Brief Summary

Parole — Special Parole Dispensation — Review of decision not to consider applicant for parole — Applicant contending eligibility under Special Parole Dispensation — Dispute over calculation of Minimum Detention Period — Applicant sentenced to 15 years imprisonment for multiple counts, with effective sentence of 15 years — Applicant's Minimum Detention Period calculated as 1 March 2025 based on special remission — Respondents calculating Minimum Detention Period as 26 February 2026 — Court finding that the special remission applies to the determination of the maximum sentence period, impacting eligibility for parole — Decision of the Parole Board reviewed and set aside, directing consideration for parole.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an opposed application for review relief in the High Court of South Africa, Gauteng Division, Pretoria. The applicant, Nnyadi Boitumelo Lydia Boshego, sought to have reviewed and set aside decisions of the Correctional Supervision and Parole Board: Kgosi Mampuru II (the first respondent) relating to her eligibility for consideration for parole under the Special Parole Dispensation linked to the President’s grant of special remission of sentences announced in December 2019 and implemented during 2020.

The remaining respondents were the Case Management Committee: Kgosi Mampuru II (second respondent), the National Commissioner: Correctional Services (third respondent), and the Minister of Correctional Services and Constitutional Development (fourth respondent). The respondents opposed the application through the State Attorney.

Procedurally, the case came before Nel AJ as a motion-court review application. The applicant primarily challenged (a) the Parole Board’s decision to refer her profile report back to the Case Management Committee and (b) the Parole Board’s failure/refusal to consider her for parole. In the alternative, the applicant sought declaratory relief that clause 5.3.1 of Circular 13 of 2019/20 (dealing with the granting of special remission of sentence amnesty) was irrational and unlawful to the extent that it applied to her.

The general subject-matter was the calculation of the applicant’s minimum detention period for parole eligibility in the context of the special remission of sentence and the consequent Special Parole Dispensation, and whether an incorrect calculation led to an unlawful refusal to consider her for parole.

2. Material Facts

The applicant was convicted on 22 counts, including fraud, corruption, racketeering, and money laundering. She received sentences of 15 years’ imprisonment on 21 counts and 10 years’ imprisonment on one count, with the sentencing court ordering the sentences to run concurrently, yielding an effective sentence of 15 years’ imprisonment. She commenced incarceration at Kgosi Mampuru II Correctional Facility on 30 August 2018.

Against the background of the President’s grant of special remission and the associated parole measures, correctional facilities began implementing the Special Parole Dispensation around 25 May 2020. The Case Management Committee compiled the applicant’s profile report and advised her that she qualified for the Special Parole Dispensation and would be considered for parole. The profile report was submitted to the Parole Board, which was to consider her on 29 May 2020.

On 29 May 2020, the applicant was advised that she would not be considered for parole because, in the Parole Board’s view, she did not qualify for the Special Parole Dispensation. The Parole Board attributed this to an asserted error by the Committee in calculating the applicant’s minimum detention period. The Parole Board’s position was that the Committee should not have deducted 24 months from the applicant’s effective sentence; rather, it should have pro-rated the 24-month remission across the multiple counts (despite concurrency), which on its approach yielded a minimum detention period expiring in February 2026 (one date mentioned was 13 February 2026).

The parties were in agreement that the applicant fell within a category of offenders that would entitle her to a 24-month remission. The dispute was not about entitlement to a 24-month remission in principle, but about how that remission affected the calculation of the applicant’s minimum detention period for purposes of parole consideration under the special dispensation.

The applicant contended that her minimum detention period would expire on 1 March 2025, which would place her within the qualifying window for the special dispensation. The respondents contended that it would expire in February 2026, outside the qualifying window, and also advanced a contention that the dispensation would apply only to offenders whose minimum detention period would arise on or before 8 May 2025.

On 24 February 2021, the Parole Board met with the applicant to explain its interpretation and why it considered the special dispensation inapplicable to her.

3. Legal Issues

The central questions the court was required to determine were whether the applicant qualified for consideration for parole under the Special Parole Dispensation and whether the Parole Board acted on an incorrect methodology in deciding that she did not qualify and consequently failing to consider her for parole.

This required determination of two closely related issues. The first was the threshold date for application of the “within five years” criterion referenced in the special dispensation framework. The second was the correct calculation of the applicant’s minimum detention period in light of the 24-month special remission and the applicant’s effective sentence.

Although the application initially appeared to involve interpretation of clause 5.3.1 of Circular 13 of 2019/20, the court treated the decisive issue as the minimum detention period calculation and, relatedly, whether clause 5.3.1 was applicable to the applicant at all.

The dispute primarily concerned the application of legal rules to facts (how statutory parole eligibility rules and the remission mechanism should be applied to an effective concurrent sentence), rather than factual disputes about what sentences were imposed or when incarceration commenced.

4. Court’s Reasoning

The court located the Special Parole Dispensation in the President’s power under section 84(2)(j) of the Constitution of the Republic of South Africa read with section 82(1)(a) of the Correctional Services Act 111 of 1998, and noted that the dispensation was implemented for purposes including combatting the spread of Covid-19 in correctional facilities. The court accepted that special remission of sentence could affect parole eligibility by bringing forward dates for consideration.

On the threshold date, the court held that the relevant “within five years” period was to be calculated from 27 April 2020, resulting in a threshold date of 26 April 2025 for applying a convicted offender’s minimum detention period. In doing so, the court rejected the respondents’ suggestion that the threshold should be tied to 8 May 2025.

Turning to parole eligibility mechanics, the court applied section 73(6) of the Correctional Services Act 111 of 1998, which provides that an offender serving a determinate sentence of more than 24 months may not be placed on parole until serving either a stipulated non-parole period or, if none is stipulated, half of the sentence. Because no non-parole period was stipulated in the applicant’s case, the minimum detention period was to be calculated as half of the applicable sentence period.

The key reasoning step was how the court treated the 24-month special remission. The respondents’ approach treated the remission as not affecting the sentence in the relevant way (and was associated with an attempt to pro-rate the remission across multiple counts despite concurrency). The court considered this inconsistent with the clear wording and purpose of the Circular, which indicated that the special remission was intended as a 12- or 24-month remission of sentence and that it should be deducted from an offender’s original sentence expiry date to produce a recalculated sentence expiry date.

The court relied on the approach adopted in Smith v Minister of Justice and Correctional Services and Others (an unreported decision) to the effect that the minimum detention period calculation is affected by the remission’s impact on the offender’s sentence. The court agreed with that approach and held that the remission period (whether 12 months or 24 months) must be deducted from the full incarceration period before determining the applicable minimum detention period.

Applying that method to the applicant’s circumstances, the court accepted the applicant’s calculation: deducting the 24-month remission from the 15-year effective sentence produced an incarceration period of 13 years, half of which is six years and six months. Adding six years and six months to the incarceration commencement date of 30 August 2018 yielded a minimum detention period expiring at the end of February 2025, which the applicant expressed as 1 March 2025. The court concluded that this was the correct calculation and that the Parole Board’s February 2026 date was incorrect.

On that basis, the court found that the Parole Board erred in its methodology in determining eligibility and therefore erred in failing to consider the applicant for parole. The court indicated that, given the order it intended to make, the separate decision to refer the profile report back to the Committee would become irrelevant, as an updated profile report would likely have to be prepared.

As to the further relief sought, the court declined to order the Parole Board to accept the existing profile report, reasoning that such an order would inappropriately interfere with the Parole Board’s functions and that an updated report would likely be required. However, the court held it was competent to order the Parole Board to consider the parole application afresh within a defined period, while emphasising that this would not infringe the Parole Board’s discretion whether to grant or refuse parole.

Regarding the alternative constitutional/administrative challenge, the court held that clause 5.3.1 of the Circular did not apply to the applicant, because her matter involved one effective sentence of 15 years to be taken into account and did not require separate determination per count in the manner contemplated. The court stated that clause 5.3.1 (the judgment also refers to clause 5.2.1 in this context) would apply where an offender was convicted of more than one offence at different times and under separate warrants of sentence. Because the clause was found inapplicable, the court held there was no basis to declare it irrational or unlawful.

On costs, the court noted that all respondents opposed the application and applied the ordinary principle that costs follow the result, making a costs order against all respondents jointly and severally.

5. Outcome and Relief

The court set aside the decision of the Parole Board not to consider the applicant for parole. It ordered the Parole Board to take the steps necessary to consider the applicant for parole within 30 days of the order.

In reconsidering parole, the Parole Board was directed to accept that the applicant qualifies for the Special Parole Dispensation and that her minimum detention period date is 1 March 2025. The court refused to grant relief compelling acceptance of the existing profile report and refused the alternative declaratory relief impugning clause 5.3.1 of the Circular.

The respondents were ordered, jointly and severally, to pay the costs of the application.

Cases Cited

Smith v Minister of Justice and Correctional Services and Others (unreported, Gauteng Division, Pretoria, case no 35658/2021, Strydom J).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 84(2)(j).

Correctional Services Act 111 of 1998, section 82(1)(a).

Correctional Services Act 111 of 1998, section 73(6).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, for purposes of determining eligibility for consideration for parole under the Special Parole Dispensation, the offender’s minimum detention period must be calculated by first deducting the applicable special remission period from the offender’s full incarceration period (effective sentence) and then applying the statutory minimum detention requirement (in this case, half the sentence under section 73(6) where no non-parole period is stipulated).

On the facts, the court held that the applicant’s minimum detention period date was 1 March 2025, placing her within the qualifying period ending 26 April 2025. The Parole Board’s refusal to consider her for parole was therefore based on an incorrect methodology and was set aside. The court further held that clause 5.3.1 of Circular 13 of 2019/20 was not applicable to the applicant, and accordingly declined to declare it irrational or unlawful.

LEGAL PRINCIPLES

The judgment applied the principle that where a special remission of sentence is granted in terms of the relevant executive and statutory framework, its effect must be reflected in the recalculated sentence duration/expiry, and that recalculated position must then inform subsequent statutory computations relevant to parole, including the minimum detention period.

The judgment applied section 73(6) of the Correctional Services Act 111 of 1998 to a determinate sentence with no stipulated non-parole period, confirming that the minimum detention period is half of the sentence. In the context of special remission, the “sentence” for this purpose was treated as the sentence as affected by the remission, rather than the pre-remission effective term.

The judgment further applied a restraint principle concerning remedial orders: while a court may set aside an unlawful refusal to consider parole and may order fresh consideration within a timeframe, it should avoid orders that impermissibly trench upon the Parole Board’s discretion regarding parole outcomes or its operational processes (such as directing acceptance of a particular profile report), particularly where an updated report may be required.

Boshego v Correction Supervision and Parole Board: Kgosi Mampuru II and Others [2023] ZAGPPHC 409; 40175/2021 (7 June 2023)