Case CCT170/18 
[2019] ZACC 19

Judgement Date:03 May 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday 3 May 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a sentence imposed by the Sibasa Regional Magistrates’ Court (Regional Court).

In 2008, Mr Makhokha (the applicant), was convicted by the Regional Court of unexplained possession of a motor vehicle that was reasonably suspected to have been stolen. He was sentenced to 15 years in prison, the maximum term of imprisonment that may be imposed by a Regional Court under the Magistrates’ Court Act. At the time of sentence, Mr Makhokha was already serving a sentence of life imprisonment for another offence. The magistrate directed that the two sentences were to run consecutively; that is, the 15-year sentence would only start to run after the life sentence. The magistrate also ordered that the applicant “must never be released on parole”.

An appeal against sentence to the High Court of South Africa, Limpopo Local Division, Thohoyandou (High Court) was unsuccessful. A subsequent approach to the Supreme Court of Appeal bore no fruit. Mr Makhokha then appealed to the Constitutional Court against the non-parole order and duration of his sentence. The Constitutional Court had to decide, firstly, whether the non-parole order ought to stand; secondly, whether the determination that the 15-year term of imprisonment and life imprisonment are to run consecutively is legally competent; and finally, whether the 15 year sentence was appropriate.

The Constitutional Court decided the matter without the benefit of written or oral argument. In a unanimous judgment penned by Madlanga J, the Court held that it did not have jurisdiction to interfere with sentence where the only complaint is merely that the sentence is disproportionate in the circumstances. Leave to appeal against the duration of the 15-year term of imprisonment was thus refused.

The Court held that the non-parole order is in conflict with section 276B(1)(b) of the Criminal Procedure Act, which provides that a non-parole period may not exceed two-thirds of the sentence or 25 years (whichever is shorter). This was so because the Regional Court imposed a 100 percent non-parole period without the two-thirds limit. The Court also held that as there was no law justifying the imposition of the non-parole order, the order constituted an infringement of Mr Makhokha’s right not to be deprived of freedom arbitrarily or without just cause, as guaranteed by section 12(1)(a) of the Constitution.

Further, the Court held that the order that Mr Makhokha’s two sentences run consecutively is not competent, as it is contrary to section 39 of the Correctional Services Act.

The Court saw no need to remit the matter to the Regional Court for it to consider sentence afresh, in accordance with this Court’s jurisprudence that a non-parole order may be imposed only in exceptional circumstances. It took this view because the Regional Court had dealt extensively with factors relevant to sentence, and none of the factors constituted exceptional circumstances warranting the imposition of a non-parole period.

In the result, the Constitutional Court overturned the Regional Court’s non-parole order and the order that Mr Makhokha’s sentences should run consecutively. The Court then antedated the commencement of the 15-year term of imprisonment to the date of sentence.         

The Full judgment  here