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[2007] ZASCA 156
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Price v Minister of Correctional Services (511/2006) [2007] ZASCA 156; [2007] SCA 156 (RSA); [2008] 1 All SA 455 (SCA) ; 2008 (2) SACR 64 (SCA) (28 November 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 511/2006
In the matter between:
DAVID ASHLEY PRICE
.......................
APPELLANT
and
MINISTER OF CORRECTIONAL
SERVICES
.......................
RESPONDENT
______________________________________________________________
Coram: Scott, Nugent, Van Heerden, Mlambo JJA
et
Kgomo
AJA
Date of
hearing: 9 November 2007
Date of
delivery: 28 November 2007
Summary: Meaning of ‘date of release’ in
s 276A(3)(a)(ii) of Act 51 of 1977 in relation to a prisoner to whom
the provisions
of Act 8 of 1959 relating to placement under community
corrections are applicable – Person serving a sentence on
parole not
entitled to have sentence reconsidered in terms of s
276A(3)(a)(ii) of Act 51 of 1977.
Citation: This judgment may be referred to as
Price
v
Minister of Correctional Services
[2007] SCA 156 (RSA).
JUDGMENT
______________________________________________________________
SCOTT JA/….
SCOTT
JA
:
[1] The appellant was sentenced to an effective
period of 15 years
’
imprisonment on
two counts of fraud. He commenced serving his sentence on 21 December
2000. After serving four and a half years, and
while still a prisoner
at the St Albans Medium B Prison in Port Elizabeth, he launched
proceedings in the High Court, Port Elizabeth,
to review the decision
of functionaries of the respondent not to consider him as eligible
for possible placement under correctional
supervision in terms of s
276A(3)(a)(ii) of the Criminal Procedure Act 51 of 1977 (‘the
CP Act’) together with certain
other relief of an ancillary
nature. The primary issue in this appeal is the correct
interpretation of the words ‘date of release’
in that
section.
[2] In
order to read the provision in its contextual setting, I quote the
whole of s 276A to the extent that is relevant.
‘
276A.
Imposition of correctional supervision, and conversion of
imprisonment into correctional supervision and
vice
versa.
(1)
Punishment shall only be imposed
under section 276(1)(
h
)─
1
(
a
)
after a report of a probation officer or a correctional official has
been placed before
the court; and
(
b
)
for a fixed period not exceeding three years.
(2) Punishment shall only be
imposed under section 276(1)(
i
)─
2
(
a
)
if the court is of the opinion that the offence justifies the
imposing of imprisonment, with or without the option of a fine, for
a
period not exceeding five years; and
(
b
)
for a fixed period not exceeding five years.
(3) (
a
)
Where a person has been sentenced by a court to imprisonment for a
period─
(i) not exceeding five years; or
(ii) exceeding five years, but his date
of release in terms of the provisions of the Correctional Services
Act, 1959 (Act 8 of 1959),
and the regulations made thereunder is not
more than five years in the future,
and such a person has
already been admitted to a prison, the Commissioner or a parole board
may, if he or it is of the opinion that
such a person is fit to be
subjected to correctional supervision, apply to the clerk or
registrar of the court, as the case may be,
to have that person
appear before the court
a quo
in
order to reconsider the said sentence.
(b
)
On receipt of any application referred to in paragraph (
a
)
the clerk or registrar of the
court, as the case may be, shall, after
consultation with the prosecutor, set the matter down
for a specific date on the roll of the
court concerned.
(
c
)
. . .
(
d
)
Whenever a court reconsiders a sentence in terms of this subsection,
it shall have the same powers as if it were considering sentence
after conviction of a person and the procedure adopted at such
proceedings shall apply
mutatis mutandis
during such reconsideration: Provided that if the person
concerned concurs thereto in writing, the proceedings contemplated in
this
subsection may be concluded in his absence: Provided further
that he may nevertheless be represented at such proceedings or cause
to submit written representations to the court.
(
e
)
After a court has reconsidered a sentence in terms of this
subsection, it may ─
(i) confirm the sentence or
order of the court
a quo
;
(ii) convert the sentence into
correctional supervision on the conditions it may deem fit; or
(iii) impose any other proper sentence:
Provided that the last-mentioned
sentence, if imprisonment, shall not exceed the period of the
unexpired portion of imprisonment still
to be served at that point.’
. . .
Provision is also made in s 287(4) of the CP Act for correctional
supervision where imprisonment has been imposed as an alternative
to
a fine. The section reads:
‘
(4)
Unless the court which has imposed a period of imprisonment as an
alternative to a
fine has directed otherwise, the
Commissioner or a parole board may in his or its discretion
at the commencement of the alternative
punishment or at any point thereafter, if it does not
exceed five years –
(
a
)
act as if the person were sentenced to imprisonment as referred to in
section
276(1)(
i
);
or
(
b
)
apply in accordance with the provisions of section 276A(3) for the
sentence to be reconsidered by the court
a
quo
, and thereupon the provisions of section
276A(3) shall apply
mutatis mutandis
to such a case.’
[3] The appellant’s contention, in short, is that by reason of
the reference to the Correctional Services Act 1959 (‘the
1959
Act’), the words ‘date of release’ in s
276A(3)(a)(ii) of the CP Act are to be construed as meaning the
earliest
date upon which a prisoner becomes eligible to be considered
for placement on parole or the date upon which the prisoner may be
released
upon the expiration of his or her sentence, whichever occurs
first. The respondent, on the other hand, contends that the words
‘date
of release’ mean the date of the expiration of the
prisoner’s sentence, less any legal remission of that sentence.
[4] The 1959 Act was repealed by the Correctional Services Act 111 of
1998 (‘the 1998 Act’). Section 136 of the latter
contains
transitional provisions. Subsection (1) reads:
‘
Any
person serving a sentence of imprisonment immediately before the
commencement of Chapters IV, VI and VII is subject to the provisions
of the Correctional Services Act, 1959 (Act 8 of 1959), relating to
his or her placement under community corrections, and is to be
considered for such release and placement by the Correctional
Supervision and Parole Board in terms of the policy and guidelines
applied by the former Parole Boards prior to the commencement of
those Chapters.’
The chapters referred to in the section commenced in 2004, ie while
the appellant was serving his sentence, so that the provisions
of the
1959 Act relating to his placement under community corrections were
applicable to him. It is also apparent from the section
that the
functions of ‘the Commissioner or a parole board’
referred to in s 276A(3)(a)(ii) of the CP Act were to be exercised
by
the Correctional Supervision and Parole Board established under the
1998 Act.
[5] It was common cause between the parties that the procedure
adopted at the St Albans Medium B Prison is for a Case Management
Committee (‘the CMC’) to prepare a profile report on a
prisoner together with a recommendation which is then submitted
to
the Correctional Supervision and Parole Board for the latter to
consider whether in its opinion the prisoner is fit to be subjected
to correctional supervision as contemplated in s 276A(3)(a)(ii). If
the CMC decides not to recommend the prisoner for correctional
supervision, no recommendation is forwarded to the Correctional
Supervision and Parole Board and the process ends with the CMC’s
decision. The CMC will, however, only consider whether the
prisoner
is fit for correctional supervision if it is satisfied that his or
her ‘date of release’ is ‘not more
than five years
in the future’ as contemplated in s 276A(3)(a)(ii). It was the
CMC’s decision that the appellant’s
date of release was
more than five years in the future that the appellant sought to have
reviewed in the court
a quo
. That decision, as indicated
above, was premised on the interpretation of ‘date of release’
to mean the expiration of
his sentence, less any remission. It was
not in dispute that having regard to the length of time the appellant
had already served
and the number of credits awarded to him, the
earliest date on which he would become eligible for parole was less
than five years
in the future. What was in issue was whether that
entitled him to be considered for correctional supervision as
contemplated in s
276A(3)(a)(ii).
[6] The meaning to be attributed to the words ‘date of release’
in s 276A(3)(a)(ii) has been the subject of conflicting
decisions in
the High Courts.
3
The issue was eventually decided by a full court in
Steenkamp v
Commissioner of Correctional Services; Maaga and others v Minister of
Correctional Services and others
[2005] ZAGPHC 14
;
[2005] JOL 13668
(T) which
upheld the interpretation adopted by the respondent in the present
case. In the court
a quo
Froneman J simply adopted the
reasoning in
Steenkamp
’s case and dismissed the
application with costs, but granted leave to appeal to this court.
[7] Subsequently, on 2 October 2006, the appellant was released on
parole. He contends, however, that this does not preclude him
from
being considered for placement under correctional supervision in
terms of s 276A(3)(a)(ii) of the CP Act. The reason, so the
contention goes, is that on reconsideration of his sentence, the
trial court may, in the exercise of the discretion afforded to it
in
terms of s 276A(3)(d) and (e), ‘impose any other proper
sentence’ which could well result in his unconditional release.
In order to decide whether the appellant is still eligible for
consideration for correctional supervision in terms of s
276A(3)(a)(ii),
it remains necessary therefore to determine the
correct meaning to be attributed to the words ‘date of release’
in the
section. To this extent the appeal is not rendered academic by
the appellant’s subsequent release on parole.
[8] It will be observed from the provisions of the CP Act quoted in
paragraph 2 above that, in most instances where correctional
supervision may be imposed, the period for which it is to endure is
quite clearly limited, whether expressly or by necessary implication,
to five years at the most. Thus, in terms of s 2761(h), read with s
276A(1)(b), a sentence of correctional supervision imposed by
a court
may not exceed three years. Where, in terms of s 276(1)(
i
),
imprisonment is imposed from which a person may in terms of s 276A(2)
be placed under correctional supervision at the discretion
of the
‘Commissioner or a parole board’, such imprisonment may
not exceed five years. Again, provided the sentence of
imprisonment
does not exceed five years, the ‘Commissioner or a parole
board’ may apply to the clerk or registrar of
the trial court
to have the prisoner brought before court for reconsideration of his
or her sentence in terms of s 276A(3)(a)(i).
Yet again, where
imprisonment which ‘does not exceed five years’ is
imposed as an alternative to a fine the ‘Commissioner
or a
parole board’ may at the commencement of the alternative
judgment or at any time thereafter either act as if the person
had
been sentenced in terms of s 276(1)(
i
) or apply to have the
person brought before court in accordance with the provisions of s
276A(3)(a)(i).
[9] In the light of the above, the reference to ‘date of
release’ in s 276A(3)(a)(ii) would at first blush appear to
be
a reference to the date of the expiration of the prisoner’s
sentence so that the period of the correctional supervision
provided
for in that section would similarly not exceed five years. But the
words ‘date of release’ in s 276A(3)(a)(ii)
are qualified
by what immediately follows, namely ‘in terms of the provisions
of the Correctional Services Act, 1959 (Act 8
of 1959), and the
regulations made thereunder’. As previously mentioned, by
reason of s 136 of the 1998 Act the provisions
of the 1959 Act
relating to the placement of a prisoner under community corrections
remain applicable to the appellant. It was common
cause between the
parties, and I shall assume this to be the case, that one such
provision is s 63 of the 1959 Act. In broad outline,
s 63(1) provides
that a parole board (it would now be a CMC) is obliged in respect of
each prisoner serving a sentence in excess
of six months to submit a
report to the Commissioner (now the Correctional Supervision and
Parole Board) together with recommendations
regarding the placement
of the prisoner under correctional supervision by virtue of s
276(1)(
i
) or s 287(4)(a) of the CP Act or by virtue of a
conversion of the sentence under s 276A(3)(e)(ii) or s 287(4)(b) of
the latter Act.
Of particular significance is the proviso contained
in s 63(1)(b)(i) of the 1959 Act, which is to the effect that for the
purposes
of the recommendations made to the Commissioner the date of
release contemplated in s 276A(3)(a)(ii) of the CP Act is deemed to
be
the earliest date on which a prisoner may in terms of the 1959 Act
be considered for placement on parole or the date on which the
prisoner may be released upon the expiration of his or her sentence,
whichever occurs first. For the sake of completeness I quote
s 63(1)
in full:
‘
(1)
A parole board shall, in respect of each prisoner under its
jurisdiction serving an indeterminate sentence or a sentence of
imprisonment
in excess of six months or in respect of whom a special
report is required by the Minister or the Commissioner having regard
to the
nature of the offence and any remarks made by the court in
question at the time of the imposition of sentence if made available
to
the Department, and at the times and under the circumstances
determined by the Commissioner or when otherwise required by the
Minister
or the Commissioner –
(a) submit a report to the
Commissioner or to the Minister, as the case may be, with regard,
inter alia
, to the
conduct, adaptation, training, aptitude, industry and physical and
mental state of such prisoner and the possibility of his
relapse into
crime;
(b) together with the report on each
prisoner submitted in terms of paragraph (a), make recommendations to
the Commissioner regarding
–
(i) the placement of such
prisoner under correctional supervision by virtue of a sentence
contemplated in section 276(1)(
i
)
or 287(4)(
a
) of the
Criminal Procedure Act, 1977 (Act No 51 of 1977), or by virtue of the
conversion of such prisoner’s sentence into correctional
supervision under section 276A(3)(
e
)(ii)
or 287(4)(
b
) of the
said Act and the period for which and the conditions on which such
prisoner may be so subjected to correctional supervision:
Provided
that for the purposes of such recommendations a prisoner’s date
of release contemplated in section 276A(3)(
a
)(ii)
of the
Criminal Procedure Act, 1977
, shall be deemed to be the
earliest date on which a prisoner may, in terms of this Act, be
considered for placement on parole or
the date on which the prisoner
may be released upon the expiration of his sentence, whichever occurs
first; or
(ii) the placement of such prisoner on
parole in terms of section 65 or on daily parole in terms of section
92A and the period for
which, the supervision under which and the
conditions on which such prisoner should be so placed; and
(c) exercise such other
powers and perform such other functions and duties as may be
prescribed by regulation.’
4
The construction placed by the appellant on the words ‘date of
release’ in s 276A(3)(a)(ii) of the CP Act is, of course,
based
upon the proviso in s 63(1)(b)(ii), which was inserted in the
1959
Act
5
shortly after s 276A
6
was inserted in the CP Act.
[10] In
Steenkamp
the full court, following the decisions in
Fourie and Koen
7
,
rejected the argument advanced on behalf of the appellant in the
court
a quo
(and in this court) on essentially two grounds.
The first was that the ‘date of release’ referred to in
the proviso to
s 63(1)(b)(i) of the 1959 Act was deemed to be the
date of release only for the purposes of the recommendations made by
the parole
board (now the CMC) and for no other purpose. The second
was that the construction contended for would result in serious
anomalies
and would be contrary to the intention of the legislature
evident from the CP Act that the period for which a person should be
under
correctional supervision was not to exceed five years. In my
view neither ground is sound.
[11] The recommendations referred to in s 63(1) of the 1959 Act are
clearly intended to be taken into consideration by the Commissioner
(now the Correctional Supervision and Parole Board) when deciding
whether the prisoner in question is fit for placement under
correctional
supervision as contemplated in s 276A(3)(a)(ii) of the
CP Act. If the ‘date of release’ in s 276A(3)(a)(ii) were
to be
construed as meaning the expiration of the sentence, the
deeming provision in the proviso to s 63(1) of the 1959 Act would
serve
no purpose. Indeed, the obvious question that would arise is
for what possible reason would the date of release be deemed for the
purpose of the recommendation to be the date on which the prisoner
became eligible for parole if that date is not also the date of
release that is relevant for the purpose of the Correctional
Supervision and Parole Board’s decision to refer the prisoner
for reconsideration of sentence. No answer is provided in the
Steenkamp
decision or the decisions on which it relies; nor
were counsel for the respondent in this court able to advance any
reason for such
an obviously anomalous situation. In my view, the
proviso makes it clear that, subsequent to its insertion in s 63(1)
of the 1959
Act, the words ‘date of release’ in s
276A(3)(a)(ii) of the CP Act were intended to have the same meaning
as that deemed
to be their meaning in the proviso.
[12] In the
Steenkamp
case the court postulated two situations
in order to demonstrate the anomalies that could arise if s
276A(3)(a)(ii) were to be construed
in the manner for which the
appellant contends. The first was the case of a prisoner sentenced to
50 years imprisonment. The court
pointed out that in terms of the
1959 Act
8
such a prisoner, in the absence of credits, would become eligible for
consideration for parole after serving 25 years. If the prisoner
were
to become entitled to be considered for placement under correctional
supervision five years before the completion of 25 years,
it would
mean that this would occur 30 years before the actual expiration date
of the sentence. Such a result, said the court, would
be contrary to
the whole tenor of the CP Act regarding correctional supervision
which was that correctional supervision was not to
endure for more
than five years of the total sentence. The anomaly complained of is
based on a misreading of s 276A. It is true that
before a prisoner
will be referred back to the trial court for reconsideration of his
or her sentence, the Correctional Supervision
and Parole Board must
be ‘of the opinion that such a person is fit to be subjected to
correctional supervision’. But
the fallacy of the so-called
anomaly would appear to be the assumption that by reason of the
inquiry postulated in the section the
competency of the court would
be limited to the narrow issue of considering the appropriateness or
otherwise of correctional supervision
and, if appropriate, of
imposing correctional supervision for the remaining period of the
sentence. That is not the position at all.
As appears from s
276A(3)(a), the object of bringing the prisoner before the trial
court is for the court to ‘reconsider’
the sentence. In
terms of s 276A(3)(d), the court has the same powers as if it were
considering sentence after conviction. Section
276A(3)(e), in turn,
provides that after reconsidering the sentence, the court may confirm
the original sentence; it may convert
the sentence into correctional
supervision on the conditions it may deem fit; or it may impose any
other proper sentence. The consequence
of the interpretation of ‘date
of release’ for which the appellant contends, does not,
therefore, mean as was supposed
in
Steenkamp
, that in the
event of the court imposing correctional supervision it would be for
a period of 30 years. If the court considered it
appropriate, it
could, for example, impose a fresh sentence of 28 years’
imprisonment and convert the final three years into
correctional
supervision, or for that matter impose any other proper sentence,
whether custodial or otherwise.
[13] The second ‘anomalous’ situation postulated in
Steenkamp
was the case of a person sentenced to seven years’
imprisonment. It was said that if the ‘date of release’
in s
276A(3)(a)(ii) were construed as meaning a date five years prior
to becoming eligible for consideration for parole, the result would
be that the ‘date of release’ would arrive before the
person commenced serving his or her sentence. This was because
by
reason of s 65(4) of the 1959 Act the person concerned would
otherwise have become entitled to be considered for parole after
serving three and a half years’ imprisonment. There are two
answers to the supposed anomaly. First, in terms of s 276A(3)(a)
the
person concerned must already have been admitted to prison. Second,
just as in the case of imprisonment imposed in terms of s
276(1)(
i
)
9
of the CP Act, a prisoner serving a sentence subject to the 1959 Act
was required to serve a certain minimum period before being
considered for correctional supervision. The position is now governed
by statute.
10
[14] It follows from the aforegoing that, in my view, the
Steenkamp
case was wrongly decided. The ‘date of release’ referred
to in s 276A(3)(a)(ii) of the CP Act means, for the purpose
of a
prisoner subject to the provisions of the 1959 Act relating to his or
her placement under community corrections, the date on
which such
prisoner may be considered for placement on parole or the date on
which the prisoner may be released upon the expiration
of his
sentence, whichever occurs first. The appellant is accordingly
entitled to a declarator to this effect.
[15] A declaratory order was also sought in the court below to the
effect that the arrival of the date upon which a prisoner becomes
eligible for parole consideration in terms of the 1959 Act does not
constitute a valid reason for the CMC to refuse subsequently
to
recommend the prisoner as a suitable candidate for placement under
correctional supervision in terms of s 276A(3)(a)(ii) of the
CP Act.
The circumstances giving rise to such a prayer were the following.
The Parole Manual drafted under the 1959 Act provided
that a prisoner
who had reached his or her parole consideration date remained
eligible to have his or her sentence converted into
correctional
supervision if the latter option was the ‘best’ for the
prisoner.
11
In
S v Leeb
1993(1) SACR 315 (T) at 319 d-e Coetzee J remarked
obiter that it would be pointless for him to reconsider the sentence
of a prisoner
in terms of s 276A(3)(a)(ii) if the prisoner were in
any event to be released on parole in three and a half months’
time. Based
apparently on this
dictum
, the Department of
Correctional Services adopted a policy that once a prisoner had
reached his or her parole consideration date,
that prisoner would no
longer be considered for correctional supervision. In
Klaasen v
Minister of Correctional Services
12
the policy was seemingly upheld but only on the limited ground that
once a prisoner had been found unfit to be released on parole
it
would be an exercise in futility to then consider, taking into
account the same criteria, whether that prisoner was fit to be
subjected to correctional supervision. It is no doubt so, that there
would be no point in considering whether a prisoner was fit
for
correctional supervision if he or she had recently been found unfit
to be released on parole. But to the extent that the
Klaasen
decision may be regarded as authority for a more general recognition
of the validity of the policy or for the proposition that once
parole
has been refused, a prisoner may never again be considered for
correctional supervision, I regret that I am unable to agree.
There
are material differences between release on parole and the possible
consequences of a referral for reconsideration of sentence
in terms
of s 276A(3)(a)(ii) of the CP Act. I can think of no good reason why
a prisoner who has reached his or her parole consideration
date
should as a matter of policy be arbitrarily denied the opportunity of
having his or her sentence thereafter reconsidered while
still a
prisoner. However the appellant has since been released on parole and
it is accordingly no longer necessary to finally determine
the issue
as it has become academic for the purpose of the present appeal.
[16] There remains to consider whether the appellant is entitled to
have his sentence reconsidered in terms of s 276A(3)(a)(ii) now
that
he has been released on parole and is no longer a prisoner. Counsel
for the appellant pointed to what they described as the
unique
features of s 276A(3) and how the consequences of a reconsideration
of the appellant’s sentence could differ from his
position as a
released prisoner serving out his sentence on parole, and argued that
in these circumstances there was no reason why
it should not remain
open to the appellant to have his sentence reconsidered at any stage
up until the expiration of his sentence,
even though he had been
released on parole. I cannot agree. Section 276A(3)(a)(ii) quite
clearly requires the person concerned to
be a prisoner. Thus, such a
person is required to be ‘a person [who] has already been
admitted to prison’ and his ‘date
of release’ must
be ‘not more than five years in the future’. Similarly, s
63(1) of the 1959 Act makes it clear
that the recommendation of the
CMC, which initiates the process, relates to ‘a prisoner’.
A person released on parole
is no longer a prisoner, even though his
sentence is yet to expire. The provisions of s 276A(3)(a)(ii) are
accordingly not applicable
to a person once released on parole.
[17] The principle issue in this appeal has been the proper
interpretation of the words ‘date of release’ in s
276A(3)(a)(ii)
of the CP Act. In this the appellant has been
successful. The issue is undoubtedly one of importance and as a
result of the appellant’s
efforts the decision in
Steenkamp
,
which was followed in the court
a quo
, has been overruled. In
addition, the appellant was obliged to proceed with the appeal after
his release on parole in order to have
the costs order against him
reversed. In these circumstances, I think that he is entitled to his
costs of appeal, notwithstanding
his failure on the issue dealt with
in the previous paragraph.
[18] The appeal succeeds to the following extent:
(a) The respondent is ordered to pay the appellant’s costs of
appeal, such costs to include those occasioned by the employment
of
two counsel;
(b) The order of the Court
a quo
is set aside and the
following is substituted in its place:
‘
(i) It is declared that the ‘date of
release’ referred to in
s 276A(3)(a)(ii)
of the
Criminal
Procedure Act 51 of 1977
means, for the purpose of a prisoner subject
to the provisions of the Correctional Services Act 8 of 1959 relating
to his or her
placement under community corrections, the date on
which such prisoner may be considered for placement on parole or the
date upon
which the prisoner may be released upon the expiration of
his or her sentence, whichever occurs first.
(ii) The respondent (the Minister of Correctional services) is
ordered to pay the costs of the applicant (Mr David Price).’
(c) In addition, it is declared that while on parole, the appellant
is not entitled to have his sentence reconsidered in terms of
s
276A(3)(a)(ii)
of the
Criminal Procedure Act 51 of 1977
.
_________
D G SCOTT
JUDGE OF APPEAL
CONCUR:
NUGENT JA
VAN HEERDEN JA
MLAMBO JA
KGOMO AJA
1
Section
276(1)(h)
provides for the imposition of a sentence of correctional
supervision.
2
Section
276(1)(
i
)
provides for the imposition of a sentence of ‘imprisonment
from which such a person may be placed under correctional
supervision
in the discretion of the Commissioner or a parole
board’.
3
The
interpretation advanced on behalf of the Minister was upheld in
Fourie v Minister van Korrektiewe Dienste en andere
(unreported judgment of Swart J, case no 18605/97, delivered on 4
November 1998);
Koen v Minister van Korrektiewe Dienste NO en
andere
(unreported judgment of Bertelsmann J, case no 3446/2000,
delivered on 20 June 2000). The opposite view was taken in
Giani
v Commissioner of Correctional Services
(unreported judgment of
Webster J, case no 18141/2001 delivered in 2002.)
4
Section
63(1) of the 1959 Act corresponds to s 42(2) of
the 1998 Act. The latter contains no
similar deeming provision.
5
By
s 21 of Act 68 of 1993.
6
By
s 42 of Act 122 of 1991.
7
See
footnote 3.
8
Section
65(4).
9
See
footnote 2.
10
Section
73(7) of the 1998 Act provides that a person sentenced to
imprisonment under s 276(1)(b) of the CP Act must serve at least
a
quarter of the effective sentence or the non-parole period, if any,
whichever is the longer before being considered for placement
under
correctional supervision, unless the court has directed otherwise.
The provisions relating to imprisonment in terms of s
276(1)(
i
)
of the CP Act appear to be contradictory.
11
See
Chapter VI, Service Order 1(A) section (7)(a)(ii).
12
Unreported
judgment, Case no 2120/2005 (SECLD).