Van Vuren v Minister of Correctional Services and Others (CCT 07/10) [2010] ZACC 17; 2010 (12) BCLR 1233 (CC); 2012 (1) SACR 103 (CC) (30 September 2010)

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Van Vuren v Minister of Correctional Services and Others (CCT 07/10) [2010] ZACC 17; 2010 (12) BCLR 1233 (CC); 2012 (1) SACR 103 (CC) (30 September 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
…
.......................................................................................................
Case
CCT 07/10
…
........................................................................................................
[2010]
ZACC 17
In the matter between:
PAUL FRANCIOUS VAN VUREN
…...............................................
Applicant
and
MINISTER FOR CORRECTIONAL SERVICES
…..........................
First
Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
…............................................................................
Second
Respondent
COMMISSIONER OF CORRECTIONAL SERVICES
….................
Third Respondent
CHAIRPERSON, NATIONAL COUNCIL
FOR CORRECTIONAL SERVICES
…..............................................
Fourth
Respondent
CHAIRPERSON, CSPB PRETORIA CENTRAL CC
…....................
Fifth
Respondent
CHAIRPERSON, CMC PRETORIA CENTRAL CC
….....................
Sixth Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
…............
Seventh Respondent
Heard on : 6 May 2010
Decided on : 30 September 2010
JUDGMENT
NKABINDE J:
Introduction
This
is an application for leave to appeal against a decision of the
North Gauteng High Court, Pretoria (High Court),
1
dismissing an application for certain relief
2
in terms of the
Correctional
Services
Act, 1998
3
(Act). In the alternative, the applicant seeks direct access to this
Court,
4
for an order declaring
section 136(3)(a)
of the Act
unconstitutional.
5
Direct
access is sought, provisionally, if it is found that the applicant
had abandoned the constitutional attack to
section 136(3)(a)
in the
High Court. The declaration of invalidity was sought to overcome the
hurdle presented by the impugned provision that ostensibly
requires
offenders sentenced to life incarceration to serve 20 years before
becoming eligible for consideration for placement
on parole.
6
The applicant’s case has throughout been premised on the
likely prejudice he might suffer if the impugned provision were

found to be retrospective in effect. He also seeks condonation for
the late filing of the application for leave to appeal and

non-compliance with the 25 kilometre requirement in terms of the
Constitutional Court Rules.
7
In
essence, this application concerns the proper interpretation of
section 136 of the Act. The application also raises the question

whether the applicant is eligible for consideration for placement on
parole. In particular, the question is whether the provisions
of the
Correctional Services Act, 1959
8
(Old Act) and the policy and guidelines applied by the former Parole
Boards
9
apply to the applicant, or whether the applicant is entitled to be
considered for placement on parole only after completing 20
years in
detention in terms of section 136(3)(a) and the new policy and
guidelines of the Department of Correctional Services
(Department).
The
respondents are the Minister for Correctional Services (Minister),
the Minister for Justice and Constitutional Development
(Minister
for Justice), the Commissioner of Correctional Services
(Commissioner), the Chairperson of the National Council for

Correctional Services, the Chairperson of the Correctional
Supervision and Parole Board of the Pretoria Central Correctional

Centre and the Chairperson of the Case Management Committee of the
Pretoria Central Correctional Centre. They oppose both the

applications for leave to appeal and direct access. By the
directions issued by the Chief Justice, the National Director of
Public Prosecutions was joined as a respondent to these proceedings.
Factual
background
The
applicant, Mr Van Vuren, is an offender serving a sentence of life
incarceration at the Pretoria Central Correctional Centre.
He was
convicted on 13 November 1992 on counts of murder, robbery with
aggravating circumstances, and theft and possession of
an unlicensed
firearm and ammunition. On the counts of murder and robbery, the
death sentence was imposed. For the counts of
theft and possession
of an unlicensed firearm and ammunition, Mr Van Vuren was sentenced
to five years’ and three years’
incarceration,
respectively.
On 20
September 2000, following
S v Makwanyane and Another
,
10
the Full Court
11
commuted the death sentences to life incarceration. The sentence of
life incarceration was antedated to 13 November 1992 in terms
of
section 1(11)
of the
Criminal Law Amendment Act, 1997
12
(CLAA). The determinate sentences were to run concurrently with the
life sentences.
13
The Full Court further ordered that the transcript of the evidence
of the witness, Dr Verster, be placed before the Correctional

Services authorities for determination of any parole conditions that
may be applicable to Mr Van Vuren.
14
It is common cause that, at the time of launching the application in
the High Court, Mr Van Vuren had served more than 15 years
of his
sentence.
During
2004 Mr Van Vuren approached Lawyers for Human Rights (LHR) for
assistance regarding his consideration for parole. On 18
February
2004, LHR, following its correspondence with the Provincial
Commissioner of Correctional Services, advised Mr Van Vuren
that he
had to serve 20 years of his sentence, in terms of the departmental
policy, before he could be considered for parole;
that amnesties and
credits would not play any role in the assessment process and that,
from 1959 to 1994, “lifers”
could be considered for
parole after having served 10 years of their sentences. The letter
drew Mr Van Vuren’s attention
to the judgment in
Plank v
Minister of Correctional Services and Others
,
15
and informed him that Mr Plank had been considered for parole in
October 2003 after serving 13 years in terms of the criteria
and
policies and statutes that applied in 1990.
16
On 23
February 2004 Mr Van Vuren addressed a letter to the Head of Prison,
Medium-A Zonderwater, enquiring about the criteria
relevant to
consideration for parole.
17
When no response was forthcoming, Mr Van Vuren addressed another
letter to the same Head of Prison, on 26 March 2004, complaining

about this. Mr Van Vuren enquired further about “Factors for
Consideration” and security classification. He threatened
to
institute legal proceedings if no response was received by 3 April
2004. There was no response to his letters.
On 21
January 2005 Mr Van Vuren’s attorney, Alna Jordaan, addressed
a letter to the Head of Correctional Services, Pretoria
Central
Prison, in an attempt to solicit a response. The attorney repeated
the questions in the letter of 23 February 2004, and
informed the
recipient that Mr Van Vuren had already served a period of 13 years
and that he had been a model sentenced offender
throughout this
period. The attorney requested a response within 14 days of receipt
of the letter and threatened to launch an
urgent application in the
High Court if no response was in the offing.
On 20
February 2006 Mr Van Vuren addressed a letter to the Head of the
Prison requesting to be considered for placement on parole
in terms
of the provisions of the Old Act. Mr Van Vuren had, at this stage,
served 13 years and four months of his sentence.
Notably, in a
circular dated 20 June 2006, the Department requested a complete
report of offenders sentenced to life incarceration
whose names were
listed in that circular and who had already served 10 years. Mr Van
Vuren’s name appears on that list.
On 26 September 2006, the
Director: Pre-Release Settlement of the Department of Correctional
Services, Ms S J Kunene, sent an
urgent request to all regional
commissioners asking for profile reports to be compiled in respect
of offenders serving life incarceration.
That report was in respect
of offenders who would have completed at least 15 years of their
sentences by 31 December 2006. The
report, according to the letter,
was to follow the normal route via the “CMC [Case Management
Committee] and Parole Board”.
18
A
request for possible parole was lodged in January 2008, by Professor
van der Hoven. At the time, an application by Mr Van Vuren
was
pending before the High Court.
19
In that case Mr Van Vuren also challenged the constitutional
validity of section 136(3)(a). It is noteworthy that, in the letter

dated 25 April 2008, the State Attorney, Pretoria, offered to settle
that matter on the basis that Mr Van Vuren would be considered
for
placement on parole in terms of the policy that was in existence as
at 13 November 1992.
20
Thereafter, Mr Van Vuren filed a notice withdrawing the proceedings
under that case.
Litigation
history
Mr
Van Vuren’s unsuccessful attempts, as illustrated above,
culminated in a chain of court proceedings,
21
the most recent of which was the urgent application launched in the
High Court, on 4 August 2008. This is the application that
is the
subject of the present matter.
22
The application was opposed by the Minister, the Commissioner and
the Chairperson of the National Council for Correctional Services.

For ease of reference, I refer to them as the respondents in the
High Court. In that case, Mr Van Vuren sought the following
relief:
“
(a)
That this application be deemed urgent.
(b) That due to the urgency of
the application the form and services provided for in the Rules be
dispensed with in terms of Rule
6(12)(a).
(c) That section 136, subsection
(3)(a) of [the Act] be declared inconsistent with the Constitution .
. . and invalid to the extent
of its inconsistency.
(d) That the matter be referred
to the Constitutional Court for confirmation of the order of
invalidity in terms of section 172,
subsection (2)(a) of the
Constitution read with section 8, subsection (1)(a) of the
Constitutional Court Complementary Act, 1995
(Act No. 13 of 1995) as
amended.
(e) That interim relief be
granted in the form of a
mandamus
ordering the Respondents to
consider the Applicant for possible placement on parole within 30
calendar days of the date of the
granting of this order.
(f) That such consideration must
comply with the provisions relating to placement on parole of in
terms of [the Old Act] . . . and
also in terms of the policy and
guidelines in existence at 13 November 1992.
(g) Further and/or alternative
relief
(h) Costs of this application.”
The
relief sought was premised, among others things, on the contention
that the impugned provisions infringed Mr Van Vuren’s
right to
fair administrative action in terms of section 33(1) of the
Constitution.
23
The
matter was placed on the urgent roll before Ellis AJ. Mr Van Vuren
contended that the words “policy and guidelines”
as
applied by the former Parole Boards prior to the commencement of
those chapters must be construed as referring to policy and

guidelines operative at the time when he was originally sentenced in
1992. He argued that the policy and guidelines, applicable
at that
time, made him eligible for consideration for placement on parole
after serving 10 years but not more than15 years of
his sentence.
The
respondents in the High Court contended that the declaratory order
sought raised an academic issue because section 136(1)
of the Act
had not been challenged. They contended that section 136(1), read
with the applicable policies, required offenders
sentenced to life
incarceration to serve 20 years before becoming eligible for parole
and that a declaration of unconstitutionality
of section 136(3)(a)
would not affect the validity of section 136(1).
The
High Court,
24
per Ellis AJ, refrained from expressing an opinion on the merits but
assumed, on the one hand, that if the respondents were correct,

section 136(3)(a) merely reiterates the legal position applicable in
terms of section 136(1). On the other hand, the High Court,
assuming
Mr Van Vuren’s interpretation was correct, stated that section
136(3)(a) overrides section 136(1) and the policy
and guidelines
referred to therein. Invoking the principle that a special law
derogates from a general rule,
generi per speciem derogatur
,
25
in order to avoid a finding that section 136(3)(a) is superfluous,
the High Court interpreted section 136(1) as being inapplicable
to
offenders sentenced to life incarceration who, it held, are dealt
with under section 136(3)(a). Ellis AJ held that—
“
the
only meaning which can be ascribed to section 136(1), interpreted in
the light of section 136(3)(a), is that section 136(1)
deals with all
prison sentences except life imprisonment for which specific
provision was made in the other enactment.”
26
Ellis AJ
postponed the application at the request of the respondents.
27
Another
application under case number 46062/08
28
had been pending before the High Court. In that matter the
disgruntled litigants challenged the constitutionality of section

136(3)(a).
29
When Mr Van Vuren’s application
30
resumed in the High Court, it was considered together with that
application because of their interrelatedness. At the hearing
of the
two applications, before Bertelsmann J, the respondents in the High
Court sought, and were granted, a postponement pending
the
finalisation of
Derby-Lewis v Minister of Correctional Services
and Others
,
31
(
Derby-Lewis
) in which the Full Court dealt with the
constitutional attack on section 136(1). Mr Van Vuren unsuccessfully
opposed the postponement.
On 19
March 2009, and after the judgment in
Derby-Lewis
, Mr Van
Vuren supplemented his written submissions and contended that due to
the impact of that judgment on him, section 136(3)(a)
should not be
declared unconstitutional as that would place him in a worse
position. Although Mr Van Vuren abandoned that attack,
he persisted
with the relief sought in paragraphs (e) and (f) of the notice of
motion. The relief sought in those paragraphs
was in the form of a
mandamus
ordering the respondents in the High Court to
consider him for possible placement on parole and entitling him to
be considered
in terms of the policy and guidelines as at 13
November 1992. The respondents in the High Court contended, among
other things,
that Mr Van Vuren was not yet eligible for
consideration for placement on parole.
The
applications were postponed pending the “authoritative
decision of the [Full Court]”
32
in
Derby-Lewis
which, the High Court held, raised the same
question of the constitutionality of section 136. In
Derby-Lewis,
the Full Court held that—
“
only
the provisions of section 136 of [the Act] are applicable to lifers
sentenced pre October 2004. All the provisions of the [Old
Act]
regarding parole for lifers have been repealed and the provisions of
section 136(1) do not keep those provisions alive in
spite of their
repeal in terms of Proclamation R38, 2004.
Only the policy and guidelines
applied by the former Parole Boards prior to the repeal of the
provisions of the [Old Act] dealing
with parole remained intact and
had to be applied by the Board.”
33
After
the delivery of
Derby-Lewis
on 17 March 2009, the High Court
heard Mr Van Vuren’s application and delivered judgment on 3
July 2009. The High Court
held that from a simple reading of section
136, it is clear that “if [the section] does apply to the
applicants those of
the applicants who [had] not yet served 20 years
of their life sentence [were] not entitled to be considered for
parole.”
Quoting
Derby-Lewis
, the High Court held:
“
On a
mere reading of section 136(1) it is clear that it refers to any
person serving a sentence of imprisonment before the commencement
of
chapters IV, VI and VII of the 1998 Act. The applicant [Derby-Lewis]
falls squarely under the provisions of section 136(1) because
chapter
IV came into operation on 31 July 2004 and chapters VI and VII on 31
October 2004, in terms of proclamation R38/2004.
. . .
I agree with the respondents’
submission that only the provisions of section 136 of the 1998 Act
are applicable to lifers
sentenced pre-October 2004. All the
provisions of the 1995 Act regarding parole for lifers have been
repealed and the provisions
of section 136(1) do not keep those
provisions alive in spite of their repeal in terms of proclamation
R38/2004.”
The High
Court then held that the Full Court in
Derby-Lewis
had
“authoritatively laid down that section 136(1) applies to all
persons serving life sentences including the applicants”
and
that it was, thus, bound by that judgment.
Mr
Van Vuren, unsuccessfully, lodged an application in the High Court
for leave to appeal to the Supreme Court of Appeal. He then
applied
for leave to appeal to the Supreme Court of Appeal, which
application was dismissed. In the latter application, he sought
to
appeal against the dismissal of an application for a
mandamus
ordering the respondents to consider him for possible placement on
parole in terms of the provisions of the Old Act. The Supreme
Court
of Appeal dismissed the application on 17 December 2009.
In this
Court
Aggrieved
by the dismissal of his application, Mr Van Vuren lodged an
application for leave to appeal to this Court
34
against the dismissal of his application by the High Court,
alternatively, for direct access. The relief sought in the notice
of
motion dated 27 January 2010 reads:
“
1.
That condonation be granted for non-compliance of the Constitutional
Court Rules, i.e. late filing of this application and the
25
kilometre requirement;
2. That the Applicant be granted
leave to appeal to the Constitutional Court, leave to appeal having
been denied by the Supreme
Court of Appeal on the decision of the
North Gauteng High Court in an application for an order declaring
section 136(3)(a) of [the
Act] unconstitutional;
3. Further or alternative
relief.”
The
grounds relied upon by Mr Van Vuren are that the High Court
incorrectly relied upon
Derby-Lewis
and, additionally, erred
in finding that—
Mr
Van Vuren had no entitlement to be considered for parole prior to
serving 20 years;
Mr
Van Vuren could not rely on section 136(1) even though the section
makes provision for offenders serving sentences immediately
prior to
commencement of the Act to be subject to the provisions of the Old
Act; and
the
Old Act had been repealed and as such was not available to him even
though section 136 requires the application of the Old
Act.
35
Issues
The
issues that emerge entail—
(a) whether—
(i) condonation should be granted;
(ii) leave to appeal should be granted; and, if not
(iii) direct access should be granted;
(b) the
proper interpretation of section 136;
(c) the
eligibility of Mr Van Vuren for consideration for placement on
parole;
(d) the
appropriate relief; and
(e) costs.
Before I
consider these issues, it is necessary to set out the legislative
framework and departmental policies relevant to parole.
Legislative
framework and polices relevant to parole
Prison
administration, more specifically community corrections
36
in South Africa, is presently conducted within the framework of the
Act and, where applicable, the Old Act together with relevant

policies and guidelines under these Acts. The Act is being gradually
brought into operation with the simultaneous abolition and
repeal of
the corresponding parts of the Old Act.
37
Prior
to the enactment of the Act, the National Advisory Council of
Correctional Services (National Advisory Council) submitted
a
provisional memorandum to the Minister.
38
The National Advisory Council advised the Minister on general policy
considerations, including the placement of sentenced offenders
on
parole.
39
The final report recommended, in the case of offenders sentenced to
life incarceration, that offenders sentenced to life should
serve 20
years in prison, with life incarceration being equated with a
determinate sentence of 40 years. The report also stated
that an
offender sentenced to life incarceration, upon reaching 65 years of
age, should be entitled to be considered for parole
provided that he
or she should have served 15 years of the sentence. The National
Advisory Council recommended further that any
decision by the Parole
Board
40
recommending parole in the case of a person sentenced to life
incarceration should be brought before it for a final decision.
Section
42 of the Act, prior to its amendment by the
Correctional Services
Amendment Act, 2008
,
41
establishes a Case Management Committee (CMC) in each prison. The
function of a CMC is to submit a report to the Correctional

Supervision and Parole Board, which replaces the Parole Board,
regarding the possible placement of an offender on parole and
the
proposed conditions for said parole.
42
The Minister has the power to establish a Correctional Supervision
and Parole Board.
43
A Correctional Supervision and Parole Board makes a recommendation
to the court on the granting of parole in respect of an offender

serving life incarceration. However, in terms of the amendment in
Act 25 of 2008, the Correctional Supervision and Parole Board
makes
a recommendation to the Minister.
44
Section
64 of the Old Act, as amended,
45
empowered the Minister to authorise the release of an offender
sentenced to life incarceration on parole after having been advised

by the National Advisory Council,
46
the latter having considered the report of an institutional
committee.
47
As of
1 August 1993, in terms of
section 21
of the
Correctional Services
Amendment Act, 1993
48
the whole of Chapter VI of the Old Act was replaced with the result
being that sections 61 to 65 and, in particular, sections
63 and 65
of the Old Act, as amended, now became relevant to prisoners who
formerly fell to be governed in terms of the former
section 64.
Section 65 related to the release of prisoners and the placement of
prisoners on parole. A prisoner was entitled
to be released upon the
expiration of the term of his incarceration, in terms of section
65(1). Section 65(5) dealt with the
possibility of a prisoner being
placed on parole by the Minister upon recommendation by the Parole
Board,
49
and after having regard to the interests of the community. In terms
of section 65(5) of the Old Act, the National Advisory Council
made
recommendations to the Minister regarding the parole of prisoners
sentenced to life.
50
It is
noteworthy that neither subsections (5) nor (6) of that section made
reference to any period after which a prisoner serving
life
incarceration could be considered for placement on parole. However,
as will be pointed out later, the departmental release
and placement
policy entitled offenders sentenced to life incarceration to be
considered for release after various minimum detention
periods.
51
Section
73 of the Act deals with correctional supervision and prisoners out
on day parole or parole. Section 73(6)(b)(iv) provides
that an
offender sentenced to life incarceration may not be placed on parole
until he or she has served at least 25 years of
the sentence but,
upon reaching 65 years, that offender may be placed on parole if he
or she has served at least 15 years.
Before
the Act came into operation, certain transitional provisions,
including section 136, were enacted and brought into force
from 19
February 1999. In 2001, section 136 of the Act was amended.
52
Section 136 provides:
“
(1)
Any
person
serving
a sentence of imprisonment
immediately
before
the
commencement of Chapters IV, VI and VII is subject to the provisions
of [the Old Act], 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 Board
prior
to the commencement
of
those Chapters.
(2) When considering the release
and placement of a prisoner who is serving a determinate sentence of
imprisonment as contemplated
in subsection (1), such prisoner must be
allocated the maximum number of credits in terms of section 22A of
the [Old Act].
(3) (a) Any prisoner serving a
sentence of life imprisonment
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 prisoner
contemplated in paragraph (a) must be submitted to the National
Council which must make a recommendation
to the Minister regarding
the placement of the prisoner under day parole or parole.
(c) If the recommendation of the
National Council is favourable, the Minister may order that the
prisoner be placed under day parole
or parole, as the case may be.
If a person is sentenced to
life imprisonment after the commencement of Chapters IV, VI and VII
while serving a life sentence
imposed prior to the commencement, the
matter must, after the prisoner has served 25 years accumulatively,
be referred to the
court which imposed the last sentence of life
imprisonment for consideration of placement under day parole or
parole.”
53
(Emphasis added.)
The
provisions of Chapter IV, referred to in section 136, above, came
into operation on 31 July 2004, while the provisions of Chapters
VI
and VII, referred to in section 136, above, came into operation on 1
October 2004. Section 136, in the amended form it appears,
above,
came into operation on 14 December 2001. These chapters deal with
sentenced offenders, community corrections and release
from a
correctional centre, and placement under correctional supervision as
well as on day parole and parole, respectively.
It is
common cause that prior to the commencement of the above
transitional provision, placement on parole of offenders serving

life incarceration was governed by the departmental policy.
54
The departmental release and placement policy applicable to those
prisoners, as amended from time to time, was, and remains,
that
prisoners serving life incarceration are not considered for release
on parole prior to having served a minimum period. In
terms of the
release and placement policy reflected in the departmental circular
distributed to all Provincial Commissioners
of Correctional
Services, on 26 July 1995, the minimum detention period varied.
55
I now
turn to deal with the questions that arise.
Should
condonation be granted?
This
application was lodged on 27 January 2010, after the dismissal of
the application for leave to appeal by the Supreme Court
of Appeal
on 17 December 2009. Rule 19 of the Rules of this Court requires
that an application for leave to appeal must be filed
within 15 days
of the order against which the appeal is sought. The application is
late by approximately 15 days, for which Mr
Van Vuren seeks
condonation. He also seeks an order condoning his non-compliance
with rule 11(1)(b) of the Rules of this Court.
This rule requires
that an address for service be provided within 25 kilometres of the
office of the Registrar. Mr Van Vuren
explains that his
incarceration impedes compliance with rule 11.
In my
view, the delay in lodging this application is not excessive,
particularly when regard is had to the fact that Mr Van Vuren,
a lay
litigant, prepared his own application. The respondents do not
oppose the application. In addition, they will not be prejudiced.
In
the circumstances, I am satisfied that the interests of justice
require that condonation should be granted.
56
The next issue for determination is whether leave to appeal should
be granted.
Should
leave to appeal be granted?
There
can be no doubt that this matter raises constitutional issues. As
mentioned above, the attack on section 136(3)(a) had been
abandoned
before the hearing of the matter resumed in the High Court. It is
not clear from the judgments of the High Court what
was contended by
the respondents. However, what is clear from the respondents’
papers is their contention that Mr Van Vuren
is not precluded from
being considered for placement on parole. The High Court did not
address itself to the questions raised
by the notice of motion.
57
Derby-Lewis
, relied upon by the High Court, dealt with the
interpretation of section 136(1) and held that section 136(3)(a) was
not applicable
to Mr Derby-Lewis. The Full Court did not consider
which policies and guidelines would be appropriate under section
136(1). In
the circumstances, the interests of justice would not be
served by the granting of leave to appeal in a matter in which there
is no considered judgment of the court a quo regarding the issues
raised. Therefore, the application for leave to appeal should,
in my
view, be dismissed.
Having
found that Mr Van Vuren had abandoned the constitutional challenge,
and having concluded that the application for leave
to appeal should
be dismissed, I now consider whether direct access should be
granted.
Should
direct access be granted?
This
is Mr Van Vuren’s second attempt to approach this Court
directly.
58
In the written submissions filed of record in the present
application, Mr Van Vuren requests this Court to grant direct access

as an alternative to his application for leave to appeal, if it were
to be found that the constitutional challenge to section
136(3)(a)
had been abandoned. The respondents oppose the granting of direct
access on the basis that Mr Van Vuren approaches
this Court as a
court of first and last instance.
As I
have already mentioned, Mr Van Vuren abandoned the attack on the
constitutionality of section 136(3)(a). Direct access to
this Court
may be granted in exceptional circumstances only.
59
The
application for direct access should be
brought on notice of motion, supported by an affidavit setting forth
the facts upon which
the applicant relies for relief.
This
Court will grant direct access only if it considers it to be in the
interests of justice to do so. This Court has, repeatedly,

emphasised that compelling reasons are required in order to justify
the exercise of its discretion in favour of granting d
i
rect
access and in sitting as a court of first and last instance.
60
Although
the application in this matter has not been properly prepared, as
direct access is not directly sought in the notice
of motion, the
failure to do so should not, in the circumstances of this case, be
fatal to the application itself. This is so
because what the
applicant is seeking is clear from the record. Besides, the
applicant is a lay litigant. This Court, in
Xinwa
and Others v Volkswagen SA (Pty) Ltd
,
61
has stressed, with regard to the standard of pleading in this Court,
that:
“
Pleadings
prepared by lay persons must be construed generously and in the light
most favourable to the litigant. Lay litigants should
not be held to
the same standard of accuracy, skill and precision in
the
presentation of their case required of lawyers. In construing such
pleadings, regard must be had to the purpose of the pleading
as
gathered not only from the content of the pleadings but also from the
context in whic
h
the pleading is prepared. Form must give way to substance.”
(Footnote omitted.)
Mr
Van Vuren seeks to revive the attack regarding section 136(3)(a).
There is sufficient urgency, need for finality, public interest
and
promotion of the ends of justice to justify granting direct access.
In addition, the history of the litigation regarding
the
constitutional validity of the impugned provisions, and the desire
by Mr Van Vuren and other offenders similarly placed to
have these
complex issues decided, cannot be overlooked. After all, it is more
than three years since this Court dismissed Mr
Van Vuren’s
previous direct access application.
Additionally,
although Mr Van Vuren abandoned the issue sought to be raised here,
the circumstance under which he abandoned the
challenge cannot be
disregarded. The essential issue when the urgent application was
launched was the constitutionality of section
136(3)(a). The
abandonment happened, at an advanced stage of the proceedings, when
the case was postponed pending the decision
in
Derby-Lewis
; a
case that turns on entirely different facts and, yet, was considered
“authoritative” by the High Court. Thus,
in my view, Mr
Van Vuren abandoned the constitutional challenge regarding the
validity of section 136(3)(a) because he, seemingly,
misunderstood
the implications of
Derby-Lewis
for his claim. No blame
should be attached to him.
The
interests of justice must be determined by reference to all the
relevant considerations including: the nature of the relief
sought,
the extent and cause of the delay and its effect on the
administration of justice.
62
As illustrated, above, Mr Van Vuren has made several attempts to
seek redress in various courts, including this Court. There
has been
a delay of several years since he started to challenge the
constitutionality of the impugned provisions. Any further
delay, if
direct access is refused, might render moot the important issues
raised. Moreover, the enormous costs incurred, and
those likely to
be incurred by the state if there is further delay, should not be
overlooked.
In my
view, a final decision on this complex and important issue, which
clearly affects many other cases, will have practical
benefit for
many offenders similarly placed. This Court is better placed to deal
with the matter because it has all the facts
and all the parties
before it. Furthermore, sight should not be lost of the fact that,
in this instance, we are concerned with
the liberty, a component of
freedom,
63
of a sentenced offender for whom the goal posts of his consideration
date for release under community corrections have been shifted
back
as a result of the change in the departmental release and placement
policy.
All
these considerations, although not individually decisive,
constitute, in my view, the exceptional circumstances that weigh

heavily in favour of granting direct access. On a proper
consideration of the application, taking into account the interests

of the administration of justice, the achievement of finality and
the curtailment of costs, direct access should be granted.
The
next issue relates to the interpretation of section 136, in
particular, whether subsections (1) and (3)(a) of section 136
can
reasonably be interpreted in a manner that will render them
constitutionally compliant.
Proper
interpretation of section 136
The
proper approach when construing legislation, in the light of the
injunction in section 39(2) of the Constitution, is reflected
in
Bato Star
Fishing (Pty) Ltd v Minister
of
Environmental
Affairs and
Tourism and Others
,
64
where Ngcobo J held that “the Constitution, as the supreme
law, is the starting point in interpreting any legislation.”
65
Section 39(2) of the Constitution, he stated, “commands every
court, when interpreting any legislation, to promote the
spirit,
purport and objects of the Bill of Rights.”
66
Ngcobo  J went on to hold that:
“
Implicit
in this command are two propositions: first, the interpretation that
is placed upon a statute must, where possible, be
one that would
advance at least an identifiable value enshrined in the Bill of
Rights; and, second, the statute must be reasonably
capable of such
interpretation. This flows from the fact that the Bill of Rights ‘is
a cornerstone of [our constitutional]
democracy’. It ‘affirms
the democratic values of human dignity, equality and freedom’.
. . .
South Africa is a country in
transition . . . . The preamble to the Constitution ‘recognises
the injustices of our past’
and makes a commitment to
establishing ‘a society based on democratic values, social
justice and fundamental human rights’.
This society is to be
built on the foundation of the values entrenched in the very first
provision of the Constitution. These values
include human dignity,
the achievement of equality and the advancement of human rights and
freedoms.”
67
(Footnotes omitted.)
It is
important, for the purposes of interpreting section 136, to
highlight the purpose of the Act. The Act seeks to abolish and

repeal the corresponding parts of the Old Act, which is the product
of an outdated dispensation. The Act, in stark contrast to
the Old
Act, as is apparent from its preamble,
68
seeks to provide for a constitutionally- sound correctional system.
It is designed to break with the past.
The
remarks, by Gubbay CJ, below, in
Conjwayo
v Minister of Justice, Legal and Parliamentary Affairs &
Others
,
69
quoted with approval by the Supreme Court of
Appeal in
Minister of Correctional Services and Others v
Kwakwa and Another
70
(Kwakwa)
find resonance in this case:
“
Traditionally,
Courts in many jurisdictions have adopted a broad ‘hands-off’
attitude towards matters of prison administration.
This stems from a
healthy sense of realism that prison administrators are responsible
for securing their institutions against escape
or unauthorised entry,
for the preservation of internal order and discipline, and for
rehabilitating, as far as is humanly possible,
the inmates placed in
their custody. The proper discharge of these duties is often beset
with obstacles. It requires expertise,
comprehensive
planning
and
a commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government.

Courts recognise that they are ill-equipped to deal with such
problems.
But
a policy of judicial restraint cannot encompass any failure to take
cognisance of a valid claim that a prison regulation or
practice
offends a fundamental constitutional protection. Fortunately the view
no longer obtains that in consequence of his crime
a prisoner
forfeits not only his liberty but all his personal rights, except
those which the law in its humanity grants him. For
while prison
officials must be accorded latitude and understanding in the
administration of prison affairs, and prisoners are necessarily

subject to appropriate rules and regulations, it remains the
continuing responsibility of Courts to enforce the constitutional

rights of all persons, prisoners included.
”
71
(Emphasis
added.)
The
Act enables sentenced offenders to anticipate consideration for some
form of non-custodial
supervision
. In this
case, Mr Van Vuren, an offender serving life incarceration, has been
left in the dark despite repeated enquiries as
to factors relevant
to the determination of his consideration date.
Restorative
justice, in our jurisprudence, is linked to the foundational value
or norm of
Ubuntu-Botho
.
72
It is a value that recognises, in the context of this case, that to
rehabilitate an offender sentenced to life incarceration
to a
position where he or she is repossessed of the fuller scope of his
or her rights, is to recognise the inherent human dignity
of the
individual offender. Evidently from the departmental release and
placement policy, parole has a restorative justice aim.
It is aimed
at the eventual rehabilitation and reconciliation processes of the
offender; themes that underpin restorative justice.
Importantly, all
these interests must be balanced against those of the community,
which include the right to be protected against
crime.
In
addition to the above considerations, a
proper
interpretation of section 136 needs to be done in the light of the
rule of law and the Constitution. Our democratic state
is founded on
various values, including the “supremacy of the Constitution
and the rule of law”.
73
In
Pharmaceutical Manufacturers Association of South Africa and
Others; In Re: Ex Parte Application of the President of the RSA and

Others
74
this Court stated that—
“
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.”
75
Hence, it
is important when interpreting legislation to have regard to the
general presumption against retrospectivity “unless
the statute
provides otherwise or its language clearly shows such a meaning.”
76
It is
against this background that section 136 must be understood in order
to guide its interpretation.
Mr
Van Vuren argues that the provisions of subsection (3)(a) do not
apply in his case because of the specific policy and guidelines

referred to in subsection (1). He contends that if subsection (3)(a)
were to take precedence over subsection (1), the former
would be
superfluous insofar as it refers to offenders sentenced to life
incarceration since subsection (1) already includes
that particular
group. The respondents argue that the challenge to the validity of
section 136(3)(a) based on its contended superfluity
is misplaced.
To
determine the meaning of the impugned provision, the provisions of
section 136 must be read as a whole.
77
Upon a proper reading of the section, its meaning becomes obvious.
In what follows I discuss two questions, namely (a) the difference

between section 136(1) and section 136(3)(a), and, later, (b)
whether section 136(1) preserves the policies and guidelines applied

before 1 October 2004.
Subsection
(1) has a purpose distinct from that of subsection (3)(a). On a
plain reading of section 136(1) the phrase “any
person”
refers, as the Full Court in
Derby-Lewis
correctly found, to
any
person serving a sentence of incarceration.
78
Thus the phrase refers to offenders serving determinate and
indeterminate (including life) sentences. Ellis AJ was, in my view,

not correct in holding that—
“
the
only meaning which can be ascribed to section 136(1) . . . is that
section 136(1) deals with all prison sentences except life

imprisonment”.
79
He
ascribed this meaning to section 136(1) to avoid a finding that
section 136(3)(a) is superfluous. In subsection (3)(a) the phrase

“any sentenced offender serving a
sentence of life
imprisonment”
is used. Clearly, it covers those serving a
sentence of life incarceration.
But
an important pointer to the congruence of the two subsections lies
in the two phrases “immediately before” and
“prior
to” used in subsection (1). The adverbial phrase of time
“immediately before” refers to the category
of persons
serving custodial sentences. The phrase “prior to”
refers to the applicable policy and guidelines. “Prior
to”
has a broader meaning than “immediately before”. “Prior
to” refers to the policy and guidelines
applicable at any time
before 2004, when Chapters IV, VI and VII referred to in section 136
came into effect. By contrast, “immediately
before” must
mean directly before commencement. This conclusion is strengthened
by section 136(4), which refers to life
sentences imposed “prior
to the commencement”. This clearly embraces life sentences
imposed at any time before the
commencement of the Chapters, in
contradistinction to the instant of time “immediately before”.
The meaning of prior
to in subsections (1) and (4) must be
consistent. This leads to the conclusion that “prior to”
in section 136 means
at any time before.
Section
136(1) relates to an offender’s placement under community
corrections and his or her consideration for “such
release and
placement in terms of the policy and guidelines applied by the
former Parole Boards
prior to
” 2004, the year when the
Chapters referred to in section 136 came into operation. It follows
from the proper construction
of subsection (1) that the subsection
preserves the policy and guidelines that applied at any time before
2004. By contrast,
subsection (3)(a), in creating a new mandatory
non-parole period in the form of a new statutory entitlement, does
not preserve
the past policies and guidelines. It creates a
statutory entitlement “to be considered for day parole or
parole”.
Notably, subsection (1) does not. Additionally,
subsection (1), in contrast to subsection (3)(a), does not
specifically make
reference to any period after which a sentenced
offender serving incarceration should be considered for placement on
parole.
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 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 the commencement
of the Act, 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 Vuren.
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.
80
Deprivation of a person’s liberty in that manner does not
conform to the principles of the rule of law.
81
The construction contended for by the respondents effectively
renders the new mandatory non-parole period of 20 years
retrospective
in operation. This would offend the foundational
values of constitutional supremacy and the rule of law,
82
which, this Court should not countenance.
Accordingly,
I conclude that section 136(3)(a) is not superfluous and does not
nullify section 136(1). It is constitutionally
compliant. Next for
determination is whether Mr Van Vuren is eligible for consideration
for placement on parole.
Mr Van
Vuren’s eligibility for possible placement on parole
Mr
Van Vuren’s complaint is that he has been eligible for
consideration for placement on parole in November 2002
83
and November 2007.
84
He maintains that he would have been considered for placement on
parole had he been treated in accordance with the Old Act and
the
policy and guidelines applicable as at 13 November 1992.
The
respondents argue that subsection (1) makes no reference to policies
which were in effect at the time of sentencing. They
maintain that
the policy and guidelines in existence when the death penalty was
abolished required offenders serving life incarceration
to serve 20
years prior to consideration for parole. They argue that there must
be a distinction between offenders who, from
inception, were
sentenced to life incarceration prior to the death penalty being
abolished, and those sentenced to death but
whose death sentences
were subsequently converted to life incarceration.
The
respondents are correct that the policy and guidelines that were in
existence in 2000, when Mr Van Vuren’s death sentence
was
commuted to life incarceration, required offenders serving life
incarceration to complete 20 years before they could be released
on
parole. However, the fact that the Full Court backdated Mr Van
Vuren’s sentence to 13 November 1992 cannot be disregarded.
In
backdating the sentence, the Full Court must have taken into account
the part of the sentence that Mr Van Vuren had already
served.
Therefore, the Full Court, in my view, assigned an advantage to him
that may not be taken away arbitrarily. The Full
Court could have
decided not to backdate the sentence imposed. It did not do so.
The
argument that a distinction must be drawn between offenders
sentenced to life incarceration from inception and those whose
death
sentences were commuted to life incarceration has no merit. We
cannot live in the past by differentiating, in a manner
that may
amount to unfair discrimination, between persons sentenced to life
incarceration purely by reasons of the crime they
had committed and
the sentence imposed upon them. More importantly, in our
constitutional democracy, the state should not refuse
to consider an
offender who is eligible for consideration for placement either
under community corrections or on parole for reasons
that are not
reasonable and justifiable. As correctly pointed out by the Supreme
Court of Appeal in quoting Gubbay CJ—
“
the
view no longer obtains that in consequence of his crime a prisoner
forfeits not only his liberty but all his personal rights,
except
those which the law in its humanity grants him. For . . . prisoners
are necessarily subject to appropriate rules and regulations”.
85
Implicit
from the order antedating the sentence, the Full Court afforded Mr
Van Vuren the privilege of being considered in terms
of the policy
and guidelines applicable in November 1992. As mentioned earlier,
the policy and guidelines in existence in 1992
required offenders
sentenced to life incarceration to serve 10 years before they could
be considered for placement on parole,
though placement before 15
years occurred only in exceptional circumstances.
The
respondents contend further that a balance should be struck between
Mr Van Vuren’s interests and the interests of society
in
securing itself against the possible perpetuation of crime as a
result of his early release. There can be no doubt that the

interests of the victims in our society, where violent crimes are
prevalent, indeed, have particular cogency. However, the liberty
of
a sentenced offender, measured from the perspective of his or her
eligibility to be considered for release on parole when
that
offender has reached a consideration date, should not be ignored.
Mr
Van Vuren has served more than 15 years of his sentence. The
respondents contend that section 136(3)(a), read with the
departmental
revised “interim” policy, does not preclude
him from being considered for parole before serving 20 years’
incarceration.
They maintain, however, that Mr Van Vuren is not yet
eligible for consideration for placement on parole. Surprisingly,
the respondents
did not explain the circumstances under which Mr Van
Vuren was offered to be considered for placement on parole in terms
of the
policy and guidelines applicable in 1992. Also, they did not
advance any reasons for offering and considering Mr Plank
86
for placement on parole after he had served only 13 years of his
sentence.
As
pointed out above, Mr Van Vuren’s repeated attempts to enquire
from the prison authorities, about the criteria relevant
to the
applicable non-parole period, came to naught. Indeed, the lack of a
definite release date constitutes the most difficult
adjustment to
confinement for all prisoners, particularly offenders sentenced to
life incarceration. The failure to inform Mr
Van Vuren of the exact
date of his consideration for parole has resulted in uncertainty
87
and indeed anguish.
I
conclude that Mr Van Vuren has made out a case for his eligibility
for consideration for release and placement under community

correction in terms of section 136(1) of the Act.
There
is another matter. In the founding papers, Mr Van Vuren alleged that
his right to fair administrative action that is lawful,
reasonable
and procedurally fair in terms of section 33(1) of the
Constitution,
88
has been infringed. This assertion was not persisted with. It is,
therefore, not necessary to deal with this contention.
In
the light of the conclusion I have reached, it is not necessary to
consider the further arguments whether section 136(3)(a)
involves an
infringement of any legitimate expectation to be considered for
placement on parole in terms of the policy applicable
in 1992 and
whether, section 136(3)(a) unfairly discriminates against offenders
serving indeterminate sentences as opposed to
those serving
determinate sentences. The next issue relates to an appropriate
remedy.
Remedy
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.
89
A court has a discretion to decide what, in a particular case, the
appropriate remedy should be. This Court, in
Fose v Minister of
Safety and Security
,
90
considered the various constitutional remedies a court may grant. It
held:
“
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 ensure the
protection and enforcement of these all important rights.”
91
Having
found that section 136(1) is applicable it follows, in the light of
the construction given to section 136, that the policy
and
guidelines applicable to Mr Van Vuren are those that were in
existence on 13 November 1992, which require him to serve at
least
10 years but not more than 15 years of his sentence. Mr Van Vuren
has served considerably more than 15 years. In my view
he is,
therefore, eligible to be considered without delay, for release and
placement under correctional supervision in terms
of section 136(1)
of the Act.
The
construction of section 136(1) that embraces offenders, like the
applicant, requires that some consideration be given to the

construction to be placed upon the institutional mechanisms
mentioned in the provision, namely, the Correctional Supervision
and
Parole Board, and the former Parole Boards. This requires us to
consider both which authority, on the wording of section
136(1),
would have been competent, as at 13 November 1992, to consider Mr
Van Vuren’s application for release on parole
and which
institutional mechanisms would be the equivalent present-day
authority. As at 13 November 1992, the relevant section
of the Old
Act would have been section 64.
92
As mentioned, previously, section 64 empowered the Minister to
authorise the release of an offender sentenced to life incarceration

on parole after having been advised by the National Advisory
Council, the latter having considered the report of an institutional

committee. Although section 136(1) refers to the former Parole
Boards,
93
the nomenclature under Act 122 of 1991
94
does not. Thus, the logical interpretation of the words “former
Parole Boards” in section 136 would be an adoption
of a
generic understanding of the phrase as referring to whichever
authority would have been in charge of the parole regime at
a
particular time. It would then follow that the authorities that
would be competent to consider Mr Van Vuren’s application
for
parole would be the CMC, the Correctional Supervision and Parole
Board and the Minister.
95
A
positive action must, therefore, be taken by the Department of
Correctional Services, in particular,
the CMC
96
and the Correctional Supervision and Parole Board
as well as the Minister.
97
An effective remedy, in the circumstances of this case, would be an
order directing the CMC to assess Mr Van Vuren and to submit
a
report to the Correctional Supervision and Parole Board. The latter,
in turn, will make an appropriate recommendation to the
Minister
regarding the possible placement on parole of Mr Van Vuren. This
consideration must be carried out in terms of the policy
and
guidelines in existence as at 13 November 1992.
Costs
Neither
Mr Van Vuren nor the respondents seek an order as to costs. Counsel
who re
p
resented Mr Van
Vuren in this Court, Mr Muller and Mr J Roux were
nominated
by the Chairperson of the General Council of the Bar to prepare
writ
ten submissions and appear on behalf of Mr
Van Vuren at the instance of the Court.
They
were instructed by Van Schalkwyk Attorneys. This Court is indebted
to counsel and the atto
rneys for the assistance rendered. In
the circumstances, although Mr Van Vuren has been successful, no
order as to costs should
be made.
Order
In
the result, the following order is made:
The
application for condonation for the late filing of the application
for leave to appeal is granted.
The
application for condonation for non-compliance with the 25
kilometre requirement in terms of rule 11(1)(b) of the Rules
of
the Constitutional Court is granted.
The
application for leave to appeal is dismissed.
Direct
access is granted.
The
application for an order declaring section 136(3)(a) of the
Correctional Service Act 111 of 1998 to be inconsistent with
the
Constitution is dismissed.
It
is declared that the applicant is eligible to be considered for
release and placement under community corrections in terms
of the
policy and guidelines that were applicable on 13 November 1992.
The
Case Management Committee, to the extent that it is statutorily
authorised to do so, the Correctional Supervision and
Parole Board
and the Minister for Correctional Services are ordered to consider
the applicant for release and placement under
community
corrections, with immediate effect.
The
consideration referred to above must comply the with the
provisions of the Correctional Services, Act 8 of 1959 relating
to
placement under community corrections and also in terms of the
policy and guidelines that were applied by the former Parole

Boards as at 13 November 1992.
There
is no order as to costs.
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J
and Skweyiya J concur in the judgment of Nkabinde J.
YACOOB J:
This
case represents part of a protracted quest by the applicant to have
himself considered for release on parole before he
has served 20
years incarceration pursuant to the life sentence that had been
imposed upon him. The judgment of my colleague
Nkabinde J (majority
judgment) concludes that he is entitled to be considered for parole
because he has served more than 15
years. Regrettably, I conclude
that the applicant is not so entitled. Hence this judgment.
The
applicant’s effort to be considered for parole in this Court
takes the form of an application for leave to appeal
against the
judgment of the North Gauteng High Court (High Court) dismissing
his application for an order, in effect, compelling
the respondents
to consider him for release on parole. Both the High Court and the
Supreme Court of Appeal declined leave to
appeal against the High
Court judgment. There is also an application for direct access by
which the applicant seeks to resurrect
an application which he made
and subsequently abandoned in the High Court, aimed at declaring a
provision in certain parole
legislation
98
inconsistent with the Constitution.
Background
Virtually
all the facts and circumstances concerning the position of the
applicant are common cause. The applicant was sentenced
to death on
13 November 1992 consequent upon his conviction of murder and
robbery with aggravating circumstances. In 1995 this
Court in the
Makwanyane
99
case set aside the death penalty as being inconsistent with certain
provisions of the Bill of Rights contained in the interim

Constitution. As a result, on 20 September 2000, the High Court
replaced the death sentence
100
that had been imposed upon the applicant with one of life
incarceration. The sentence was to run from 13 November 1992.
101
The
applicant contended that, because his sentence was backdated to
1992, the parole regime that should apply to him is that
which was
applicable to offenders who applied for parole in 1992. If this
submission were correct, he would have the right
to be considered
for parole now that he has served more than 15 years of the life
term that had been imposed upon him. The
effort by the applicant to
achieve this result has involved the contention, at different times
either that:
The
law requiring the parole application to be made after he has
served 20 years incarceration is invalid and inconsistent
with the
Constitution; or
The
law can be interpreted so that the regime applicable to him is
that which applied in 1992.
The
majority holds that the law concerned is reasonably capable of the
construction contended for by the applicant.
102
I am of the view that it is not. The majority refuses the
application for leave to appeal and grants the application for

direct access. I propose the reverse.
I
agree with the majority that the condonation required by the
applicant should be granted. It will be useful, at the outset,
to
summarise the differences between the majority judgment and this
one:
The
majority judgment finds statutory warrant for a discrete category
of offender sentenced to life imprisonment, namely,
offenders that
were sentenced before March 1994 for special treatment. This
judgment cannot find any justification for this
approach.
The
majority judgment is premised on the hypothesis that this limited
category of offender must be considered for parole in
terms of the
policies, guidelines and procedures applicable at the date on
which they were sentenced. I conclude that this
approach is not
without difficulty and that offenders would ordinarily be
considered for parole in terms of the policies,
guidelines and
procedures applicable at the date of parole consideration.
I begin
to move to the substantive issues by placing the law in issue in
context.
The
relevant law in context
The
law that is the subject of evaluation in this case is section 136
of the Correctional Services Act 111 of 1998 (Act). It
is a
transitional provision, its purpose being to act as a bridge to
regulate parole in circumstances where parole provisions
in terms
of the Correctional Services Act, 1959
103
(old parole regime) were replaced by detailed parole provisions in
the Act (new parole regime). The understanding of this bridge
can
only be enhanced by a brief comparison of the old parole regime
with the new one.
The
old parole regime, to the extent relevant to this case, was
prescribed by sections 63 and 65 of the 1959 Act. They remained
in
force in the same form
104
from 1993 until 1 October 2004.
105
Section 63 obliged
106
a parole board
107
(old board) to “submit a report” (section 63(1) report)
to the Minister for Correctional Services (Minister) or
to the
Commissioner of Correctional Services (Commissioner), as the case
may be, on the “conduct, adaptation, training,
aptitude,
industry and physical and mental state of such [offender] and the
possibility of his relapse into crime”.
108
The old board was also obliged to make recommendations to the
Commissioner on the release of certain people on parole
109
(section 63(1) recommendation).
Section
65 of the 1959 Act was more directly concerned with the release of
the person serving a sentence of incarceration on
parole.
Pertinently, the section provided differently for the process by
which and the time at which a person sentenced to
life
incarceration on the one hand, and the people sentenced to more
determinate periods of incarceration on the other, could
have been
considered for and released on parole.
These
processes are described briefly. The old board was obliged to send
a section 63(1) report on offenders subject to life
incarceration
to the Minister who, upon receipt of it, was obliged to refer the
report to the National Advisory Council for
Correctional Services
110
(Advisory Council). The Advisory Council had to consider the report
and, having regard to the interests of the community, make
a
recommendation to the Minister on whether the offender concerned
should be released on parole.
111
It is the Minister who was empowered to make the final decision in
relation to release on parole.
112
An aspect of this procedure must be stressed. It was the Advisory
Council and not the old board that made the recommendation
on the
release of the offender concerned. The only duty imposed on the old
board concerning a person serving a sentence of
life incarceration
was to submit a section 63(1) report to the Minister.
The
1959 Act made no provision for the timing of consideration of
parole in relation to people serving life incarceration. The

minimum period of incarceration that had to be served, at the time
of parole consideration, was governed by ministerial policy
from
time to time. It is common cause that offenders sentenced to life
incarceration could, according to the policy and guidelines
applied
by the relevant authorities from time to time, be considered for
parole
113
only after the expiry of certain minimum periods, depending on when
parole was being considered. Different minimum periods
were
applicable at different times. From 1987 to 1994, parole was
considered for offenders who had, at the relevant time, served
10
years in a correctional centre but offenders could, absent
exceptional circumstances, only be released after the expiry
of 15
years. Then, in March 1994, the minimum period was increased to 20
years. Accordingly from March 1994 to 2004 applications
were
considered from offenders who had served at least 20 years
incarceration.
The
parole procedure for people sentenced to more determinate terms of
incarceration, and not to life,
114
was different. The Commissioner, instead of the Minister, made the
decision whether to release the offender concerned.
115
That office did so on the basis of a section 63(1) report and a
section 63(1) recommendation where a person had been declared
a
habitual criminal;
116
after considering a report by the old board in the case of a person
sentenced to a determinate period of incarceration, to

incarceration for corrective training or for the prevention of
crime;
117
or without any report or recommendation from any person or body
where the person had been sentenced to incarceration for less
than
six months.
118
The provision in relation to this category of offender was also
different in that the minimum period of incarceration that
had to
be served before parole consideration for different categories of
offenders in correctional centres is expressly set
out in the
section.
119
We
look now at the new parole regime introduced by the Act effective 1
October 2004.
Two
parole procedures for offenders serving life incarceration came
about. The first existed from 1 October 2004
120
while the second was promulgated exactly five years later.
121
In the first scenario, the new Correctional Supervision and Parole
Board
122
(board) was to make recommendations
123
to the court.
124
And it was the court that was empowered to release the offender on
parole subject to certain conditions, after considering
the record
of proceedings of the board and its recommendations.
125
That has now changed.
126
Just as in the old parole regime, the board will make
recommendations to the Minister.
127
These recommendations, together with the record of the proceedings
of the board will be passed on to the National Council for

Correctional Services
128
(National Council). The National Council may recommend that the
Minister grant parole and the Minister may do so. This procedure
is
the same as the old one, except that the National Council has
replaced the Advisory Council. The minimum incarceration that
must
be served before parole consideration is now no longer the product
of ministerial policy. In terms of either procedure,
the offender
would have to serve 25 years incarceration to qualify for parole
consideration.
129
As
in the 1959 Act, the parole process prescribed by the Act for
offenders serving more determinate sentences is
130
different from that for offenders sentenced to life incarceration.
In so far as sentences other than life incarceration are
concerned,
parole to offenders serving a determinate sentence of more than 24
months incarceration is now granted by the board
and not by the
Commissioner.
131
The board is empowered to grant parole after considering a report
of the Case Management Committee.
132
The National Commissioner
133
has the power to place on parole any person sentenced to a term of
incarceration of 24 months or less.
134
The timing of parole consideration for offenders sentenced to
determinate terms of incarceration is carefully defined. The
basic
principle is that an offender serving a determinate sentence “may
not be placed on parole” until the person
concerned has
served the non-parole period stipulated in the Act or, in the
absence of any stipulation, half the sentence.
But any offender who
has served 25 years of a sentence or cumulative sentences is
entitled to parole consideration.
135
These periods are significantly different from those in the 1959
Act.
This
brief comparison of the situation under the old and new parole
regimes shows the following:
Neither
the old board nor the board has been empowered by the old parole
regime or by either procedure in the new parole regime
to grant
parole to offenders sentenced to life incarceration. The board did
have the power to make a recommendation to a
court and now has the
power to make a recommendation to the Minister. The old board
under the 1959 Act did not even have
the power to recommend parole
for people serving life sentences.
The
Advisory Council under the 1959 Act had the power to recommend to
the Minister that an offender serving life incarceration
be placed
on parole. The National Council would have had no power to do this
during the period 1 October 2004 until the end
of September 2009.
The board simply made recommendations to a court. But the National
Council is now empowered to make recommendations
to the Minister
concerning the release of offenders sentenced to life
incarceration.
The
Minister had the power to parole offenders sentenced to life in
the old parole regime. The power would have been transferred
to
the court for the first five years of the new parole regime and
was restored to the Minister for the future before the
courts had
the opportunity to exercise the power.
The
parole procedure for offenders serving life incarceration was the
same before October 2004 as it is now except that an
institution
called the National Council has succeeded the Advisory Council
provided for in the 1959 Act.
The
old board in terms of the 1959 Act had no power to make a final
decision in respect of the release of any offender. The
old board
had the power simply to make recommendations to the Commissioner
in relation to offenders serving determinate sentences.
On the
other hand, the board under the new parole regime does have the
power to release offenders serving sentences more
determinate than
life sentences.
The
National Commissioner’s power to release offenders has been
increased in the new parole regime. The Commissioner
in the old
parole regime could effect a release on parole of offenders
serving an incarceration term of six months or less,
but the
National Commissioner can now do so if the term is 24 months or
less.
The
circumstances and timing concerning the release on parole of
offenders serving sentences more determinate than life differ

between the old and new parole regimes.
It
is now time to present section 136. It provides:
“
(1)
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 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 prisoner who is serving a determinate
sentence of imprisonment as contemplated
in subsection (1), such
prisoner 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 prisoner serving a
sentence of life imprisonment 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 prisoner
contemplated in paragraph (a) must be submitted to the National
Council which must make a recommendation
to the Minister regarding
the placement of the prisoner under day parole or parole.
(c) If the recommendation of
the National Council is favourable, the Minister may order that the
prisoner 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.”
136
Although
section 136 commenced on 14 December 2001,
137
the terms of section 136(1) and section 136(3) have the necessary
consequence that section 136 came into force, in practice,
on 1
October 2004. This is because section 136 applied to offenders
serving sentences immediately before chapters IV, VI and
VII of the
Act came into operation. Chapter IV commenced on 31 July 2004 while
chapters VI and VII on 1 October 2004.
Section
136, though a transitional measure, will endure long in its effect
on offenders sentenced to life incarceration. This
is so because it
applies to all people who were serving sentences of life
incarceration immediately before 1 October 2004,
the date of the
commencement of chapters VI and VII. This means that offenders
serving sentences of life incarceration immediately
before 1
October 2004 will not be affected by the new parole regime and will
be covered by section 136. The new parole regime
will become
applicable in practice in respect of offenders who start serving
terms of life incarceration on 1 October 2004
and will begin to be
applied to them ordinarily only on 1 October 2029, that is, after
the minimum period of 25 years that
must now elapse before parole
applications can be countenanced in terms of the new parole regime.
It must be borne in mind
therefore that the transitional provisions
contained in section 136 will be applied between the date on which
they came into
existence until at least 30 September 2024.
138
This
concludes the description of the legislative setting and we can
return to the applications before us. I have already said
that the
applicant requires leave to appeal against the judgment of the High
Court, or direct access to this Court to enable
him to revive his
abandoned challenge to the constitutional validity of section
136(3)(a). It is therefore first necessary
to decide whether the
application for leave to appeal should be granted. The issues that
arise can more appropriately be determined
after that.
The
application for leave to appeal
We
start with a short account of the applicant’s journey to this
Court. The applicant began with an urgent application
in the High
Court asking for an order, in effect, that he be considered for
parole. He contended that section 136(3)(a) applied
to him and
would require him to serve 20 years incarceration before he was to
be considered for parole. The applicant sought
to remove this
obstacle by having section 136(3)(a) declared to be inconsistent
with the Constitution. His case went further
than that, if section
136(3)(a) were to be declared inconsistent with the Constitution,
section 136(1) would become applicable
to him. On his construction
of section 136(1), the applicant would be entitled to parole
consideration in terms of the guidelines
that were applicable in
1992.
It
was contended on behalf of the respondents that whether section
136(3)(a) was inconsistent with the Constitution was immaterial.

This is because, even if there were inconsistency, section 136(1)
would in any event have required the applicant to serve 20
years
incarceration before he became entitled to parole consideration.
This, on the basis that section 136(1) required parole
to be
considered at the same time and in the same way as it would have
been “prior to” 1 October 2004. That policy,
which had
been applicable for a period of 10 years before 1 October 2004,
entitled the applicant to parole consideration only
after 20 years
had been served. The issue of the constitutionality of the
provision would therefore, on the respondents’
submission,
not arise.
Judgment
in the urgent application was delivered by Ellis AJ.
139
He refrained from deciding whether, if section 136(1) was
applicable to him, the applicant would become entitled to parole

consideration after serving 20 years or 15 years incarceration. The
Court held that section 136(3)(a) was applicable to the
applicant
140
and that the constitutional challenge was not academic.
141
Ellis AJ accordingly postponed the application so that affidavits
could be filed in relation to the merits of the constitutionality

of section 136(3)(a).
142
Before
affidavits were filed, the parties came to know that the
constitutionality of section 136(3)(a) was to be considered
by the
Full Court of the High Court in the case of
Derby-Lewis
.
143
The applicant’s case was postponed until after the
Derby-Lewis
case had been decided.
Although
it is true that the
Derby-Lewis
case was to consider the
constitutionality of section 136(1) and 136(3)(a), the basis for
the unconstitutionality relied upon
in that case had nothing to do
with the nature of the applicant’s case. We must remind
ourselves that the applicant wished
to have section 136(3)(a)
declared unconstitutional so as to open the way to his contention
that he was entitled to parole
consideration within 15 years on his
construction of section 136(1) of the Act. It is plain from the
Derby-Lewis
case that the declaration of invalidity there
was aimed at ensuring that Mr Derby-Lewis’s application for
parole was considered,
not by the board, in terms of section
136(1), nor by the Minister on the recommendation of the National
Council in terms of
section 136(3)(b), but by a court. Indeed, the
timing of Mr Derby-Lewis’s application was not in dispute. It
was common
cause in that case that Mr Derby-Lewis would have the
right to parole consideration in terms of the relevant policy after
15
years incarceration. This was based upon the respondents’
contention that the relevant policy, applicable before 1 October

1994 should apply to him. This policy entitled Mr Derby-Lewis to
parole consideration ordinarily after 20 years incarceration,
but
after 15 years only because he was more than 65 years old.
The
issue of the constitutionality of section 136(3) on the basis
contended for by Mr Derby-Lewis was nonetheless relevant to
his
case because he did not want his parole application to be
considered by the Minister. On this issue, the Full Court held
that
the whole of section 136(3) was not relevant to Mr Derby-Lewis and
that he was covered by section 136(1) of the Act.
144
In coming to this conclusion the Full Court held that Ellis AJ was
wrong in finding that section 136(3) applied to the applicant.
The
Full Court had to and did pronounce on whether section 136(3) was
applicable to Mr Derby-Lewis, a person in the position
of the
applicant.
145
That Court did not have to decide and did not decide what the
consequences of the applicability of section 136(1) were to people

in the position of the applicant. That, as I have already said, was
common cause. The
Derby-Lewis
judgment is therefore not
authority for the proposition that the application of section
136(1) to offenders in the position
of the applicant meant that all
offenders in that position will have to serve 20 years
incarceration before parole consideration,
unless they have reached
the age of 65 when the service period reduces to 15 years.
The
judgment does mean, however, in my view, that the whole of section
136(3) is not applicable to people in the position of
Mr
Derby-Lewis. It also means that only that part of section 136
represented by subsection (1) is applicable to Mr Derby-Lewis.
It
follows from this that, on the
Derby-Lewis
judgment, section
136(3) (not only section 136(3)(a)) is not applicable to people in
the position of the applicant. Section
136(1) is the only part of
section 136 applicable to him.
It
will be recalled that the applicant had, until the delivery of the
Derby-Lewis
judgment, contended that section 136(3)(a) did
apply to him. Consequently, the unconstitutionality of the section
was a prerequisite
to the achievement of his end namely, to be
considered for parole after serving 15 years incarceration. The
delivery of the
Derby-Lewis
judgment understandably changed
all that because, if section 136(3)(a) was not applicable to him,
his constitutional attack
would become irrelevant. He therefore
made an about turn in supplementary heads of argument. The
applicant contended that that
he was covered by section 136(1),
that a proper interpretation of section 136(1) would have the
consequence that the policy
applicable to offenders who were
considered for parole during 1992 would be applicable to him,
entitled him to apply for parole.
He also put up another argument
(which had been relied upon by the State) that section 136(3)(a)
created an entitlement to
apply for parole and was therefore
different from the policies which would have been applicable before
1 October 2004
in that the policies gave him no entitlement to
apply for parole.
The
High Court adjudicated the applicant’s case
146
on the basis that it was about the constitutionality of the whole
of section 136
147
and interpreted the judgment of the Full Court, by which it was
bound,
148
to mean that “section 136 is constitutionally compatible and
that it does apply to the applicants.”
149
Elsewhere, the Full Court judgment is interpreted as having
“authoritatively laid down that section 136(1) applies to
all
persons serving life sentences including the applicants.”
150
The supplementary argument proffered by the applicants was not
considered by Bertelsmann J who dismissed the applicants’

claim without more.
In
this Court
In
his application for leave to appeal the applicant complains that
“the Court
a quo
” erred in finding that “I
had no entitlement to be considered for parole prior to serving
twenty years” and
that the High Court erred in holding that
“I could not rely on section 136(1) whereas the section makes
provision for
prisoners serving sentences immediately prior to the
commencement of the Act to be subject to the provisions of the
Correctional
Services Act 8 of 1959”. The application for
leave to appeal contends for the construction that section 136(1)
applies
to him, that is, for the construction which the
Derby-Lewis
judgment placed on section 136. The application for leave to appeal
has not been abandoned. It is still before us and we have
an
obligation to consider it.
Ellis
AJ interpreted section 136 to mean that the applicant was caught by
the provisions of section 136(3)(a). The
Derby-Lewis
judgment’s construction of section 136 led to the conclusion
that section 136(3) does not apply to people in the position
of the
applicant as they are entitled to proceed in terms of section
136(1). The applicant went this way and that on this issue
but,
relied on the
Derby-Lewis
judgment in the High Court and by
implication in the application for leave to appeal to this Court.
He squarely raised the
issue whether he was entitled to have his
parole considered in terms of section 136(1). The High Court, by
dismissing the applicant’s
case, implied that section
136(3)(a) was applicable to the applicant.
The
question to be decided in the application for leave to appeal
therefore is whether the applicant is subject to the provisions
of
section 136(1). If this question is decided in his favour, the
application for direct access falls away. If it is not, in
the
sense that he is subject to the provisions of section 136(3), then
the question of the constitutionality of section 136(3),
raised in
the application for direct access, will have to be decided. The
application for leave to appeal must therefore be
decided before
the application for direct access is considered. Ordinarily, we
should not reach the issue of the constitutionality
of a law unless
we have to.
151
The
interpretation of section 136 in order to determine whether
subsection (3)(a) is applicable to the applicant and other people

in his position is a constitutional matter of importance. The
constitutionality of section 136(3)(a) is also of considerable

importance, but becomes relevant only if it is held that section
136(3)(a) is applicable to the applicant.
There
are many people in the position of the applicant. Indeed all the
people who were sentenced to life incarceration during
the period
1989 until 1994 would want to know whether subsection (3) applies
to them.
152
It is therefore in the interests of justice that the application
for leave to appeal should be granted and that the interpretation

of section 136 as a whole should be considered before discussing
the question whether the application for direct access should
be
granted. I would therefore propose that the application for leave
to appeal be granted.
Section
136 interpreted
I
assume, without deciding, that the construction of section 136
which renders subsection (3)(a) applicable to the applicant
and all
the people in his position would, at the very least, limit some of
their rights in the Constitution. I would accordingly
proceed on
the basis that, if the provision could be reasonably interpreted to
mean that the applicant falls within the purview
of section 136(1),
I should adopt that construction.
153
We must also bear in mind that the purpose of section 136 is to
provide a bridge between the old parole regime which operated
until
2004 and the new one.
The
wording of section 136(1) is wide enough to include all prisoners
including those who are serving life sentences. But its
meaning
must be gathered not just from its language but also from the
context in which it occurs. This means it must be construed
in the
context of section 136 as a whole. The applicable principles of
interpretation are those set out in
Bato Star
154
where this Court said that:
“
It is
no doubt true that it is a primary rule of statutory construction
that words in a statute must be given their ordinary grammatical

meaning. But it is also a well-known rule of construction that words
in a statute should be construed in the light of their context.”
155
In this
regard we referred to Schreiner JA’s oft-quoted passage
156
where he said that:
“
Certainly
no less important than the oft-repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may
be useful to stress two
points in relation to the application of this principle. The first
is that ‘the context’,
as here used, is not limited to
the language of the rest of the statute regarded as throwing light
of a dictionary kind on the
part to be interpreted. Often of more
importance is the matter of the statute, its apparent scope and
purpose, and, within limits,
its background. The second point is
that the approach to the work of interpreting may be along either of
two lines. Either one
may split the inquiry into two parts and
concentrate, in the first instance, on finding out whether the
language to be interpreted
has or appears to have one clear ordinary
meaning, confining a consideration of the context only to cases
where the language
appears to admit of more than one meaning; or one
may from the beginning consider the context and the language to be
interpreted
together.”
We
also relied on the following passage—
“
. . .
the legitimate field of interpretation should not be restricted as a
result of excessive peering at the language to be interpreted

without sufficient attention to the contextual scene.”
157
We
emphasised that:
“
The
emerging trend in statutory construction is to have regard to the
context in which the words occur, even where the words to
be
construed are clear and unambiguous.”
158
We also referred to the
Thoroughbred Breeders’
case
159
where the Supreme Court of Appeal held that:
“
The
days are long past when blinkered peering at an isolated provision
in a statute was thought to be the only legitimate technique
in
interpreting it if it seemed on the face of it to have a readily
discernible meaning. As was said in
University
of Cape Town v Cape Bar Council and Another
1986
(4) SA 903
(A) at 914D-E:
‘
I am
of the opinion that the words of s 3(2)(d) of the Act, clear and
unambiguous as they may appear to be on the face thereof,
should be
read in the light of the subject-matter with which they are
concerned, and that it is only when that is done that one
can arrive
at the true intention of the Legislature.’”
160
While
the wording of section 136(1) may be wide enough to include
offenders sentenced to life, its meaning must be determined
in the
light of the provisions of section 136 as a whole: in particular,
section 136(2) which deals with those sentenced to
determinate
sentences and section 136(3) which is concerned with offenders
sentenced to life. These subsections provide the
context within
which subsection (1) must be construed and thus contribute to
revealing its meaning. Thus subsection (2) tells
us that “a
prisoner who is
serving a determinate sentence of imprisonment
as contemplated in subsection (1)
. . . must be allocated the
maximum number of credits in terms of section 22A of the
Correctional Services Act, 1959”.
(Emphasis added.) The
underlined portion makes it plain that one of the groups of
offenders that subsection (1) has in mind
are those serving a
determinate sentence and tells us how their credits are to be
calculated.
Then
we have subsection (3). In the first place it refers to offenders
sentenced to life. In the second place it does not, as
subsection
(2) does, refer back to subsection (1). Instead it treats these
offenders as though they are not contemplated in
that subsection.
And, in the third place, it prescribes how to manage the parole of
this group of offenders: the National Council
must make
recommendations to the Minister who will then decide the question
of parole.
Section
136 is a transitional provision. It recognises that prior to
October 2004, offenders were subject to different release
and
parole periods that changed from time to time. More importantly, it
takes account of the reality that the statutory bodies
that may
have been responsible for making recommendations or decisions may
no longer exist or the decision may now be in the
hands of a
different authority. The decision whether to release an offender on
parole was, for example, that of the Minister,
then that of the
courts and then back to the Minister. To address this situation a
decision was taken that all those sentenced
to life will be dealt
with by the National Council which makes the recommendation to the
Minister who decides whether the prisoner
is to be released on
parole. In this way, the provision avoids a situation where the
parole must be recommended by a statutory
body that no longer
exists or be decided by an authority that no longer has the power
to do so. This is necessary to ensure
uniformity in decisions
regarding parole.
Construed
and understood in the context of section 136 as a whole,
subsections (1) and (2) concern offenders who are serving

determinate sentences while subsections (3) and (4) with those
offenders who are serving life sentences. Therefore subsection
(3)
qualifies subsection (1) by limiting its application to those who
are not serving life.
In
addition there are textual differences between subsections (1) and
(2) on the one hand and subsection (3) on the other hand,
that lend
support to this construction of section 136. The former refers to
consideration for “release and placement”
while the
latter uses the phrase “to be considered for day parole and
parole”. This language suggests that subsection
(1) is about
those offenders who are serving determinate sentences and not those
who are serving life sentences.
The
conclusion that section 136(3)(a) does not apply to people in the
position of the applicant has its foundation in the premise
that
section 136(1) does indeed apply to them. This premise must
therefore be tested. It is true that, standing alone, the
words
“[a]ny person serving a sentence of imprisonment immediately
before the commencement of Chapters IV, VI and VII”
could
convey the impression that the section applies to all offenders
regardless of whether they serve determinate or indeterminate

incarceration. But the words do not stand alone. It is therefore
necessary to see whether the rest of section 136(1) supports
this
interpretation or runs counter to it.
If
section 136(1) applies to people sentenced to life incarceration,
then, in the words of the subsection they are “to
be
considered (for parole) by the Correctional Supervision and Parole
Board”. This is a reference to the board appointed
in terms
of the Act and not the old board.
The
implication is that no other entity is involved in the
consideration of parole and that the board would make the final
decision whether parole should be granted for this category of
offender. This provision makes sense if it is applicable to
offenders who have been sentenced to more determinate sentences of
incarceration than life. This is because this category of
offender
could be considered for parole by the Commissioner on the
recommendation of the old board in terms of the old parole
regime,
and by the board in the new. That the board would be the final
arbiter on parole for offenders sentenced to life incarceration
is
more difficult to comprehend if we recall that the Minister was the
final arbiter of parole in the old parole regime; the
sentencing
court decided this finally in the regime that existed during the
period 2004 to 2009; and the Minister is again
the final arbiter
today.
The
difficulty is compounded if we bear in mind that the old board had
no power in the parole consideration process of people
sentenced to
life incarceration in the old parole regime and that the board, the
final arbiter of parole in the transition,
has no power today
except a reporting one. To make matters worse, on the construction
that subsection (1) applies to people
sentenced to life
incarceration, the National Council, which makes recommendations to
the Minister on parole releases today,
would have no role at all in
the parole process of this category of offender in the transitional
provision. The National Council
is the successor to the Advisory
Council which had the same recommending role in the old parole
regime. And if we understand
that the transitional regime will
remain in force until 2024, the notion that the legislature
purported to keep the Minister,
the final parole arbiter, out of
the process in the transition, is unthinkable.
The
next requirement of section 136(1) that is material provides that
the board must consider parole “in terms of the
policy and
guidelines applied by the former Parole Boards prior to the
commencement of those Chapters.” Again, the transitional

scheme is coherent if section 136(1) is applicable to offenders
serving determinate sentences. The old board had a recommending

role and would have applied certain policy and guidelines in
relation to this category of offender and, presumably, the board

would have access to the policy and guidelines as well as to the
1959 Act. This information would enable the board to satisfy
the
requirements of section 136(1). But the old board had a reporting
function and no other role to play in the granting of
parole to
offenders serving life incarceration. The old board would have
applied neither policy nor guidelines in connection
with the
release of these offenders because it had no role in the process.
It is bizarre to require the old board to find and
take into
account non-existent policy and guidelines. The legislature could
never have contemplated introducing this impossibility
into the
statute book.
It
has been pointed out that, if section 136(1) is applicable to all
sentenced offenders including offenders sentenced to life,
it must
follow that no other entity has any role in the process. This would
mean that the parole procedure for all sentenced
offenders would be
identical. The question that must be asked is whether this
consequence could be consistent with the legislative
purpose. The
old parole regime and the new one set out different parole
procedures and mechanisms for offenders sentenced to
life and those
sentenced to more determinate sentences. The Advisory Council and
the Minister were involved in the process
for offenders sentenced
to life in the old parole regime, while the National Council and
the Minister will be integral to the
process at the end of the
transitional period. Lesser offenders were considered for parole by
the Commissioner on the recommendation
of the old board in the old
parole regime and by the board or the National Commissioner in the
new. There are obvious cogent
reasons to differentiate between
parole processes in the light of the seriousness of offences. But I
can think of no reason,
cogent or otherwise, for abolishing the
differentiation for the transitional period and reinstating it at
the end of the transition.
The
majority judgment appears to recognise the difficulties attendant
upon the board being the only final arbiter and the exclusion
of at
least the Minister from the process of parole consideration of
offenders sentenced to life incarceration. Instead of
concluding
that this points away from section 136(1) being applicable to
offenders other than those serving determinate sentences,
the
majority is driven to interpret the words “former Parole
Boards” to mean “whichever authority would have
been in
charge of the parole regime at a particular time.”
161
The majority judgment then concludes that the parole application by
Mr Van Vuren should be considered by the “CMC, the
National
Correctional Supervision and Parole Board and the Minister.”
162
There
are three difficulties with this approach. The first is that
section 136(1) does not require the former parole boards
to
consider parole applications made in that section. Section 136(1)
requires parole in terms of that section to be considered
by the
“Correctional Supervision and Parole Board in terms of the
policy and guidelines applied by the former Parole
Boards”.
It is therefore not enough to find equivalents for the former
parole boards though this is indeed necessary
to identify the
policies and guidelines that are to be applied. The majority
judgment needs to go further and determine the
entity that is to
consider the parole application. That judgment would have to equate
the “Correctional Supervision and
Parole Board” which
is required to consider section 136(1) parole applications on the
one hand with the “CMC, the
Correctional Supervision and
Parole Board and the Minister” on the other; the former would
have to be interpreted to
mean the latter. With respect, I can find
no justification for this.
Secondly,
the majority judgment brings the Case Management Committees into
the picture on the basis that they, like the Institutional

Committee of old, is empowered to submit a report to the National
Council. But the Case Management Committee has no role in
relation
to offenders serving life sentences. Its role is strictly limited
to offenders serving determinate sentences of more
than 24 months.
163
This in my view comes close to rewriting the legislation and hence
confers upon legislative bodies powers and duties those
bodies do
not have.
The
third problem with the remedial approach adopted is that the
National Council is left out of the process altogether when
it is
an integral part of the process in terms of the Act. As I have
already pointed out, the board makes recommendations to
the
Minister. These are forwarded to the National Council who must in
turn make a recommendation to the Minister.
Regard
must now be had to the rest of section 136. Subsection (2), in my
view, makes it even more plain that subsection (1)
of section 136
is restricted in its application to offenders serving determinate
sentences. The subsection talks about “a
prisoner who is
serving a determinate sentence of imprisonment as contemplated in
subsection (1)”.
The
next hurdle in the way of the contention that section 136(3) does
not apply to the applicant in the circumstances, is that,
if that
were to be so, subsection (3) would serve no rational or reasonably
identifiable purpose. It has been suggested that
section 136(3)
creates some kind of new entitlement to parole consideration for
offenders serving life incarceration, a right
that was never
available to this kind of offender before. Indeed, the respondents
put forward the interesting thesis that section
136(1) creates no
entitlement to parole consideration, and that consideration in
terms of subsection (1) is somehow discretionary.
As I understood
the argument, considerable reliance was placed on the circumstance
that subsection (3)(a) expressly embraces
the concept of
entitlement while section 136(1) does not.
The
fact that the word “entitled” appears in subsection (3)
but not in subsection (1) is not significant. An examination
of
subsection (1) leaves no doubt that the category of offender
contemplated by that subsection would also be entitled to parole

consideration. Any person encompassed by subsection (1) “is
to be considered for” release on parole by the board
in terms
of the policy and guidelines applied by the old board. I do not
understand how and why it can be said that these words
do not
create an entitlement to parole consideration. Indeed, the majority
comes to the conclusion that section 136(1) entitles
the applicant
to parole consideration, for there can be no other basis for the
order in the applicant’s favour. If the
applicant was not
entitled to parole consideration, he would not be entitled to an
order.
Let
us assume for one moment that section 136(1) creates no
entitlement. What does the entitlement created by section 136(3)

mean in practice? Does it mean, for example, that an offender has
an entitlement to parole consideration after 20 years in
terms of
subsection (3), even if that offender had been considered for
parole in terms of subsection (1), say, three months
earlier?
The
interpretation of section 136 must therefore be approached on the
basis that section 136(1) does entitle a person covered
by that
subsection to parole consideration. Once this is so, it must be
accepted that section 136(3) would be superfluous if
offenders
sentenced to life incarceration fall within section 136(1). This is
another reason why the construction that section
136(1) applies to
offenders sentenced to life incarceration is difficult to endorse.
The conclusion of the Full Court that
section 136(1) applies to a
person in the position of the applicant
164
is unmotivated, and supported only by the statement that Ellis AJ
had not been referred to the legislation and its history
in the
detail in which the Full Court had been. The conclusion of Ellis AJ
was undoubtedly correct.
The
approach of the majority judgment to this dilemma is to hold that
section 136(3) applies only to offenders sentenced after
March 1994
and that section 136(1) applies to all offenders serving
determinate sentences and to a discrete category of offenders

serving life imprisonment namely to those offenders who were
sentenced to life imprisonment before March 1994.
165
This distinction is not apparent on any reading of section 136.
Subsection (3) is broad in its operation. It applies to “[a]ny

prisoner serving a sentence of life imprisonment immediately before
the commencement of Chapters IV, VI and VII”. The
proposition
involves replacing the words “any prisoner” in this
subsection with the words “any prisoner sentenced
after March
1994”.
Section
136(1) is likewise broad in its operation referring to “[a]ny
person serving a sentence of imprisonment”.
If not for the
provisions of section 136(3), the section would apply to every
offender serving a sentence of incarceration.
There is no warrant
for limiting the section to “any person serving a sentence of
imprisonment, excluding prisoners sentenced
to life imprisonment
after March 1994”. The majority judgment appears, on this
score, to find favour with the judgment
of the Full Court in the
Derby-Lewis
case.
166
But that judgment was to the effect that section 136(1) covers the
field in that it applied to all offenders whether serving

determinate sentences or not. The
Derby-Lewis
judgment makes
no distinction between those offenders sentenced after March 1994
and those sentenced before March 1994. The
distinction is novel
and, in my view, inconsistent with the judgment in
Derby-Lewis
.
I would respectfully suggest that there is a difficulty in, on the
one hand, accepting the correctness of the
Derby-Lewis
judgment and, on the other hand, postulating that section 136(1)
makes the distinction between offenders sentenced before March
1994
and those sentenced after March 1994.
Leaving
aside the issue of the period that the applicant would have had to
serve before he would have been entitled to parole
consideration in
terms of the legislation, I have considerable difficulty with the
proposition that the policy, guidelines
and procedures to be
determined would apply to offenders sentenced during the period
when they are applicable. This would mean,
if correct, that the
policy, guidelines and procedures determined in March 1994 would
become applicable only after March 2014
because they should apply
only to those sentenced after March 1994. It would also mean for
example, that the provisions of
the Act applicable between 2004 and
2009 to the effect that the court would determine parole on the
basis of a report provided
by the board would be applicable only to
those sentenced to life incarceration during the period 2004 to
2009. On the basis
that parole applications would be considered
only after 25 years, courts would have to consider parole
applications by offenders
sentenced during the period 2004 to 2009
during the years 2029 to 2034. I would suggest that procedures
determined in 1994
would necessarily apply to all applications for
parole in 1994 irrespective of when the offenders were sentenced.
The idea
that a person sentenced in 1974 must be considered for
parole in 1994 in terms of the policies applicable in 1974 cannot
be
accepted. Indeed the policies and guidelines must be determined
in terms of societal conditions at the time that parole
applications
are considered, not at the time that the offenders
concerned were sentenced.
I
conclude that section 136, read as a whole, constructs an
acceptable bridge between the old and new parole regimes. Offenders

sentenced to life incarceration, whose parole was considered by the
Minister on the recommendation of the Advisory Council
in the old
parole regime and by the Minister on the recommendation of the
National Council in the new parole regime, will be
considered for
parole during the transition by the Minister, on the recommendation
of the National Council. Parole consideration
for offenders
sentenced to more determinate terms, who were considered for parole
by the Commissioner on the recommendation
of the old board in the
old parole regime and by the board in the new parole regime, will
be entitled to parole consideration
by the board during the
transition. This scheme makes sense.
The
assumption in favour of the applicant that section 136 would be
less constitutionally compliant if subsection (3) were applicable

to the applicant and other offenders in his position does not
assist. The section is not reasonably capable of an interpretation

that would place the applicant and other people in his position
within the scope of section 136(1). The conclusion that offenders

sentenced to life incarceration fall to be considered for parole in
terms of section 136(3), not in terms of section 136(1),
is
inevitable.
Direct
access
The
finding that section 136(3) applies to the applicant and other
offenders in his position means that the applicant has no

alternative but to try to have section 136(3) declared to be
inconsistent with a provision of the Bill of Rights in our

Constitution. Absent the declaration of invalidity, the applicant
is precluded from parole consideration until he has served 20
years
incarceration. It is therefore necessary to decide the application
for direct access which the applicant has made in
order to secure
an order that section 136(3) is constitutionally invalid.
This
Court must grant direct access if it is in the interests of justice
to do so.
167
And it will be in the interests of justice to grant direct access
if there are exceptional circumstances.
168
The requirement of exceptional circumstances increases in
importance in a case like this one in which this Court will be the

court of first and last instance in evaluating the
constitutionality of the impugned law.
169
A
factor that is against the granting of direct access is that the
applicant deliberately abandoned his case on unconstitutionality

because of his perception that it would be to his advantage to do
so in the light of the judgment of the Full Court. But we
must also
not forget that the applicant was not legally represented when he
made the decision to abandon. The applicant was,
however, legally
represented when he tried to resurrect his unconstitutionality bid
in this Court. Yet there was no affidavit
explaining why the
constitutional attack on section 136(3) was abandoned. The truth of
the matter is that the applicant’s
written argument in
support of direct access gives no indication of why the attack on
the validity of the section was abandoned
and does not even make
the concession that abandonment had occurred. Somewhat
disingenuously, in my view, the argument is to
the effect that
direct access is sought if this Court holds that the constitutional
attack had been abandoned.
There
are, however, more weighty considerations against granting direct
access. The first of these is that the issues that arise
for
determination are far from straight-forward. To succeed in his
attack on section 136(3), the applicant will need to demonstrate

that he will suffer a substantial disadvantage consequent on the
applicability of section 136(3) to him.
The
State contended that the consequences for the applicant will remain
materially the same whether parole consideration for
him is
determined by subsection (1) or subsection (3). The applicant will,
in either event, says the State, be entitled to
parole
consideration only after he has served 20 years incarceration. The
argument cannot be said to be completely without
substance. There
is no doubt that, because the applicant’s sentence was to run
from November 1992, he must be placed
in the same position as all
other offenders who were sentenced to life incarceration at that
time. That is arguably fundamentally
different from the notion that
he must be placed in the same position as those offenders who were
entitled to parole consideration
in November 1992. The argument
that the applicant has not been materially disadvantaged needs to
be carefully addressed. Absent
a material disadvantage, it would be
difficult to establish that any of the rights in the Bill of Rights
were limited.
The
question whether the applicability of the changed policy to the
applicant is constitutionally objectionable is complex.
I say no
more about this at this stage except that foreign jurisprudence
reflects a difference of opinion on this question.
The complexities
are, for example, reflected in two foreign judgments.
170
Even
if the applicant overcame these obstacles and established the
limitation of a constitutional right, the issue of justification
is
itself not uncomplicated. The State has proffered evidence to the
effect that the policy was changed because it was anticipated
that,
if the death penalty were to be set aside as being inconsistent
with the Constitution, offenders under life incarceration
would
have been guilty of more serious offences than offenders already
serving life incarceration.
It
is therefore not in the interests of justice to consider the
application for direct access though I have grave doubts as
to
whether it would succeed.
This
being a minority judgment, there is no point in proposing an order.
Ngcobo CJ
concurs in the judgment of Yacoob J.
For the Applicant:
For the
First and Second Respondents:Advocate GC Muller SC and Advocate J
Roux instructed by Van Schalkwyk.
Advocate
MTK Moerane SC, Advocate BR Tokota SC, Advocate TWG Bester and
Advocate DWM Broughton instructed by the State Attorney,
Pretoria.
1
The
order concerning the applicant was made in
P F van Vuren v
Minister of Correctional Services
, Case No. 37771/08, North
Gauteng High Court, Pretoria, 3 August 2009, unreported, while the
reasons for the order are set out
in a judgment in the case of
J
L van Vuuren & Seven Others v Minister of Correctional Services
,
Case No. 46062/08, North Gauteng High Court, Pretoria, 17 August
2009, unreported. Both the judgment and the order were delivered
on
3 July 2009.
2
The
relief sought in the High Court is set out at [12] below.
3
Act
111 of 1998.
4
Section
167(6)(a) of the Constitution provides:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional
Court . . . .”
5
The
full text of section 136 is to be found at [31] below.
6
The
Correctional Services Act 111 of 1998 (Act) has now been amended to
use certain new terminology and it is appropriate, unless
the
context indicates otherwise, to employ these terms in this judgment:
“imprisonment” is now “incarceration”,

“prison” is a “correctional centre” and
“sentenced prisoner” is “sentenced offender”.
7
Rule
11(1)(b) provides:
“
(1) Save where otherwise
provided, in any matter in which an application is necessary for any
purpose, including—
(a) . . .
(b) the obtaining of directions from the Court,
such application shall be brought on notice of motion
supported by an affidavit as to the facts upon which the applicant
relies
for relief and shall set out an address within 25 kilometres
from the office of the Registrar stating the physical and postal
address with facsimile, telephone numbers and an e-mail address,
where available, at which he or she will accept notice and service

of all documents in the proceedings”.
8
Act
8 of 1959.
9
According
to the applicant t
he policy and guidelines, in
terms of which he is entitled to be considered for placement on
parole, are those that make him eligible
after having served a
period of between 10 years but not more than 15 years in detention.
10
[1995]
ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC) declared the
death penalty unconstitutional.
11
Paul
van Vuren and Others v The State
under Case No. A682/2000 North
Gauteng High Court, Pretoria, 20 September 2000, unreported.
12
Act
105 of 1997. Section 1(11) of this Act provides:
“
A sentence of imprisonment
substituted for the sentence of death in terms of this section, may
be antedated by the court to a
specific date, which shall not be
earlier than the date on which the sentence of death was imposed.”
Section
282 of the Criminal Procedure Act 51 of 1977 (CPA), as substituted
by
section 36
of the
Criminal Law Amendment Act 105 of 1997
,
provides:
“
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.”
13
Section
39(2)(a)(ii) of the Act repealed section 32(2) of the Old Act.
Section 39(2)(a)(ii) provides:
“
(2)(a) Subject to the
provisions of paragraph (b), a person who receives more than one
sentence of imprisonment or receives additional
sentences while
serving a term of imprisonment, must serve each such sentence, the
one after the expiration, setting aside or
remission of the other,
in such order as the Commissioner may determine, unless the court
specifically directs otherwise, or
unless the court directs that
such sentences shall run concurrently but—
(i) . . .
(ii) one or more life sentences and one or more
sentences to be served in consequence of a person being declared an
habitual criminal
or a dangerous criminal also run concurrently . .
. ”.
14
Paragraph
6 of the order reads:
“
In die geval van S v Paul F
van Vuren word gelas dat ʼn transkripsie van die getuienis van
die psigiater, dr Verster, gemaak
word en dié aan die
Korrektiewe Dienste owerhede voorgelê word vir oorweging van
enige parool voorwaardes wat aan
dié appellant toegestaan mag
word.”
15
Dean
Lloyd Plank v Minister of Correctional Services and Others
Case
No. 05/14313 South Gauteng High Court, Johannesburg, [no date],
unreported. Mr Plank was sentenced to death, on 6 March 1990,
on
counts of murder and fraud. The death sentence was commuted to life
incarceration on 7 August 2003. On 17 February 2004, in
terms of an
out of court settlement, the respondents offered to consider him for
placement on parole. Mr Plank was considered
for placement on parole
by the National Council for Correctional Services (the National
Council) on 19 and 20 July 2004. The
National Council submitted a
report to the Minister advising him that Mr Plank was not to be
considered for placement on parole
at that stage. The Minister
approved the National Council’s recommendation on the basis
that Mr Plank must first serve
the requisite 20 years in terms of
section 136(3)(a). Aggrieved by the decision, Mr Plank launched
another application in the
High Court not challenging the decision
of the Minister but persisting with his claim that he should be
considered for placement
on parole because he had completed 15 years
of his sentence.
16
For
the sake of completeness, the
letter reads:
“
Re: VBK status/Parool
Die bostaande aangeleentheid verwys.
Vind aangeheg korrespondensie gerig aan die Provinsiale
Kommissaris met betrekking tot jou navrae. Die inhoud spreek
vanself.
In die algemeen bring ons die volgende onder u aandag.
AD LEWENSLANGE GEVANGENISSTRAF
Die posisie volgens die departmente in ander
soortgelyke aangeleenthede sien soos volg daarna uit;
dat ‘n persoon 20 jaar van sy vonnis moet uitdien
alvorens hy/sy kwalifiseer vir parool oorweging
Amnesties en krediete speel nie per se ‘n rol in
die oorwegins proses nie.
Die posisie vanaf 1959 tot 1994 was dat ‘lifers’
na 10 jaar oorweeg kon word.
Lifers is vir die eerste keer opgeneem in Wetgewing in
1998 wat aanbetref hoe lank hul moet uitdien alvorens hul vir parool
oorweeg
kan word.
Voorheen was daar nie ‘n minimum tydperk van
aanhouding in wetgewing opgeneem nie.
Ons het gister ‘n bevel gekry in die Johannesburg
Hooggeregshof in die saak van Dean Plank v Minister van Korrektiewe
Dienste
en 4 Ander dat hulle inter alia vir Dean moet oorweeg
ingevolge die kriteria en Wetgewing soos wat dit gewees het
gedurende 1990.
Hulle het hom reeds oorweeg vir parool [g]edurende
Oktober 2003 nadat hy sowat 13 jaar uitgedien het. Sodra ek ‘n
afsk[rif]
van die bevel tot my beskiking het sal ek di[t] aan jou
beskikbaar stel.”
17
For
the sake of completeness and ease of reference, the
letter
reads:
“
Re: Parole
I would like to pose the following questions to you as
H.O.P concerning the parole of a ‘lifer’ and what a
‘lifer’
prisoner qualify for when it comes to amnesties
and credits.
How long must a ‘lifer’ do before he
qualify for parole?
Does amnesties received during his time of
imprisonment count in favour of the ‘lifer’ when
calculations are made
for his parole?
How
does amnesties influence the calculations consideration date, for
parole on a ‘lifer’?
If you calculate for a ‘lifer’ to be
considered for parole, do you bring credits into the calculations
also?
How does credits influence the parole process?
I hope and trust that your office would be able to
furnish me with the answers on my questions.
I thank you in advance . . . .”
18
The
request further stated that:
“
It must be made very clear to
the offender during the consideration and recommendation phase that
the process is not directed
at their possible release and that no
expectations in this regard must be created.
Profile reports already submitted to the Head Office
but on which decisions are still outstanding must be reflected on
the name
list with an indication of the date on which it was
submitted”.
19
P
F van Vuren v Minister of Correctional Services and Others
Case
No. 5311/08. This application was withdrawn on 11 August 2008.
20
The
letter, for completeness, reads:
“
Re: P F VAN VUREN / MINISTER
OF CORRECTIONAL SERVICES AND OTHERS (CASE NO 5311/08)
. . .
We confirm that we have instructions to settle the
above matter on the following basis:
2.1) That the National Council for Correctional
Services shall, for purposes of a recommendation to the [the
Minister], consider
the Applicant for placement on parole at its
next sitting;
2.2) That the Applicant shall be considered for
placement on parole in terms of the policy that was in existence on
13 November
1992 with regard to the placement on parole of prisoners
serving life imprisonment;
2.3) That the Correctional Supervision and Parole Board
shall submit an updated report on the National Council for
Correctional
Services for purposes of its recommendation referred to
in paragraph 2.1 above;
2.4) That the [Minister] shall, for purposes of his
decision pursuant to the National Council for Correctional Services,
consider
the Applicant for placement on parole in terms of the
policy referred to in paragraph 2.2 above;
2.5) That the [Minister] shall make his decision within
14 (fourteen) days of receiving the recommendation of the National
Council
for Correctional Services with regard to the placement of
the Applicant on parole;
2.6) Each party shall bear its own costs of the
application;
In our view, the aforegoing settlement proposals render
the relief sought by the Applicant moot insofar as the
constitutionality
or otherwise of Section 136(3)(a) of [the Act]
pertains to him as an individual.
. . .
We await your further advices as to the aforegoing
settlement proposal at your earliest convenience. In this regard, we
confirm
having proposed that a ‘round-table meeting’ be
held with a view to the settlement of the matter.”
21
It
is not necessary to embark on a thorough consideration of the
litigation history preceding the urgent application in the High

Court. It suffices to mention that, during September 2006, in
Paul
F van Vuren v Minister of Correctional Services and Others
,
Case No. 31596/06, 10 May 2007, unreported,
Mr Van Vuren
unsuccessfully sought an order, inter alia, directing the
Chairperson of the Parole Board to consider him for recommendation

for placement on parole in terms of the parole policies that were
applicable on 13 November 1992. Molopo J dismissed the application

on the basis that section 136(3)(a) applied squarely to him and that
he had to serve 20 years of his sentence before he could
be
considered for parole. In that matter, Mr Van Vuren had not
challenged section 136(3)(a), despite the fact that he had averred,

in his founding papers, that the wording of section 136(3)(a) is
unconstitutional. The basis for that averment was that it negates

the rights previously bestowed in expecting to be considered for
parole after serving 10 years but not more than 15 years of
the
sentence.
In 2007, in
Van Vuren v Minister of Justice and
Constitutional Development and Another
[2007] ZACC 11
;
2007 (8)
BCLR 903
(CC), Mr Van Vuren sought direct access to obtain an order
declaring section 136(3)(a) unconstitutional. The application was

dismissed on the basis that it had not been shown that it would be
in the interests of justice to grant direct access.
22
This
application was launched after Mr Van Vuren had terminated the
mandate of the legal team that had been appointed by the Law
Society
of South Africa (LSSA) to assist him. He was disgruntled by the
delay allegedly caused by the LSSA in reacting to this
Court’s
judgment and in lodging the application, which application he
subsequently purported to withdraw so that he could
represent
himself. This explains Mr Van Vuren’s withdrawal notice filed
on 11 August 2008 in the matter of Case No. 5311/2008.
23
Section
33(1) of the Constitution provides:
“
Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.”
24
Van
Vuren v Minister of Correctional Services and Others
Case No.
37771/08, 11 September 2008, unreported.
25
According
to Hiemstra and Gonin
Trilingual Legal Dictionary
3 ed (Juta
en Kie, BPK, Cape Town, 1992) at 195, this Latin maxim is translated
as “
a general rule is derogated from by a
special (law).”
26
Above
n 24 at para 16.
27
The
order reads:
“
1. The legal points raised by
the respondents in their notice in terms of Rule 6(5)(d)(iii) [of
the Uniform Rules] are dismissed;
2. The application is postponed sine die;
3. The respondents are directed to file their answering
affidavits within twenty (20) days of this order;
4. The applicant may file any replying affidavits
within fifteen (15) days of service of the answering affidavit upon
him;
5. The application may then be enrolled again for
hearing in terms of Rule 6(5)(f) provided that the applicant may, if
so advised,
approach the Deputy Judge President for the allocation
of a preferential date for the hearing of this application;
6. Costs are reserved for later determination.”
28
Above
n 1.
29
As
is evident
from the judgment of the High Court, the
applicants in that matter have, however, shown no further interest
in those proceedings.
30
That
is the application u
nder Case No. 37771/08.
31
2009
(6) SA 205
(GNP). Mr Derby-Lewis was sentenced to death in October
1993. In November 2000 his sentence was commuted to life
incarceration,
which was antedated to 15 October 1993; the original
date of sentencing. He launched an application in the High Court
challenging,
inter alia, the constitutional validity of sections
136(1) and 136(3)(a) of the Act. The attack regarding the
constitutional
validity of the latter provision fell away because it
was common cause on the papers that the applicant, Mr Derby-Lewis,
was
eligible for parole having served 15 years’ incarceration
as a minimum and having reached the age of 65. The Full Court of
the
High Court, per Shongwe DJP, Seriti and Van der Merwe JJ,
unanimously held that section 136(1) refers to any person serving
a
sentence of incarceration before the commencement of Chapters IV, VI
and VII of the Act. Mr Derby-Lewis was found to fall squarely
under
section 136(1).
32
Above
n 1.
33
Above
n 31 at 216C-D.
34
In
terms of rule 19 of the Constitutional Court Rules.
35
A
further ground of appeal relied upon section 35(3)(n) of the
Constitution. As to this ground Mr Van Vuren asserted that he was

entitled to the least severe of the penalties applicable. Reliance
on section 35(3)(n) was, however, abandoned by the parties
prior to
the hearing in this Court.
36
In
terms of the Act, “community corrections” is defined as
“all non-custodial measures and forms of supervision

applicable to persons who are subject to such measures and
supervision in the community and who are under the control of the

Department”.
37
Section
137 of the Act, read with the Schedule, provides for the repeal of
the law. It makes provision for the repeal or amendment
of the Old
Act to the extent set out in the Schedule. The Short Title in
section 138, makes provision for the commencement of
the Act.
Importantly, it makes the commencement of the repeal of the Old Act
subject to proclamation. It provides that the Act
shall come into
operation on different dates fixed by the President by proclamation
in the Government Gazette. The Short Title
also provides that
different dates, fixed by the President, may be proclaimed in the
Government Gazette for the repeal of different
provisions of the Old
Act. As a result, a number of sections of the 1998 Act were brought
into operation and a number of sections
in the 1959 Act were
repealed, with effect from 19 February 1999, in terms of
Proclamation R20, 1999, published in Government
Gazette number 19778
dated 19 February 1999. The sections of the Act that came into
operation include that of section 136. Those
sections of the Old Act
that were repealed include sections 61 and 64.
38
The
National Advisory Council’s memorandum followed the report of
the Commission of Inquiry into Unrest in Prisons, headed by Justice
Kriegler
, which likewise dealt, inter alia, with
the system on parole.
39
In
terms of section 64 of the Old Act, which is set out in full below n
45.
40
Section
4
of the
Correctional Services Amendment Act 68 of 1993
, which came
into operation on 1 August 1993, inserted into the Old Act, section
5C which, read with section 1 of the Old Act,
created the definition
of “parole boards”. In terms of section 5C of Act 68 of
1993, the parole board was defined
as follows—
“
(1) The Commissioner shall
appoint one or more boards, to be styled parole boards, to perform
the functions and duties entrusted
to or imposed upon a parole board
by or under this Act.
(2) A parole board shall consist of so many members,
who may be members or non-members of the Department, as the
Commissioner
may determine and of whom—
(a) one shall be designated by the Commissioner as
chairman of that board; and
(b) at least one shall in respect of each prisoner who
appears before such board, be a member of the institutional
committee at
the prison where the prisoner in question is being
detained.
(3) A member of a parole board shall hold office for
such period and on such conditions as the Commissioner may
determine.
(4) The members of a parole board who are not in the
full-time service of the State, may receive such remuneration and
allowances
as the Minister may, on the recommendation of the
Commission for Administration, determine with the concurrence of the
Minister
of State Expenditure.
(5) Any member of a correctional board may attend any
meeting of the parole board at the prison where such correctional
board
is appointed, but may not vote on a matter before the parole
board.”
41
Act
25 of 2008. This Act came into operation on 1 October 2009.
42
Section
42(2)(a) and (d)(vii), as it stood prior to its amendment in Act 25
of 2008 provides that:
“
(2) The Case Management
Committee must—
ensure that each sentenced offender has been assessed,
and that for sentenced prisoners serving more than twelve months
there
is a plan specified in section 38(2);
. . .
(d) submit a report, together with the relevant
documents, to the Correctional Supervision and Parole Board
regarding—
. . .
(vii) the possible placement of such prisoner on day
parole or on parole, and the conditions for such placement”.
43
Section
74 of the Act.
44
Section
75 of the Act as amended by section 51 of Act 25 of 2008. The
relevant parts of this section provide:
“
(1) A
Correctional
Supervision and Parole
Board, having considered the report on any sentenced offender
serving a determinate sentence of more than
24 months submitted to
it by the Case Management Committee in terms of section 42 and in
the light of any other information or
argument, may—
subject to the provisions of paragraphs (b) and (c)
and subsection (1A) place a sentenced offender under correctional
supervision
or day parole or grant parole and, subject to the
provisions of section 52, set the conditions of community
corrections imposed
on the sentenced offender;
in respect of any sentenced offender having been
declared a dangerous criminal in terms of
section 286A
of the
Criminal Procedure Act, make
recommendations to the court on the
granting of the placement under correctional supervision or day
parole or parole and on
the period for and, subject to the
provisions of
section 52
, the conditions of community corrections
imposed on the sentenced offender; and
in
respect of any sentenced offender serving a sentence of life
incarceration, make recommendations to the Minister on granting
of
day parole or parole, and, subject to the provisions of
section 52
,
the conditions of community corrections to be imposed on such an
offender.”
45
Section
64 of the Old Act, as amended by section 20 of the Correctional
Services and Supervision Matters Amendment Act 122 of
1991, which
came into operation on 15 August 1991, provides:
“
(1) A prisoner upon whom a
life sentence has been imposed shall not be released unless the
National Advisory Council—
after having been requested by the Minister to advise
him in relation to that prisoner; and
after considering a report of an institutional
committee,
with due regard to the interests of society, has made a
recommendation to the Minister for release of the prisoner and the
Minister
has accepted that recommendation.
(2) If the Minister accepts the recommendation for the
release of such a prisoner, he may authorize the release of the
prisoner
on the date recommended by the National Advisory Council or
on any other date, either unconditionally or subject to any such

condition as he may determine, on parole as he may direct.”
46
The
National Advisory Council was established in terms of section 1,
read with section 7 of Act 122 of 1991. Section 7 details
as
follows:
“
(1) There shall be a Council
to be styled the National Advisory Council on Correctional Services
and consisting of—
a judge of the Supreme Court of South Africa;
a magistrate of a regional division;
an attorney-general or deputy attorney-general;
a member of the South African Police of or above the
rank of brigadier;
a member of the Department of or above the rank of
brigadier;
an official of a social welfare authority who holds
the rank of director or an equivalent or higher rank and who has
been designated
by the Minister of National Health;
two or more persons who are not in the full-time
service of the State and who, in the opinion of the Minister, have
special
knowledge or experience of matters connected with the
powers, functions and duties of the Department; and
one or more persons designated by the Minister, who
may be co-opted for any special purpose as members in specific
cases or
in general,
to exercise or perform the powers, functions and duties
which are conferred upon or assigned to that Council under this Act.
(2) The Minister shall appoint each member of the
National Advisory Council referred to in subsection (1)(a) to (h),
and such
a member shall hold office during the pleasure of the
Minister.
(3) (a) The Minister shall for each member of the
National Advisory Council contemplated in subsection (1)(a) to (f)
designate
an alternate who has the same qualification as the member
for whom he is the alternate.
(b) An alternate contemplated in paragraph (a) shall,
in the absence of the member for whom he is the alternate from any
meeting
of the National Advisory Council, have all the powers and
duties of that member at such a meeting.
(4) The majority of the member of the National Advisory
Council shall constitute a quorum for a meeting of that Council.
(5) The member of the National Advisory Council
contemplated in subsection (1)(a) shall be the chairman of that
Council and one
of the members contemplated in subsection (1)(b) to
(g) shall be designated by the Minister as the vice-chairman.
(6) A decision of the majority of the member present at
a meeting of the National Advisory Council, shall be the decision of
that
Council, and in the event of an equality of votes on any
matter, the member presiding at the meeting concerned shall, in
addition
to his deliberative vote, have a casting vote.
(7) A member of the National Advisory Council who is
not in the full-time service of the State may receive such
allowances as
may be determined by the Minister with the consent of
the Minister of Finance.”
47
The
institutional committee was established in terms of section 1, read
with section 3 of the Prisons Amendment Act 22 of 1980.
Section 3
details as follows:
“
(1) The Commissioner shall
appoint one or more committees, to be styled institutional
committees, to perform the functions and
duties entrusted to or
imposed upon an institutional committee by or under this Act.
(2) An institutional committee shall consist of so many
members of the Prisons Service as the Commissioner may find fit and
of
whom one shall be designated by the Commissioner as chairman of
the committee.
(3) A member of an institutional committee shall hold
office for such period and on such conditions as the Commissioner
may determine.”
48
Act
68 of 1993. This Act came into operation on 1 August 1993.
49
This
is the Parole Board as defined in section 4 of Act 68 of 1993, which
came into operation on 1 August 1993, see above n 40
for the text of
section 4.
50
Section
65(5) provides:
“
Upon receipt of a report from
a parole board regarding a prisoner who has been sentenced to life
imprisonment, the Minister shall
refer the matter to the National
Advisory Council, which, after considering the report of the parole
board, and having regard
to the interests of the community, shall
make a recommendation to the Minister regarding the placement of a
prisoner on parole.”
51
These
sections were amended by the Parole and Correctional Supervision
Amendment Act 87 of 1997 (1997 Act) which came into operation
on 1
October 2004. The scheme of the 1997 Act was to empower the Parole
Board, in respect of offenders sentenced to life incarceration,
to
submit, to a court which sentenced the prisoner, a report with
recommendations on the possible placement of the prisoner concerned

on parole or on day parole. Act 25 of 2008 amends section 78 of the
Act, in terms of which the power to place a prisoner on parole
is no
longer exercised by a court but is once again exercised by the
Minister.
52
Section
42
of the
Correctional Services Amendment Act 32 of 2001
, which came
into operation on 14 December 2001.
53
Section
136(3)(a)
has its origin in the recommendation of the National
Council for Correctional Services.
54
Section
64 of the Old Act.
55
For
example, 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 completion 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.
The
exceptional circumstances relate to a situation where (a) the
physical condition of a prisoner has deteriorated to such an
extent
that he or she will not repeat the same type of crime; (b) a
prisoner, due to his or her high age, will not be able to
repeat the
same type of crime; (c) the President or a high profile person
specifically requests that the case of a specified
prisoner must be
considered and (d) where a court orders that such case must be
considered. It would appear, from a reading of
the record that
administrative decisions of the Parole Board regarding placement on
parole, called B Orders, also made it possible
for offenders serving
life incarceration to be considered for placement on parole after
serving 10 years of their sentences.
56
Brummer
v Gorfil Brothers Investment
[2000] ZACC 3
;
2000 (5) BCLR 465
(CC); 2000(2) SA 837 (CC) at para 3.
57
Above
at [12].
58
See
above n 21.
59
See
rule 18 read with section 167(6)(a) of the Constitution.
60
See
Bruce and Another v Fleecytex
Johannesburg CC and Others
[1998] ZACC
3
;
1998 (4) BCLR 415
(CC);
1998 (2) SA 1143
(CC) at paras 7-8 and
Mkontwana
v
Nelson Mandela Metropolitan Municipality and Another; Bisset and
Others v Buffalo City Municipality and Others; Transfer Rights

Action Campaign and Others v MEC for Local Government & Housing
in the Province of Gauteng and Others
[2004]
ZACC 9
;
2005 (2) BCLR 150
(CC);
2005 (1) SA 530
(CC) at para 11
(
Mkontwana
).
61
[2003]
ZACC 7
;
2003 (6) BCLR 575
(CC);
2003 (4) SA 390
(CC) at para 13.
62
Above
n 56.
63
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (7) BCLR 779
(CC);
1998 (3) SA 785
(CC) at paras 19-20.
64
[2004]
ZACC 15
;
2004 (7) BCLR 687
(CC);
2004 (4) SA 490
(CC) (
Bato
Star
). See also
Mkontwana
above n 60 at para 27 and
Mateis
v Ngwathe Plaaslike Munisipaliteit en andere
2003
(4) SA 361
(SCA).
65
Bato
Star
above n 64 at para 72.
66
Id.
Section 39(2) of the Constitution provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights . . . .”
67
Above
n 64 at
para 73.
68
The
Preamble of the Act reads:
“
With the object of changing
the law governing the correctional system and giving effect to the
Bill of Rights in the Constitution,
1996, and in particular its
provisions with regard to prisoners;
Recognising—
international principles on correctional matters;
Regulating—
the release of prisoners and the system of community
corrections;
in general, the activities of the Department of
Correctional Services; and
Providing—
for independent mechanisms to investigate and
scrutinise the activities of the Department of Correctional
Services”.
69
1992
(2) SA 56
(ZS).
70
2002
(4) SA 455
(SCA) at para 24.
71
Above
n 69 at pages 60G–61A.
72
Dikoko
v Mokhatla
[2006] ZACC 10
;
2007 (1) BCLR 1
(CC);
2006 (6) SA 235
(CC) at paras 113-5.
73
Section
1(a) and (c) of the Constitution.
74
[2000]
ZACC 1
;
2000 (3) BCLR 241
(CC);
2000 (2) SA 674
(CC).
75
Id
at 39. See also
Veldman v Director of Public Prosecutions
(Witwatersrand Local Division)
[2005] ZACC 22
;
2007 (9) BCLR 929
(CC);
2007 (3) SA 210
(CC) at para 26 (
Veldman
).
76
Veldman
above n 75.
77
The
full text of section 136 is set out at above at [31].
78
Above
n 31 at 215C.
79
High
Court judgment per Ellis AJ, above n 24 at para 16.
80
JJ
Moses “Parole: Is it a Right or a Privilege?”
(2003) 19
SAJHR
263
at 269. This article refers to the Canadian decision in
R
v Gamble
[1988] 2 S.C.R 595
(1988) and
states that—
“
. . . [the] retrospective
application of transitional provisions on inmates where it amounts
to a greater punishment, [
R
v Gamble
] is
authority for the fact
that a person has a liberty interest in having his or her parole
eligibility determined in accordance with
the law at the time of the
commission of the offence.”
81
Ferreira
v Levin NO and Others
[1996]
ZACC 13
;
1996 (1) BCLR
1
(CC);
1996 (1) SA 984
(CC) at para 72.
82
Section
1(c)
of the Constitution. See also in this regard
the case of the United States’ Supreme Court in
Weaver
v Graham Governor of Florida
450 US 24
(1980) 30, also cited in
Veldman
above n 75.
83
When
he completed 10 years of his sentence.
84
When
he completed 15 years of his sentence.
85
Kwakwa
above n 70.
86
A
bove
n 15.
87
In
Sebe v Minister of Correctional Services and
Others
1999 (1) SACR 244
(Ck) at 251G
the Court correctly held that—
“
the prisoner, not to mention
the prison authorities as well as the family of the prisoner [must]
know, with a degree of certainty,
that subject to continued good
behavior [a sentenced offender] will be released on a given date.”
Sadly,
this has not been the case in respect of Mr Van Vuren.
88
Above
n 23
.
89
Section
1 of the Constitution.
90
[1997]
ZACC 6
;
1997 (7) BCLR 851
(CC);
1997 (3) SA 786
(CC).
91
Id
at para 19.
92
Above
at [27].
93
As
mentioned, “parole boards” were only created and defined
in Act 68 of 1993 which came into operation on 1 August
1993. See
above n 48.
94
Above
n 45.
95
Above
at [26].
96
In
terms of its function as set out in section 42 of the Act.
97
In
terms of his or her functions as set out in section 75 of the Act.
98
Section
136(3)(a)
of the
Correctional Services Act 111 of 1998
which is
discussed later.
99
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC).
100
David
Ntsere and Others v S
, Case No A682/2000, Transvaal Provincial
Division, 20 September 2000, unreported.
101
In
terms of
section 1(11)
of the
Criminal Law Amendment Act 105 of
1997
.
102
As
described in [82b].
103
Act
8 of
1959 (1959 Act).
104
Sections
63 and 65 were inserted into the 1959 Act by
section 21
of the
Correctional Services Amendment Act 68 of 1993
.
105
When
they were
repealed by Proclamation R38 of 2004 in
terms of
GN R8023 GG 26626, 30 July 2004.
106
Denoted
by the use of the word “shall” in section 63(1) of the
1959 Act.
107
Constituted
in terms of section 63 of the
1959 Act.
108
Section
63(1)(a).
109
Section
63(1)(b).
110
Established
by section 7 of the Correctional Services and Supervision Matters
Amendment Act 122 of 1991 which substituted section
5B of the 1959
Act.
111
Section
65(5) of the
1959 Act.
112
Section
65(6) of the
1959 Act.
113
I
consider the relevant legislation and policies in some detail later.
114
The
old board had no power to release on parole offenders declared
dangerous criminals in terms of
section 286A
of the
Criminal
Procedure Act 51 of 1977
. Section 63(2) of the 1959 Act obliged it
to report to the court in terms of
section 286B
of the
Criminal
Procedure Act.
115
Section
65(8) of the
1959 Act.
116
Section
65(7) of the 1959 Act.
117
Section
65(8) of the
1959 Act.
118
Section
65(9) of the
1959 Act.
119
Section
65(4) of the
1959 Act.
120
When
chapters VI and VII of the Act came into force.
121
When
the Act was amended by the Correctional Services Amendment Act 25 of
2008 (Act 25 of 2008).
122
Established
by section 74 of the Act.
123
The
version of the process that involved the courts never came into
operation in practice, because, as will be pointed out later,
the
new parole regime becomes operational in practice only in the year
2029, at the time when an offender sentenced to life after
1 October
2004 will be entitled to parole consideration.
124
Section
75(1)(c) of the Act prior to its amendment by Act 25 of 2008.
125
Section
78(1) prior to its amendment by Act 25 of 2008.
126
By
virtue of the provisions of Act 25 of 2008.
127
Section
75(1)(c) as amended by Act 25 of 2008.
128
Established
under section 83 of the Act.
129
Section
73(6)(b)(iv) of the Act.
130
It
will be convenient to use the present tense in this section of the
analysis, even though some of the provisions will become
operational
in practice only in the future.
131
In
terms of
section 75(1)(b) of the Act the board,
like the old board, has no power to grant parole in respect of any
offender declared a
dangerous criminal but is empowered to make
recommendations on parole to the relevant court.
132
In
terms of section 75 of the Act. The Committee is established by
section 42 of the Act.
133
Who
is referred to as the Commissioner in the
1959 Act.
134
Section
75(7).
135
Section
73(6)(a).
136
Section
136(4) in the form in which it appeared before the High Court made
use of the term “imprisonment” as opposed
to
incarceration. I have chosen to quote the new terminology as it
appears from Act 25 of 2008.
137
In
terms of GN 1358 of 2001 GG 22930, 14 December 2001.
138
It
is difficult to know whether offenders who are not granted parole on
the first occasion fall to be considered in terms of the
new parole
regime or the transitional provision but this does not matter.
139
Van
Vuren v Minister of Correctional Services and Others
, Case No
37771/08, North Gauteng High Court, Pretoria, 11 September 2008,
unreported.
140
Id
at para 16.
141
Id
at para 19.
142
Id
at paras 20-2.
143
Derby-Lewis
v Minister of Correctional Services and Others
2009 (2) SACR 522
(GNP).
144
Id
at 531E-F.
145
Save
for the fact that the applicant is not yet 65 years old.
146
Which
was heard together with another application involving seven other
applicants.
147
J
L van Vuuren
above n 1 at 3.
148
Id
at 6.
149
Id
at 5.
150
Id
at 6.
151
Nyathi
v MEC for the Department of Health, Gauteng and Another
[2008]
ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC) at para 149;
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 21;
Zantsi v Council of State, Ciskei, and
Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at paras 2-5 and
S
v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 59.
152
Offenders
sentenced in 1988 or before would be entitled to parole because they
would have served the 20 year term while those
who began their
sentences after March 1994 will, in any event, be subject to the 20
year term.
153
Abahlali
baseMjondolo Movement SA and Another v Premier of the Province of
Kwazulu-Natal and Others
[2009] ZACC 31
;
2010 (2) BCLR 99
(CC)
at para 119;
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 72;
National Director of Public
Prosecutions and Another v Mohamed NO and Others
[2003]
ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC) at para 35;
Investigating Directorate: Serious
Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others: In re Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 22;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
above n 54 at paras
23-4 and
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7)
BCLR 779
(CC) at para 85.
154
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
above n 56.
155
Id
at para 89.
156
In
his dissenting judgment in
Jaga v Dönges, N.O. and Another;
Bhana v Dönges, N.O. and Another
1950 (4) SA 653
(A) at
662G-663A. Quoted in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
above n 56 at para 89.
157
Jaga
v Dönges, N.O. and Another; Bhana v Dönges, N.O. and
Another
above n 59 at 664H. Quoted in
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others
above n 56 at
para 89.
158
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
above n 56 at para 90.
159
Thoroughbred
Breeders’ Association v Price Waterhouse
2001 (4) SA 551
(SCA).
160
Id
at 600F-G. Quoted with approval in
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others
above n 56 at
para 90.
161
See
[75].
162
Id.
163
Section
75(1) of the Act provides:
“
(1) A Correctional
Supervision and Parole Board, having considered the report on any
sentenced offender serving a determinate
sentence of more than 24
months submitted to it by the Case Management Committee in terms of
section 42 and in the light of any
other information or argument,
may—
subject to the provisions of paragraphs (b) and (c),
place a prisoner under correctional supervision or day parole or
grant
parole and, subject to the provisions of section 52, set the
conditions of community corrections imposed on the sentenced
offender;
in respect of any prisoner having been declared a
dangerous criminal in terms of
section 286A
of the
Criminal
Procedure Act, make
recommendations to the court on the granting of
the placement under correctional supervision or day parole or
parole and on
the period for and, subject to the provisions of
section 52
, the conditions of community corrections imposed on the
sentenced offender; and
in respect of any sentenced offender serving a sentence
of life incarceration, make recommendations to the Minister on
granting
of day parole or parole, and, subject to the provisions of
section 52
, the conditions of community corrections to be imposed on
such an offender.”
164
Derby-Lewis
above n 46.
165
See
[59].
166
See
[56].
167
Section
167(6)(a) of the Constitution.
168
Moloi
and Others v Minister for Justice and Constitutional Development and
Others
[2010] ZACC 2
;
2010 (2) SACR 78
(CC);
2010 (5) BCLR 497
(CC) at para 31;
Van Vuren v Minister of Justice and
Constitutional Development and Another
[2007] ZACC 11
;
2007 (8)
BCLR 903
(CC) at para 11;
Mnguni v Minister of Correctional
Services and Others
[2005] ZACC 13
;
2005 (12) BCLR 1187
(CC) at
para 6;
De Kock v Minister of Water Affairs and Forestry and
Others
[2005] ZACC 12
;
2005 (12) BCLR 1183
(CC) at para 3;
Mkontwana v Nelson Mandela Metropolitan Municipality and Another;
Bissett and Others v Buffalo City Municipality and Others; Transfer

Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi

Municipality as Amici Curiae)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at para 11 and
Bruce and Another v
Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA
1143
(CC);
1998 (4) BCLR 415
(CC) at para 9.
169
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
[2010]
ZACC 3
;
2010 (5) BCLR 422
(CC) at para 21;
Lane
and Fey NNO v Dabelstein and Others
[2001]
ZACC 14
;
2001 (2) SA 1187
(CC);
2001 (4) BCLR 312
(CC) at para 5;
National Gambling Board v Premier,
KwaZulu-Natal, and Others
[2001] ZACC
8
; 2002 (2
) SA 715 (CC); 2002 (2) BCLR
156
(CC) at para 29 and
Bruce and Another v
Fleecytex Johannesburg CC and Others
above
n 71 at paras 7-8.
170
Garner,
Former Chairman of the State Board of Pardons and Paroles of
Georgia, et al. v Jones
[2000] USSC 28
;
529 US 244
,
256-7 (2000) and
Kafkaris v Cyprus
21906/04
[2008] ECHR 143
at para 151.