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Nkosi & Ors v State

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Court/Judicial body: Supreme Court of Appeal

Citation: [2002] JOL 10209 (SCA)
Date: 23 September 2009
Instrument(s) cited:Constitution, Section 12(1)(e)

Case summary

Background: The appellants were convicted of a number of offences including murder, attempted murder and incitement to murder. The trial judge found that they had shown a total disregard for the lives of innocent people and imposed long fixed-term imprisonment sentences on them ranging from 45 to 120 years. Under South African law, a prisoner serving a life sentence will be considered for parole after a minimum of 20 years of his sentence, but a prisoner serving a fixed-term prison sentence will typically only be considered for parole after having served half of his sentence. The appellants appealed their sentences arguing that that the sentences were so long that they would have no chance to be released on the expiry of their sentence and no chance to be released on parole. They contended that the trial judge imposed fixed term sentences rather than life sentences (under which they would be eligible for release on parole earlier) to circumvent the release of the appellants by the executive on parole.

Issue and resolution: Long term sentences. The Court agreed with the appellants’ arguments and substituted all of their long fixed-term prison sentences with sentences of life imprisonment.

Court reasoning: The Court noted that when such a long fixed-term sentence is imposed the prisoner will have no chance of being released before the expiry of the sentence and also no chance of being released on parole after serving one half of his sentence. Accordingly, it held that such a sentence would amount to cruel, inhuman and degrading punishment in contradiction with Section 12(1)(e) of the Constitution which provides that everyone has the right to freedom and security of the person, including the right not to be treated or punished in a cruel, inhuman or degrading way.

Link to full judgement: Available on request.

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