THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 294/18

In the matter between:

JOHN TUTTON

APPELLANT
and

THE STATE

RESPONDENT

Neutral citation:
Tutton v The State (294/18) [2019] ZASCA 03 (20 February 2019)
Coram:
Tshiqi, Saldulker, Zondi and Schippers JJA and Dlodlo AJA

Heard:
No oral hearing in terms of s 19(a) of the Superior Courts Act 10
of 2013.

Delivered:

20 February 2019

Summary:
Non-parole order under s 276B of the Criminal Procedure Act not to be
lightly imposed unless justified by circumstances relating to parole - parties should be
forewarned of the intention to make such an order and be invited to present oral
argument on the specific issue.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg (Koen J,
with Tshabalala JP and Govinsamy AJ concurring sitting as court of appeal):
1.1
The appeal is upheld to the extent reflected herein below.
1.2
The imposition of a non-parole period by the court a quo in terms of s 276B of
the Criminal Procedure Act 51 of 1977 is set aside.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Zondi JA (Tshiqi, Saldulker and Schippers JJA and Dlodlo AJA concurring)
[1] This appeal concerns the propriety of the imposition of a non-parole period of
15 years, made in terms of s 276B(2) of the Criminal Procedure Act 51 of 1977 (the
Act), by the Full Court of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (the full court). In terms of s 276B a court has the power, when
sentencing the accused, to direct that the accused shall not qualify for parole for a
certain period. The appeal is with the special leave of this court. The respondent does
not oppose the appeal.

[2] The appellant, Mr John Tutton together with his erstwhile co-accused was, on
21 December 2007, convicted in the Camperdown Regional Court of one count of
dealing in 8.1 tons of dagga from 16 June 2006 to August 2006, in contravention of
s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 and one count of dealing in
150 kg of cocaine from September 2006 to October 2006, in contravention of the same
Act.

[3] The appellant was sentenced to 20 years’ imprisonment on each count; 10
years of which were ordered to run concurrently, resulting in an effective period of
imprisonment of 30 years. The trial court in terms of s 276B of the Act further ordered

that the appellant serve at least 15 years before he could be considered for release on
parole. An application for leave to appeal against the convictions and sentences was
dismissed by the trial court. The appellant was granted leave to appeal against
sentences on petitioning the Judge President in terms of s 309C of the Act.

[4] The full court (Koen J, with Tshabalala JP and Govinsamy AJ concurring)
upheld the appeal against sentences imposed to the extent that it directed that 15 years
of the sentence imposed in respect of a count of dealing in cocaine should run
concurrently with that in respect of dealing in dagga, resulting in an effective term of
25 years. In addition, the full court fixed a non-parole period of 15 years in terms of s
276B(2) of the Act.

[5] The appeal is directed at the fixing of non-parole period. The appellant contends
that prior to the setting of the non-parole period the trial court and subsequently the full
court did not notify him of the intention to do so and that he was on both occasions not
afforded the opportunity to address the courts concerned before s 276B(2) was
invoked. The appellant asked this court to set aside the order fixing the non-parole
period.

[6] Before s 276 of the Act was amended, the decision to grant parole remained
the exclusive field of the Department of Correctional Services, and courts recognised
the need for that because of the principle of separation of powers and the fact that
courts obtain their sentencing jurisdiction from statute. (See Jimmale & another v The
State1)

[7] Section 276 of the Act was amended by the Parole and Correctional Supervision
Amendment Act 87 of 1997 by inserting s 276B. This section 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.’

1 Jimmale & another v The State [2016] ZACC 27; 2016 (11) BCLR 1389 (CC); 2016 (2) SACR 691
(CC).

[8] In Jimmale the Constitutional Court after referring to various cases such as
Strydom v S [2015] ZASCA 29; S v Stander [2011] ZASCA 211; 2012 (1) SACR 537
(SCA); and S v Mthimkhulu [2013] ZASCA 53; 2013 (2) SACR 537 (SCA), concluded
that these cases made it clear that a s 276B non-parole order should not be resorted
to lightly. It held at para 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.’

[9] It is not in dispute in this case that the trial court did not invite and hear oral
argument on whether it was appropriate to impose a non-parole period. This court in
S v Mhlongo 2016 (2) SACR 611 (SCA) para 9, emphasised that the fixing of a non-
parole period was part of a criminal trial and that in accordance with the dictates of a
fair trial, an accused person should be given notice of the court’s intention to invoke
s 276B and to be heard before a non-parole period is fixed. This court held that failure
to comply with these procedural requirements constitutes a misdirection.

[10] The trial court committed a serious misdirection by imposing the 15 year non-
parole period without first establishing whether there existed exceptional
circumstances for that order to be made. Furthermore, it did not invite the parties to
make submissions in that regard, as it should have done. The misdirection of the trial
court was perpetuated by the full court when it imposed the 15 year non-parole period.
In the circumstances the imposition of the non-parole order falls to be set aside.

[11] The next question is whether the matter should be referred back to the trial court
for it to comply with the provisions of s 276B. In this regard I agree with the appellant’s
contention that it is fair and equitable the matter be finalised. A referral of the matter to
the trial court would result in further costs to the appellant. Besides the costs

consideration, the appellant has already served almost 11 years of the 25 year
sentence. To refer the matter back to the trial court may result in further delays. In any
event, the appeal is not opposed by the State.

[12] In the result the following order is made:
1.1
The appeal is upheld to the extent reflected herein below.
1.2
The imposition of a non-parole period by the court a quo in terms of s 276B of
the Criminal Procedure Act 51 of 1977 is set aside.

___________________

D H Zondi

Judge of Appeal

APPEARANCES:

Counsel for Appellant:
S Matthews
Instructed by:
Mason Incorporated

C/O Webbers Inc, Bloemfontein

Counsel for Respondent:
A Truter
Instructed by:
Director of Public Prosecutions, Pietermaritzburg

Director of Public Prosecutions, Bloemfontein