Petersen vs. The State

South Africa

16.03.2023

Criminal

In absence of a Parole Board report, Supreme Court’s ability to substitute the sentence of the high court with its own sentence is constrained

Present was an appeal against a reconsideration of an indeterminate sentence imposed in terms of Section 286B of the Criminal Procedure Act, 1977. The Appellant was convicted by the high court on 11th August, 1998. He was declared a dangerous criminal in terms of Section 286A of the Act and given an indeterminate period of imprisonment in terms of Section 286B(1)(a).

There were several glaring irregularities with the procedure followed by the high court. In the first place, the court was obliged to consider whether the Appellant was still ‘a dangerous criminal’ posing a danger to society and to give reasons for its declaration. It failed to do so. Secondly, no report of a Parole Board was placed before court. The high court had approached the matter as though the appellant had an onus to prove that he qualified for parole and held that it was the high court’s duty, instead, to enquire into whether the appellant remained a dangerous criminal.

Counsel for the Appellant argued vigorously for the Supreme Court to intervene to ‘balance the injustice’ suffered by the appellant and to summarily release him. The Supreme Court found that that option was not available to it having regard to the peremptory language employed in the Act. The Supreme Court held that in the absence of a Parole Board report, its ability to substitute the sentence of the high court with its own sentence was constrained. The Supreme Court held further that the primary task of a reconsideration court was to consider whether an indeterminate sentence was still appropriate. That required consideration of whether the prisoner concerned was still to be treated as a ‘dangerous criminal’. However, there was no evidence upon which the present Court could make such determination.

In order to ensure that justice was delayed no further, the present Court placed strict time limits as to when the appellant should be brought before court again for a proper determination of whether he was a dangerous criminal and what sentence, if any, should be imposed. The matter be remitted to the high court for reconsideration.

Tags : Sentence Imposition Reconsideration

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