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[2019] ZAKZPHC 28
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Mzizi and Others v Minister of Correctional Services and Others (10719/18P) [2019] ZAKZPHC 28 (30 April 2019)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 10719/18P
In
the matter between:
THULEBONA
MZIZI
1
ST
APPLICANT
SANDILE
ZIKODE
2
ND
APPLICANT
THOKOZANI
SIBISI
3
RD
APPLICANT
MZAMO
ZUMA
4
TH
APPLICANT
and
THE
MINISTER OF CORRECTIONAL SERVICES
1
ST
RESPONDENT
THE
NATIONAL COUNCIL OF CORRECTIONAL SERVICES
2
ND
RESPONDENT
THE
CORRECTIONAL SUPERVISION AND PAROLE BOARD
3
RD
RESPONDENT
THE
PIETERMARITZBURG CORRECTIONAL CENTRE
4
TH
RESPONDENT
THE
CASE MANAGEMENT COMMITTEE, PIETERMARIZBURG 5
TH
RESPONDENT
ORDER
1.
The application succeeds.
2.
It
is declared that, since each of the four applicants were arrested and
detained before 1 October 2004, the four (4) applicants
are eligible
to be considered for release and placement under community
corrections in terms of the law, policy and guidelines
that were
applicable immediately prior to 1 October 2004, calculating the
minimum period to be served, in case of each applicant,
for purposes
of eligibility for release under community corrections, from the date
each applicant was sentenced.
3.
There is no order as to costs.
JUDGMENT
Delivered
on:
MNGADI
J
[1]
The question in this application is
which parole regime governs the eligibility for placement on parole
of offenders sentenced to
life imprisonment on or after 1 October
2004, for offences which were committed prior to 1 October 2004, and
for which they were
arrested and detained prior to 1 October 2004.
[2]
The significance of the posed question
is illustrated by comparing the position prior to 1 October 2004 with
the position post 1
October 2004. In
Van
Wyk v Minister of Correctional Services
&
others
2012
(1) SACR 159
(GNP) it was held that for offenders sentenced
immediately prior to 1 October 2004 , in terms of s 64 of the
Correctional Services
Act 8 of 1959 ('the Old Act'), read with s 22A
of the Correctional Services Act 8 of 1959 ('the old Act'), subject
to the earning
of full credits, such offenders qualify for
consideration for release on parole after serving thirteen (13) years
four (4) months.
The said decision is based on the provisions of s
136 of the Act which provides:
'136
Transitional provisions: -
(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 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 No.
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)
The case of a offender
contemplated in paragraph (a) must be submitted to the National
Council which must make a recommendation
to the Minister regarding
the placement of the offender under day parole or parole.
(c)
If the recommendation of the
National Council is favourable, the Minister may order that the
offender be placed under day parole
or parole, as the case may be.
(4)
If a person is sentenced to life
incarceration after the commencement of Chapters IV, VI and VII while
serving a life sentence imposed
prior to the commencement, the matter
must be referred to the Minister who must, in consultation with the
National Council, consider
him or her for placement under day parole
or parole.'
[3]
On the other hand, the following
relevant provisions of s 73 of the Act regulates the position from 1
October 2004, which provides:
'73.
Length and form of sentences. -
(1)
Subject to the provisions of this
Act-
(a)
a sentenced offender remains in a
correctional centre for the full period of sentence; and
(b)
an offender sentenced to life
incarceration remains in a correctional centre for the rest of his or
her life.
(2) ....
(3) ....
(4)
In accordance with the provisions
of this Chapter a sentenced offender may be placed under correctional
supervision, day parole,
parole or medical parole before the
expiration of his or her term of incarceration.
(5)
(a) A sentenced offender may be
placed under correctional supervision, on a day parole, parole or
medical parole-
(i)
on a date determined by the
Correctional Supervision and Parole Board; or
(ii)
in the case of an offender
sentenced to life incarceration, on a date to be determined by the
Minister.
(b) Such placement is subject to the provisions
of Chapter VI and such offender accepting the conditions for
placement.
(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 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, but day parole or parole must be
considered whenever a
sentenced offender has served 25 years of a
sentence or cumulative sentences.
(aA)
Subject to the provisions of paragraph (b), an offender serving a
determinate sentence or cumulative sentences of not more
than 24
months may not be placed on parole or day parole until such offender
has served either the stipulated non-parole period,
or if no
non-parole period was stipulated, a quarter of the sentence.
(b)
A person who has been sentenced to-
(i) ... .
(ii)
... .
(iii)
... .
(iv)
life incarceration, may not be
placed on day parole or parole until he or she has served at least 25
years of the sentence;
[4]
The first applicant is Thulebona Petros
Mzizi registration number 207138398. He is serving a sentence of 20
years imprisonment and
life imprisonment respectively at the
Pietermaritzburg Correctional Centre, after he was convicted and
sentenced by the KwaZulu-Natal
High Court on 2 March 2007 on two
counts of murder which were committed on 22 October 2003. He was
arrested on 25 October 2003.
[5]
The second applicant is Sandile Sanele
Zikode registration number 206141053. He is serving a sentence of
life imprisonment, a sentence
of fifteen (15) years imprisonment, and
a sentence of five (5) years imprisonment. He was convicted and
sentenced by the KwaZulu-Natal
High Court on 16 November 2006 for one
count of murder, one count of robbery with aggravating circumstances,
and one count of the
unlawful possession of a firearm and the
unlawful possession of ammunition. The offences were committed on 31
August 2002. He was
arrested on 31 August 2002.
[6]
The third applicant is Thokozani Rawlf
Sibisi registration number 211535101. He is serving a sentence of
life imprisonment at the
Pietermaritzburg Correctional Centre, having
been convicted and sentenced by the KwaZulu-Natal High Court on 11
October 2011 for
two counts of murder and two counts of attempted
murder, and sentenced to two terms of life imprisonment and two terms
of ten (10)
years imprisonment. The offences were committed on 14
December 2002. He was arrested 14 December 2002
[7]
The fourth applicant is Mzamo Zuma
registration number 203539215. He is serving a sentence at the
Pietermaritzburg Correctional
Centre. He was convicted and sentenced
by the KwaZulu-Natal High Court on 12 November 2004 on six (6) counts
of murder and sentenced
to life imprisonment in respect of each
count; two counts of kidnapping and sentenced to ten (10) years
imprisonment for both counts;
two counts of robbery with aggravating
circumstances and sentenced to fifteen (15) years imprisonment in
respect of each count;
four counts of rape and sentenced to life
imprisonment in respect of each count; the unlawful possession of a
firearm and ammunition
and sentenced to five (5) years imprisonment
for both counts; four counts of indecent assault and sentenced to
eight (8) years
imprisonment in respect of each count, and to one
count of assault for which he was sentenced to six (6) months
imprisonment. The
crimes were committed on 26 and 27 July 2003. He
was arrested on 26 July 2003.
[8]
The respondents are the Minister for
Correctional Services who is also the Minister of Justice and
Constitutional Development ('the
Minister'), the National Council for
Correctional Services ('the Council'), the Correctional Supervision
and Parole Board of the
Pietermaritzburg Correctional Centre ('the
Parole Board'), the Pietermaritzburg Correctional Centre, and the
Case Management Committee
of the Pietermaritzburg Correctional Centre
('the CMC').
[9]
The National Council on Correctional
Services submits reports advising the Minster on general policy
including recommendations relating
to the placement of sentenced
offenders on parole. The Council receives reports from the Parole
Board. The Case Management Committee
in each Correctional Centre
submits reports to the Correctional Supervision and Parole Board
regarding the possible placement of
an offender on parole and the
proposed conditions for the said parole.
[10]
The four applicants are lay litigants. The application is not as
properly prepared as desired.
The notice of motion does not clearly
set out the relief sought. Likewise, the supporting affidavit does
not set out in a clear
sequence the steps taken by the applicants to
resolve the matter with the respondents. However, being lay
litigants, their pleadings
must be construed generously in favour of
the applicants. Regard must be had to the purpose of the pleading as
gathered from the
content of the pleading and the context in which
the pleading is prepared. Further, we are concerned with liberty,
which is a component
of freedom of a sentenced offender for whom the
date on which he will become eligible to be considered for release
under community
corrections is of primary importance, with the
apparent uncertainty not of his own creation. The notice of motion,
supported by
the supporting affidavit together with the answering
affidavit, in my view, set out the applicants' case effectively and
the respondents
have responded to that case without any complaints
relating to procedural irregularities (see
Xinwa
&
others
v Volkswagen SA (Ply) Ltd
[2003]
ZACC
7
;
2003 (6) BCLR
575
;
2003 (4) SA 390
(CC) para 13).
[11]
The applicants seek an order declaring
that, although they were sentenced after 1 October 2004, they are
entitled to be considered
for release on parole in terms of the
parole regime in place immediately prior to 1 October 2004 since they
were arrested prior
to 1 October 2004, and convicted and sentenced
for offences committed prior to 1 October 2004. They argue that
subjecting them
to a parole regime introduced on 1 October 2004 which
is far more onerous, is tantamount to imposing on them a sentence far
more
severe than the sentence in place at the date of the commission
of the crimes, and that this amounts to a retrospective application
of the change introduced with effect from 1 October 2004.
[12]
The respondents oppose the application.
They argue that as the applicants were sentenced after 1 October
2004, they shall only be
eligible to be considered for placement on
parole after serving 25 years imprisonment. They state that an
offender need not apply
to be considered for release on parole.
Approximately six months before an offender completes the minimum
prescribed period, the
CMC will initiate the process by compiling a
parole profile. A meeting is held with the offender, and he or she is
informed of
the recommendations of the CMC. The CMC's recommendation
is forwarded for consideration to the Parole Board which considers
the
application and together with its recommendation, sends it to the
Minister for a decision. Each offender is managed according to
a
sentencing plan which is periodically reviewed. A sentencing plan has
been implemented in respect of each applicant. The respondents
state
that the first applicant's parole profile report is due on 1 June
2031, that of the second applicant on 15 February 2031,
that of the
third applicant on 1O January 2036, and that of the fourth applicant
on 11 February 2029.
[13]
The minimum period which an offender had
to serve in respect of life imprisonment before an offender could be
placed on parole used
to be:
'...
from August 1987 to March 1994, prisoners sentenced to life
incarceration had to serve a minimum of 10 years prior to
consideration
but placement on parole could take place only in
exceptional circumstances before competition of 15 years; from March
1994 to April
1995, the minimum detention period prior to
consideration was 20 years. Since 3 April 1995, the minimum detention
period prior
to consideration has been 20 years provided that in
exceptional circumstances placement could occur earlier.. .'
(see
Van Vuren v Minister of Correctional
Services
&
others
[201OJ ZACC 17;
201O (12) BCLR 1233
;
2012 (1) SACR 103
(CC) fn 55).
[14]
The applicants argue, which argument is
not countered by the respondents, that they were not responsible for
the delay relating
to their trials. The State was responsible for
setting down the trials and to attend to all the logistics around the
commencement
of the trials. It is the State who arranged that the
trials be held only after 1 October 2004, without any consultation or
agreement
with the applicants. It is unfair, they argue, that the
State, by choosing to try them after 1 October 2004 will, to the
applicants'
prejudice, benefit by having more severe sentences
imposed on them, and by having time spent in custody at the instance
of the
State by the applicants as awaiting trial prisoners, not
considered in favour of the applicants in determining the appropriate
sentences. The first and second applicants waited for five years from
the dates of their arrest before they were tried, the third
applicant
ten years, and the fourth applicant one year.
[15]
The respondents cannot answer the
applicants' case which is based on a constitutional right by
referring to the provisions of the
Act. The Constitution of the
Republic of South Africa, 1996 ('the Constitution'), not the Act is
the supreme law (s 8 of the Constitution).
The Act is subject to the
Constitution (see
Department of
Transport
&
others
v Tasima (Ply) Ltd
[2016] ZACC 39
;
2017 (2) SA 622
(CC) paras 78 - 79). The Act may not restrict a
constitutional provision; it may only enforce it. This is a
fundamental principle
of constitutional democracy. Section 8(1) of
the Constitution makes the Bill of Rights as highest law to all law,
namely: statute
law, common law and customary law. When interpreting
any legislation, every court must promote the spirit, purport and
objects
of the Bill of Rights. When interpreting the Bill of Rights,
a court must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom. It is for the
court to decide whether the Constitution has been breached
and if so,
to order compliance.
[16]
The court in the
Minister
of Correctional Services
&
others v Seganoe
[2015]
ZASCA 148
;
2016 (1) SACR 221
(SCA) accepted, as stated in
Mchunu
&
another
v S
[2013] ZASCA 126
para 5, that it
was a basic principle 'of our common law that the liability for a
penalty arises when the crime is committed and
not when a person is
either convicted or sentenced' but held that in that case the
offender in question fell in a category of offenders
envisaged in the
provisions of the Act. The court did not grapple with the question of
whether or not the said provisions of the
Act were in conformity with
the provisions of the Constitution. In
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) the
Constitutional Court pointed out the inextricable link between the
criminal act and the punishment for that criminal act.
[17]
The litany of the litigation by
offenders relating to the applicability of parole shows that parole
directly determines the actual
sentence served by the offender in
prison. It is a substantial part of the actual period of imprisonment
to be served or being
served. Parole is as old as the advent of the
sentence of imprisonment. Its basis is founded in that imprisonment
entails serving
the sentence day and night, twenty-four hours a day
which fact is compensated in the granting of parole, based on the
good behaviour
of the offender and who displayed an unlikelihood to
reoffend. The granting of parole is an integral part of the sentence,
it is
not a mere benefit extended to the offender. In s 2768 of the
Criminal Procedure Act 51 of 1977('the CPA'), the legislature
authorizes
the sentencing court at the time of sentencing to
determine a period of sentence of imprisonment before which the
offender shall
not be considered for release on parole. Therefore,
eligibility for release on parole is, in my view, an undeniable
integral part
of the sentence. I am aware that in
Broodryk
and Others v Minster of Correctional Services and Others
2014(1)
SACR 471 (GJ) and in
Makaba v
Minister of Correctional Services
[2012] ZAFSHC 157
a
contrary view was expressed. The Full Court in
Phaahla
v Minister of Justice and Correctional Services and Another
2018(1)
SACR 217 (GP),
came
to
the same outcome although it found that eligibility for parole is not
part of the sentence, at par 42 it held: 'It does not necessarily
follow, however, that because parole is not any part of the power of
sentencing, it forms no part of the regime of punishment that
applies
to the commission of an offence. If a crime carries a life sentence
and the provisions of the Act provide that eligibility
for parole
accrues after 25 years, then the possibility of parole would seem to
be an attribute of the regime of punishment. It
forms part of that
regime, not because it flows from the judicial power to sentence, but
rather because it flows from the executive
competence to shorten
sentences, and thus affect the burden of punishment.'
[18]
The respondents argue that the
applicants' plight is the responsibility of the sentencing court
which could have antedated the applicants'
sentences and taken into
consideration the period spent in custody as an awaiting trial
prisoner. In my view, the argument is misplaced.
Firstly, there is no
provision in law authorizing the sentencing court to antedate the
sentence to a date prior the date of the
sentence. The provisions of
s 282 of the CPA are only applicable to the powers of the appeal or
the review court. Similarly, in
my view, this court has no power to
antedate the sentences of the applicants to dates prior to the dates
on which they were sentenced
by the sentencing courts. Further,
sentences of life imprisonment which is the most severe sentence that
can be imposed, were imposed
on the applicants. Therefore, the
periods spent as awaiting trial prisoners had no impact on the
sentences imposed. There was no
reviewable material irregularity, and
there were no grounds for the appeal courts to interfere with the
sentences imposed. It is
not argued, and on the face of it does not
appear, that the sentences imposed were vitiated by any material
irregularity, or that
they were so severe that they induced a sense
of shock, or that they were in any way disturbingly inappropriate. In
any case, it
is for the applicants to pursue whatever remedy appears
available to them.
[19]
The applicants have not sought to review
and set aside any decision of the respondents. There is no decision
that has been taken.
Therefore, the applicants have not, and were not
required to follow the procedure set out in the Promotion of
Administrative Justice
Act 3 of 2000 ('PAJA'), nor to establish the
review grounds stated in PAJA. It is not for the respondents to
decide under which
parole regime the applicants fall; they have no
discretion in that regard. The law regulates which category of
offenders fall under
which parole regime. As far as the respondents
are concerned, although unfair to the applicants, the Act provides
that the applicants
fall under the parole regime in place from 1
October 2004 since their sentences were imposed after 1 October 2004.
The respondents
argue that the eligibility to be considered for
release on parole has nothing to do with the sentence in place at the
date of the
commission of the crimes. The questions raised by the
applicants, it is argued, are the questions that should have been
raised
with the sentencing court.
[20]
The applicants seek a declaratory order
to the effect that they fall under the parole regime in place
immediately prior to 1 October
2004. In Cilliers et al,
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court
of
Appeal
of South Africa,
5 ed (2009) at 1428
it is stated 'a declaratory order is an order by which a dispute over
the existence of some legal right or obligation
is resolved. The
right or obligation can be existing, prospective or contingent and no
specific consequential relief need be claimed.'
(see also
Naptosa
&
others
v Minister of Education, Western Cape,
&
others
2001
(2) SA 112 (C))
Section 21(1)(c)
of the
Superior Courts Act 10 of
2013
allows a high court 'in its discretion, and at the instance of
any interested person, to enquire into and determine any existing,
future or contingent right or obligation, notwithstanding that such
person cannot claim any relief consequential upon the determination.'
Section 38 of the Constitution provides that when an infringement of
or a threat to a right in the Bill of Rights is alleged, application
may be made to a competent court of law for appropriate relief, which
may include a declaration of rights.
[21]
The applicants are serving sentences of
life imprisonment. It is important to them to know under which parole
regime they fall.
That enables offenders to start preparing
themselves to be found suitable when the time comes to be considered
for release on parole,
and to remind the respondents when it is time
for the applicants to be considered for release on parole. It had
also come to the
attention of the applicants that they were not
ad
idem
with the respondents as to
which parole regime is applicable to them, which is confirmed by the
attitude of the respondents to this
application. The issue then
became justiciable, and not of mere academic interest.
[22]
Although the issues relating to prison
administration, including exercising control over offenders may be
within the preserve of
the prison administration authorities, the
issue of eligibility to be considered for release on parole falls
outside that preserve,
any complaint relating thereto may be referred
for resolution to the court. (see
Minister
of Correctional Services
&
others v Kwakwa
&
another
2002
(4) SA 455
(SCA) para 24). This is done by looking at the applicable
legislation which must interpreted in the light of the Constitution,
and the rule of law and bearing in mind the principle of a general
presumption against retrospectivity 'unless the statute provides
otherwise or its language shows such meaning' (see
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division
[
2005] ZACC 22
;
2007 (9) BCLR 929
;
2007 (3) SA 210
(CC) para 26).
[23]
The applicants argue that for them to
fall under the parole regime in place immediately prior to 1 October
2004, which is the parole
regime in place at the date of the
commission of the crimes, their sentences should be antedated to the
dates of their arrest.
In my view, as said above, there is no
authority for antedating a sentence to a date of the choosing of the
sentencing court. I
am also of the view that there is no authority
for this court to antedate the sentences of the applicants to any
date prior to
the dates on which they were sentenced for them to
enjoy certain rights or fall under a more favourable parole regime.
The reliance
by the applicants on s 282 of the CPA is misplaced. The
said section provides:
'282.
Antedating sentence of imprisonment. -
'Whenever any sentence of imprisonment, imposed
on any person on conviction for an offence, is set aside on appeal or
review and
any sentence of imprisonment or other sentence of
imprisonment is thereafter imposed on such person in respect of such
offence
in place of the sentence of imprisonment imposed on
conviction, or any other offence which is substituted for that
offence on appeal
or review, the sentence which was later imposed
may, if the court imposing it is satisfied that the person concerned
has served
any part of the sentence of imprisonment imposed on
conviction, be antedated by the court to a specified date, which
shall not
be earlier than the date on which the sentence of
imprisonment imposed on conviction was imposed, and thereupon the
sentence which
was later imposed shall be deemed to have been imposed
on the date so specified.'
[24]
Further, the second applicant seeks
removal from the sentence imposed on him, the following stipulation
made by the sentencing court:
'It is directed that the accused not be
eligible for parole until he has served twenty-five (25) years of the
sentence'. Section
276B of the CPA provides:
'(1)
(a) If a court sentences a person convicted of an offence to
imprisonment for a period of two years or longer, the court may
as
part of the sentence, fix a period during which the person shall not
be placed on parole.
(b) Such period shall be referred to as the
non-parole-period, and may not exceed two thirds of the term of
imprisonment imposed
or 25 years, whichever is the shorter.
(2)
If a person who is convicted of two or more offences is sentenced to
imprisonment and the court directs that the sentences of
imprisonment
shall run concurrently, the court shall, subject to subsection (1)
(b), fix the non-parole-period in respect of the
effective period of
imprisonment.'
This
court cannot exercise any powers of the appeal court. However, the
issue raised relates to the issues before this court. The
sentencing
court did not specify that it was relying on the provisions of s 276B
of the CPA. But it may be accepted that it is
the only provision the
court could have relied on. Section 276B is a general provision, but
once a sentence of life incarceration
is imposed alone or together
with other sentences, the general provisions of s 276B do not apply
because there are specific provisions
that apply. In any case, it is
not known what a period is that is two thirds of life imprisonment.
Consequently, it cannot be determined
whether 25 years is longer or
shorter than two thirds of life imprisonment, which indicates that s
276B is not applicable.
[25]
I have found that the parole regime
under which the offender falls is an integral part of the sentence
imposed on the offender.
In numerous instances the legislature
prescribes sentences to be imposed for certain crimes. Likewise, the
parole regime applicable
to certain category of offenders is
prescribed by the legislations as prescribed in the Act. The
legislature is bound when legislating
to observe and comply with the
provisions of the Constitution, including that the rights in the Bill
of Rights are not infringed,
except in compliance with the
Constitution. The transitional provisions in the Act, in my view, do
not provide for the category
of offenders in the position of the
applicants. It has not and it could not be argued that the failure to
provide for the category
of offenders in the position of the
applicants is a law of general application to the extent that it
limits the applicants' constitutional
rights, is a reasonable
limitation, justifiable in an open and democratic society based on
human dignity, equality and freedom
as envisaged ins 36(1) of the
Constitution.
[26]
The Act drastically changed the
parole regime by replacing it with a more onerous parole regime with
effect from 1 October
2004. The disparity between the two parole
regimes was exacerbated by the decision in
Van
Wyk.
The disparity required that
existing rights not be taken away or be curtailed by the legislation
effecting the change. The plight
of the applicants shows that for the
category of the offenders under which the applicants fall, was not
properly catered for in
the transitional provisions of the
legislation. The basic principle that the applicable sentence to be
imposed on the offender
is the sentence prescribed for that crime at
the date of the commission of the crime, as well as the
constitutional prescript that
where there is a change between the
sentence in place at the date of the commission of the crime and that
in place at the date
of sentencing, the applicable sentence is the
sentence in place at the date of the commission of the crime, were
not catered for
in the Act in the case of the offenders in the
category of the applicants.
[27]
Once it is found that the parole regime is an integral part of the
sentence as I have found,
the following remarks made by the
Constitutional Court in
Van Vuren
para 60 become apposite:
'In
the context of correctional law, deprivation may occur in the
retroactive application of a change in parole policy, as is the
case
in the instant matter. Deprivation of a person's liberty in that
manner does not conform to the principles of the rule of
law. The
construction contended for by the respondents effectively renders the
new mandatory non-parole period of 20 years retrospective
in
operation. This would offend against the foundational values of
constitutional supremacy and the rule of law, which this court
should
not countenance.'
[28]
The failure to cater for the said
category resulted in the applicants not knowing under which parole
regime they fall or falling
under the more onerous parole regime.
Further, it resulted in that category of offenders being unfairly
treated in that the period
spent in custody as an awaiting trial
prisoner, which could be a substantial period, was not taken into
consideration. It resulted
in the infringement of a host of other
constitutional rights of the offenders in that category. The
applicants have argued, which
argument is not denied by the
respondents, that they were not responsible for the delays in their
trials. It was the responsibility
of the State to set down their
trials for hearing and it is unfair to let the State benefit to their
prejudice in delaying their
trials.
[29]
In
Van
Vuren
para 59 it was said:
'In the light of these considerations, ss (3)
(a) can be given a coherent and sensible meaning alongside ss (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 to life incarceration to 25 years
before
parole, applies to all life sentences imposed after the
commencement of the Act. For those sentenced to life incarceration
during
the period of 1 March 1994 or 3 April 1995 - when the 20-year
pre-parole minimum was introduced - to commencement of the Act, s
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 Vuren.'
The court reemphasized the correct approach in
the interpretation of such provisions, including the applicable
principles that the
interpretation is required to be consistent with
the provisions and the values of the Constitution, and bear in mind
principles
relating to retrospectivity. The Court did not address the
category of offenders in the position of the applicants simple
because
it was not an issue before it. (See
Van Vuren
para
60).
[30]
The applicants are entitled to the
protection of the law. They are entitled to a fair trial which
includes the right to be sentenced
in accordance with the provisions
of the Constitution, the law, and in a fair and just manner. It is
the constitutional duty of
the court to ensure that the protection
the applicants are entitled to in terms of the Constitution, is not
rendered illusory which
will not only not address the plight of the
applicants but will undermine the Constitution itself. The applicants
accept, for purposes
of this application, that the sentences
(including the parole regimes in place at the date of arrest of each
applicant) is the
same as that in place at the date of the commission
of the crimes. Different considerations may apply if there was a
disparity
in that regard. Section 2 of the Constitution states that
obligations imposed by the Constitution must be fulfilled. It is the
duty of the court to provide a fair and just remedy to ensure that
the infringement is stopped or avoided. I find that although
the
applicants were sentenced after 1 October 2004, they are subject to
the parole regime in place immediately prior to 1 October
2004.
[31]
In
Van
Vuren
para 73 it was said that
'section 172 of the Constitution empowers a court, when deciding a
constitutional matter within its power,
to make any order that is
just and equitable. An appropriate remedy will, in essence, be the
relief that is required to protect
and enforce the values in the
Constitution.' In
Fose v Minister of
Safety and Security
[1997] ZACC 6
;
1997 (7) BCLR 851
;
1997 (3) SA 786
(CC) para 19, it was held that
'depending on the circumstances of each particular case the relief
may be a declaration of rights,
an interdict, a mandamus or such
other relief as may be required to ensure that the rights enshrined
in the Constitution are protected
and enforced. If it is necessary to
do so, the courts may even have to fashion new remedies to secure the
protection and enforcement
of these all-important rights.'
[32]
I find that the applicants are entitled,
in law for all intents and purposes, to be subjected to the parole
regime in place immediately
prior to 1 October 2004 for offenders
sentenced to life incarceration, except that in their case the
minimum period required to
be served shall be calculated from the
date of their sentence.
[33]
I, accordingly, make the following
order:
1.
The application succeeds.
APPEARANCES
Case
Number
:
10719/18P
For
the Applicants
:
In
person
Instructed
by
: Not
applicable.
For
the respondents
:
Adv.
Ranjiv Nirghin
Instructed
by
: State
Attorney
KwaZulu-Natal
Durban
Matter
argued on
:
18 April2019
Date
Judgement delivered :
30 April 2019
Judgement
delivered on :
30 April 2019