal Procedure Act only came into operation on 1 October 2004, after the applicant's conviction and sentence. The imposition of the non-parole period constituted an increased sentence not permitted by law at the relevant time and was therefore invalid. The Court further found that the applicant and his co-accused were not afforded an opportunity to address the fixing of the non-parole period, which amounted to a fatal procedural misdirection. The applicant's constitutional rights to freedom and to benefit from the least severe...

Citation
[2021] ZACC 12
Parties
Applicant: Gaolatlhe Senwedi; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
21 May 2021
Case Number
CCT 225/20
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal by the Supreme Court of Appeal and High Court.
Outcome
Leave to appeal granted; the non-parole period imposed by the High Court is set aside.
Judges
Mogoeng, Jafta, Khampepe, Madlanga, Majiedt, Mathopo, Mhlantla, Theron, Tshiqi, Victor
Legal Topics
Non Parole Period, Retrospective Application of Statute, Right to Freedom, Least Severe Punishment, Fair Trial Rights
Criminal Law Constitutional Law Non Parole Period Retrospective Application of Statute Right to Freedom Least Severe Punishment Fair Trial Rights

Case Brief

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Parties

Gaolatlhe Senwedi

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal by the Supreme Court of Appeal and High Court.

Legal Issues

  1. 1 Whether the High Court was competent to impose a non-parole period of 25 years prior to the enactment of section 276B of the Criminal Procedure Act.
  2. 2 Whether the imposition of a non-parole period infringed the applicant's constitutional rights, including the right to freedom and the right to the least severe punishment.
  3. 3 Whether the applicant and his legal representatives were afforded an opportunity to address the fixing of a non-parole period.

Ratio Decidendi

The Constitutional Court held that the High Court was not empowered to impose a non-parole period of 25 years at the time of sentencing, as section 276B of the Criminal Procedure Act only came into operation on 1 October 2004, after the applicant's conviction and sentence. The imposition of the non-parole period constituted an increased sentence not permitted by law at the relevant time and was therefore invalid. The Court further found that the applicant and his co-accused were not afforded an opportunity to address the fixing of the non-parole period, which amounted to a fatal procedural misdirection. The applicant's constitutional rights to freedom and to benefit from the least severe...

Court Disposition

Leave to appeal granted; the non-parole period imposed by the High Court is set aside.

Orders

  • Leave to appeal is granted.
  • The non-parole period ordered by the High Court of South Africa, Northern Cape Division, Kimberley, on 14 May 2002 – that accused one, Mr Gaolatlhe Senwedi, and accused two, Mr Alfred Khonyane, should not be considered for release on parole until they have each served at least 25 years of their sentence of life...