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[2013] ZACC 8
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Houston v S (CCT 108/12) [2013] ZACC 8; 2013 (5) BCLR 527 (CC) (28 March 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 108/12
[2013]
ZACC 8
In
the matter between:
CLINTON
LOYD HOUSTON
............................................................................
Applicant
and
THE
STATE
.....................................................................................................
Respondent
Decided
on : 28 March 2013
JUDGMENT
THE
COURT
The applicant
seeks leave to appeal against two sentences imposed on him in
separate cases in the KwaZulu-Natal High Court,
Durban (High Court)
in September 1997 and February 1998. In the first case he was
found guilty of murder, kidnapping and
robbery with aggravating
circumstances and sentenced to an effective sentence of 30 years’
imprisonment (first sentence).
In the second he was found
guilty of two counts of murder and two counts of robbery with
aggravating circumstances, and sentenced
to an effective 40 years’
imprisonment (second sentence). Despite consideration of the issue
in the second trial, the
second sentence was not ordered to run
concurrently with the first. The result is that the applicant is
serving an effective
sentence of 70 years’ imprisonment.
An application
for leave to appeal against the second sentence was dismissed in
the High Court on 31 May 2005. The Supreme Court
of Appeal refused
further special leave to appeal in respect of an application
brought five years later, on 22 September 2010.
The applicant
launched the application for leave to appeal to this Court on
7 November 2012. He also seeks condonation
for the late
application.
This Court does
not ordinarily grant leave to appeal against sentence unless the
appeal raises fair trial issues that may result
in a failure of
justice.
1
That is not the case here. The applicant’s complaint is not
that his trials were unfair, but that the effect of the parole
policies of the Department of Correctional Services (Department) is
that he is being unfairly discriminated against. The question
is
thus where his remedy, if any, lies.
In order to
appreciate the applicant’s concern, it is necessary to recap
events briefly. In determining the second sentence
the High Court
considered whether a life sentence was appropriate, but decided
that it was not. This was done on the basis
that a life sentence
was only appropriate where there are no prospects of rehabilitation
or reform of the convicted person.
The implication is that the High
Court considered the applicant to be a person with the potential of
rehabilitation. The ensuing
years appear to have borne this
assessment out. The Department reports that the applicant has been
a model inmate, and has
been recommended for parole. Due to the
fact that the applicant was sentenced to definite periods of
imprisonment he will become
eligible for parole only after he has
completed one-third of his sentence,
2
that is, on 28 June 2020.
The quirk in this
tale is that had he been sentenced to life imprisonment in respect
of his offences he would by now probably
be eligible to be
considered for parole. This appears to be the result of decisions
of the courts
3
that offenders serving life sentences who were sentenced prior to 1
October 2004 are entitled to have their dates of eligibility
for
parole advanced by credits earned under earlier legislation.
The applicant
contends that this state of affairs amounts to unfair
discrimination in that had he been sentenced to life imprisonment
he would have been better off as regards parole than he is now.
Something is wrong with a system which makes the granting of
parole
easier for persons sentenced to life imprisonment - and thus
assumed to be unlikely to be rehabilitated or reformed
- than for
those, like him, who at the time of sentencing were considered to
have potential for rehabilitation or reform.
But if the
applicant is right about that, and we express no opinion on it, his
possible remedy lies in seeking a review of the
Department’s
parole policies in the High Court. It is not a ground for an appeal
against sentence to this Court, because
this result does not flow
from any unfairness in the trial. This Court should also not
ordinarily deal with a review application
of that kind as a court
of first instance.
In the course of
considering this matter we requested Legal Aid South Africa to
investigate the circumstances of the applicant’s
position and
to report to this Court. We wish to record our appreciation for the
comprehensive and helpful report compiled
by Mr Achmed Mayet of
that office.
Legal Aid South
Africa is requested to advise and assist the applicant in
considering what further steps, if any, need to be
taken in view of
this judgment.
Order
The following
order is made:
1. Condonation is granted.
2. Leave to appeal is refused.
3. The Registrar is directed to forward a copy of this judgment to
Legal Aid South Africa.
1
Bogaards
v S
[2012] ZACC 23
;
2013 (1) SACR 1
(CC);
2012 (12) BCLR 1261
(CC) at para 42.
2
See
Correctional Services Act 111 of 1998
.
3
Van
Vuren v Minister of Correctional Services and Others
[2010]
ZACC 17
;
2012 (1) SACR 103
(CC);
2010 (12) BCLR 1233
(CC); and
Van
Wyk v Minister of Correctional Services and Others
2012
(1) SACR 159
(GNP).