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Rossouw v S (CA&R201/2011)  ZAECGHC 76 (8 December 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
CASE NO: CA&R201/2011
DATE HEARD: 7 December 2011
DATE DELIVERED: 8 December 2011
In the matter between
FRANSIE ROSSOUW …...................................................................................Appellant
THE STATE …..............................................................................................Respondent
REASONS FOR ORDER MADE ON 7 DECEMBER 2011
The appellant was convicted in the Regional court, Joubertina, of murder. He was thereafter sentenced to undergo 15 years imprisonment. Without having afforded appellant the opportunity to address him the regional magistrate imposed a further condition in terms of section 276B of the Criminal Procedure Act 51 of 1977 to the effect that appellant had to serve a minimum of 10 years imprisonment before being considered for parole.
An application for leave to appeal against the sentence, including the imposition of the above order in terms of s 276B, was dismissed. Appellant then petitioned the Judge President of this Division for leave to appeal against sentence. Leave to appeal was in due course granted only against the order in terms of s 276B of the Act.
In his judgment dismissing the application for leave to appeal against the order in terms of s 276 B the regional magistrate stated as follows:
“Dit dien vermeld te word dat daar twee uitsprake was oor Artikel 276(B). Die een voor Dambuza J en die ander een voor Eksteen J. Eksteen J het gevind dat dit nie nodig is om die hof toe te spreek nie, waar Dambuza J ‘n teenstrydige beslissing uitgebring het. Nie een van hierdie beslissings was voor ‘n volbank geargumenteer nie. In die onderhawige geval is dit dan gemeensaak dat die beskuldigde in terme van die beleid van die Departement van Korrektiewe Dienste 4/5 van sy vonnis moet uitdien weens die minimum vonnis wat opgelê is. Die sogenaamde 10 jaar uit 15 jaar wat die hof gelas het die beskuldigde moet uitdien, slaan dus sleg op 2/3 wat ‘n minder vonnis is as wat die vonnis is wat die Department onder normale omstandighede sou opgelê het. In daardie opsig is ek van mening dat daar geen nadeel vir die beskuldigde is nie.”
The decision of Dambuza J referred to by the regional magistrate is that in the matter of S v Pauls 2011 (2) SACR 417 (ECG). In that matter Dambuza J, with whom Makaula J concurred, stated, after reference, inter alia, to S v Mhlakaza and Another 1997 (1) SACR 515 (SCA); S v Botha 2006 (2) SACR 110 (SCA) and S v Williams; S v Papier  ZAWCHC 5; 2006 (2) SACR 101 (C), that s 276B should only be invoked in exceptional circumstances. She stated at paragraph 15 that “a Court must exercise care and caution when considering whether exceptional circumstances in a particular case exist to warrant a non-parole period. A proper judicial consideration can, in my view, only be made where both the State and the defence have made submissions on the issue. Erasmus J held in Williams/Papier (supra) that it was not possible to spell out generally what constitutes exceptional circumstances; the individual circumstances of each case have to be considered. The duty to carefully and judicially consider whether it is proper in each case to impose a non-parole period cannot be waived away on the basis that parole is generally a right enjoyed by a sentenced offender.”
At paragraph 16 the learned Judge stated further that where exceptional circumstances are found to exist in a particular case it is the duty of the judicial officer to set out them out explicitly in the judgment or those particular circumstances should be apparent therefrom. Reference was made in this regard also to the decision of Froneman J in S v Mshumpa and Another 2008 (1) SACR 126 (E).
The decision of Eksteen J, to which the regional magistrate refers, was in fact not a “teenstrydige beslissing” as was incorrectly stated by him. In that matter, namely, S v Stander unreported case no CA&R 85/2010 (Eastern Cape, Port Elizabeth) Eksteen J, with Grogan AJ concurring, had dismissed a petition by the appellant for leave to appeal against the sentence imposed on him including an order in terms of s 276B of the Criminal Procedure Act. Appellant then launched an application for leave to appeal against the refusal of the petition. In granting leave to appeal Eksteen J stated that at the time the learned Judges had considered the petition they had not had the benefit of oral argument. He continued to state as follows:
“During argument it was brought to our attention that subsequent to our order dismissing the applicant’s petition an appeal was argued in this Court pursuant to a similar petition which had come before the Judge President for leave to appeal against the sentence imposed in the matter of S v Pauls.
The learned Judge pointed out that the court had now had the benefit of very comprehensive argument on the issue whether the regional magistrate had committed an irregularity in making an order in terms of s 276B without first raising his intention to do so with the appellant’s representatives and affording them an opportunity to address him on that aspect. Because the judgment in S v Pauls, supra, was currently pending leave to appeal was granted.
In the circumstances, it is quite clear that the matter of S v Stander, supra, is no authority for the proposition that there is no obligation on a presiding officer to afford an accused the opportunity of addressing him or her prior to the making of an order in terms of s 276B.
I fully agree, with respect, with the decision of Dambuza J to the effect that an order in terms of s 276B should only be made in exceptional circumstances and that it is incumbent upon a presiding officer to invite submissions from both the State and the defence on the issue of whether or not such exceptional circumstances exist. A failure to do so may result in substantial injustice being occasioned to a particular offender. The accused must accordingly be afforded an opportunity of addressing the presiding officer on this issue.
Since preparing the above judgment the decision of the Supreme Court of Appeal in S v Stander  ZASCA 211 (29 November 2011) has come to my attention. In that matter the following is stated at para 20:
“After having considered all the abovementioned authorities, the court in Pauls came to the correct conclusion, namely that a court, before making a non-parole order, should carefully consider whether exceptional circumstances exist. It also found, correctly in my view, that exceptional circumstances cannot be spelled out in advance in general terms, but should be determined on the facts of each case. These should be circumstances that are relevant to parole and not only aggravating factors of the crime committed, and a proper evidential basis should be laid for a finding that such circumstances exist.”
At para 22 the following is stated:
“The third issue for consideration is that the Magistrate gave the parties no indication that the imposition of a non-parole order was being considered by him. It came as a surprise to the parties. At least two questions arise when such an order is considered: first, whether to impose such an order and second, what period to attach to the order. In respect of both considerations the parties are entitled to address the sentencing court. Failure to afford them the opportunity to do so constitutes a misdirection. On this aspect too it could be found that there is a reasonable prospect of success on appeal.”
In the result the appeal succeeds. The order in terms of s 276B of the Criminal Procedure Act, 51 of 1977 is deleted from the sentence imposed upon the appellant.
JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT
Appearing on behalf of Appellant: Adv. D.P. Geldenhuys
Instructed by: Legal Aid Centre
Appearing on behalf of Respondent: Adv. S. Hendricks
Instructed by: The Director of Public Prosecutions