Summary of Judgment

Introduction

The matter concerned seven individual applications brought in the High Court of South Africa (North Gauteng High Court, Pretoria) seeking to ensure that the applicants were considered for parole by the appropriate authority, being either the Minister of Correctional Services or the National Council on Correctional Services.

The parties were J L Van Vuuren and seven others as applicants, and the Minister of Correctional Services as respondent. The applicants were all prisoners serving sentences of life imprisonment (with most having originally been sentenced to death, later commuted).

Procedurally, the applications were launched on the basis that section 136 of the Correctional Services Act 111 of 1998 was unconstitutional. While the applications were pending, the same constitutional question arose in the Derby-Lewis matter, which was referred to a full bench of the same division. The present applications were postponed pending that authoritative determination. After the full bench delivered a unanimous judgment upholding the constitutionality and applicability of section 136, the present applications resumed and the applicants altered their argument.

The general subject-matter of the dispute was the parole regime applicable to prisoners serving life sentences imposed before the commencement of certain chapters of the 1998 Act, particularly whether such prisoners were entitled to be considered for parole earlier than the period stipulated by section 136.

Material Facts

It was common cause that each applicant was serving a life sentence. With the exception of the fourth and fifth applicants, the applicants had been sentenced to death on various counts of murder, and those death sentences were commuted to life imprisonment during 1994 or earlier.

The applicants contended that they were entitled to be considered for parole immediately, notwithstanding the life sentences they were serving. The respondent’s position was that section 136 of the 1998 Act governed their parole eligibility and that, if it applied, those applicants who had not yet served 20 years were not entitled to be considered for parole.

After the respondent maintained that section 136 applied, the respondent consented at the last hearing to an order that the matters of the first, sixth, and seventh applicants be placed before the National Council for Correctional Services at the earliest opportunity. Following that order, those applicants were described as having no further interest in the proceedings.

The remaining applicants (the second to fifth applicants) persisted in the litigation. The judgment records that, after the full bench decision in Derby-Lewis, the applicants shifted their position to contend that, even if section 136 was constitutionally valid, an earlier regime under an older statute remained applicable until a later amendment.

Legal Issues

The central legal question initially raised was whether section 136 of the Correctional Services Act 111 of 1998 was constitutional, and, if so, whether it applied to the applicants who were serving life sentences imposed (or resulting from commutation of death sentences) prior to the commencement of chapters IV, VI and VII of the 1998 Act.

Following the full bench decision in Derby-Lewis, the dispute narrowed to a further question: whether, notwithstanding section 136’s validity, section 64(c) of the older Correctional Services Act allegedly continued to apply until the amendment of section 136 in 2001, with the result that an earlier dispensation allowing commutation after 10 or 15 years should govern the applicants’ parole consideration.

The issues were predominantly questions of law (statutory interpretation and the effect of binding authority), together with the application of law to fact (whether the applicants fell within the class regulated by section 136 and, in consequence, when they became eligible for consideration for day parole or parole).

Court’s Reasoning

The court treated the full bench judgment in the Derby-Lewis matter as decisive. The judgment recorded that the full bench had held that section 136 was constitutionally compatible and that it applied to prisoners serving life sentences imposed prior to the commencement of chapters IV, VI and VII of the 1998 Act. The court emphasised that it was bound by that authoritative decision.

In applying that authority, the court accepted that section 136’s text, on a “mere reading”, refers to persons serving sentences before the commencement of the relevant chapters of the 1998 Act, and that the applicants fell within that category. On this footing, the consequence was that those serving life sentences immediately before commencement were “entitled to be considered for day parole and parole” only after serving 20 years of the sentence, with the statutory mechanism requiring submission of the case to the National Council and a recommendation to the Minister, who may order placement if the recommendation is favourable.

The applicants’ revised argument—namely that the older statutory dispensation under section 64(c) continued to operate until the 2001 amendment of section 136, permitting commutation after 10 or 15 years—was rejected on two bases reflected in the judgment. First, it was said to be untenable in light of the “unequivocal ruling” in Derby-Lewis, which had held that section 136 governed lifers sentenced pre-October 2004 and that earlier parole provisions in the “1995 Act” had been repealed and were not kept alive. Secondly, the court noted that this alternative argument was belated, having not been raised on the papers but introduced only on the last day of the hearing.

On costs, the court made an evaluative determination that the first, sixth and seventh applicants had been partially successful in obtaining the practical referral to the National Council, but had launched the applications on a basis that proved abortive (the constitutional attack). In respect of the second to fifth applicants, the court considered that they ought to have abandoned their applications after the Derby-Lewis judgment, which influenced the limited adverse costs order made against them.

Outcome and Relief

The court dismissed the applications of the second, third, fourth and fifth applicants.

No costs order was made in respect of the first, sixth and seventh applicants.

The second to fifth applicants were ordered to pay the respondent’s costs only for the last appearance, limited to the costs consequent upon the employment of one junior counsel. No costs order was made in relation to the remainder of the proceedings.

Cases Cited

The judgment relied on the Derby-Lewis full bench decision of the North Gauteng High Court, Pretoria (judgment by Van der Merwe J, unanimous full bench), as binding authority on the constitutionality and applicability of section 136 of the Correctional Services Act 111 of 1998. The judgment extract provided did not contain a neutral citation, law report reference, or formal case number for Derby-Lewis.

Legislation Cited

The Correctional Services Act 111 of 1998, particularly section 136 and its subsections governing parole consideration for prisoners serving sentences before commencement of chapters IV, VI and VII.

The Correctional Services Act 8 of 1959, including references in section 136 to credits under section 22(a), and the applicants’ later reliance on section 64(c) as they described it in argument.

A “1995 Act” was referred to in the quoted portion of the Derby-Lewis judgment as containing provisions regarding parole for lifers which had been repealed; the specific title of that Act was not provided in the judgment extract.

Proclamation R38/2004 was referred to in the quoted portion of the Derby-Lewis judgment in relation to the commencement dates of chapters IV, VI and VII of the 1998 Act.

Rules of Court Cited

No rules of court were cited in the judgment extract.

Held

The court held that, in light of the binding full bench decision in Derby-Lewis, section 136 of the Correctional Services Act 111 of 1998 applied to the applicants serving life sentences imposed (including by commutation from death) prior to the commencement of the relevant chapters of the Act, with the consequence that parole consideration was governed by that provision, including the 20-year eligibility threshold for consideration for day parole and parole.

The court further held that the applicants’ late attempt to invoke an alleged continuing operation of an earlier statutory dispensation under section 64(c) could not be sustained, particularly given the full bench ruling and the fact that the argument was not pleaded on the papers.

LEGAL PRINCIPLES

Section 136 of the Correctional Services Act 111 of 1998 was applied as the governing transitional regime for prisoners serving sentences, including life imprisonment, immediately before the commencement of chapters IV, VI and VII, and it regulates when such prisoners may be considered for day parole and parole, including the requirement of 20 years’ service for those serving life imprisonment under the transitional category.

A High Court is bound by an authoritative decision of a full bench of its division on the same legal question, and must apply that decision to materially indistinguishable facts.

A party’s attempt to advance a materially new legal contention at a late stage, particularly one not raised on the papers, may be rejected where it cannot be reconciled with binding authority and where it is procedurally belated in the context of the issues previously pleaded and argued.