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Smith v Minister of Justice and Correctional Services and Others (21/35658) [2022] ZAGPJHC 60 (11 February 2022)

78 Reportability
Criminal Law
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Brief Summary

Prisoners' Rights — Parole Eligibility — Review of Parole Board Decision — Applicant, a sentenced prisoner, challenged the Parole Board's decision denying him eligibility for Covid-19 special parole based on the calculation of his Minimum Detention Period (MDP). The Board determined his MDP extended beyond the cut-off date for eligibility, relying on a guideline concerning concurrent sentences. The applicant contended that the Board's calculation was incorrect, asserting that he qualified for the special remission. The court found that the decision of the Parole Board was based on factual inaccuracies and set aside the decision, declaring the applicant eligible for the Covid-19 special remission of sentence.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings concerned an urgent review application in the Gauteng Local Division, Johannesburg, in which a sentenced prisoner sought the review and setting aside of a parole-related administrative decision made within the Department of Correctional Services. The applicant also sought associated declaratory relief aimed at confirming his eligibility for a special parole dispensation introduced during the Covid-19 pandemic.


The applicant was Erwin Smith, appearing in person. The respondents were the Minister of Justice and Correctional Services and various functionaries within the Department of Correctional Services, including the National Commissioner and the relevant correctional centre authorities and parole structures. For convenience, the judgment treated the respondents collectively as “the respondent”.


The matter had a procedural history in which it previously served before the High Court. On 17 September 2021, Dippenaar J made case-management orders requiring the respondents to file, among other things, the relevant policy document governing the Covid parole dispensation, the full record before the decision-maker, and an explanatory affidavit dealing with the applicant’s parole position. Those steps were taken, further affidavits were filed, and the record was produced. Despite that, the respondents maintained the position that the applicant did not qualify for the special dispensation.


The general subject-matter of the dispute was the application of a presidentially granted 24-month special remission of sentence and how that remission affected the calculation of the applicant’s minimum detention period (MDP) for purposes of determining eligibility for the Covid-19 special parole dispensation. The review turned on whether the Parole Board’s calculation method, which relied on Circular 13 of 2019/20 and specifically Guideline 5.3.1 (dealing with concurrent sentences), was lawful and applicable to the applicant’s sentencing structure.


Material Facts


The applicant was a sentenced prisoner serving cumulative sentences under two different warrants. It was common cause that he qualified for the 24-month special remission of sentence granted to certain categories of sentenced offenders by the President, and that the remission was relevant to how his MDP was determined.


It was also common cause that the Covid parole dispensation—authorised by the President under constitutional and statutory powers in response to the Covid-19 pandemic—applied to qualifying sentenced offenders whose MDP would be reached within 60 months of 27 April 2020, meaning that eligibility turned on whether the applicant’s MDP fell on or before 26 April 2025 (the “threshold date” referred to in the judgment).


On the sentencing history, the applicant was sentenced on 31 January 2018 after conviction on four counts of fraud. On counts 1, 2, and 4 he received 15 years’ imprisonment on each count. The trial court ordered that the sentences on counts 2 and 4 be served concurrently with the 15-year sentence on count 1, and the warrant reflected that the applicant would serve an effective sentence of 15 years’ imprisonment under that warrant. On count 3 the applicant received 10 years’ imprisonment wholly suspended for five years on a condition. The suspended sentence did not form part of the effective custodial term in issue.


On 6 December 2018, the applicant received an additional sentence of three years’ direct imprisonment imposed in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977, reflected under a second warrant. It was undisputed that the second sentence was not ordered to run concurrently with the first warrant’s effective 15-year sentence, with the result that the applicant’s custodial exposure was treated as consecutive, producing an effective total of 18 years unless reduced through remission or parole mechanisms.


The judgment recorded that, as at 27 April 2020 (the date relevant to the Covid parole dispensation), the applicant had already served two years, one month and 27 days of his 15-year sentence.


After the earlier court order, a case management committee (CMC) engaged with the applicant, considered his objections to the remission/MDP calculation, and produced calculations that informed the Leeuwkop Correctional Supervision and Parole Board’s decision. The Parole Board concluded that the applicant’s MDP as at the threshold assessment was 30 September 2025, which was beyond 26 April 2025, and therefore that he did not qualify for Covid parole.


A further factual aspect noted by the court was that the chairperson’s letter of 22 November 2021 conveyed a reason tied to “awaiting trials” and a “suspended sentence to be put into operation”. The judgment recorded that this reason rested on factual inaccuracies, because the applicant had no awaiting trials and the suspended sentence was not to be put into operation on the facts described. However, the core dispute for determination remained the legality of the remission/MDP calculation method used to exclude the applicant from the Covid parole dispensation.


The disputed facts were not about whether remission was granted (that was common cause), but about the correct method of applying the 24-month remission to the applicant’s sentencing configuration and, in turn, the correct resulting MDP. The respondents’ method relied on Guideline 5.3.1 of Circular 13, treated the concurrent sentences under the first warrant as requiring a pro rata allocation across the three 15-year sentences, and produced an MDP beyond the threshold. The applicant contended that this approach was incorrect, that Guideline 5.3.1 did not apply to his case, and that the correct approach would bring his MDP within the threshold and therefore make him eligible for Covid parole.


Legal Issues


The central legal questions were whether the Parole Board’s decision that the applicant did not qualify for Covid parole was reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and specifically whether the decision was undermined by an unlawful or inapplicable reliance on Guideline 5.3.1 of Circular 13 of 2019/20 when calculating the effect of the 24-month remission on the applicant’s MDP.


A closely connected question was whether Guideline 5.3.1 properly applied to the applicant’s circumstances, given that it addressed situations involving concurrent sentences and referred to avoiding a remaining period to be served on “one of the warrants”. The court therefore had to determine, as a matter of interpretation and application, whether the guideline covered (or could legitimately be applied by analogy to) a case involving concurrent sentences within a single warrant, combined with a second warrant served consecutively.


The dispute was primarily one of the application of legal and administrative standards to established facts, involving interpretation of an administrative directive (the Circular and guideline), and review grounds under PAJA such as reliance on irrelevant considerations, lack of rational connection to the purpose, and unreasonableness. While calculation was central, the legal issue was not arithmetic in isolation but whether the method adopted was authorised, fair, and lawful within the applicable framework.


A further issue arose in relation to the applicant’s request for declaratory relief confirming that he qualified for the Covid parole dispensation. This required the court to consider the separation between the court’s review function and the Parole Board’s function in making the relevant parole determination and calculations.


Court’s Reasoning


The court approached the matter as a PAJA review of administrative action, emphasising that it was required to evaluate whether the Parole Board’s decision was reviewable on recognised grounds, and that the declaratory relief sought depended on setting aside the Parole Board’s decision.


The judgment explained the status of Circular 13 of 2019/20, describing it as an order or directive issued under the authority contemplated by the Correctional Services Act 111 of 1998 and the relevant regulations, specifically referencing regulation 134(2) as permitting the National Commissioner to issue orders not inconsistent with the Act and regulations. The court accepted that the Parole Board was bound to apply the guidelines in the Circular, but only insofar as the guidelines covered the factual situation in question or could properly be applied by analogy.


The key reasoning focused on Guideline 5.3.1 and its proper scope. The court interpreted the guideline’s language—particularly the reference to ensuring no remaining period on “one of the warrants”—as indicating that it contemplated a scenario involving more than one warrant. The court further regarded the example accompanying the guideline as supporting that interpretation because it dealt with two warrants issued at different dates where a later sentence was ordered to run concurrently with an earlier one (the “dominant sentence”). On the court’s analysis, that was materially different from the applicant’s situation, because the applicant’s later (second-warrant) sentence was not ordered to run concurrently with the first-warrant effective sentence, and the warrants therefore operated consecutively.


The court rejected the respondents’ approach of “unbundling” the concurrent sentences on the first warrant and applying remission pro rata across the three 15-year sentences. It reasoned that when a sentencing court orders concurrency, the correctional authorities must implement the effective sentence (here, 15 years) reflected on the warrant, and should not treat the concurrent counts as though they were independently served for purposes that diminish the effect of remission. The judgment treated the warrant as the operative instruction to Correctional Services and accepted that parole and remission are considered against the term of imprisonment actually required to be served, rather than against a reconstructed model that disregards concurrency.


The court identified absurdity and unfairness resulting from the respondents’ approach. On the pro rata method, a prisoner granted 24 months’ remission could, in effect, receive a much smaller benefit because remission allocated to sentences running concurrently would not meaningfully reduce the period actually served. The judgment reasoned that in multi-count cases with concurrency, a pro rata approach could reduce the remission benefit to the point where “virtually no remission” would be realised. The court considered this contrary to the purpose of remission and inconsistent with the stated purpose in Guideline 5.3.1 itself, which was to ensure there is not a remaining period to be served on one warrant—a concern the court found did not arise where two warrants are served one after the other.


The court also examined a second calculation method offered by the CMC, where the 24 months were deducted from the three-year sentence under the second warrant. The court found that this method also failed to align with Guideline 5.3.1 and still did not achieve the guideline’s stated aim, because a remaining period would still exist on the second warrant. It further emphasised that choosing to apply the remission to the second warrant in this context was arbitrary and not justified by the guideline.


Having found that Guideline 5.3.1 did not apply to the applicant’s circumstances, and that the CMC and Parole Board’s methods were not sanctioned by the guideline, the court moved to the PAJA review grounds. It held that the Parole Board’s decision was taken on the basis of a wrong calculation and thus involved reliance on an irrelevant consideration in the sense contemplated by section 6(2)(e)(iii) of PAJA. It further held that the administrative action was not rationally connected to the purpose for which it was taken—namely the proper application of a 24-month remission to reduce the sentence to be served—invoking section 6(2)(f)(ii) of PAJA. The court also characterised the action as so unreasonable that no reasonable decision-maker could have reached it, referring to section 6(2)(h) of PAJA.


In addition to PAJA grounds, the court linked the flawed application of remission to constitutional considerations. It referred to State v Jimmale 2016 (2) SACR 691 (CC) as authority recognising parole as a vital part of the correctional system and emphasising the right not to be deprived of freedom arbitrarily or without just cause, as well as sentenced prisoners’ entitlement to the benefit of the least severe prescribed punishments. The judgment also referred to the constitutional articulation of the “least severe punishment” principle in section 35(3)(n) of the Constitution, albeit in a different context, and considered the respondents’ approach as infringing the principle by depriving the applicant of the full benefit of remission. The judgment also reasoned that unequal treatment arose where other offenders received the full benefit of the 24-month remission while, on the respondents’ method, the applicant effectively received substantially less, engaging the equality guarantee in section 9(1) of the Constitution.


On the remedial question, the court accepted that once it found the Parole Board’s method unlawful, it became common cause in argument that the applicant would meet the threshold for eligibility for Covid parole. However, the court declined to issue the declaratory order confirming that the applicant qualified, reasoning that determining the lawful calculation method and applying it conclusively was a matter for the Parole Board’s function, not the court’s. The court nonetheless indicated a non-binding suggested calculation approach aimed at ensuring the applicant received the full benefit of the 24-month remission while accounting for the different statutory minimum-served fractions applicable to the two warrants (half for the determinate sentence and one-sixth for the section 276(1)(i) sentence). On that suggested approach, the applicant’s MDP would fall before the threshold date. The court treated this as a matter for reconsideration by the Parole Board, rather than a binding determination by the court.


Outcome and Relief


The court reviewed and set aside the Parole Board’s decision that the applicant did not qualify for Covid parole.


The matter was remitted to the Parole Board, which was ordered to reconsider within 30 days whether the applicant could be placed on parole, without reliance on the methods of calculation found to be wrong in the judgment.


No declaratory relief confirming eligibility was granted, because the court regarded the final determination and calculation as a function assigned to the Parole Board.


No order as to costs was made, the applicant having appeared in person and no costs application having been pursued.


Cases Cited


State v Jimmale 2016 (2) SACR 691 (CC)


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 84(2)(j), section 35(3)(n), and section 9(1)


Correctional Services Act 111 of 1998, section 82(1)(a), section 73(6), and section 73(7)(a)


Promotion of Administrative Justice Act 3 of 2000, section 6(2)(e)(iii), section 6(2)(f)(ii), and section 6(2)(h)


Criminal Procedure Act 51 of 1977, section 276(1)(i), section 280(2), and section 282


Rules of Court Cited


Uniform Rules of Court, Rule 6(12)(a)


Held


The court found that the Parole Board’s conclusion that the applicant did not qualify for the Covid parole dispensation was materially affected by an incorrect and inapplicable application of Guideline 5.3.1 in Circular 13 of 2019/20 when allocating the presidential 24-month remission and calculating the applicant’s minimum detention period.


It held that Guideline 5.3.1, properly interpreted, did not apply to the applicant’s circumstances involving a first warrant with concurrent sentences producing a single effective term, followed by a second warrant to be served consecutively, and that the respondents’ calculation methods improperly diminished the intended benefit of remission.


It held further that the resulting decision was reviewable under PAJA on grounds that it relied on an irrelevant consideration (a wrong calculation), lacked a rational connection to the purpose of applying remission, and was unreasonable in the PAJA sense. The decision was accordingly set aside and remitted for reconsideration within a specified period, with no costs order.


LEGAL PRINCIPLES


The judgment applied the principle that administrative decision-makers in the correctional system, including parole authorities, must apply internal directives and guidelines (such as Circulars issued under statutory authority) only within their proper scope, and may not extend them to factual scenarios they do not cover in a manner that produces arbitrary or irrational outcomes.


It applied the PAJA principle that administrative action is reviewable where it is based on irrelevant considerations or material errors (including an error in the underlying basis for a decision), where it is not rationally connected to the purpose for which it was taken, or where it is so unreasonable that no reasonable decision-maker could have reached it, with specific reference to sections 6(2)(e)(iii), 6(2)(f)(ii), and 6(2)(h) of PAJA.


In the context of concurrent sentences, the judgment applied the principle that where a court orders sentences to run concurrently, the correctional authorities must implement the effective sentence to be served as reflected in the warrant, and may not treat the concurrent counts in a way that negates the practical effect of concurrency when calculating the impact of sentence remission.


The judgment also invoked constitutional-informed principles relevant to corrections and parole, including that parole forms part of the correctional system and that sentencing and sentence administration should not result in arbitrary deprivation of liberty. It further treated the allocation of remission in a manner that substantially deprives a qualifying prisoner of the intended remission benefit as raising concerns related to the least severe punishment principle and equality before the law, as framed by the Constitution and supported in the cited authority.

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[2022] ZAGPJHC 60
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Smith v Minister of Justice and Correctional Services and Others (21/35658) [2022] ZAGPJHC 60 (11 February 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
NO: 21/35658
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
Date:
11/02/2022
In
the application between :
ERWIN
SMITH
Applicant
and
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
First Respondent
NATIONAL
COMMISSIONER FOR THE
DEPARTMENT
OF CORRECTIONAL SERVICES
Second Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
GAUTENG
MANAGEMENT AREA, REGIONAL MANAGER
Third Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
KRUGERSDORP
CORRECTIONAL CENTRE
HEAD
OF PRISON
Fourth Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
LEEUKOP
CORRECTIONAL CENTRE
HEAD
OF
PRISON
Fifth Respondent
JUDGMENT
STRYDOM
J :
[1]
The applicant is a sentenced prisoner serving a sentence.
[2]
Apart from the first respondent, the Minister of Justice and
Correctional
Services, and the second respondent who is cited as the
National Commissioner for the Department of Correctional Services the
parties
cited are in control of correctional services. The applicant
brought a review application against the decision which was made at

the Leeuwkop Correctional Centre. For sake of convenience I will
refer to the respondents collectively as the respondent.
[3]
At the centre of this application lies the applicant’s
dissatisfaction
how a remission of sentence of 24 months granted to
prisoners by the President of the Republic of South Africa was
applied in relation
to his sentence.
[4]
The application of the 24 months remission became relevant at this
stage
as the President has, in terms of section 84(2)(j) of the
Constitution of the Republic of South Africa, 1996, (“the
Constitution”),
read with
section 82(1)(a)
of the
Correctional
Services Act 1998
, Act No. 111 of 1998 (“the CSA”) and
for the purpose of addressing, managing and combatting the spread of
the Covid-19
virus in all Correctional Centres in the Republic,
authorised the consideration and placement on parole of qualifying
sentenced
offenders in terms of certain criteria, who are or would
have been incarcerated on 27 April 2020 subject to such conditions as
may be approved by the Head of a Correctional Centre or Correctional
Supervision and Parole Board under whose jurisdiction such
sentenced
offenders may fall.
[5]
The condition which was important for the purposes of this matter was
that sentenced offenders who have or would have reach their Minimum
Detention Period (MDP) within a period of 60 months from 27
April
2020 would have qualify for this placement on parole. In this
judgment, this special parole will be referred to as (“the

Covid parole”).
[6]
For the applicant to have qualified for this parole his DMP should
have
been calculated to see whether it stretched beyond 26 April
2025. This is a period of five years after the announcement of the
Covid parole which was made on 27 April 2020.
[7]
The calculation of the DMP is affected by the effect that the
2019/2020
24 months remission of sentence had on the applicant’s
sentence.
[8]
The applicant appeared in person but filed an application and heads
of
argument.
[9]
The matter was dealt with in court on a previous occasion and on 17
September
2021, Dippenaar J made orders to provide for the filing of
further affidavits and heads of argument. The respondents were
ordered
to provide the policy document in terms of the Covid parole
together with a full record of all documents placed before the
decision-maker
at the time the decision was made when it concluded
that the applicant did not qualify for the Covid parole. The
respondents were
to provide an affidavit containing explanations in
relation to the current position in terms of the applicant and
whether he qualifies
for parole presently.
[10]
These steps were taken and further affidavits were filed plus the
record of the decision.
The respondents persisted that the applicant
did not qualify for the Covid parole.
[11]
The applicant remained dissatisfied with the determination and the
reasons provided by
the Correctional Supervision and Parole Board
(“the Parole Board”).
[12]
He again approached this urgent court, pursuant to a further notice
of motion and founding
affidavit in which the following relief was
sought:
“
1.
The applicant is granted urgency in terms of Rule 6(12)(a) of the
Uniform Rules of Court, and that the
normal forms and service
provided for in the Uniform Rules be dispensed with.
2.
That the applicant is granted access to this Court based on order 7
of the judgment on Case
No: 35658/2021.
3.
The decision by the parole board is reviewed and set aside.
4.
It is declared and confirmed that the applicant qualifies for the
Covid-19 special remission
of sentence.
5.
That the respondents are given one month to complete the parole
release process of Mr Erwin
Smith.
6.
Any further and/or alternative relief the Court deems fit.”
[13]
The applicant’s main contention is that the method of
calculation, with reference
to Circular 13, guideline 5.3.1 which was
adopted by the Parole Board, was incorrect.
[14]
Circular 13 of 2019/20: Granting of special remission of sentence
(amnesty) is a document
provided to prison authorities under the
signature of the Chief Operations Commissioner dated 17/12/2019. It
was sent to all Regional
Commissioners in which they were informed
about the fact that the President has granted special remission of
sentence in terms
of the powers vested in him by section 84(2)(j) of
the Constitution to certain categories of sentenced offenders who
were or would
have been incarcerated or serving sentences within the
system of community corrections on 16 December 2019. Part of the
document
that was provided included guidelines on how to deal with
this remission.
[15]
The Circular is a directive issued by the Chief Operations
Commissioner. The CSA makes
provision for regulations to be passed as
well as delegations of authority to the Commissioner by the Minister.
There is no need
for this court to refer to the terms of the CSA or
the regulations promulgated suffice to refer to regulation 134(2)
which determines
that the National Commissioner may issue orders, not
inconsistent with the CSA and the regulations made thereunder, which
must
be obeyed by all correctional officers and other persons to whom
such orders apply. These orders, as per sub-section 2(pp) will
be in
relation to all matters necessary or expedient for the application of
the CSA and the regulations.
[16]
Circular 13 of 2019/20: GRANTING OF SPECIAL REMISSION OF SENTENCE
(AMNESTY) was such an
order or directive by the Commissioner. The
Guidelines as to how the remission should be applied by those persons
applying the
remissions on individual cases of prisoners.
[17]
There is no need to deal with all the guidelines as it is common
cause that the applicant
qualified for 24 months remission of
sentence but for purposes of this judgment, Guideline 5.3 which deals
with concurrent sentences
should be referred to. The reason for this
is that the Parole Board and its advisors relied on this Guideline
for its decision
to find that the applicant did not qualify for the
Covid parole. This Guideline reads as follows:
“
5.3
Concurrent sentences
5.3.1 Where two sentences
run concurrently and the dominant sentence (furthest date in the
future) expires earlier than the next
sentence due to the allocation
of the special remission, the special remission must be allocated
pro-rata on both sentences to
ensure that there is not a remaining
period to be served on
one of the warrants
. The same principle
applies to probationers / parolees in the system of community
corrections. In such cases the following procedure
must be followed:
Step 1: allocate special
remission on the dominant sentence to the effect that the sentence
expiry date of both sentences are the
same;
Step 2: divide the
remaining period special remission by 2 and allocate on each of the
sentences.”
(my underlining)
[18]
The Guidelines then provide examples how this Guideline should be
applied.
[19]
The manner in which the Parole Board applied the two year remission,
further alluded to
later in this judgment, meant that the applicant’s
MDP was set to be 30 September 2025, which is a date after the
threshold
date of 26 April 2025 (“the threshold date”).
This meant that the applicant was not eligible to receive the Covid
parole.
[20]
On the method of calculation proffered by the applicant, his MDP
expired before this threshold
date and according to him he became
eligible for the Covid parole.
[21]
It is clear that the manner in which the calculation to determine the
MDP is done would
have a marked effect on the period of incarceration
of the applicant.
[22]
What the court is dealing with is a review application to consider
whether the decision
of the Parole Board is reviewable on any ground
mentioned in the Promotion of Administrative Justice Act, 3 of 2000
(“PAJA”).
The court is further required to deal with an
application for declaratory relief. This further relief is subject to
the setting
aside of the decision of the Parole Board.
[23]
The decision of the Leeukop Parole Board was to the effect that the
applicant did not qualify
for the Covid parole as in his case his MDP
as at 27 April 2025 was 30 September 2025 which is a date beyond the
required date
of 26 April 2025.
[24]
In a letter dated 22 November 2021 from the Chairperson of the Parole
Board, Leeukop, the
applicant was informed that his MDP was 30
September 2025 and the cut-off date was 26 April 2025 and that he did
not qualify.
[25]
The reason which was advanced read as follows: “
Parole
Board discovered according to the SAP69C (Previous Convictions) you
have four (4) case awaiting trials and one (1) suspended
sentence to
be put into operation.”
[26]
This reason is based on factual inaccuracies. Applicant had no
awaiting trials but was
already sentenced. That is why the
convictions appear on his SAP 69. Further, the suspended sentence was
not to be put into operation.
The suspended sentence related to a
conviction on a count of fraud committed during December 2015/January
2016. The condition of
the suspension was the applicant should not
have been convicted of fraud committed during the period of
suspension. The further
conviction of the applicant was in relation
to fraud committed during 2013.
[27]
It was common cause in this matter that the applicant was sentenced
on 31 January 2018
after being convicted on four counts of fraud as
follows – on count 1 to 15 years imprisonment; and on counts 2
and 4 to
15 years imprisonment on each count; on count 3 to 10 years
imprisonment which was wholly suspended for a period of five years on

the condition already referred to.
27.1   On
annexure “A”, which was attached to the warrant sent to
the Head of Krugersdorp Prison, and as part
of the sentence it was
stated as follows:
“
In terms of
section 282 of Act 51 of 1977 the court orders that the sentence of
15 years imprisonment on count 2 and 4 shall be
served concurrently
with the sentence of 15 years imprisonment on count 1.
A total of 15 years
imprisonment shall therefore be served.”
(“first warrant”)
27.2   On 6
December 2018, the applicant was sentenced to three years direct
imprisonment in terms of section 276(1)(i)
of Act 51 of 1977 (“second
warrant”).
27.3   The 15
year and 3 year imprisonments were not ordered to be served
concurrently. Consequently, the three years
prison sentence would
have been served consecutively, i.e. the one after the other. The
applicant has to first serve his 15 year
sentence, after possible
deduction as a result of remission and parole, and, thereafter the
three year sentence. Also possibly
reduced by remissions or being
placed under correctional supervision. In total the appellant had to
serve 18 years imprisonment
unless these sentences were shortened as
stated.
27.4   As
indicated above, the applicant served his sentences under two
different warrants.
27.5
As far as
the 15 year imprisonment sentence was concerned, the applicant had to
serve at least half of the sentence pursuant to
the terms of section
73 of the CSA.
[1]
27.6
As far as
the three year sentence was concerned, the applicant had to serve
one-sixth of this sentence before correctional supervision
could have
been considered. This is determined by section 73(7)(a) of the
CSA.
[2]
27.7   The
applicant became entitled to the 24 months remission of sentence as
per Circular 13 of 2019/20.
27.8   As at 27
April 2020, the date when the remission was provided, the applicant
had already served two years, one
month and 27 days of his 15 year
sentence.
[28]
After the previous Court Order, the case management committee (CMC)
engaged with the applicant
and considered his queries and suggested
method of calculation of his 24 months remission and MDP. The CMC
made its own calculations
which informed the decision of the Parole
Board. These calculations were provided to the applicant.
[29]
How the CMC decided the 24 months remission should be applied can be
gleaned from the submissions
on behalf of the applicant and the
replies thereto before the decision was made. The method of
calculation and the decision was
further set out in the further
answering affidavit filed on behalf of the respondents.
[30]
The respondents’ calculation was made on an interpretation of
guideline 5.3.1 of
Circular 13 which serve as a guideline how the
remission should, under given circumstances, have been applied. The
calculation
of the respondents was premised on a revision back to the
individual sentences which was ordered by the trial court and
stipulated
in the first warrant to be served concurrently. The three
convictions and individual sentences were unbundled and treated as 3
separate sentences, which of course it was but the concurrent serving
was ignored for applying the 24 months remission. It comes
down to
the following:
30.1   It was
explained that the 24 months remission could not have been deducted
from the sentence of 15 years on count
1 (the dominant sentence) as
this would have left a sentence of 13 years imprisonment.
30.2   The
other two sentences on counts 2 and 4 remained 15 year each which
would have meant that these sentences could
not be served
concurrently with the now reduced sentence of 13 years as this
sentence would have been completed before the 15 years
imprisonment
on the other two counts.
[31]
As stated, what the CMC did was to ignore the order that the
sentences were to run concurrently
and that the effective sentence
was 15 years imprisonment.
[32]
The CMC then deducted the 24 months special remission
pro rata,
with reference to the three different sentences, by deducting eight
months from each one of the sentences. Each individual sentence
was
reduced from 15 years to 14 years and 4 months and this term was then
divided by 2 to get the MDP of this sentence. The one-sixth
of the
sentence to be served on warrant 2 calculated to six months, which is
one-sixth of three years, and that was added to the
previous date to
obtain the MDP which was established to be 30 September 2025.
[33]
A further calculation was done using a different method and this was
done by deducting
the 24 months special remission from the sentence
of three years as per warrant 2 leaving a sentence of one year. The
MDP for warrant
1 if half was to be served remained to be 30 July
2025 and the MDP was extended by 2 months as only one-sixth of the
one year sentence
had to be served. As this two months period had to
be served consecutively after the sentence on warrant 1 the MDP
remained to
be 30 September 2025.
[34]
It should be noted at this stage that it becomes very important for
the applicant to determine
from which sentence the 24 months
remission should be deducted. The reason for this is that in the case
of the 15 years sentence
he will have to serve half the sentence and
in the case of the three years sentence, he will only have to serve
one-sixth. The
more which is deducted from the fifteen year sentence
the more advantages the remission would become.
[35]
The first question to be decided is if Guideline 5.3.1 was applicable
to the situation
of the applicant, and if so, was the calculation
done according to its terms. If it is decided that Guideline 5.3.1 is
not applicable
to the situation of the applicant, the question
remains how should the calculation be done to afford the applicant
the 24 months
remission.
[36]
The applicant challenged the method of calculation of the CMC by
arguing that Guideline
5.3.1 and the examples provided clearly
distinguishes between two warrants pertaining to a sentence from one
warrant which was
ordered to run concurrently with a sentence from
another warrant. He argued that this was not the situation in his
case and therefore
this Guideline was not applicable to the
calculation of his remission.
[37]
In a letter of reply the CMC stated as follows:
“
The principle of
two or more sentences / counts on one or more than one warrant /
counts remains the same. The example that was
used in circular 13 was
of two warrants and applicable on all warrants with multi-counts as
indicated in warrant 1.”
[38]
It is not clear what this reply was attempting to indicate. But it
seems what was said
was that although the example provided in the
Circular referred to two warrants the same principle will apply in a
case where there
are more convictions and sentences on one warrant.
This may be a correct summation if sentences on one warrant are not
ordered
by a court to run concurrently. But what we are dealing with
here is sentences which were ordered by court to run concurrently.
[39]
On behalf of the respondents it was argued that the entire
application turned on one point,
i.e. whether sentences that run
concurrently have the effect of creating one conviction. This in my
view, is not the issue. Without
a doubt the fact that sentences are
ordered to be served concurrently does not mean that the convictions
become one. What becomes
one is the effective term of the sentence
which must be served. Remission and parole will be considered in
relation to the length
of a term of imprisonment.
[40]
In my view, the parole board was bound to apply these guidelines, but
this could only be
done if the guidelines covered the present factual
situation or if, by way of analogy, it could have been applied.
[41]
In my view both the calculations used by the CMC and provided
to the Parole board
and applicant are not sanctioned by Guideline
5.3.1. The method of applying these Guidelines is flawed as will be
fully explained
hereinafter.
[42]
When a court orders that sentences are to run concurrently, the
effective sentence would
be the concurrent sentence. This is what is
stipulated on the warrant and the warrant serves as an order to the
Department of Correctional
Services. Annexure “A” to the
first warrant of the applicant specifically refers to section 280(2)
of the CPA which
deals with concurrent sentences and the court
ordered that the sentences of 15 years imprisonment on counts 2 and 4
should be served
concurrently with the sentence of 15 years
imprisonment on count 1. The court stated that a total of 15 years
imprisonment should
be served by the applicant. The respondents
should implement this sentence and should not be further concerned
about the individual
sentences on each count.
[43]
Turning to Guideline 5.3.1 which deals with concurrent sentences,
reference is made to
“
one of the warrants
” which
is a clear indication that there should more than one warrant. This
interpretation is further supported by the example
which was provided
by the person who drafted the examples. The example referred to two
warrants issued at different dates. According
to the example, in the
case of a second warrant, the court ordered that the second sentence
should have been served concurrently
with the first sentence.
[44]
The reference to “
where two sentences run concurrently”
caters for the situation where a subsequent court sentenced the
defendant to a further term of imprisonment and orders that this

further sentence should be served concurrently with the longer
sentence of the two referred to as the dominant sentence. In casu,

the subsequent sentence was not ordered to run concurrently with the
15 years effective sentence of the applicant on the first
warrant.
[45]
The Guidelines simply did not provide for a situation where sentences
in terms of two warrants
are to be served consecutively or
cumulatively. Neither did the examples which was provided.
[46]
To revert back to the separate sentences on the first warrant and
then to apply the period
of remission
pro rata
leads to an
absurd result. This would mean that the applicant who received a 24
months remission only gets the advantage of 8 months
remission as the
other 16 months are allocated to two sentences that run concurrently
with the sentence on count 1, the dominant
sentence. One can think of
a scenario were multiple sentences are ordered to run concurrently.
If the remission is applied pro-rata
it may end in a situation where
virtually no remission is provided.
[47]
The purpose of Guideline 5.3.1 as stated in this guideline was to:
“
ensure that there
is not a remaining period to be served on
one of the warrants”.
(my underlining)
[48]
This was not the case of the applicant as he served two different
sentences, one after
the other. There could not have been any
remaining period on one of the warrants to be served.
[49]
Moreover, as stated above, this ignores the wording of the Guideline
which refers to “
one of the warrants
”.
[50]
In
State v Jimmale
2016 (2) SACR 691
(CC) at paragraph 1 it
was found as follows:
[1] Parole
is an acknowledged part of our correctional system. It has proved to
be a vital part of reformative treatment for
the paroled person who
is treated by moral suasion. This is consistent with the law; that
everyone has the right not to be deprived
of freedom arbitrarily or
without just cause and that sentenced prisoners have the right to the
benefit of the least severe of
the prescribed punishments.”
[51]
The interpretation applied by the CMC and adopted by the Parole Board
violates this principle.
This principle to serve the least severe of
the prescribed punishments has been adopted in section 35(3)(n) of
the Constitution,
albeit pertaining to a different factual basis.
“
Every accused
person has a right to a fair trial, which includes the right –
(n) to the benefit of the
least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed
between the time that the
offence was committed and the time of sentencing.”
[52]
To apply
the remission in such a way that the applicant only get a partial
benefit will also infringe upon the right of the applicant
to
equality before the law as guaranteed in section 9(1) of the
Constitution.
[3]
Some sentenced offenders, according to the evidence before this
court, received a full benefit of the 24 months remission while
the
applicant, as a result of how his matter was dealt with was afforded
a much lesser benefit. The applicant was granted a remission
of
sentence of 24 months but was effectively only given remission of 8
months.
[53]
In using the second method of calculation suggested by the CMC the 24
months was deducted
from the sentence imposed as per the second
warrant. The sentence was one of three years in terms of section
276(1)(i) of the CPA.
As previously referred to applicant had to
serve at least one-sixth of his sentence before being considered for
being placed under
correctional supervision. Without any remission,
the applicant would have become eligible for consideration for
placement under
correctional supervision after six months. In the
case of applicant this would have been served after the fifteen years
imprisonment
was served. By deducting the two years remission from
the three years, one year remained. In effect, the applicant has then
have
to serve one-sixth of one year imprisonment, i.e. two months.
The effective remission of sentence is then only four months instead

of 24 months. As a result of the different obligatory serving periods
this resulted in the same MDP as in the case of the pro rata

deduction from the first warrant.
[54]
Moreover, this second method of calculation cannot be sustained by
the wording of the Guideline
5.3.1. The aim of the Guideline was to
ensure that there is not a remaining period to be served on one of
the warrants. If the
two years remission is deducted from the second
warrant, then there will still be a period of two months left on the
second warrant.
[55]
The decision to apply the remission on the second warrant is
arbitrary and not in terms
of the Guideline, which is in any event
not applicable to the applicant’s situation.
[56]
Guideline 5.3.1 did not apply to the factual situation of the
applicant where he was sentenced
to two sentences in terms of two
warrants which was not ordered by a court to run concurrently. To
apply the guideline in a case
where there was more than one sentence
on one warrant but the sentences were ordered to run concurrently was
not covered by guideline
5.3.1. It could also not be used by way of
analogy as the wording of the Circular was clear to be applicable to
a situation where
there is more than one warrant. Even if it could be
used as a guideline than it was used in a way that limited the
benefit of the
remission which was provided to sentenced prisoners.
[57]
If the methods of applying the two years remission which was used to
calculate the MDP
was flawed and the calculations were of the
applicant wrong. The Parole Board based its decision on a wrong
calculation which caused
it to rely on an irrelevant consideration as
envisaged in section 6(2)(e)(iii) of PAJA.
[58]
The action of the Department was not rationally connected to the
purpose for which it was
taken i.e. to apply a remission of 24 months
in reduction of the sentence which the applicant had to serve. This
is in contravention
of section 6(2)(f)(ii) of PAJA.
[59]
The action is so unreasonable that no reasonable person could have
come to the decision
which is accordingly in contravention of section
6(2)(h) of PAJA.
[60]
Lastly, the action was unconstitutional and unlawful as the applicant
was not given the
benefit of the less severe of the punishment he had
to serve. This whilst other sentenced offenders obtained the full
benefit of
the 24 months remission of sentence. This is in conflict
with the equality clause in the Constitution.
[61]
Having found that the calculation of the CMC as accepted by the
Parole Board was taken
on the basis of a wrong application of
Guideline 5.3.1 and a wrong method of calculation of how the two
years remission should
have been applied, which again led to a wrong
determination of the MDP, this decision should be reviewed and set
aside. The decision
that the applicant did not qualify for the
special parole dispensation as at 27 April 2020 his MDP was 30
September 2025 should
be reviewed and set aside.
[62]
During argument before this court it became common cause that if this
court finds that
the manner in which the 24 months remission was
applied to the sentence of the applicant was wrong then the applicant
will have
met the threshold date to become eligible for the Covid
Parole. The finding of the court is that Guideline 5.3.1 was not
applicable
to the calculation but this begs the question as to what
the lawfully correct, fair and reasonable calculation should be. The
matter
should be referred back to the Parole Board to consider
whether applicant’s MDP fell within the 60 month period
calculated
from 27 April 2020 taking into consideration the findings
of this court .
[63]
The applicant also sought an order that it is declared and confirmed
that the applicant
qualifies for the Covid-19 special remission of
sentence.
[64]
To make this finding the court will have to make a finding on how the
24 months remission
should have been applied by the Parole Board.
This is a function of the Parole Board and not of the court. The
court will however
suggest a calculation method which will not be
binding on the Parole Board.
[65]
As indicated above, the starting point should be that the applicant
should get the full
advantage of the 24 months remission. The
advantage is ultimately reflected in his MDP. What complicates the
calculation to some
extent is the fact that as far as the sentence of
15 years imprisonment is concerned, the applicant is entitled to be
placed on
parole after he served half of his sentence. As far as the
sentence to three years correctional supervision is concerned, the
applicant
had to serve one-sixth of this sentence before he could
have been considered for placement under correctional supervision.
[66]
The total sentence which the applicant was to serve was 18 years. If
the 24 months remission
was deducted from this sentence, it would
leave a sentence of 16 year imprisonment. The problem with this
method of calculation
to obtain a MDP is that, in relation to portion
of this 16 years, half the sentence must be served and in relation to
another portion,
albeit the lesser portion, one-sixth has to be
served.
[67]
To provide for the difference and to simultaneously provide that the
applicant receives
the full benefit of the 24 months remission, the
24 months must be subtracted from the two sentences as per the two
warrants in
relation or pro rata to their duration. This requires a
mathematical calculation. The 15 years sentence is five times longer
than
the three years sentence. Accordingly the relation is 5 : 1; 3
multiplied by 5 is 15. If this equation is applied to 24 months,
20
months should be deducted from the 15 years sentence and four months
should be deducted from the three years sentence. The 15
years
sentence is then reduced to 13 years and 4 months and the 3 year
sentence to 2 years and 8 months respectively.
[68]
In relation to the 13 year and 4 months sentence, if half is served
it will mean 6 years
and 8 months should be served.
[69]
One-sixth of the 2 year and 8 month sentence (or 970 days for ease of
calculation) is 162
days. This means 23 weeks and 1 day.
[70]
As we are dealing with sentences which should be served
consecutively, it means that the
applicant had to serve 6 years and 8
months and thereafter 23 weeks and 1 day (4 months and 22 days). If
these periods are added
then the applicant had to serve 7 years and
22 days. The applicant’s MDP was then 7 years and 22 days in
the future, calculated
from the day of the first sentence, i.e. 31
January 2018. This calculate to 22 February 2025.
[71]
If the applicant’s MDP was 22 February 2025 he would have had
less than 5 years left
of his minimum sentence to be served as at 27
April 2020. If it was less than five years he became entitled to the
Covid parole.
[72]
According to this calculation the Covid parole would have been
applicable to the applicant.
The court already found that the method
used by the CMC and the Parole Board was incorrect and unlawful. This
suggested method
of calculation could be considered by the Parole
Board in the exercise of their discretion to place the applicant on
parole and
correctional supervision. Consequently, the matter should
be referred back to the Parole Board to consider to place the
applicant
on parole.
[73]
The court do not intend to make a cost order in this matter as the
applicant appeared in
person and there is no application for cost.
[74]
The following order is made:
(1)
The decision of the Parole Board that the applicant did not qualify
for the Covid parole
is reviewed and set aside.
(2)
The Parole Board is ordered to within 30 days of this order
reconsider whether applicant
could be placed on parole without
reliance being placed on the methods of calculation which was found
to be wrong by this court.
(3)
No order as to costs.
_________________
RÉAN
STRYDOM J
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
HIGH COURT
Date
of Hearing:

02 February 2022
Date
of Judgment:

11 February 2022
Appearances
:
On
behalf of the Applicant:

In Person
On
behalf of the Respondent:

Adv. M. Sekhethela
Instructed
by:

State Attorney
1]
Section 73(6) reads as follows:
“
6(a)
Subject to the provisions of paragraph (b), a sentenced offender
serving a determinate sentence
or cumulative sentences of more than
24 months may not be laced 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, but day parole or parole
must be considered whenever the
sentenced offender has served 25 years of a sentence or cumulative
sentence.”
[2]
“
7(a)
A person sentenced to incarceration under section 276(1)(i) of the
Criminal Procedure Act, must serve at least one-sixth
of his or her
sentence before being considered for placement under correctional
supervision, unless the court has directed otherwise.”
[3]
“
9(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.”

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