IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 223/15
In the matter of:
AGOLLE ABDI JIMMALE First Applicant MOHAMMED MUQTAAR JIMMALE Second Applicant And
THE STATE Respondent
STATE’S HEADS OF ARGUMENT
A AD COMMON CAUSE FACTORS
1. The following factors constitute common cause:
1.1 The applicants were legally represented.
1.2 The applicants were charged with one count of murder and one count of attempted murder.
1.3 The applicants pleaded not guilty to the charges.
B AD CONVICTION AND SENTENCE
2. The Applicants were convicted of one count of murder and sentenced as follows:
2.1 25 years imprisonment.
2.2 It was further ordered that they should serve twenty years before they could be considered for parole.
2.2 It was further ordered that should they apply for a South African firearm, they are declared unfit to possess a firearm.
C AD CONSTITUTIONAL COURT DIRECTIONS DATED 25 MAY 2016
3. The National Director of Public Prosecutions is directed to file written argument addressing the issue whether, in light of the SCA judgements in DPP, North Gauteng v Gcwala and others 2014 (2) SACR 337(SCA) , S v Mthimkhulu 2013 (2) SACR 89 (SCA; and S v Stander 2012 (1) SACR 537 (SCA), the
Constitutional Court should grant the relief sought by the applicants to set aside the non-parole order of the High Court.
D AD NON-PAROLE SENTENCE
4. Section 276 B (1) (a) provides that 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.
5. Section 276 B (1) (b) provides that 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.
E AD SUBMISSIONS
6. Section 276 B (1) permitted the trial court to set a non-parole term when sentencing the applicants, but only in exceptional circumstances.
7. The court a quo erred in stating that the applicants should serve 20 years before they could be considered for parole.
8. There was no argument to motivate that exceptional circumstances exist for the court to fix a non-parole term.
9. Even if there were such exceptional circumstances, the maximum term that should have been improved is 16 years and 8 months which is two thirds of the 25 year sentence, and not 20 years that was ordered.
10. Section 276B of the Criminal Procedure Act 51 of 1977 and the cases referred to by the Constitutional Court in the Directions dated 25 May 2016 state that the non-parole sentence may not exceed two thirds of the term of imprisonment or 25 years, whichever is the shorter.
11. In S v Mthimkhulu 2013 (2) SACR 89 (SCA), it was held that: - Section 276B of the Act was introduced by the Parole and Correctional Supervision Amendment Act which came into operation on 1 October 2004. It was introduced after this court had expressed disapproval about sentencing courts fixing non-parole periods, which practice it characterised as ‘an undesirable incursion into the domain of another arm of the state’ with a potential ‘to cause tension between the Judiciary and the Executive.’
12. In similar vein Harms JA had earlier remarked that: ‘sentencing jurisdiction is statutory and courts are bound to limit themselves to performing their duties within the scope of that jurisdiction.
13. Paragraph [22] in S v Director of Public Prosecutions v Gcwala and others 2014 (2) SACR 337(SCA) has reference to the present case in that
the trial court misdirected itself when it imposed a non-parole period. The trial Judge commented that.
14. In this particular case the murder was pre-planned. The accused should have reconsidered their position immediately when Ishmael said that wait.
….. This was a heinous murder.” The trial court further commented that they attacked the deceased like they attacked an animal with all assortment acting in common purpose See page 256 of the judgment at paragraph 3 lines 15- 23.
15. It is further submitted that the trial court erred in referring to the applicants as youth who were below the age of 35 years and sentenced them to 25 years imprisonment whereas life imprisonment is prescribed. See page 257 of the judgement at paragraph 1, line 2-9.
16. Section 51 of the Criminal Law Amendment Act 105 of 1997 is clearly applicable where murder is pre-planned and committed in execution or furtherance of common purpose or conspiracy and the applicants should have been sentenced to life imprisonment.
17. The provisions of the Act would not have been applicable only if the applicants were 16 years of age or older but under the age of 18 years at the time of the commission of the offence. See Section 51 (3) (b). It is but one of the factors that call into question the weight given to mitigating factors in determining whether substantial and compelling circumstances existed.
18. It is further submitted that the case of S v Stander 2012 SACR 537 (SCA) paras 12 and 13 is relevant where Snyders JA explained why it is not desirable for courts to make decisions on the release of prisoners on parole.
Non-parole orders should be made only in exceptional circumstances and none existed in that case. It is but one of the factors that call into the weight
given to mitigating factors in determining whether substantial and compelling circumstances existed.
19. It is further submitted that there are no mitigating factors referred to by the trial court which constitute compelling and substantial circumstances except the relative youthfulness of the applicants.
DATED AT PRETORIA ON THIS THE 1ST DAY OF JUNE 2016.
ADVOCATE N.E. GCINGCA
COUNSEL FOR THE RESPONDENT 012 845 6470
0844875090
Email address: [email protected]
Ref: 10/3/4/3-54/16
LIST OF AUTHORITIES
1. S v Stander 2012 SACR 537 (SCA) 2. S V Mthimkhulu 2013 (2) SACR 89 (SCA)
3. S V Director of Public Prosecutions V Gcwala and others 2014 (2) SACR 337(SCA)
4. Section 51 of the Criminal Law Amendment Act 105 of 1997
TO: THE SENIOR REGISTRAR OF THE CONSTITUTIONAL COURT
Constitutional Hill
Braamfontein
AND TO: AGOLLE ABDI JIMMALE
First Applicant
Kutuma Sinthumule Correctional Centre Sparrow Road
Louis Trichardt LIMPOPO
Tel 015 519 4500 Fax 015 519 4545
Ref PDS No 212 743 768
AND TO: MOHAMMED MUQTAAR JIMMALE
Second Applicant
Kutuma Sinthumule Correctional Centre Sparrow Road
Louis Trichardt LIMPOPO
Tel 015 519 4500 Fax 015 519 4545
Ref PDS No 212 743 767
AND TO: DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Venda High Court Building Mphephu Street
THOHOYANDOU Tel: 015 9650 9900
Email: [email protected]
