REPUBLIC OF SOUTH AFRICA
                      
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
							                                       CASE NO:  A102/2019
                                                                                                                DPP REF NUMBER: 10/2/5/1-2019/87
                                                                                                                         Date of Appeal: 14 October 2019                                                                                

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:
Sigubu Morris Sibusiso                                                                                                                           Appellant
and
The State 									               Respondent

Judgment

Van der Linde, J:

[1]	The appellant was found guilty by the Germiston Regional Court on his plea of five colleges. These were robbery with aggravating circumstances as read with section 51 (two) of the criminal law amendment act 105 of 1997; rape, read with the same section; robbery with aggravating circumstances, again to read with the same section; rape, read with the same section, and finally rape, again read with the same section. There were thus three counts of rape and two counts of robbery with aggravating circumstances. The heads of argument put up by the state before us are therefore incorrect.
[2]	The sentence imposed by the court below was 10 years imprisonment in respect of each rape count, 15 years imprisonment in respect of the first robbery count, and five years imprisonment in respect of the second robbery count. The court directed that the two sentences in respect of counts four and five of 10 years each, was to run concurrently with the sentences imposed in respect of the first three counts, the effect of which was that the appellant was sentenced to an effective period of 30 years imprisonment.
[3]	The magistrate however additionally fixed a non-parole period of imprisonment of 20 years, acting in terms of section 276 B of act 51 of 1977. The magistrate granted leave to appeal against the sentence and in doing so Ltd the appeal to the order that was made in terms of that section. The magistrate who granted leave to appeal was not the magistrate who presided over the trial; that magistrate has since retired.
[4]	Section 276B(1) provides:
“(a) If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of the sentence, fix a period during which the person shall not be placed on parole.
(b) Such period shall be referred to as the non-parole period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.”
[5]	In arguing the appeal before us counsel for the appellant drew the attention of the court to the following dictum in Jimmale and Another v S (CCT223/15) [2016] ZACC 27; 2016 (11) BCLR 1389 (CC); 2016 (2) SACR 691 (CC) (30 August 2016):
[20] Precedent makes it clear that a section 276B non-parole order should not be resorted to lightly.  Courts should generally allow the parole board and the officials in the Department of Correctional Services, who are guided by the Correctional Services Act, and the attendant regulations, to make parole assessments and decisions.  Courts should impose a non-parole period when circumstances specifically relevant to parole exist, in addition to any aggravating factors pertaining to the commission of the crime for which there is evidential basis. Additionally, a trial Court should invite and hear oral argument on the specific question before the imposition of a non-parole period.”
[6]	In this case the court a quo did not afford the appellant an opportunity to address it on the imposition of the section 276B order. The Constitutional Court set aside the imposition of the non-parole period  and di dnot  refer it back to the court to reconsider the matter. It relied on Strydom v S (20215/2014) [2015] ZASCA 29 (23 March 2015) in which it was held:
[16] The third issue is whether a magistrate should allow or invite argument prior to the imposition of a non-parole period. The imposition of such an order has a drastic impact on sentence. In this matter invoking s 276B came as a surprise to both the appellant and the respondent. It was not suggested by the prosecution and, as indicated above, there was no warning that it was being contemplated. Section 276B entails an order which is a determination in the present for the future behavior of the person to be affected thereby. In other words, it is an order that a person does not deserve being released on parole in future. (See: S v Bull; S v Chavulla & others).[5] Such an order should only be made in exceptional circumstances which can only be established by investigation and a consideration of salient facts, legal argument and perhaps further evidence upon which such a decision rests.”
[7]	In fairness to the learned magistrate who presided over the trial, these judgements were given after he gave the order. It is clear that we should set aside the order, given that the appellant did not have the opportunity to address the court on the effect of the imposition of the contentious order. The question that arises is whether we should refer the matter back to the court a fresh to consider whether it would be appropriate to impose such a non-parole period.
[8]	I agree with Ms Simpson for the appellant that it would not serve the interests of justice to refer the matter back to the magistrates Court. One reason is that so much time has already elapsed, more than 10 years; another reason – flowing from the fact just mentioned – is that the magistrate has retired. A further factor which I bear in mind is that the appellant was but 22 years old when these offences, serious as they are, were committed.
[9]	Finally, I bear in mind that the constitutional court has held that a sentence with a non-parole period should be imposed only in exceptional circumstances; in Makhokha v S (CCT170/18) [2019] ZACC 19; 2019 (7) BCLR 787 (CC); 2019 (2) SACR 198 (CC) (3 May 2019) the court again underscored what it had held in Jimmale at [13]:
“only in exceptional circumstances, which can be established by investigation of salient facts, legal argument and sometimes further evidence upon which a decision for non-parole rests.  In determining a non-parole period following punishment, a court in effect makes a prediction on what may well be inadequate information as regards the probable behaviour of the accused.  Therefore, a need for caution arises because a proper evidential basis is required.”
[10]	 In these circumstances I do not accept that counsel for the state is correct in submitting that we have the power even to uphold the sentence of the court of quo in this regard and I accordingly make the following order:
(a)	the appeal succeeds.
(b)	The order by the court of quo in terms of section 276B of act 51 of 1977 is set aside.

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                                                                                                                                                 WHG Van der Linde
                                                                                                                                           Judge of the High Court 
                                                                                                                                  South Gauteng Local Division

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                                                                                                                                                     Grenfell 
                                                                                                                             Acting Judge of the High Court
                                                                                                                             South Gauteng Local Division