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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NUMBER: A845/2016

 

IN THE MATTER OF:

 

TSHEPO FRANS KOLA                                                                                         Appellant

 

And

 
THE STATE                                                                                                              Defendant

JUDGMENT

BAM, J

1.         The issue in this appeal, apart from condonation for the late appeal, is limited to the following relief sought by the appellant: That the sentence of 19 years imprisonment imposed on 16 November 1998 in the Reginal Court, Pretoria, be ordered to run concurrently with an effective sentence of 40 years imprisonment imposed by this Court on 14 August 1997 (the original sentence of 50 years was reduced on appeal on 2 August 2000).

2.         The appellant has an impressive record of previous convictions for violent crimes. The sentences are listed:

(i)         On 27/07/1995 he was sentenced to 8 years imprisonment;

(ii)        On 14 /08/1997 he was sentenced to 50 years imprisonment - reduced on appeal on 2 August 2000 to 40 years;

(iii)      On 20 August 1998 he was sentenced to 50years imprisonment - reduced on appeal to 20 years on 31 Augustus 2017;

(iv)       On 16 November 1998 he was sentenced to 19 years imprisonment (the sentence presently in issue).

3.          The basis of the appeal is that the regional court, in imposing the 19 year sentence on 16 November 1998, erred in not ordering that the said sentence should run concurrently with the sentences of 58 years the appellant was serving at the time.

4.         The appellant's contention seems to be now, that after 22 years, he is of mind that the cumulative effect of the additional 19 years imprisonment is unrealistically severe. The appellant but boldly stated that the trial court erred in not ordering that the complained about sentence of 19 years should run concurrently with the other sentences. The appropriateness of the sentence of 19 years imprisonment, per se, is not contested.

5.         Accordingly this court is called upon to determine whether an order in respect of concurrent service of a sentence is part and parcel of the sentence, and if so, whether the trial court's failure to make an order in that regard can be found to have been inappropriate, and or a misdirection to the extent that this court, applying the standard principles pertaining to interference with a sentence on appeal, will be justified to interfere.

6.         The State does not oppose an order that the sentence of 19 years should run concurrently with the applicant's previous sentences.

7.         However, the nature of the majority of all the crimes committed by the appellant involved violence; murder, attempted murder and robbery.

8.         As mentioned above, there is no issue at all pertaining to the trial court having misdirected itself or that the said sentence, without the issue of an order in respect of concurrent running of the sentence, is inappropriate.

9.         Regarding the issue of concurrent running of sentences, appellant did not care to refer to the nature and extent of the previous, and the last, offences, listed above, and except for the lengthy periods, why the cumulative effect is too severe.

10.       lt appears that the issue of the appellant's release on parole is the only consideration and overriding aspect.

11.       There is no indication what the Department's consideration regarding parole is. Accordingly this Court requested the Department of Correctional Services to furnish the Court with information regarding the appellant's situation in respect of possible parole.

12.       The following information was supplied by the Department of Correctional Services. It is procedure that any inmate serving a determinate sentence may be considered for parole after 18 years. The appellant has already served more than 20 years. In respect of the sentence of 19 years imposed in 1998, not running concurrently with his previous sentence, it means that the accused will only be considered for parole in 2038. Should an order be made that the 19 years imprisonment be served concurrently with the previous sentence, it will mean that the appellant may at present be eligible for parole consideration.

13.         The appellant's application for condonation for late appeal against the alleged failure of the trial magistrate to order the concurrent running of the 19 years imprisonment with the previous sentences is dismissed in view of the lack of grounds explaining why the appeal was not lodged timeously.

14.         However, in respect of the issue of parole, in terms of the inherent jurisdiction of this Court, we deem it in the interests of justice to make the required order.

 

ORDER:

1.          It is ordered that the sentence of 19 years imprisonment imposed on 16 November 1998 to be served concurrently with the sentences imposed on 14 August 1997 and 20 August 1998.

2.          It is order is backdated to 16 November 1998.

 

 

 

AJ BAM

JUDGE OF THE HIGH COURT

 

 

 

I agree

 

 

 

MJ MOSOPA

JUDGE OF THE HIGH COURT

 

20 MAY 2020

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