Stander v S (547/11) [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) (29 November 2011)

Stander v S (547/11) [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) (29 November 2011)

The Supreme Court of Appeal held that the magistrate misdirected himself by imposing a non-parole order without providing reasons, without inviting argument from the parties, and in the absence of exceptional circumstances. The non-parole order was made for the convenience of the court and the Department of Correctional Services, which is not a relevant consideration. The statutory power to impose a non-parole period under s 276B of the Criminal Procedure Act should only be exercised in exceptional circumstances, supported by facts that would continue to be relevant to parole decisions after sentence. The failure to follow these principles resulted in a reasonable prospect of success on...

Citation
[2011] ZASCA 211
Parties
Appellant: Heinrich Marthinus Stander; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2011
Case Number
547/11
Procedural Posture
Leave to Appeal / Appeal From Refusal of Leave to Appeal Against Sentence
Outcome
Appeal upheld; order refusing leave to appeal set aside and replaced with grant of leave to appeal against sentence.
Judges
Cloete, Snyders, Petse
Legal Topics
Non Parole Period, Sentencing Discretion, Exceptional Circumstances, Separation of Powers, Fraud, Leave to Appeal Procedure
Criminal Law Civil Procedure Non Parole Period Sentencing Discretion Exceptional Circumstances Separation of Powers Fraud Leave to Appeal Procedure

Case Brief

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Parties

Heinrich Marthinus Stander

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Appeal From Refusal of Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether the magistrate was obliged to give reasons for imposing a non-parole period.
  2. 2 Under what circumstances a court may impose a non-parole order as part of a sentence.
  3. 3 Whether the magistrate was obliged to invite or allow argument before imposing a non-parole order.

Ratio Decidendi

The Supreme Court of Appeal held that the magistrate misdirected himself by imposing a non-parole order without providing reasons, without inviting argument from the parties, and in the absence of exceptional circumstances. The non-parole order was made for the convenience of the court and the Department of Correctional Services, which is not a relevant consideration. The statutory power to impose a non-parole period under s 276B of the Criminal Procedure Act should only be exercised in exceptional circumstances, supported by facts that would continue to be relevant to parole decisions after sentence. The failure to follow these principles resulted in a reasonable prospect of success on...

Court Disposition

Appeal upheld; order refusing leave to appeal set aside and replaced with grant of leave to appeal against sentence.

Orders

  • The appeal is upheld.
  • The order of the court below refusing the appellant leave to appeal is set aside and replaced with: 'The applicant is granted leave to appeal to the Eastern Cape High Court, Grahamstown against the sentence imposed by the Regional Court.'