THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 57/2017
In the matter between:

LESHAY KLASSEN

APPELLANT
and
THE STATE

RESPONDENT

Neutral citation: Klassen v The State (57/2017) [2017] ZASCA 58 (24 May
2017)
Coram:
Leach, Saldulker, Zondi and Mathopo JJA and Coppin AJA
Heard:
4 May 2017

Delivered: 24 May 2017

Summary: Criminal Procedure: sentence: effect of convicted accused not
testifying when considering whether substantial and compelling circumstances
exist justifying a sentence less than a prescribed minimum: failure to hold an
inquiry before imposing non-parole period under s 276B of the Criminal
Procedure Act 51 of 1977: effect thereof.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Hartzenberg J
and Vilakazi AJ sitting as court of appeal):
It is ordered:
The order of the trial court imposing a non-parole period under s 276B of
the Criminal Procedure Act 51 of 1977 is set aside.
The appeal is otherwise dismissed, and the appellant’s sentence
confirmed.

________________________________________________________________
JUDGMENT
________________________________________________________________
Leach JA (Saldulker, Zondi and Mathopo JJA and Coppin AJA
concurring)

[1] The appellant was together with three others arraigned on a charge of
murder in the Benoni Regional Court. The case arose out of an incident that
occurred in the early hours of 17 June 2006 which led to the death of a young
man, Joseph Mbane (the deceased). The appellant and his co-accused were
convicted on the charge which carried a prescribed minimum sentence of 15
years’ imprisonment under the provisions of s 51(2)(a)(i) of the Criminal Law

Amendment Act 105 of 1997. The trial court concluded that there were no
substantial and compelling circumstances justifying a lesser sentence than the
prescribed minimum, and proceeded to impose a sentence of 15 years’
imprisonment on the appellant and each of his co-accused. Thereafter, without
further ado and without making any inquiry relevant to the issue, the trial court
issued an order under s 276B of the Criminal Procedure Act 51 of 1977 (the
CPA) that the appellant and his co-accused should not be placed on parole
before they had served two thirds of their sentence. The effect of this was, of
course, that a period of ten years’ imprisonment was to be served before the
appellant and his co-accused could be paroled.

[2] The appellant proceeded to appeal against both his conviction and
sentence to the Gauteng Division of the High Court, Pretoria. His appeal was
dismissed on 5 June 2009. With special leave of this Court, he now appeals
against both the length of the period of imprisonment imposed as well as the
imposition of the non-parole period.

[3] The evidence on record discloses that early on the morning in question,
the deceased was seen running towards a convenience shop at a filling station,
pursued by the appellant and his co-accused who had arrived on the scene in a
motor vehicle. They caught up with the deceased and began to assault him all
over the body, kicking him with booted feet and punching him. The appellant
was armed with a snooker cue which he used to strike the deceased over the
head. The deceased fell to the ground but was able to regain his feet and break
away from his attackers. He ran across the road but lost his footing and fell,
whereupon they caught up with him and once more severely assaulted him. The
attack upon the deceased continued despite the intervention of a bystander,

Mr Bezuidenhout, who attempted to come to the aid of the deceased and to
persuade his attackers to desist. His effort was in vain and in response to his
entreaties they threatened to assault him.

[4] The attack upon the deceased was prolonged and vicious. According to
another eye witness, Mr Morrison, the attackers kept on kicking and hitting the
deceased despite his terrible screams. Mr Bezuidenhout described the appellant
and his co-accused as having acted ‘like a pack of wild dogs’.

[5] Eventually the attack stopped and the deceased’s attackers climbed back
into their vehicle and drove away, leaving him lying inert on the ground.
Mr Bezuidenhout immediately went to see if he could help the deceased, but on
examining him discovered that he had no pulse. The death of the deceased was
confirmed by the paramedics and police who arrived on the scene some time
later. During a post mortem examination, the deceased was found to have
bruises on the head and shoulders, several lacerations on the head, swelling of
the brain and blood in his mouth and trachea. There were pin-point bleedings in
his lungs and heart, indicating a lack of oxygen. Essentially, he had been beaten
to death.

[6] Despite their plea of not guilty, the appellant and his co-accused were
correctly convicted of the deceased’s murder. As I have said, an appeal to the
high court failed and the only issues before this Court are the length of the
period of imprisonment imposed and the non-parole period.

[7] In regard to the prescribed minimum of 15 years’ imprisonment that was
imposed, counsel for the appellant placed emphasis upon his client’s age (he
was about 18 years of age at the time of the offence). This, it was contended,
taken together with the appellant having been a first offender who was, so it was
argued, heavily under the influence of alcohol at the time, justified a finding
that there were substantial and compelling circumstances not to impose the
prescribed minimum sentence.

[8] I accept that the appellant was a youth of 18 years and that he was a first
offender, but one cannot find that alcohol played any part in the proceedings.
The only evidence in that regard is that, after the incident when the vehicle
which had been used by the appellant and his co-accused was traced, it smelled
of alcohol as did the breath of one of his co-accused. But the appellant himself
did not testify at the trial. In S v Roslee 2006 (1) SACR 537 (SCA) para 33 this
court stated that although there is no onus on an accused to prove the presence
of substantial and compelling circumstances justifying a sentence less than the
prescribed minimum, ‘it must be so that an accused who intends to persuade a
court to impose a sentence less than that prescribed should pertinently raise such
circumstances for consideration’. This the appellant failed to do. As he failed to
give any evidence in regard to the consumption of intoxicating liquor, and no
such evidence appears from the record, it would be impermissible speculation to
find that his actions had in any meaningful way been influenced by his
intoxication.

[9] Bearing in mind that for the present offence a minimum of 15 years’
imprisonment is prescribed in respect of an 18 year old first offender – and that
the question of sentence is to be approached conscious of the fact that the

legislature has ordained that as the sentence which should ordinarily be imposed
– I am of the view that the appeal against the length of the period of
imprisonment imposed by the trial court must fail.

[10] That then brings me to the question of the non-parole period imposed
under s 276B of the CPA. As already mentioned, after imposing the sentence of
15 years’ imprisonment, the trial court immediately proceeded to order that the
appellant not be released on parole until he had served at least ten years of that
sentence. This was done without any inquiry as to whether such an order was
appropriate and without hearing representations in regard to the issue.

[11] The grant of parole is something best left to the executive and those
officials charged with the duty of considering and deciding upon parole – see S
v Stander [2011] ZASCA 211; 2012 (1) SACR 537 (SCA) para 20 and S v
Botha 2006 (2) SACR 110 (SCA) para 27. Consequently, the power of a trial
court to act under s 276B should be sparingly exercised, and then only after
holding an inquiry as to the desirability of such an order and hearing argument
on the issue. This is now well established by the jurisprudence not only of this
court but of the Constitutional Court – see S v Jimmale & another [2016] ZACC
27; 2016 (2) SACR 691 (CC) paras 19-25; 2016 (11 BCLR 1389) and Strydom
v S (20215/2014) [2015] ZASCA 29 (23 March 2015) para 16. Indeed the
necessity of adopting such a procedure is so trite that it is surprising, to say the
least, that this issue has recently had to be dealt with by this court on several
occasions – see eg Ndlovu v S (925/2016) [2017] ZASCA 26 (27 March 2017),
Mvubu v S (518/2016) [2016] ZASCA 184 (29 November 2016) and Mhlongo
v S [2016] ZASCA 152; 2016 (2) SACR 611 (SCA) – all of which reaffirmed

that it is a fatal misdirection to impose a non-parole period without an inquiry as
to whether it ought to be imposed.

[12] For some reason, no mention was made of this issue when the matter
went on appeal from the trial court to the court a quo. Be that as it may,
Ms Leonard SC, who appeared in this court on behalf of the state, whilst
supporting the 15 years’ imprisonment imposed upon the appellant, conceded
immediately and without demur that the further order relating to non-parole had
to be set aside.

[13] The judgment of the court a quo was delivered on 5 June 2009. It took
more than six years until the appellant applied to this Court for special leave to
appeal and, once such leave was granted, there appears to have been a problem
in timeously obtaining a record. Consequently, more than nine years has passed
since sentence was imposed on the appellant in the trial court on 28 March
2008. In these circumstances, Ms Leonard SC conceded on behalf of the state
that, in the light of this lapse of time, no purpose would be served in asking for
the matter to be remitted to the trial court to hold the necessary inquiry and to
reconsider possibly imposing a non-parole period under s 276B. Not only is she
clearly correct, but there is nothing in the record itself which indicates that this
was an appropriate case for a non-parole period to be imposed, especially upon
a young man who has hopefully been rehabilitated by the period of
imprisonment he has already served.

[14] A further issue of concern is that the appellant’s three co-accused, who
received the same sentence as he did, still labour under a non-parole period

improperly imposed upon them. That this is unjust, cannot be gainsaid: but none
of the co-accused are before this Court which, in the circumstances, has no
jurisdiction to ameliorate their plight. We raised this with the legal
representatives of the parties who appeared before us and who gave us the
undertaking to immediately take the matter up to see if an equitable solution
could be found as a matter of urgency. We are grateful to them for doing so.

[15] In the light of the above, the appeal must succeed only in regard to the
non-parole period. It is therefore ordered:
The order of the trial court imposing a non-parole period under s 276B of
the Criminal Procedure Act 51 of 1977 is set aside.
The appeal is otherwise dismissed, and the appellant’s sentence
confirmed.

_______________
L E Leach
Judge of Appeal

Appearances:

For the Appellant:

J M Mojuto
Instructed by:

Pretoria Justice Centre, Pretoria

Bloemfontein Justice Centre, Bloemfontein

For the Respondent:

E Leonard SC
Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED
IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
24 May 2017
Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

LESHAY KLASSEN

and

THE STATE

Arising out of an incident that occurred on 17 June 2006, the appellant was
convicted in the Benoni Regional Court on a charge of murder. The charge
arose out of an incident which had occurred when the appellant and three co-
accused assaulted one Joseph Mbane and beat him to death.

At the stage of sentencing, the trial court concluded that there were no
substantial and compelling circumstances which justified the imposition of a
sentence less than the prescribed minimum of 15 years’ imprisonment. That

sentence was then imposed upon the appellant. Without further inquiry
relevant to the issue, the trial court then issued an order under s 276B of the
Criminal Procedure Act 51 of 1977 that the appellant should not be placed on
parole before he had served two thirds of his sentence.

The appellant appealed against both his conviction and sentence to the
Gauteng Division of the High Court, Pretoria. On 5 June 2009 his appeal was
dismissed. More than six years later the appellant applied to the Supreme
Court of Appeal for special leave to appeal. This was granted to him. There
was then a problem in timeously obtaining the record and, as a result, more
than nine years had passed since sentence was imposed on the appellant in the
trial court before the matter came before the Supreme Court of Appeal.

The appeal against the sentence of 15 years’ imprisonment was dismissed. In
doing so the Supreme Court of Appeal rejected an argument that the appellant
had been heavily under the influence of alcohol as there was no evidence in
that regard. Appellant himself had not testified at the trial and, although there
was evidence that one of his co-accused had liquor on his breath, the court
held it would be impermissible speculation to find that the appellant’s actions
had in any meaningful way being influenced by intoxication.

In regard to the non-parole period, the Supreme Court of Appeal referred to
numerous cases in which both it and the Constitutional Court has stressed that
it is necessary for a court to hear the parties and conducting an inquiry before
an order of non-parole is imposed under s 276B, a procedure which was not
followed in the present case. It therefore set aside the non-parole period.
Moreover, in the light of the period of time that had elapsed, the SCA felt that

there was no reason for the issue to be remitted to the trial court to hold the
necessary inquiry. There was in any event nothing on the record which
indicated that it was an appropriate case for a non-parole period to be
imposed.

In the result the order of the trial court imposing a non-parole period under
s 276B of the Criminal Procedure Act was set aside. The appeal was otherwise
dismissed and the appellant’s sentence confirmed.