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[2015] ZASCA 148
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Minister of Correctional Services and Others v Seganoe (20507/2014) [2015] ZASCA 148; 2016 (1) SACR 221 (SCA) (1 October 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20507/2014
In
the matter between:
MINISTER
OF CORRECTIONAL SERVICES
First
Appellant
NATIONAL
COMMISSIONER OF
CORRECTIONAL
SERVICES
Second Appellant
REGIONAL
COMMISSIONER
Third Appellant
AREA
COMMISSIONER JOHANNESBURG
CORRECTIONAL
SERVICES
Fourth Appellant
CHAIRPERSON
OF CORRECTIONAL SUPERVISION
AND
PAROLE BOARD/JOHANNESBURG
CORRECTIONAL
SERVICES
Fifth Appellant
CHAIRPERSON
OF THE CASE MANAGEMENT
COMMITTEE,
JOHANNESBURG
MEDIUM
B CENTRE
Sixth Appellant
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Seventh Appellant
and
TONY
PHAKISO
SEGANOE
Respondent
Neutral
citation
:
Minister
of Correctional Services and others v Seganoe
(20507/2014)[2015]
ZASCA 148 (01 October 2015)
Coram:
Maya ADP, Leach, Pillay,
Zondi, Mathopo JJA
Heard:
25
August 2015
Delivered:
01
October 2015
Summary:
Correctional
Services Acts 8 of 1959 and 111 of 1998 – Parole –
whether the eligibility for placement on parole of a
sentenced
offender who committed offences during the operation of the 1959 Act
but was sentenced after the 1998 Act came into force
should be
determined in terms of the parole regime applicable at the time of
the commission of such offences under the 1959 Act
or the different
regime applicable at time of sentencing under the 1998 Act.
ORDER
On
appeal from:
Gauteng
Local Division, Johannesburg (Kolbe AJ sitting as court of first
instance)
1
The appeal is upheld with no order as to costs.
2 The order of the
high court is set aside and replaced with the following:
‘
The
application is dismissed with costs.’
JUDGMENT
Maya
JA
(
Leach,
Pillay, Zondi and Mathopo JJA
concurring
):
[1]
The crisp question in this appeal is which statutory regime governs
the eligibility for placement on
parole of sentenced offenders
convicted of offences committed during the existence and operation of
the Correctional Services Act
8 of 1959 (the 1959 Act) but
sentenced after the commencement of the
Correctional Services Act
111 of 1998
which repealed it.
[1]
The
Gauteng Local Division, Johannesburg (the high court) held that it is
the statutory regime in force at the time of the commission
of the
offences that is applicable. The Minister of Correctional Services
(the Minister) appeals against that judgment with the
leave of this
court.
[2]
The respondent is a sentenced offender currently serving two
determinate sentences of 15 and 7 years
imprisonment, resulting in a
cumulative sentence of 22 years imprisonment, consequent upon
conviction in respect of two separate
offences. The first offence was
committed on 29 April 2002. The matter proceeded in the Soweto
Regional Court and he pleaded to
the charge on 14 February 2003. He
was convicted on 1 June 2004 and sentenced to 20 years imprisonment
on 13 January 2005. This
sentence was subsequently reduced on appeal
by the high court on 8 September 2008, antedated to run with effect
from the original
date of sentence, 13 January 2005. The second
offence was committed on 21 July 2001. The respondent was charged and
entered a plea
of not guilty in the Johannesburg Regional Court
on 23 September 2003. He was convicted and sentenced to 7 years
imprisonment
on 10 November 2005. A subsequent appeal against such
sentence was unsuccessful.
[3]
In March, and again in May 2012, after completing one third of his
sentence,
[2]
the
respondent applied to the sixth appellant, the Chairperson of Case
Management of the Johannesburg Medium B Correctional Center
where he
is being held. He sought consideration for placement on parole. His
applications were rejected in both instances. They
were dismissed on
the ground that he did not qualify for consideration for placement on
parole in terms of the relevant provisions
of the 1959 Act but in
terms Chapter VII of the 1998 Act
[3]
which
came into effect on 1 October 2004, because he was sentenced in
respect of both offences in January and November 2005 respectively,
after the commencement of the latter Act. (The date of commencement
of the 1998 Act was 31 July 2004 and Chapter VII thereof came
into
effect on 1 October 2004.)
[4]
[4]
These decisions prompted the respondent to launch an application in
the high court. In essence, he sought
consideration for placement on
parole, and the date thereof accelerated, under the credit system
envisaged in s 22A of the 1959
Act, by the application of the credits
he had earned by undergoing various treatment, training and
rehabilitation programmes during
his incarceration. His main
contention was that his application should be determined in
accordance with the policies and guidelines
governing parole
placement applicable in terms of the 1959 Act because the offences
for which he was convicted were committed during
its operation.
[5]
The high court agreed with the respondent, in contrast to previous
high court decisions which held that
in terms of the law, the date of
sentencing was the operative date for purposes of determining
eligibility for placement on parole.
[5]
The
court found that although the transitional provisions in s 136 of the
1998 Act, which retained the credit system in respect
of certain
classes of offenders, did not avail the respondent, he was
nonetheless entitled to have his case determined under the
old parole
regime. On
the
authority of various decisions,
[6]
the
court invoked the presumption against the retrospective application
of a statute increasing a penalty in the absence of express
language
or clear implication, and the general rule against interpreting
legislation to extinguish existing rights and obligations.
On that
basis the court held that the sixth respondent was wrong to subject
the respondent to the new parole regime which took
away the credit
system. And this was because of the established rule that the date of
the offence fixes the punishment, of which
parole forms part. The
respondent was therefore entitled to be treated on the basis of the
penalty existing at the date of commission
of the offences.
[6]
In its judgment refusing leave to appeal, which was wrong
particularly in view of the existing contrary
decisions of various
divisions of the high court, the court oddly backtracked on its
initial findings on the interpretation of
the relevant provisions.
It also expanded on its earlier reasons for its finding that the date
of the offence fixes the punishment.
The court relied on a judgment
of this court,
Mchunu
v The State
,
[7]
(handed
down after the delivery of its main judgment, which dealt with the
effect of court orders fixing non-parole periods) and
certain foreign
authorities for a finding that similar to the fixing of a non-parole
period by a court, the fixing of a non-parole
period by statute,
which was tantamount to the retrospective abolition of the credit
system, constituted punishment.
[7]
On appeal before us, the Minister’s counsel criticised the high
court’s judgment for misinterpreting
the relevant statutory
provisions, relying on distinguishable decisions and the
contradiction in its two judgments. The respondent,
supported by the
amicus
curiae
,
[8]
repeated
his contentions in the high court and urged us to uphold its
decision.
[8]
As the Constitutional Court remarked in
Van
Vuren v Minister of Correctional Services & others
,
[9]
‘
Prison
administration, more specifically community corrections in South
Africa, is presently conducted within the framework of the
[1998] Act
and where applicable, the [1959] Act, together with relevant policies
and guidelines under these Acts. The [1998] Act
is being gradually
brought into operation with the simultaneous abolition and repeal of
the corresponding parts of the [1959] Act.’
(footnotes
omitted)
[9]
Although some of these gradual changes had begun when the respondent
pleaded (and was convicted in respect
of the first offence in June
2004) in respect of both offences, eligibility for placement on
parole
[10]
of
sentenced offenders was still regulated by the 1959 Act. In terms of
s 65(4)
(a)
(
ii
)
of the 1959 Act, where no non-parole period was fixed, a prisoner (as
offenders were called thereunder)
[11]
serving
a determinate sentence was eligible to be considered for placement on
parole upon serving half of his term of imprisonment.
This date could
be brought forward by the application of the number of credits earned
by the offender in accordance with s 22A,
subject to the applicable
criteria for the allocation of such credits.
[10]
Section 22A created a system for the allocation of credits to
offenders for their compliance with the rules
of the correctional
institution and their active participation in programmes aimed at
their treatment, training and rehabilitation.
[12]
This
section (and various provisions of the 1959 Act) was, however,
repealed by the
Parole and Correctional Supervision Amendment Act 87
of 1997
which came into force on 1 October 2004.
[13]
By
the time he was sentenced in 2005, the 1959 Act had been repealed and
replaced by the 1998 Act.
[11]
Simultaneous with this abolition, the 1998 Act created a new system
for the early release of offenders in
Chapters IV, VI and VII. In
terms of the new dispensation, ‘a sentenced offender serving a
determinate sentence or cumulative
sentences of more than 24 months
may not be placed on day parole or parole until such sentenced
offender has served either the
stipulated non-parole period, or
if no non-parole period was stipulated, half of the sentence’
(s 73(6)
(a
)
of the 1998 Act).
[12]
The 1998 Act makes no reference to any kind of a credit system except
in s 136, which contains transitional
provisions, and reads, in
relevant part:
‘
(1)
Any person serving a sentence of incarceration immediately before the
commencement of Chapters IV, VI and VII is subject to
the provisions
of the Correctional Services Act, 1959 (Act 8 of 1959), relating to
his or her placement under community corrections,
and is to be
considered for such release and placement by the Correctional
Supervision and Parole Board in terms of the policy
and guidelines
applied by the former Parole Boards prior to the commencement of
those Chapters.
(2)
When considering the release and placement of a sentenced offender
who is serving a determinate sentence of incarceration as
contemplated in subsection (1), such sentenced offender must be
allocated the maximum number of credits in terms of section 22A
of
the Correctional Services Act, 1959 (Act 8 of 1959).
(3)
(
a
) Any sentenced offender serving a sentence of life
incarceration immediately before the commencement of Chapters IV, VI
and VII
is entitled to be considered for day parole and parole after
he or she has served 20 years of the sentence.
.
. .’
[13]
The position of sentenced offenders serving determinate sentences at
the commencement of Chapter VII of the
1998 Act, ie on 1 October
2004, is clear from a plain reading of the above provisions. In
Van
Vuren
,
[14]
the
Constitutional Court held that the phrase ‘any person’ in
s 136(1) refers to any person serving a sentence of incarceration
and
that the provisions relate ‘to an offender’s placement
under community corrections and his or her consideration
for such
release and placement in terms of the policy and guidelines applied
by the former parole boards prior to 2004’.
Section 136(1)
therefore preserves the parole policy and guidelines that applied
before the commencement of the 1998 Act, in 2004,
in relation to this
particular class of offenders. Their eligibility for placement on
parole must, therefore, be assessed in terms
of the 1959 Act. They
are entitled to receive the maximum number of credits in terms of s
22A thereof.
[15]
Obviously,
the legislature’s intention was to obviate prejudice to
offenders sentenced under the old dispensation by the retrospective
application of the new provisions which take away the credit system
available when they were sentenced.
[14]
But then s 136 says nothing at all about offenders sentenced after
the commencement of Chapter VII. The respondent
argued that there was
a
lacuna
in the section which, for its proper application and
interpretation, should be remedied by reading in the words ‘for
an offence
committed’ so that it reads:
‘
Any
person serving a sentence of imprisonment/incarceration
for
an offence committed
immediately
before the commencement of Chapters IV, VI and VII is subject to the
provisions of the Correctional Services Act, 1959
(Act No, 8 of
1959)…’
(Emphasis
added)
[15]
As was pointed out in
Van
Vuren
,
[16]
the
provisions of s 136 must be read as a whole to determine the impugned
subsection. Similar to ss 136(1) and (2), s 136(3)
also deals
expressly with sentenced offenders serving incarceration ‘immediately
before the commencement of Chapters IV,
VI and VII’. Only
subsection (4) refers to an offender sentenced to incarceration after
the commencement of the new dispensation.
But these provisions are
set apart by their context and could not possibly have anything to do
with the respondent’s class
of offenders. This is so because
they deal with ‘a person … sentenced to life
incarceration after the commencement
of Chapters IV,VI and VII while
serving a life sentence imposed prior to the commencement’,
whose assessment for parole must
be referred to the Minister for his
consideration in consultation with the National Council for
Correctional Services. So, clearly
the legislature was not oblivious
of the class of offenders sentenced after 1 October 2004. It seems to
have rather been concerned
only with those offenders sentenced to
life incarceration after the commencement of chapter IV,VI and VII
while serving a life
sentence. There is, therefore, no room for the
‘reading in’ proposed by the respondent which, in my
view, would not
cure the ‘gap’ even if it was effected.
[16]
The interpretation contended for by the respondent is also beset by
practical difficulties and could yield
absurd results. One glaring
example is a case of, say, a murderer who commits murder before the
coming into operation of chapters
IV, VI, and VII but evades capture
or is for any reason not brought to justice over a long period of
time. If the respondent’s
interpretation were accepted, such an
offender would be entitled to demand the implementation of a parole
regime that no longer
existed and for which there were no
implementation mechanisms when he was finally brought to justice.
Clearly, the legislature
could not have contemplated such a scenario.
[17]
This reasoning inexorably leads to one conclusion: that the
respondent’s class of offenders, ie those
not yet sentenced and
serving determinate sentences of incarceration on 1 October 2004, was
deliberately left outside the ambit
of s 136 and that these
provisions were intended to retain the benefits of the parole regime
under the 1959 Act
only
in respect of offenders serving determinate sentences of
incarceration by 1 October 2004.
[17]
This
intention is replicated in the transitional provisions of the
Parole
and Correctional Supervision Amendment Act contained
in
s 24.
In
terms thereof ‘[a]ny person serving a sentence of imprisonment
immediately before the commencement of this Act shall be
deemed to
have been awarded the maximum number of credits in terms of s 22A of
the [1959] Act as it was in force immediately before
the commencement
of this Act’.
[18]
In that case, s 73(6)(
a
)
of the 1998 Act governs the respondent’s consideration for
placement on parole or community corrections. This was the ultimate
finding in the
Broodryk
,
Ackers
and
Makaba
decisions with which the high court disagreed. Needless to say, its
change of mind in the comprehensive judgment on application
for leave
to appeal regarding its initial view in its main judgment, that s 136
did not avail the respondent because he did not
fit the definition of
the offender contemplated in s 136(1), was impermissible and
constituted a material misdirection on its
part. And none of the
authorities upon which the court relied came any closer to dealing
with the question when a sentenced offender
should be considered for
placement on parole or community corrections. They were all
distinguished by their own facts.
[19]
The appeal should accordingly succeed. Neither of the parties sought
a costs order as this is a test case,
and none will be made. In the
premises the following order is made:
1 The appeal is
upheld with no order as to costs.
2 The order of the
high court is set aside and replaced with the following:
‘
The
application is dismissed.’
____________________
M M L Maya
Judge of Appeal
APPEARANCES
For the
Appellant: S J R Mogagabe SC (with Z
Buthelezi)
Instructed
by:
The State Attorney, Johannesburg
The State Attorney, Bloemfontein
For the
Respondent: In Person
Amicus
Curiae: D M Grewar
Instructed by:
Free
State Bar, Bloemfontein
[1]
By s 137 of the 1998 Act,
except for ss 29, 84F, 97 and Schedules 1 and 2 which were repealed
by
s 99(1)
of the
Child Justice Act 75 of 2008
with effect from 1
April 2010.
[2]
He
would have served half of his sentence on 12 October 2015 taking
into account a six month special remission period granted
to
offenders on 28 May 2005. And after a further six months special
remission granted on 27 April 2012 he would have served one
third of
his sentence on 12 September 2011 and half thereof on 12 April
2015.
[3]
Chapter VII of the
1998 Act deals with the release of offenders from correctional
centres and placement under correctional supervision
and on parole
and day parole.
[4]
Commencement
of the
Correctional Services Act 111 of 1998
and Repeal of the
Correctional Services Act 8 of 1959, GN R38,
GG
26626
,
30 July 2004.
[5]
Makaba
v Minister of Correctional Services & others
(5369/2011)
[2012] ZAFSHC 157
(16 August 2012) (Free State High Court);
Elton
Wayne Ackers v Minister of Correctional Services & others
(11746/2012)
(15 April 2013) (Gauteng Local Division, Johannesburg);
Broodryk
v Minister of Correctional Services & others
(69585/11)
[2013] ZAGPPHC 280 (9 September 2013)
;
2014
(1) SACR 471 (GJ).
[6]
For example,
R
v Sillas
1959 (4) SA
305
(A);
R v Mazibuko
1958 (4) SA 353
(A);
Veldman v Director of
Public Prosecutions, WLD
(CCT
19/05)
[2005] ZA CC 22
(5 December
2005); 2006 (2) SACR 319
(CC);
Van Wyk v Minister of
Correctional Services & others
(40915/10)
[2011] ZAGPPHC 125
;
2012 (1) SACR 159
(GNP).
[7]
Mchunu v The State
(825/2012)
ZASCA 126 (25 September 2013).
[8]
The
amicus
curiae
attended the
appeal at the request of this court as the respondent appeared in
person. The court is grateful for his assistance.
[9]
Van Vuren v Minister of
Correctional Services & others
(CCT
07/10)
[2010] ZACC 17
(30 September
2010); 2012 (1) SACR 103
(CC)
para 24.
[10]
Defined in s
1 of the 1998 Act as meaning ‘a form of community corrections
contemplated in Chapter VI. ‘Community
corrections’ on
the other hand is defined in the same section as meaning ‘all
non-custodial measures and forms of
supervision applicable to
persons who are subject to such measures and supervision in the
community and who are under the control
of the Department [of
Correctional Services]’.
[11]
The
definition of ‘prisoner’ was deleted by
s 1
of the
Correctional Services Amendment Act 25 of 2008
.
[12]
The section
provided:
‘
(1)
A prisoner may earn credits to be awarded by an institutional
committee, by observing the rules which apply in the prison
and by
actively taking part in the programmes which are aimed at his
treatment, training and rehabilitation. Provided that–
(
a
) a prisoner may
not earn credits amounting to more than half of the period of
imprisonment which he has served;
.
. .
(2)
The
number of days and months earned by a prisoner as credits may be
taken into account in determining the date on which a parole
board
may consider the placement of such a prisoner on parole.’
[13]
In
s 4
thereof.
[14]
Fn 8.
In
this matter
the
Constitutional Court considered the proper interpretation of
s 136
and, pertinently, whether the provisions of the 1959 Act and the
policy and guidelines applied by the former parole boards applied
to
the applicant, an offender whose death sentence had been commuted to
life imprisonment in 1992, or whether the applicant was
entitled to
be considered for placement on parole only after completing 20 years
in detention in terms of s 136(3)(
a
)
and the new policy and guidelines.
[15]
See also
S
v Mafoho
(149/12)
[2012] ZASCA 49
(28 March
2013); 2013 (2) SACR 179
(SCA) para 12.
[16]
At para 55.
[17]
J Moses
‘
Parole
in South Africa’
(2012) at 69.