Independent Newspapers
Durban – Judges may fix non-parole jail time for convicted criminals only if there are “exceptional circumstances” which support the decision, the Supreme Court of Appeal has ruled.
In a recent judgment, the court set aside a 13-year non-parole period which had formed part of a sentence for KwaZulu-Natal bus driver Muziwenhlanhla Mthimkhulu.
Mthimkhulu, 45, was found guilty of murder and unlawful possession of an AK-47 and ammunition by Pietermaritzburg High Court Judge Piet Koen in July 2008.
He had pleaded guilty to the murder of Nkosentsha Xulu, the leader of a rival group of bus drivers.
Mthimkhulu told the court he had been given information that Xulu had hired a man to kill him and three of his colleagues. Because of the perceived threat, Mthimkhulu became part of a group who planned to kill Xulu.
Xulu was shot dead by a hired killer using an AK-47 which police later found in Mthimkhulu’s possession.
In his judgment, Judge Koen found the crimes Mthimkhulu had been convicted of were serious, but had been “brought about by a unique set of facts, and he was a good candidate for rehabilitation”.
Judge Koen sentenced Mthimkhulu to 20 years in prison for the murder, and five years for each unlawful possession count. The latter sentences were to run concurrently with the murder sentence.
The judge then ordered that Mthimkhulu serve 13 years before becoming eligible for parole and said that, according to his interpretation of the Criminal Procedure Act, he was “obliged” to make the order
The act states that, where a court orders sentences to run concurrently, it “shall” fix a non-parole period.
When he granted leave to appeal against the sentence, Judge Koen admitted there were “difficulties with the interpretation of the act” related to non-parole periods and it was not applied in a uniform manner in KZN courts.
The Supreme Court of Appeal ruled that judges had to interpret the section of the act in a way which promoted the accused’s rights.
“The section does not oblige a sentencing court to fix a non-parole period as a matter of routine. A court should only exercise its discretion to impose a non-parole period in exceptional cases.”
The court said in cases in which the non-parole period was considered, the accused should be given the opportunity to address the court before the sentence was handed down.
The court added that the non-parole period should not have been fixed for Mthimkhulu. It found that he was a first offender and had pleaded guilty to the crimes.
“The high court found that the incident was not part of a routine criminal life but an exceptional circumstance. This is a factor of paramount importance in assessing whether to impose a non-parole period.”
The Mercury
