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[2011] ZAGPPHC 125
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Van Wyk v Minister of Correctional Services and Others (40915/10) [2011] ZAGPPHC 125; 2012 (1) SACR 159 (GNP) (26 July 2011)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: 40915/10
Case
heard: 20 April 2011
Date
of judgment: 2011-07-26
In
the matter between:
CORNELIUS
JOHANNES VAN
WYK
......................................................................
APPLICANT
and
MINISTER
OF CORRECTIONAL
SERVICES
.........................................
FIRST
RESPONDENT
COMMISSIONER
OF CORRECTIONAL SERVICES
........................
SECOND
RESPONDENT
CHAIRPERSON,
NATIONAL COUNCIL FOR
CORRECTIONAL
SERVICES
................................................................
THIRD
RESPONDENT
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.................................................................................
FOURTH
RESPONDENT
HIEMSTRA
AJ
[1]
The applicant was convicted on several counts, including three of
murder, and sentenced on 5 September 2004 to life incarceration
on
each of the murder counts, and further terms of incarceration on the
other counts. It does not appear from the papers whether
the
sentences are running concurrently. Nothing turns on this question.
He has served 16 years of his sentences.
[2]
His convictions and sentences arose from his involvement with the
National
Socialist Partisans,
an
underground component of the
Bianke
Bevrydingsbeweging,
whose
objective it was to secure self-determination for Afrikaners through
a right-wing uprising and to resist
the
National Party government's intended termination of white rule in
South Africa. His convictions and sentences were the following:
Count
1: Car theft: 5 years Count 2: Murder: life Count 3: Murder: life
Count 4: Murder: life
Count
5: Attempted robbery with aggravating circumstances: 8 years
Count
6: Contravention of s 2, read with s 1, 39 and 40 of the Arms and
Ammunition Act 75
of
1969 (unlawful possession of firearms): 1 year
Count
7: Housebreaking with the intent to steal: 5 years
Counts
8 and 9: Robbery: taken together for purposes of sentence: 12 years
Count
10: Housebreaking with the intent to steal: 8 years
Count
11: Unlawful possession of firearms: 10 years.
[3]
The applicant applied to the Truth and Reconciliation Commission for
amnesty, but his application was dismissed on the ground
that the
Notional Socialist Partisans were not a recognised liberation
movement.
[4]
When the sentences were imposed, his incarceration was subject to the
Correctional Services Act, 8 of 1959 (the old Act).
[5]
Section 64 of the old Act regulated the release on parole of lifers.
The section was amended from time to time, but it provided
in essence
at all times that such an offender shall not be released until the
National Advisory Council (formerly the Advisory
Release Board) has
advised the Minister, upon the Minister's request, and after
considering a report of an institutional committee,
with due regard
to the interests of society, and after the Minister has accepted the
recommendation. These bodies, during their
currencies, have since
1910 made recommendations to the successive ministers on policy
guidelines, which policies were accepted
by him or her. They were
then implemented by the Department of Corretional Services.
[6]
Section 64 was repealed by the Correctional Services Act, 111 of 1998
(the new Act) with effect from 1 October 2004. When the
applicant was
sentenced, in September 2004, the policy was that an offender
sentenced to life incarceration (lifer) had to serve
20 years before
he could be considered for parole. When he committed the offences, on
13 October 1991, he had to serve 10 years
prior to being eligible for
parole, but only in exceptional cases prior to 15 years.
[7]
The periods that offenders have to serve are now determined by the
provisions of Chapter VII of the new Act. Section 73(6)(iv)
provides
that lifers may not be placed on parole until they have served at
least 25 years of the sentence. An offender who has
reached the age
of 65 may be considered after completion of 15 years.
[8]
In terms of section 22A of the old Act, there was a system for the
allocation of credits to offenders for their observance of
the rules
of the correctional institution and their active participation in
programmes which were aimed at their treatment, training
and
rehabilitation. The section stated the following:
"(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;
(b)...
(c)...
(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."
[9]
This system has been abolished by the new Act. However, the system is
retained in the transitional provisions of the new Act
to the extent
set out therein.
[10]
The transitional provisions are contained in section 136 of the new
Act. They are the subject of the current controversy, and
provide as
follows:
"136.
Transitional provisions.—(1) Any person serving a sentence of
incarceration immediately before commencement of
Chapters IV, VI and
VII
1
is subject to the provisions of the Correctional Services Act, 1959
{Act No. 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.
(b)
[11]
The Department of Correctional Services issued Order BVI(1A)(22),
which purports to incorporate the transitional provisions.
It
provides as follows:
"
CRITERIA
FOR CONSIDERATION FOR PAROLE: GUIDELINES IN RESPECT OF PRISONERS
SENTENCED TO LIFE IMPRISONMENT
2
(a)
The conditional placement of this category of prisoners is determined
by Section 64
3
of
the Act.
(b)
The term "life" means exactly what the words imply, namely
for the duration of the prisoner's natural life to be in
detention or
be in the community under supervision.
(c)
A prisoner sentenced to life imprisonment must serve at least 20
years of his/her sentence before his/her placement on day
parole/parole can be considered by the National Advisory Council on
Correctional Services.
(i)-(iv)
........
(d)
The consideration date cannot be advanced by credits allocated"
[My emphasis]
[12]
The predecessor to the above order reflects the position under the
old Act and provided as follows:
"21OORWEGINGSKRITERIA
VIR PAROOL: RIGLYNE VIR GEVANGENES TOT LEWENSLANGE GEVAN-GENISSTRAF
(i)
Algemeen
(ii)
Die voorwaardelike uitplasing van hierdie kategorie gevangenes word
ingevolge artikel 65 van
die Wet bepaal.
(iii)
Die term lewenslank beteken presies wat die bewoording impliseer.
(iv)
'n Gevangene met 'n vonnis van lewenslank kan vir uitplasing oorweeg
word mits daar so-
danige gronde gevind kan word, na voltooiing
van twintig (20) jaar minus krediete
4
.
[My emphasis]
"
The new Act changed the terminology as follows: "imprisonment"
becomes "incarceration"; "prisoner"
becomes
"offender"
Section
64 was repealed by the new Act with effect from 1 October 2004. 4
Only the Afrikaans version has been made available.
[13]
Accordingly, it would appear that the applicant, who was sentenced
during the currency of the old Act, had been entitled to
have the
date on which he could be considered for parole, advanced by the
earning of credits. In terms of the current Order, he
no longer
qualifies for credits. This constitutes a retrospective removal of a
right he previously enjoyed.
[14]
The applicant now seeks the following orders:
1.
That
s 136(2)
of the
Correctional Services Act 111 of 1998
be
declared inconsistent with the Constitution of the Republic of South
Africa;
2.
That the omission from s 136(2) of the new Act, after the word
"determinate", of the words "or indeterminate",
be declared to be inconsistent with the Constitution and that s
136(2) of the new Act is to be read as though the words "or
indeterminate" appear after the word "determinate".
3.
That Correctional Service Order BVI(lA)(22)(d), issued under the new
Act, be declared inconsistent with the Constitution.
4.
That s 136(3)(a) of the new Act be declared inconsistent with the
Constitution.
5.
That the omission from s 136(3)(a) of the new Act, after the words
"20 years of the sentence" of the words "minus
credits" be declared inconsistent with the Constitution, and
that s 136(3)(a) of the new Act be read as though the words "minus
credits allocated" appear after the words "20 years of the
sentence".
6.
That s 136(1) of the new Act be declared inconsistent with the
Constitution.
7.
That the applicant and other offenders who were serving a sentence of
incarceration for life on 1 October 2004 be considered
for placement
on parole:
7.1
by way of the consideration date for parole being advanced by the
allocation of credits, subject to the applicable criteria
for the
allocation of credits;
7.2
in terms of the policy of the Department of Correctional Services
which applied at the date of the commission of the crimes
for which
the applicant and such other offenders are serving incarceration for
life.
[15]
All these prayers are aimed at restoring the applicant's entitlement
to have his parole date advanced through credits in terms
of section
22A of the old Act.
[16]
In my view, the challenge to the constitutionality of the various
subsections to section 136 is misconceived and superfluous.
The
constitutionality of section 136 was considered by the Constitutional
Court in Van Vuuren v Minister of Correctional Services
5
.
Nkabinde J said the following:
"In
the light of these considerations, subsection (3)(a) can be given a
coherent and sensible meaning alongside subsection
(1). This can be
done by examining the position of individual offenders during three
distinct periods. The first is those sentenced
to life incarceration
after the commencement of the Act Section 73(6), which subjects all
offenders sentenced so life incarceration
to 25 years before parole,
applies to all life sentences imposed after the commencement of the
Act. For those sentenced so life
incarceration during the period of 1
March or 3 April 1995, when the 20-year pre-parole minimum was
introduced, to the commencement
of the Ac, section 136(3)(a)
preserves an entitlement to be considered after 20 years. Section
136(1), by contrast, preserves the
position of those sentenced to
life incarceration even further back - before 1 March 1994 or 3 April
1995 -for example Mr Van Vuuren."
[17]
That the section passes constitutional muster has therefore
conclusively been decided and it cannot be revisited. However,
the
Constitutional Court did not consider the question of the extent to
which the system of the allocation of credits in terms
of section 22A
of the old Act has been preserved.
[18]
All three subsections of section 136 deal with the position of
offenders serving a sentence of incarceration before 1 October
2004.
Subsection (1) deals with all offenders who had been serving
sentences of incarceration immediately before that date. Subsection
(2) deals with offenders who had been serving determinate sentences
of incarceration immediately before that date. Subsection 3(a)
deals
with lifers who had been serving their sentences immediately before
that date.
[19]
Subsection (1) preserves all the policies and guidelines applied by
former parole boards prior to 1 October 2004 in respect
of all
offenders serving sentences of incarceration immediately before that
date. This applies to lifers and persons serving determinate
sentences as at that date. These policies and guidelines included the
allocation of credits in terms of section 22A of the old
Act.
[20]
Subsection (2) deals only with persons serving determinate sentences
immediately before 1 October 2004 and provides that such
persons
shall be allocated the maximum number of credits in terms of section
22A of the old Act.
[21]
Subsection (3) preserves the 20-year pre-parole period that applied
immediately before the enactment of the new Act, but does
not
specifically preserve any other provisions of the old Act or the
policies and guidelines applied by former parole boards. The
reason
is obvious. Subsection (1) has already preserved those provisions,
policies and guidelines in respect of all persons serving
sentences
of incarceration immediately before 1 October 2004. It would have
been superfluous to refer to them again.
[22]
Correctional Service Order BV1(1A)(22) purports to incorporate
section 136. However, it does not correctly reflect the provisions
of
section 136. If the Order is correct, the section has retrospective
effect. An offender who committed an offence, or had been
sentenced
to life incarceration prior to the new Act, was entitled to have the
date on which he could be considered for parole
advanced by the
earning of credits. According to the Order, credits no longer apply.
This would constitute a deprivation of the
offender's liberty, and it
does not conform to the principles of the rule of law.
6
In this regard the oft quoted passage from De Smith, Woolf and
Jowell
7
,
is apposite:
"the
rule of law embraces some internal qualities of all public law: that
it should be certain; that it is ascertainable in
advance so as to be
predictable and not retrospective in its operation; and that it be
applied equally, without unjustifiable differentiation."
8
[23]
The Constitution is founded on the values set out in section 1
thereof, including the supremacy of the constitution and the
rule of
law
9
.
To the extent that retrospectivity offends the rule of law, it
offends the Constitution. Correctional Service Order BVI(1A)(22)
is
therefore clearly unconstitutional. That, of course, does not mean
that section 136 is unconstitutional. Correctly interpreted,
it has
no retrospective effect.
[24]
It was held by Langa DP (as he then was) in Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai Distributors (Pty)
Ltd and Others v Smit NO and Others
10
as
follows:
"The
purport and objects of the Constitution find expression in s 1, which
lays out the fundamental values which the Constitution
is designed to
achieve. The Constitution requires that judicial officers read
legislation, where possible, in ways which give effect
to its
fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty
to examine the objects and purport of an Act and to read the
provisions of the legislation, so far possible in conformity with
the
Constitution." This method of interpretation is known as
"reading down".
[25]
Before a provision is declared unconstitutional, an attempt must be
made to read it down so that it conforms not only to the
ipsissima
verba of the Constitution, but also to its objectives and spirit.
[26]
The misunderstanding on the part of the authors of Correctional
Service Order BVI(1A)(22) is caused by the fact that subsection
(2)
applies only to offenders serving determinate sentences at the
relevant date. It provides that the maximum number of credits
in
terms of s 22A of the old Act must be allocated to them. Lifers are
excluded from this provision. What the authors of the Order
did not
appreciate, is that subsection (2) does not exclude lifers entirely
from the allocation of credits. While offenders serving
determinate
sentences are entitled to the maximum number of credits as of right,
lifers must earn all their credits. This is no
different from the
position prior to the new Act.
[27]
I therefore find that section 136 contains no contradictions and has
no retrospective effect in the sense that it abolishes
rights of
lifers that they enjoyed at the time of committing their offences or
at the time that they were sentenced. Insofar as
Correctional Service
Order BVI(1A)(22) has retrospective effect, in militates against the
objects and spirit of the Constitution.
I
therefore make the following order:
1.
Correctional Service Order BVI(1A)(22) is declared inconsistent with
the Constitution of the Republic of South Africa;
2.
The applicant and other offenders who were serving sentences of life
incarceration immediately before 1 October 2004 are entitled:
2.1
to have the date on which they may be considered for parole advanced
by credits earned in terms of section 22A of the Correctional
Services Act 8 of 1959, subject to the applicable criteria for the
allocation of credits;
2.2
to be considered for parole in terms of the policy of the Department
of Correctional Services which applied at the date of the
commission
of the crimes for which they are serving life imprisonment.
3.
The First and Second Respondents are ordered to pay the costs of this
application
jointly and severally, the one paying, the other to be
absolved.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing: 20 April 2011
Date
of judgment: 26 July2011
Counsel
for the Applicant: Adv T.W.G. Bester
Attorney
for the Applicant: Julian Knight & Associates Inc
Counsel
for first to third Respondents: Adv B.R. Tokota SC
…
...........................................................
Adv
L.D. Halam
…
..........................................................
Adv T. Williams
Attorney
for the first to third Respondents: The State Attorney
1
Chapter
IV came into operation on31 July 2004 and chapters VI and VII on 1
October 2004. The operative date
is
therefore the last
one.
namely
1
October
2004.
2
"
The new Act changed the terminology as follows: "imprisonment"
becomes "incarceration"; "prisoner"
becomes
"offender"
3
Section
64 was repealed by the new Act with effect from 1 October 2004.
4
Only the Afrikaans version has been made available.
5
2010
(12) BCLR 1233
(CC) para [5] at 1257
6
Van Vuuren
v
Minister
for Correctional Services
2010
(12) BCLR 1233
(CC) at 1257, paragraph [60];
Ferreira
v
Levin
NO and Others
1996
(1) BCLR 1
(CC) at paragraph [72]
7
Judicial
Review
of
Administrative Action, 5'
1
'
edition, 14-15
8
Quoted
with approval by the Constitutional Court in
Pharmaceutical
Manufacturers Association of South Africa and Others: In Re Ex
parte Application of the President of the RSA
and
Others2000
(3)
BCLR 24 ] (CC);
2000 (2) SA 210
(CC) at paragraph [39]
9
Section
1(c)
10
[2000] ZACC 12
;
2001
(1) SA 545
CC para 22