THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no:  925/2016

In the matter between:
KHUMBULANI COLLEN NDLOVU                           APPELLANT
and
THE STATE                                                                    RESPONDENT

Neutral citation: Ndlovu v S (925/2016) [2017] ZASCA 26 (27 March
2017)
Coram:
Tshiqi, Petse and Mbha JJA and Fourie and Mbatha AJJA
Heard:
15 February 2017
Delivered: 27 March 2017
Summary: Imposition of non-parole period in terms of s 276B of the
Criminal Procedure Act 51 of 1977 : sentence : misdirection by trial court
in imposing a non-parole period : appeal upheld.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Jappie DJP and Steyn and Nkosi JJ sitting as court of
appeal):
1 The appeal is upheld to the limited extent set out below.
2 The order of the Full Court is set aside and substituted as follows:
„(a) The order of the trial court fixing a non-parole period of 13 years is
set aside;
(b) Save as aforesaid, the appeal against sentence is dismissed.‟
3 Paragraph 2 of the order of the full court is confirmed.
4 The appellant is therefore sentenced to an effective term of 20 years‟
imprisonment antedated to 29 March 2011.

JUDGMENT

Mbatha AJA (Tshiqi, Petse and Mbha JJA and Fourie AJA
concurring)

[1] The issue in this appeal is whether the trial court was correct in
imposing a non-parole period in terms of s 276B of the Criminal
Procedure Act 51 of 1977 (the CPA), without inviting the parties to make
submissions before doing so.

[2] The appellant, Mr Khumbulani Collen Ndlovu, was part of a group
that planned to rob a cash pay point on 14 August 2008, in Glencoe,
KwaZulu–Natal. He was not present at the scene during the robbery, but a
shoot-out ensued and a security guard was shot and killed. He was

arrested and charged in the KwaZulu-Natal Division of the High Court,
Pietermaritzburg with two counts of robbery with aggravating
circumstances, one count of murder and one count of attempted murder.
He tendered a plea of guilty in terms of s 112(2) of the CPA to the counts
of robbery with aggravating circumstances and murder. The prosecutor
accepted the guilty pleas tendered by the appellant and withdrew the
charges relating to the other counts.

[3] In his s 112(2) statement the appellant said that although he was
not present at the scene of the robbery, he was aware that the robbers
were heavily armed and that someone might get killed during the
commission of the robbery. In spite of that knowledge, he continued his
involvement in the planning of the robbery and did not distance himself
from it. He admitted that he had consequently formed a common purpose
with the robbers to commit the crimes. He was convicted of robbery with
aggravating circumstances and murder.

[4] Before imposing the sentence, the trial court had regard to the
personal circumstances of the appellant. These included the fact that he
was a 37 year old first offender; that he was a widower and a father to
three minor children; that at the time of the conviction he was gainfully
employed and earned a salary of R2000 per month; and that he had done
community service as a police reservist. Moreover, the trial court
considered that the appellant made a confession to a magistrate
immediately upon his arrest; that he had tendered a plea of guilty; that he
had offered to testify against his erstwhile co-accused in their trial; and
that he had not shared in the spoils of the robbery.

[5] The trial court took the following aggravating factors into account:
firstly, that the crimes were planned and premeditated; secondly, that they
were committed in a public place where elderly persons were collecting
their pension; thirdly, that a security guard was fatally shot; fourthly, that
a sum of R1 215 110, seven firearms and a motor vehicle were stolen;
and finally, that the crimes were motivated by nothing else other than
greed. The court, however, found that there were substantial and
compelling circumstances present, entitling it to deviate from the
prescribed minimum sentences. It sentenced the appellant to undergo 12
and 20 years‟ imprisonment on the counts of robbery and murder
respectively. These two sentences were ordered to run concurrently. In
respect of the sentence of 20 years‟ imprisonment imposed on the murder
conviction, the court fixed a non-parole period of 13 years.

[6] With leave having been granted by the trial court, the appellant
appealed to the court a quo against the sentence imposed. Notably, he was
also granted leave to lead further evidence in relation to his status as the
primary caregiver to his minor children. The court a quo dismissed his
appeal on sentence, but accepted the further evidence and, in line with the
Constitutional Court in MS v S (Centre for Child Law as Amicus
Curiae),1 gave the following directions concerning the children:
2.1. That the Department of Social Development investigate the circumstances of the
appellant‟s minor children, to wit Aphiwe Ndlovu and Philasande Ndlovu, without
delay and investigate whether:
2.1.1. The children are in need of care and protection as envisaged in section 150 of
the Children‟s Act 38 of 2005, and if so, to take the necessary steps required by the
Act:

1 MS v S (Centre for Child Law as Amicus Curiae) [2011] ZACC 7; 2011 (2) SACR 88 (CC).

2.1.2. The children remain in contact with the appellant during his incarceration and
have contact with him, insofar as it is permitted by the Department of Correctional
Services.‟

[7] With special leave having been granted by this court, the appellant
appeals against his sentence. The basis of the appeal is that the trial court
misdirected itself when it made an order in terms of s 276B of the CPA,
fixing a non-parole period of 13 years in respect of his sentence for
murder without inviting the parties to make submissions before doing so.
It is further contended that no exceptional circumstances existed;
therefore, the court‟s exercise of its discretion to fix a non-parole period
was not justified. Section 276B reads:
„(1) (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.
(2) If a person who is convicted of two or more offences is sentenced to imprisonment
and the court directs that the sentences of imprisonment shall run concurrently, the
court shall, subject to subsection (1) (b), fix the non-parole-period in respect of the
effective period of imprisonment.‟

[8] Section 276B of the CPA came into effect in October 2004. Prior
to this, the issue of parole fell squarely within the purview of the
Correctional Services Act 111 of 1998 and its regulations. Before the
enactment of this provision, courts had no control over the sentence
served by a convicted person. As Ponnan AJA said in S v Botha:2
„The function of a sentencing court is to determine the term of imprisonment that a
person, who has been convicted of an offence, should serve. A court has no control

2 S v Botha 2006 (2) SACR 110 (SCA) para 25.

over the minimum period of the sentence that ought to be served by such a person. A
recommendation of the kind encountered here is an undesirable incursion into the
domain of another arm of the State, which is bound to cause tension between the
Judiciary and the executive. Courts are not entitled to prescribe to the executive
branch of government how long a convicted person should be detained, thereby
usurping the function of the executive. (See S v Mhlakaza & Another 1997(1)
SACR 515 (SCA) ([1997] 2 ALL SA 185) AT 521f-i.)‟3

[9] This court has confirmed that s 276B was enacted to give
sentencing courts power to control the minimum or actual period to be
served by a convicted person.4 In the same vein, it has highlighted the
challenge presented by a non-parole order, stating that such an order is
„…a “present determination” that the person will not deserve being
released on parole in the future.‟5 It is for this reason that a non-parole
order should only be made in exceptional circumstances which can be
established through the investigation of the salient facts, legal
submissions and sometimes further evidence.6 As Dambuza J explained
in S v Pauls7
„. . . . a court must exercise care and caution when considering whether exceptional
circumstances in a particular case exist to warrant a non-parole period. A proper
judicial consideration can, in my view, only be made where both the State and the
defence have made submissions on the issue.‟

[10] This assertion by Dambuza J was affirmed by the Constitutional
Court in Jimmale v S8 where it was held that:

3 S v Mhlakaza & onother 1997 (1) SACR 515 (SCA) at 521.
4 S v Pakane & others 2008 (1) SACR 518 (SCA) para 47.
5 S v Stander 2012 (1) SACR 537 (SCA) para 15.
6 Jimmale & another v S [2016] ZACC 27, 2016 (2) SACR 691 (CC).
7 S v Pauls 2011 (2) SACR 417 (ECG) para 15.
8 Supra fn 6; See also Director of Public Prosecutions North Gauteng: Pretoria v Gcwala & others;
and Mthimkulu v The State ([2013] ZASCA 53, 2013 (2) SACR 89 (SCA).

„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.‟

[11] Importantly, the court held that in cases where exceptional
circumstances are found to exist, the judicial officer bears the duty to
explicitly state such circumstances, unless they are easily ascertainable.9
Where a trial court seeks to impose a non-parole order, the convicted
person is entitled to address it and that a failure to provide such an
opportunity may constitute a misdirection.10

[12] It is common cause that the appellant and the State were not
informed by the court that it intended to invoke the provisions of s 276B
and were not invited to make submissions as to whether the court should
impose the non-parole period. It is not clear from the judgment of the trial
court what factors were taken into account in the imposition of the non-
parole period. Counsel for the State conceded that the court misdirected
itself in this regard. The other misdirection committed by the trial court
was that it imposed the non-parole period only in respect of a portion of
the sentence, namely the 20 years‟ imprisonment imposed in respect of
murder, and not in respect of the effective term of imprisonment as
required by s 276B(2) of the CPA.

[13] Counsel for the appellant confirmed that the appeal is confined to
the imposition of the non-parole period by the trial court and it is thus not

9 Supra fn 7 para 16.
10 Supra fn 5 para 22 See also Jimmale & another v S [2016] ZACC 27, 2016 (2) SACR 691 (CC) para
16; Mthimkulu v The State ([2013] ZASCA 53, 2013 (2) SACR 89 (SCA) para 20; and Mhlongo v S
[2016] ZASCA 152; 2016 (2) SACR 611 (SCA) para 10; Mvubu v S [2016] ZASCA 184
(29 November 2016) para 10.

necessary for this court to deal with the effective term of 20 years‟
imprisonment imposed upon the appellant. It follows that this sentence
shall remain and only the imposition of the non-parole period falls to be
set aside.

[14] For the aforegoing reasons the following order is made:
1 The appeal is upheld to the limited extent set out below.
2 The order of the Full Court is set aside and substituted as follows:
„(a) The order of the trial court fixing a non-parole period of 13 years is
set aside;
(b) Save as aforesaid, the appeal against sentence is dismissed.‟
3 Paragraph 2 of the order of the full court is confirmed,
4 The appellant is therefore sentenced to an effective term of 20 years‟
imprisonment antedated to 29 March 2011.

Y T MBATHA
ACTING JUDGE OF APPEAL

Appearances

For appellant:

L Smit
Instructed by:

Legal Aid, Pietermaritzburg
Legal Aid, Bloemfontein

For respondent:

N E S Buthelezi

Instructed by:

Director of Public Prosecutions,
Pietermaritzburg

Director of Public Prosecutions,
Bloemfontein