CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 44/18
In the matter between:
OUPA CHIPANE PHAAHLA Applicant
and
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES First Respondent
COMMISSIONER OF
CORRECTIONAL SERVICES Second Respondent
and
MAKOME STEFANAS TLHAKANYE Intervening Party
Neutral citation: Phaahla v Minister of Justice and Correctional Services and
Another (Tlhakanye Intervening) [2019] ZACC 18
Coram: Mogoeng CJ, Basson AJ , Cameron J, Dlodlo AJ, Froneman J,
Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Judgments: Dlodlo AJ (majority): [1] to [72]
Froneman J (concurring): [73] to [78]
Cameron J (concurring): [79] to [91]
Heard on: 8 November 2019
Decided on: 3 May 2019
Summary: Section 136(1) of the Correctional Services Act 111 of 1998
declared invalid — parole eligibility is part of punishment —
section 35(3) (n) of the Constitution — right to least severe
punishment
Section 9(1) of the Constitution — equality before the law —
legitimate government purpose — purpose at odds with rule of law
never legitimate
ORDER
On application for confirmation of the order of the High Court of South Africa, Gauteng
Division, Pretoria under case number 97569/15:
1. The application for condonation is granted.
2. Mr Makome Stefanas Tlhakanye is admitted as an intervening party.
3. The application for the admission of further evidence in terms of rule 31
of the Rules of the Constitutional Court is dismissed.
4. The order of invalidity of the High Court is confirmed and paragraph 1 is
varied to read:
“Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act 111 of
1998 (Correctional Services Act) are dec lared inconsistent with
section 9(1) and (3) and section 35(3)(n) of the Constitution.”
5. Parliament must, within 24 months from the date of this order, amend
section 136(1) of the Correctional Services Act to a pply parole regimes
on the basis of date of commission of an offence, pending which the
section shall read as follows:
“Any person serving a sentence of incarceration for an offence committed
before the commencement of Chapters 4, 6 and 7 of the Correctional
Services Act is subject to the provisions of the Correctional Services Act
8 of 1959, relating to his or her placement under community corrections,
and is to be considered for such release and placement by the Correctional
3
Supervision and Parole Board in terms of the policy and guidelines
applied by the former Parole Boards prior to the commencement of those
chapters.”
6. The Minister of Justice and Correctional Services must pay costs of the
applicant and the intervening part y in this Court, including the costs of
two counsel.
JUDGMENT
DLODLO AJ ( Mogoeng CJ, Basson AJ , Cameron J , Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron J concurring):
Introduction
“Parole is an acknowledged part of our correctional system. It has proved to be a vital
part of reformative treatment for the paroled person who is treated by moral suasion.
This is consistent with the law: that everyone has the right not to be deprived of freedom
arbitrarily or without just cause and that sentenced prisoners have the r ight to the
benefit of the least severe of the prescribed punishments.”1
The question that we are faced with in this matter is whether the application of a
longer non-parole period in the case of some inmates and not others on the basis of their
date of sentence infringes on inmates’ right to equality and fair trial rights guaranteed
by the Constitution.
Parties
The applicant, Mr Oupa Chipane Phaahla, is an inmate sentenced to
life imprisonment and incarcerated in Zonderwater Correctional Centre.
1 S v Jimmale [2016] ZACC 27; 2016 (2) SACR 691 (CC); 2016 (11) BCLR 1389 (CC) at para 1.
DLODLO AJ
4
The application is opposed by the Minister of Justice and Correctional Services
and the National Commissioner for Correctional Services, the first and sec ond
respondents, respectively.
Mr Makome Stefanas Tlhakanye, an inmate who like the applicant is serving a
life sentence of imprisonment, applied for leave to intervene in support of the
application for confirmation and made submissions illustrating the impact of the
impugned sections on inmates other than the applicant.
Background
The concept of p arole was first introduced into South A frican law under the
Prisons and Reformatories Act2 shortly after union in 1910.3 This introduced a system
of early release of inmates on probation – either into the community or into low -paid
labour – as a reward for good behaviour.4 However, parole has only been implemented
systematically in the Sou th African criminal justice system since the 1950s, with the
enactment of the Prisons Act5 (1959 Prisons Act).6 Since then, as a result of legislative
amendments and changes in policy, the length of non-parole time periods has changed
a number of times.
Between August 1987 and March 1994, inmates sentenced to life imprisonment
were required to serve 10 years of their sentence before becoming eligible for
consideration for parole, but it was only in exceptional circumstances that an inmate
would be granted parole before they had served 15 years of their sentence.
2 13 of 1911.
3 Moses Parole in South Africa (Juta & Co Ltd, Cape Town 2012) at 7.
4 Id.
5 8 of 1959. The Prisons Act was later renamed the Correctional Services Act 8 of 1959 by sections 33(1) and 34
of the Correctional Services and Supervision Amendment Act 122 of 1991.
6 Moses above n 3 at 7-8.
DLODLO AJ
5
From 1 March 1994 until 1 October 2004 , inmates serving life sentences were
required to serve a minimum period of 20 years in prison before they became eligible
for parole. However, in terms of section 22A of the 1959 Prisons Act, introduced by an
amendment in 1993, 7 inmates could earn credits for good behaviour. 8 These credits
translated into days served, with the effect that the date for consideration for parole for
those inmates was moved earlier. The effect of this was that inmates sentenced to life
incarceration between 1 March 1994 and 1 October 2004 bec ame eligible for parole
after having served a minimum period of 13 years and four months of their life sentence.
The 1959 Prisons Act was repealed in 1998 and replaced by the Correctional
Services Act9 (1998 Act) which, among other things, introduced a new parole release
system. The 1998 Act was implemented in stages, with different chapters taki ng
effect – and simultaneously replacing the corresponding chapters of the 1959 Prisons
Act – over a number of years. The new parole system contained in Chapter VI of the
1998 Act came into effect on 1 October 2004. 10 As of 1 October 2004, in terms of
section 73(6)(b)(iv) of the 1998 Act any inmate sentenced to life imprisonment must
serve a minimum of 25 years in prison before they may be considered for release on
7 Section 9 of the Correctional Services and Supervision Amendment Act 68 of 1993.
8 Section 22A provided:
“(1) A prisoner may earn credits, to be awarded by an institutional committee, by observing
the rules which apply in the prison and by actively taking part in the programmes which
are aimed at his treatment, training and rehabilitation: Provided that the institutional
committee may, in allocating credits, take into account any other factor which may be
relevant to the prisoner in question:
Provided further that—
(a) a prisoner may not earn credits amounting to more than half of the period of
imprisonment which he has served;
(b) credits shall be awarded at the intervals referred to in section 62(1);
(c) a prisoner sentenced to imprisonment for up to and including six months shall,
unless the institutional committee awards him fewer credits, be deemed to
have been awarded the maximum number of credits.
(2) The number of days and months earned by a prisoner as credits may be taken into
account in determining the date on which a parole board may consider the placement
of such prisoner on parole.
(3) In the calculation of credits, a fraction of a day shall be regarded as a full day.”
9 111 of 1998.
10 Proc R38 GG 26626 of 30 July 2004.
DLODLO AJ
6
parole, unless they reach the age of 65 in which case they may be released earlier. The
1998 Act also did away with the credit system, which had created an administrative
headache for the Department of Correctional Services (Department).11
The situation can now briefly be described as follows: inmates sentenced to life
imprisonment before 1 October 2004 are eligible for parole after having served
20 years;12 and inmates sentenced to life imprisonment from 1 October 2004 onwards
must serve a minimum of 25 years before they may be considered for release on
parole.13 Section 136(1) thus created a dual system of assessment, consideration and
placement on parole of sentenced inmates determined by their date of sentence.
The applicant was convicted on 25 September 2004 and sent enced to life
imprisonment on 5 October 2004. Because he was sentenced four days after the
commencement of the new parole regime, he must serve a minimum of 25 years before
he becomes eligible for consideration for parole. Had the applicant been sentence d a
few days earlier, he only would have had to serve 20 years of his sentence before he
could be considered for release on parole. Aggrieved by this, the applicant launched an
application in the High Court of South Africa, Gauteng Division, Pretoria (High Court)
challenging the constitutionality of sections 73(6)(b)(iv) and 136(1) of the 1998 Act on
the basis that these sections infringed his right to the benefit of the least severe of the
prescribed punishments in terms of section 35(3)(n) of the Constitution, and his right to
equality under section 9 of the Constitution.
The High Court 14 found that section 35(3)(n) of the Constitution did not apply
because non-eligibility for parole is not part of the punishment prescribed by a court ,
unless the court specifically imposes a non-parole period in terms of section 276B of
11 Id.
12 Section 136(1) of the 1998 Act above n 9.
13 Id section 73(6)(b)(iv).
14 Phaahla v Minister of Justice and Correctional Services 2018 (1) SACR 218 (GP) (High Court judgment) at
paras 21-2 and 26.
DLODLO AJ
7
the Criminal Procedure Act15 (CPA). However, the High Court did find that the
impugned sections amounted to a breach of the applicant’s right to equality in terms of
section 9(1) and (3) of the Constitution because the use of date of sentence as a
determining factor, rather than date of commission of the offence, was arbitrary and
irrational, led to a retroactive application of the law, and amounted to unfair
discrimination against the applicant and inmates in his position .16 The Court held that
to the extent that the impugned sections imposed a stricter parole regime on the basis of
date of sentencing, the sections were constitutionally invalid.
The respondents applied to the High Court for leave to appeal to the
Supreme Court of Appeal. Nothing appears to have come of that application and it
was struck off the roll.
The applicant now applies to this Court in terms of rule 16(4) of the Rules of the
Constitutional Court17 and section 172(2)(d ) of the Constitution 18 for confirmation of
the order of the High Court. He makes this application on the grounds that the impugned
sections breach his right to equal treatment and protection of the law in terms of
section 9(1) of the Constitution, and right not to be discriminated against under
15 51 of 1977. Section 276B was introduced by section 22 of the Parole and Correctional Supervision Amendment
Act 87 of 1997 and is titled “Fixing of non-parole period”. Subsection (1) provides:
“(a) If a court sentences a person convicted of an offence to imprisonment for a period of
two years or longer, the cour t may as part of the sentence, fix a period during which
the person shall not be placed on parole.
(b) Such period shall be referred to as the non -parole period, and may not exceed two
thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.”
16 High Court judgment above n 14 at paras 45-7.
17 Rule 16 of the Rules of the Constitutional Court is titled “Confirmation of an order of constitutional invalidity”
and provides in relevant part:
“(4) A person or organ of state entitled to do s o and desirous of applying for the
confirmation of an order in terms of section 172(2)(d) of the Constitution shall, within
15 days of the making of such order, lodge an application for such confirmation with
the Registrar and a copy thereof with the Registrar of the court which made the order,
whereupon the matter shall be disposed of in accordance with directions given by the
Chief Justice.”
18 Section 172(2)(d) provides:
“Any person or organ of state with a sufficient interest may appeal, or apply, direct ly to the
Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms
of this subsection.”
DLODLO AJ
8
section 9(3) of the Constitution.19 He also submits that the impugned sections breach
his right to a fair trial, specifically, his right to receive the least severe of the prescribed
punishments if the prescribed punishment for the offence has changed between the time
the offence was committed and the date of sentencing.20
Jurisdiction
In terms of section 167(5) of the Constitution, this Court makes the final decision
as to the constitutionality of an Act of Parliament, and any order of constitutional
invalidity by the High Court must be confirmed by this Court before that order has any
force.21 Our jurisdiction is accordingly engaged.
Condonation
The a pplicant applied for confirmation of the High Court’s declaration of
invalidity outside of the time period required by rule 16(4). His explanation was that
the respondents’ application for leave to appeal to the Supreme Court of Appeal resulted
in confusion as to the relevant requirements. The applicant is an inmate and the
explanation is credible. Accordingly, condonation is granted.
19 Section 9 of the Constitution provides in relevant part:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of
the law.
. . .
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy, marital status, e thnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.”
20 Section 35(3) of the Constitution provides in relevant part:
“Every accused person has a right to a fair trial, which includes the right—
. . .
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing.”
21 Section 167(5) of the Constitution provides:
“The Constitutional Court makes the final decision whether an Act of Parliament, a provincial
Act or conduct of the President is constitutional, and must confirm any order of invalidity made
by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has
any force.”
DLODLO AJ
9
Application for leave to intervene
Applications to intervene as a party to proceedings are governed by rule 8(1) of
the Rules of the Constitutional Court and the overriding consideration is whether it is
in the interests of justice to allow a party to intervene.22 Mr Tlhakanye has demonstrated
that he has a direct and substantial interest in the outcome of this matter and he applied
for leave to intervene timeously. It would therefore be in the interests of justice to admit
him as an intervening party.23
Rule 31 application
The respondents in this matter seek to introduce new facts not in the record in
terms of rule 31 of the Rules of the Constitutional Court on the basis that they are
common cause or incontrovertible, of an official or statistical nature capable of easy
verification, and relevant to the formulation of a just and equitable order.
In summary, the evidence the respondents seek to introduce pertains to their
computer system which manages the data on correctional centre inmates. This system
captures an inmate’s offence, date of sentence, term of incarceration and date of
eligibility for parole. It does not capture the date of the commission of the offence, as
there has never been a need to capture this information. The date of the commission of
the offence is captured on the warrant of detention. If the date of the commission of the
offence is to become the basis for parole eligibility, as argued for by the applicant, the
Department will need to capture manually the dates of commission and upload these to
their system. The respondents also submit tha t there are currently 117 692 inmates
serving determinate and life sentences. On these grounds, the respondents ask that
should this Court find the impugned provisions constitutionally invalid, it will take this
into consideration in crafting a just and equitable order by suspending the dec laration
22 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012 (4) SA
618 (CC); 2010 (5) BCLR 457 (CC) at para 11.
23 Minister of Public Works v Kyalami Ridge Environmental Association (Mukhwevho Intervening) [2001] ZACC
19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) at para 30.
DLODLO AJ
10
of invalidity for a period of 12 months . This, they submit, would avoid opening the
floodgates of litigation by inmates seeking mandamus orders (judicial writ or
command) that they be considered for parole.
The threshold that must be met for a r ule 31 application to be successful is that
the tendered evidence is relevant to the issues before the Court; and the facts sought to
be adduced either must be common cause or incontrovertible, or they must be official,
scientific, technical or statistical in nature and easily verifiable. 24 The applicant
contends that the evidence is not relevant to the issues to be determined, is not verifiable
at all and is not relevant to the issues at hand. I do not agree with the applicant that the
proffered evidence is incapable of verification, but I also do not believe that it is of any
great relevance to the issues at hand. Moreover, in Prophet this Court held that it is in
the interests of fairness for the party tendering the application late to provide an
explanation for lateness. 25 This the respondents failed to do either in their written
submissions or in oral argument.
In light of the circ umstances of the applicant and intervening party – both of
whom are incarcerated and the latter, self -represented – as well as the fact that the
respondents had the opportunity to introduce this evidence at any point, including
during proceedings in the Hi gh Court, I believe the prejudice to the applicant and
intervening party warrants a dismissal of the rule 31 application.
Issues
The central issue to be determined by this Court is whether the impugned
sections of the 1998 Act infringe upon inmates’ rights to a fair trial or equality.
24 Rule 31(1) of the Rules of the Constitutional Court.
25 Prophet v National Director of Public Prosecutions [2006] ZACC 17; 2007 (6) SA 169 (CC); 2007 (2) BCLR
140 (CC) at para 38.
DLODLO AJ
11
Applicant’s submissions
The applicant submits that there is a presumption of non -retrospectivity in the
law, and an interpretation of the law favouring liberty should be preferred. He relies on
Van Vuren to argue that section 136(1) creates different categories of inmates for the
purposes of parole eligibility and preserves the parole provisions ap plicable before
1 October 2004. 26 The applicant argues that the purpose of section 136 is to avoid
retrospective application of the law through the application of parole provisions more
onerous than those applicable before an inmate was sentenced. However, the applicant
contends that the use of the date of sentence to distinguish between inmates for parole
purposes is arbitrary and irrational, and counteracts the purpose of section 136. This is
because the date that an offence is committed is fixed and certain, whereas the date on
which someone will ultimately be sentenced is unpredictable due to unforeseeable
delays, or lack thereof, in the criminal justice process.
An example that counsel for the applicant provided during oral argument was
that two accused persons may commit the same offence on the same day, but the date
of conviction or sentence could differ by more than a year as a result of factors beyond
the control of either of the accused. This would result in one accused serving only
20 years in prison, while the other must serve 25 years – for the same offence. The
result is harsh and extremely prejudicial to anyone who, like the applicant, committed
and was convicted of an offence before 1 October 2004 but was only sentenced after
1 October 2004. The applicant argues that the differentiation is irrational and does not
serve a legitimate government purpose. Accordi ng to Harksen27 and Prinsloo28 the
differentiation therefore violates section 9(1) of the Constitution, and the High Court
was correct in holding this to be the case.
26 Van Vuren v Minister of Correctional Services [2010] ZACC 17; 2012 (1) SACR 103 (CC); 2010 (12) BCLR
1233 (CC).
27 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).
28 Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SACR 1012 (CC); 1997 (6) BCLR 759 (CC).
DLODLO AJ
12
The applicant also argues that parole forms a part of, or is inextricably linked to,
sentencing and punishme nt as it changes the conditions of punishment from
imprisonment to correctional supervision within the community. The possibility of
parole, then, ameliorates a sentence of imprisonment and eligibility or non -eligibility
can shorten or lengthen the period that a person must spend imprisoned. Parole
therefore has the effect that the length of a term of imprisonment can differ materially
from what is ordered by a court.
The applicant submits that the date applicable in the sentencing process, which
is when the punishment is determined, is the date of the commission of the offence. A
person may not be sentenced to a harsher punishment than what was applicable at the
time of the offence. Therefore in terms of section 35(3)(n) – if parole is part of the
punishment – the parole regime applicable cannot be more severe than what was
applicable at the time the offence was committed.
Intervening party’s submissions
Finally, Mr Tlhakanye submits that d
DLODLO AJ
13
Respondents’ submissions
The respondents submit that the impugned provisions do not violate section 9(1)
because the amendment of the minimum detention period inv olved the balancing of a
number of competing and important considerations that bear a rational connection to a
legitimate government purpose. The respondent s argue that using the date of the
commission of the offence would lead to a number of difficulties , for example, when
the commission of a n offence was ongoing and occurred both before and after
1 October 2004. Similarly, an accused could be tried for a number of different offences,
some of which took place before 1 October 2004, and others, after. Fu rthermore, the
respondents contend, parole is premised on an accused being found guilty and sentenced
rather than on the commission of the offence. For this reason, the date of sentence is
relevant. Moreover, under the common law, it is the date of sentence which is relevant
to how a judicial sentence should be served.
The respondents further argue that the provisions do not impair the fundamental
human dignity of inmates sentenced to imprisonment after 1 October 2004 for offences
committed prior to 1 October 2004, nor do they affect them adversely in a comparably
serious manner. Therefore the provisions do not amount to discrimination. However,
even if the provisions do amount to discrimination, then this discrimination is not unfair
because it is directed toward a legitimate government purpose, and the limitation of the
applicant’s right to equality is reasonable and justifiable.
Is the harshening of parole a kind of punishment?
The applicant argues that the application of a more burdensome parole system
infringes upon his right to equality and right to the benefit of the least severe of the
prescribed punishments in terms of section 35(3)(n) of the Constitution. The question
that then arises is whether the rules that govern non-eligibility for parole are part of the
DLODLO AJ
14
rules that govern punishment. For if they do not, on what basis can the impugned
sections be found to infringe on either the right to equality or the right to a fair trial? If
the impugned sections, which have the effect of lengthenin g or shortening a term of
imprisonment, are not found to result in inmates receiving different punishments for the
same offences, then on what basis can we find that there is differentiation or
discrimination that would trigger section 9, or that his secti on 35(3)(n) right has been
infringed?
Punishment is difficult to define; its definition is often determined by reference
to the different measures taken to punish law -breakers.29 For our purposes, this will
suffice. Section 276 of the CPA is titled “Natu re of punishments” and sets out the
different types of sentences that may be meted out by courts to a person convicted of an
offence.30 These include: imprisonment, including life imprisonment; correctional
supervision; and imprisonment from which a person may be placed under correctional
supervision in the discretion of the National Commissioner of Correctional Services or
a parole board, now referred to as parole and correctional supervision boards.
Significantly, correctional supervision is among the types of punishments listed.
Parole and correctional supervision are substantively identical. Correctional
29 Boonin The Problem of Punishment (Cambridge University Press, Cambridge 2008) at 3.
30 CPA above n 15. Section 276(1) provides in full:
“Subject to the provisions of this Act and any other law of the common law, the following
sentences may be passed upon a person convicted of an offence, namely—
(a) [Para (a) deleted by section 34 of Act 105 of 1997];
(b) imprisonment, including imprisonment for life or imprisonment for an indefinite
period as referred to in section 286B(1);
(c) periodical imprisonment;
(d) declaration as an habitual criminal;
(e) committal to any institution established by law;
(f) a fine;
(g) [Para (g) deleted by section 2 of Act 33 of 1997];
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under correctional supervision
in the discretion of the Commissioner or a parole board.”
DLODLO AJ
15
supervision is defined by the CPA as “a community -based sentence to which a person
is subject in accordance with Chapters V and VI of the [1998 Act]”.31 Section 1 of the
1998 Act defines “community corrections” 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 ”.32 This must then
include parole, which is a non -custodial measure and form of supervision in the
community, indicating that parole is in fact a kind of punishment. Finally parole itself
is defined by the 1998 Act as “a form of community corrections contem plated in
Chapter VI [of the 1998 Act]”.
The purpose of community corrections is set out in section 50 of the 1998 Act,
which provides:
“(1) The objectiv es of community corrections are to enable persons subject to
community corrections to lead a socially responsible and crime-free life during
the period of their sentence and in future . . .
(2) The immediate aim of the implementation of community corrections is to
ensure that persons subject to community corrections abide by the conditions
imposed upon them in order to protect the community from offences which
such persons may commit.”
This description surely applies equally to parole and correctional supervision.
Section 51 of the 1998 Act then lists the different types of community corrections
governed by Chapter VI, among which are correctional supervision and parole.
Section 52(1) of the 1998 Act empowers a parole board granting parole and a court
sentencing someone to correctional supervision to impose the same conditions for each,
again indicating that the two are not substantively distinct.
31 Id section 1.
32 Section 1 of the 1998 Act.
DLODLO AJ
16
Correctional supervision is a class of punishment, and so the rules prescribing
correctional supervision prescribe a form of punishment. Par ole is defined in
substantively the same way, serves the same purpose, and is governed by the same rules
as correctional supervision. In substance, therefore, the two are identical and parole,
like correctional supervision, must surely be a type of punishment.
It could be argued that parole is a privilege, not a right, and is merely a mitigation
of the prescribed punishment of imprisonment, not a prescribed punishment in itself. It
is simply a way of serving out one’s sentence in an environment other tha n a prison.
On this reasoning the rules prescribing parole eligibility do not amount to a prescribed
punishment. However, as counsel for the respondents correctly conceded, parole is still
a manner of serving out one’s sentence. It is therefore still a punishment although a
lesser one than imprisonment. It still amounts to a deprivation of liberty for a set period,
albeit outside of prison. Parolees remain subject to the supervision and authority of the
Department for the remainder of their sentence. That it mitigates a sentence of
imprisonment does not detract from this.
It was also argued by counsel for the respondent s that parole is determined by
the Executive, and therefore it is not a part of the sentence, as sentencing takes place at
court and i s undertaken by the Judiciary. On this reasoning, to consider parole to be
part of the punishment would create a tension between executive and judicial functions
and allow the Executive to encroach upon the Judiciary. A converse argument in respect
of th is tension between the Executive and the courts in respect of sentencing was
considered briefly by the Supreme Court of Appeal in Mhlakaza33 and in Botha.34 In
Botha, the Court touched on the issue whether a trial court’s imposition of a non-parole
period e ncroached on the domain of the Executive. 35 The Court held that “a
33 S v Mhlakaza [1997] ZASCA 7; 1997 (1) SACR 515 (SCA) at 521E-I.
34 S v Botha [2004] ZASCA 51; 2006 (2) SACR 110 (SCA) at para 25.
35 These cases were heard before the promulgation of section 276B of the CPA, which came into effect on
1 October 2004 per the proclamation in Proc R45 2004 GG 26808 of 1 October 2004.
DLODLO AJ
17
recommendation [of a non-parole period] is an undesirable incursion into the domain of
another arm of state”.36
First, before the promulgation of section 276B of the CPA, the imposition of a
non-parole period amounted to an encroachment of the functions of the Executive by
the Judiciary. However, t his is distinct from an automatic eligibility criterion
established by legislation that, exceptional circumstances aside, will take effect through
ordinary effluxion of time and has little or nothing to do with sentencing by a court.
Second, the argument conflates sentence with punishment. Section 35(3)(n) of
the Constitution distinguishes between sentence and punishment, indicating that in the
eyes of the drafters, the two are distinct concepts. A sentence is a measure of
punishment, but it is not the punishment itself; it is the decision, usually but not
necessarily of a cour t, as to which punishment should be imposed. Sentencing is
conducted by a court, which must choose from the options provided to it by the
Legislature and does not have the prerogative to decide precisely how and where that
punishment will be carried out. Courts must apply the appropriate punishment
established by statute or the common law. However , as pointed out by the
Supreme Court of Appeal in Mhlakaza, when sentencing a person to imprisonment,
“[t]he function of the sentencing court is to determine t he maximum term of
imprisonment a convicted person may serve. The court has no control over the
minimum or actual period served or to be served”.37
That the courts prescribe imprisonment as a punishment, or indeed any other
penalty, does not mean that any material change in conditions that happens subsequent
to the sentence is not a class of punishment. Of course, an inmate may move from a
maximum security centre to a medium security centre, or gain or lose privileges, but
such conditions are the result of decisions taken in the administration of imprisonment,
36 Botha above n 35 at para 25.
37 Mhlakaza above n 34 at 521D.
DLODLO AJ
18
a type of punishment. Parole is a different class to security levels or privileges. It is a
non-custodial punishment served in the community. It is a distinct form of punishment
from that of imprisonment.
Third, like parole, correctional supervision is implemented by the Executive in
terms of section 276(1)(i) of the CPA , which provides as a form of punishment
“imprisonment from which such a person may be placed under correctional supervision
in the discretion of the Commissioner or a parole board”. How is this any different from
a sentence of imprisonment during which almost every person will become eligible to
apply for parole after serving their non-parole period and will be granted such parole
subject to the discretion of the parole and correctional supervision board?
Fourth, the rules governing the length of the period to be served in a prison before
an inmate becomes eligible for parole are statutory and function automatically. They
determine when inmates may apply for parole. These rules determine not whether
someone should be released, but when they will have their first opportunity to apply for
release on parole. The effect of these rules is to lengthen or shorten a term of
imprisonment, which is a type of punishment. Importantly, these rules are distinct from
the application of parole policies and criteria by correctional service administrators in
determining whether a parole application will be successful.
Finally, as discussed above , the right to a fair trial is one that “embraces the
concept of substantive fairness” .38 In the case of S v Zuma , this Court held that
“constitutional rights conferred without express limitation should not be cut down by
reading implicit restrictions into them”.39 Poignantly, this was said in relation to the
fair trial right under section 25(3) of the interim Constitution – now section 35(3) of the
Constitution. The Court went on to say:
38 S v Zuma [1995] ZACC 1; 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (CC) at para 15, citing Attorney
General v Moagi 1982 (2) Botswana LR 124 at 184 (judgment of Kentridge AJ).
39 Id at para 15.
DLODLO AJ
19
“The right to a fair trial conferred by [section 25(3) of the interim Constitution] is
broader than the list of specific rights set out in paras (a) to (j) of the subsection. It
embraces a concept of substantive fairness which is not to be equated with what might
have passed muster in our criminal courts before the Constitution came into force.”40
Thus, even if on a narrow and technical analysis punishment were to exclude
parole, Zuma supports a broad interpretation of section 35(3)(n) so as to consider at the
very least the legislated pre -conditions for parole eligib ility to fall within the ambit of
“prescribed punishment”.
If we accept that parole is part of the punishment, then we must also accept that
people who commit similar offences at the same time could, depending on elements of
the criminal justice system beyond their control, receive punishments that differ vastly
in severity. The applicant himself, had he been sentenced one week earlier, would have
spent only 20 years in prison before becoming eligible for parole. However, because of
a delay of a few days, he must now spend an additional five years deprived of his liberty.
This different treatment immediately implicates the right to equality, and so we must
proceed to consider whether the different treatment of sentenced inmates contravenes
either section 9(1) or (3). It also triggers the right to receive the least severe of the
prescribed punishments in terms of section 35(3)(n).
Do the impugned sections infringe the applicant’s right to equality?
The High Court held that the impugned sections contravene section 9(1) and (3).
However, it does not provide substantiation for its finding in respect of the latter.
In Van Der Walt this Court held that “[section 9(1)] means that all persons in a
similar position must be afforded the same right[s]”.41 It is a well-established principle
in our law that where an impugned provision differentiates between categories of
40 Id at para 16.
41 Van Der Walt v Metcash Trading Ltd [2002] ZACC 4; 2002 (4) SA 317 (CC); 2002 (5) BCLR 454 (CC) at
para 24.
DLODLO AJ
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people, it must bear a rational connection to a legitimate government purpose; otherwise
the differentiation is in violation of section 9(1) of the Constitution.42 The test used to
determine whether statutory provisions amount to unequal treatment by the law or
constitute unfair discrimination was set out in full by this Court in Harksen.43
According to Harksen, when section 9 is invoked to challenge a statutory provision—
“the first enquiry must be directed to the question as to whether the impugned provision
does differentiate between people or categories of people. If it does so differentiate,
then in order not to fa ll foul of section [9(1)] . . . there must be a rational connection
between the differentiation in question and the legitimate governmental purpose it is
designed to further or achieve. If it is justified in that way, then it does not amount to
a breach of section [9(1)].” 44
And, if the impugned provision does differentiate—
“[i]t becomes necessary . . . to consider the governmental purpose of the section,
whether that purpose is a legitimate one and, if so, whether the differentiation does
have a rational connection to that purpose.”45
We have already established that the impugned sections have the effect of
retroactively imposing different punishments for the same offence on the basis of date
of sentencing, so we can proceed to the next stage of the enquiry: is the differentiation
rationally connected to a legitimate government purpose ? A number of decisions of
this Court, starting with Prinsloo, dealt specifically with the rationality enquiry. 46 In
Prinsloo, decided before the final Constitution was enacted, this Court held:
“In regard to mere differentiation the constitutional State is expected to act in a rational
manner. It should not regulate in an arbitrary manner or manifest “naked preferences”
42 See Harksen above n 27 at para 43; Prinsloo above n 28 at para 26.
43 Harksen id at para 43.
44 Id at para 43.
45 Id at para 56.
46 Prinsloo above n 28.
DLODLO AJ
21
that serve no legitimate governmental purpose, for that would be inconsistent with the
rule of law and the fundamental premises of the constitutional State. The purpose of
this aspect of equality is, therefore, to ensure that the State is bound to function in a
rational manner. This has been said to promote the need for governmental a ction to
relate to a defensible vision of the public good, as well as to enhance the coherence and
integrity of legislation. . . .
Accordingly, before it can be said that mere differentiation infringes section 8 it must
be established that there is no rati onal relationship between the differentiation in
question and the governmental purpose which is proffered to validate it. In the absence
of such rational relationship the differentiation would infringe section 8 [of the interim
Constitution].”47
It is important to note that when conducting a rationality enquiry, the court must
focus only on whether the differentiation is arbitrary or not rationally connected to a
legitimate government purpose. It is not for the court to decide if there is a better means
to achieve the object of the differentiation. 48 When considering whether there is a
rational link to the achievement of a legitimate government purpose––
“[t]he question is not whether the government could have achieved its purpose in a
manner the court feels is better or more effective or more closely connected to that
purpose. The question is whether the means the government chose are rationally
connected to the purpose, as opposed to being arbitrary or capricious.”49
Section 9(1) thus presents the respondents with a very low threshold to meet.
In Rahube this Court held that a provision or statute that differentiates between
people without a legitimate government purpose will be irrational and unconstitutional
due to its inconsistency with section 9(1).50 The respondents submit that section 136(1)
is intended to avoid the retrospective application of a change in parole policy by
47 Id at paras 25-6.
48 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) [1998] ZACC 18; 1999 (2) SA
1 (CC); 1999 (2) BCLR 139 (CC) at para 17.
49 Weare v Ndebele N.O. [2008] ZACC 20; 2009 (1) SA 600 (CC); 2009 (4) BCLR 370 (CC) at para 46.
50 Rahube v Rahube [2018] ZACC 42; 2019 (2) SA 54 (CC); 2019 (1) BCLR 125 (CC) at para 37.
DLODLO AJ
22
preserving the existing policy for inmates sentenced before 1 October 2004. Stated
differently, the purpose in differentiating is to protect a group of people from retroactive
application of the law . However, the differentiation serves to leave another group of
people vulnerable to retroactive application of the law that will affect them in a way
that is prejudicial . One of t he tenets of the principle o f legality enshrined by
section 1(c)51 of our Constitution is n on-retroactivity of the law. Everyone deserves
protection from retro activity of the law where the result of retro activity would be
prejudicial. To afford protection from retroactivity only to one group and not to another
therefore cannot be a legitimate purpose. The second judgment argues that this was not
the government’s purpose, and that the government’s focus was simply too narrow. I
disagree. It cannot have e scaped the government’s attention that by extending this
protection only to a group sentenced before 1 October 2004, that the group sentenced
after 1 October 2004 would be left exposed. It is a patently obvious consequence of the
impugned provisions.
In Van Vuren this Court pronounced authoritatively on the principle at issue,
although the section 9(1) argument was not before it. It said:
“In the context of correctional law, deprivation [of liberty] may occur in the retroactive
application of a change in parole policy, as is the case in the instant matter. Deprivation
of a person’s liberty in that manner does not conform to the principles of the rule of
law. The construction contended for by the respondents effectively renders the new
mandatory non-parole period of 20 years retrospective in operation. This would offend
the foundational values of constitutional supremacy and the rule of la w, which this
Court should not countenance.”52
51 Section 1(c) of the Constitution provides:
“The Republic of South Africa is one, sovereign, democratic state founded on the following
values:
. . .
(c) Supremacy of the constitution and the rule of law.”
52 Van Vuren above n 26 at para 60.
DLODLO AJ
23
This is not to say that any law that applies retroactively will be arbitrary or
irrational per se. Even section 35(3)(n), discussed below, contemplates circumstances
in which the retroactive application of the law will be acceptable: where the punishment
for an offence is changed between the commission of an offence and date of sentence,
the least severe punishment shall apply. This clearly indicates that where the retroactive
application of the law will not prejudice an accused, it is possible that it would be
constitutionally permissible. However, it can never be a legitimate government purpose
to differentiate between two groups of people in order to protect only one of them from
the prejudicial retroactive application of the law . To say that it could be a legitimate
government purpose is to say that a purpose at odds with the rule of law is legitimate.
For this reason, I find that the government’s purpose in differentiating between inmates
on the basis of their date of sentence is not legitimate and fails the test for section 9(1).
That the impugned provisions violate section 9(1) is sufficient to invalidate them.
There is no need to go further and make an enquiry in respect of section 9(3).53
However, as this Court did in Rahube, I will explain why this discriminatory
irrationality also does not pass the much higher threshold imposed by section 9(3).54
In differentiating between people on the basis of the date of their sentencing, the
transitional arrangements discriminate on the basis of their status as convicted persons.
Although not a listed ground, their status is an attribute or characteristic that
undoubtedly has “the potential to impair the fundamental dignity of [these] persons as
human beings, or to affect them adversely in a comparably serious manner”. 55 In this
case the impact of this differentiation is unfair, as it subjects a group of people to a more
severe parole regime than those who happened to be sentenced earlier. This limitation
of the right to equality cannot be justified under section 36 of the Constitution.56 Thus
53 Prinsloo above n 28 at para 26.
54 Rahube above n 51 at para 45.
55 Harksen above n 27 at para 60.
56 Woolman and Botha “Limita tions” in Woolman et al (eds) Constitutional Law of South Africa 2nd Edition
Original Service: 07-06 (2018) Volume 3 (CLOSA) states:
DLODLO AJ
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even if the purpose of the im pugned sections was legitimate, the reasons provided by
the Minister would not have justified their discriminatory impact ; there are oth er less
restrictive means to secure legal certainty and effective implementation of the new
parole regime. Not to use those lesser means renders the differentiation unfair .
Section 136(1) would thus have been found to discriminate unfairly between peo ple
who were sentenced before 1 October 2004 and pe ople who were sentenced after
1 October 2004 for all offences committed before that date.
The impugned provisions must therefore be declared constitutionally invalid
insofar as they deny equal protection of the law on the basis of date of sentencing. This
is in itself sufficient for holding the section constitutionally invalid. However, what of
the right to a fair trial?
The right to a fair trial
The High Court decided against the applicant on the question of whether the
impugned sections breach his right to a fair trial, 57 but I believe that it warrants further
consideration. If we accept that parole is a kind of punishment and that the rules for
parole eligibility lengthen or shorten the minimum period of imprisonment, then the
right to receive the leas t severe of the prescribed punishments in terms of
section 35(3)(n) is implicated. Section 35(3)(n) is a component of the right to a fair trial
guaranteed by section 35(3) of the Constitution . The Constitution classifies the rights
listed in section 35(3) as non-derogable.58 In Jaipal this Court said of fair trial rights:
“Although the courts have been loath to state categorically that a finding of unfairness under
section 9(3) ends the court’s analysis, in not a single Constitutional Court equality judgment has
the Court found that unfair conduct or an unfair law – in terms of . . . section 9(3) or
section 9(4) – can be justified in terms of section 36. . . . The only judgment on record in which
a Court has found unfairness in terms of section 9(3), but then held the unfair law to be
reasonable and justifiable in terms of section 36 is Lotus River, Ottery, Grassy Park Residents
Association v South Peninsula Municipality.” (Footnotes omitted.)
See Lotus River, Ottery, Grassy Park Residents Association v South Peninsula Municipality 1999 (2) SA 817 (C).
See also Khosa v Minister of Social Development; Mahlaule v Minister of Social Development [2004] ZACC 11;
2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (judgment of Ngcobo J) which dealt with the interaction between
the internal limitation in section 27(2) of the Constitution and the limitations clause, section 36 of the Constitution.
57 High Court judgment above n 14 at para 26.
58 Section 37(5)(c) of the Constitution.
DLODLO AJ
25
“The basic requirement that a trial must be fair is central to any civilised criminal justice
system. It is essential in a society which recognises the rights to human dignity and to
the freedom and security of the person, and is based on values such as the advancement
of human rights and freedoms, the rule of law, democracy and openness.”59
In a similar vein, this Court held in Zuma that the fair trial rights protected by
section 25(3) of the interim Constitution – the equivalent of section 35(3) of the
Constitution – “embraced a concept of substantive fairness”.60
Section 35(3)(n) incorporates the fundamental principle of legalit y expressed
through the maxim nulla poena sine lege (no punishment without law).61 This requires
that punishment be governed by rules which themselves comply with the principle of
legality – including prospectivity – as an aspect of the rule of law. 62 This aspect of
legality has been thus described by this Court:
“[T]he rule of law embraces some internal qualities of all public law: that it should be
certain, that is ascertainable in advance so as to be predictable and not retrospective in
its operation; and that it be applied equally, without unjustifiable differentiation.”63
In Veldman this Court described section 35(3)(n) as protection for an accused
person “against the retrospective application of increased prescribed punishment”. 64
This is because section 35(3)(n) ensures that a more severe punishment than what was
prescribed for an offence at the time an accused committed the offence is not meted out
to that accused.
59 S v Jaipal [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC) at para 26.
60 S v Zuma above n 38 at para 16.
61 Director of Public Prosecutions , Western Cape v Prins [2012] ZASCA 106; 2012 (2) SACR 183 (SCA) at
para 7.
62 Van Zyl Smit “Sentencing and Punishment” in CLOSA above n 56 at 49-4.
63 Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa
[2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) (Pharmaceutical Manufacturers) at para 39.
See also Veldman v Director of Public Prosecutions, Witwatersrand Local Division [2005] ZACC 22; 2007 (3)
SA 210 (CC); 2007 (9) BCLR 929 (CC) at para 26.
64 Veldman id at para 21.
DLODLO AJ
26
At a criminal trial section 35(3)(n) would usually fulfil an in terpretive function.
As an interpretive presumption, section 35(3)(n) has been applied to resolve ambiguities
in sentencing legislation in favour of prospectivity rather than retrospectivity.65 This is
illustrated by the Supreme Court of Appeal’s decision in Basson:
“There is a strong presumption against the retrospective operation of a statute:
generally a statute will be construed as operating prospectively only unless the
Legislature has expressed a contrary intention.”66
This brings us to the nub of the application of section 35(3)(n) here. Unlike the
cases which have dealt with the potential retrospectivity of sentencing legislation, this
matter bears out the limits of the interpretive function of section 35(3)(n). This is
because there is no ambiguity in section 136(1) in respect of its retrospective operation
to an accused in the applicant’s position – it clearly envisages that the new parole regime
will apply to accused persons who are sentenced after 1 October 2004. It thus
retrospectively chan ges the conditions for parole eligibility which govern inmates’
imprisonment. There are no other legislative provisions that allow the trial judge to
exercise any power over the legislatively imposed parole regime. It is essentially for
this reason that the Court held that section 35(3)(n) is not of any help in the inquiry into
the constitutional validity of section 136(1).67
Given the functions of section 35(3)(n) as an interpretive presumption, it is useful
to set out briefly how a trial judge ought to apply it when faced with legislation that
imposes potentially retrospective punishment. In Dzukuda Ackermann J drew together
the principles that have been developed in this Court’s jurisprudence for dealing with
65 Van Vuren above n 26 and National Director of Public Prosecutions v Basson [2001] ZASCA 111; 2001 (2)
SACR 712 (SCA) (Basson) offer the clearest examples of the interpretive presumption against retrospectivity in
sentencing.
66 Basson id at para 12.
67 High Court judgment above n 14 at para 26.
DLODLO AJ
27
constitutionally infirm legislation.68 Applied to the current context, it is clear that a trial
judge should first consider whether the sentencing legislation can be read down before
entertaining a challenge to its constitutionality:
“(a) . . . The Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental values. Consistently
with this, when the constitutionality of legislation is in issue, they are under a
duty to examine the objects and purport of an Act and to read the provisions of
the legislation, so far as is possible, in conformity with the Constitution.
(b) . . .
(c) If such provisions, properly construed, compel the presiding officer (judicial
or otherwise) to act or apply such provisions in a way which would infringe
any of the [accused’s] constitutional rights, then the constitutionality of such
provisions would properly be in issue.”69
In short, section 35(3)(n) should first serve as an interpretive presumption that
aids reading down sentencing legislation in conformity wi th the Constitution. If there
is no ambiguity, however, and the express intention of the legislation is to prescribe a
more severe punishment retrospectively, then the constitutionality of that legislation
will be at issue.
Does section 35(3)(n) have any further independent role to play in deciding the
constitutional validity of section 136(1)? If not, section 9 would have been sufficient
to determine the issue. The principle of legality is closely related to the requirements
of equality before the law and equal protection of the law contained in section 9(1) of
the Constitution. 70 There is thus an intersection between section 9(1) and
68 S v Dzukuda; S v Tshilo [2000] ZACC 16; 2000 (2) SACR 443 (CC); 2000 (11) BCLR 1252 (CC) ( Dzukuda)
at para 37.
69 Id.
70 See Van Zyl Smit “Sentencing and Punishment” in CLOSA above n 56 at 49-7. The formulation of section 9(1)
of our Constitution has a strong textual resonance with the “equal protection of the laws” guaranteed in section 1
of the Fourteenth Amendment of the US Constitution. The US Supreme Court has held that equal protection of
the law requires that “in the administration of criminal justice no different or higher punishment should be imposed
upon one than such is prescribed to all for like offences.” See Barbier v Connolly 113 US 27 (1884) at 31 and
Truax v Corrigan 257 US 312 (1921) at 334-5.
DLODLO AJ
28
section 35(3)(n) that illustrates the interdependence of rights in the Bill of Rights.
Indirectly, section 35(3)(n) also ensures that accused persons who committed the same
offences on the same date, but were convicted and sentenced on different dates, receive
equal treatment under the law, reflecting the guarantee in section 9(1) of the
Constitution. If two people commit offences at the same time, then , all other things
being equal, they must receive the same punishment, notwithstanding an amendment to
the prescribed punishment between commission of offence and sentencing. The one
cannot benefit from a lesser punishment or suffer from a harsher punishment, while the
other is treated conversely. In this sense, section 35(3)(n) is linked to section 9(1) of
the Constitution. As the Court explained in Prinsloo, section 9(1) gives everyone the
right not to be differentiated from others irrationally. 71 To mete out two different
punishments to two accused who committed substantially identical offences at a time
when a single punishment was prescribed for that offence would be irrational
differentiation. The differentiation would invariably amount to the retroactive
application of criminal laws – a palpably illegitimate purpose that undermines
fundamental tenets of criminal law.72 One of the functions of section 35(3)(n) is to give
effect to equality before th e law and the principle of non -retrospectivity. This Court
has acknowledged on various occasions the intersection between different rights in the
Bill of Rights.73 This is another one of those intersections.
Yet this does not mean that the prohibition against retrospectivity in punishment
requires any comparison between two groups of accused persons. The retrospective
application of a prescribed punishment might conceivably treat all prisoners equally,
but in retrospectively prescribing punishment it would still fall foul of section 35(3)(n).
In short, the prohibition against retrospectivity in punishment intersects with the
71 Prinsloo above n 28 at para 22.
72 Burchell Principles of Criminal Law 5 ed (Juta & Co Ltd, Cape Town 2016) at 35-6.
73 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013] ZACC 35;
2014 (2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) at para 64; Khumalo v Holomisa [2002] ZACC 12; 2002 (5)
SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 27; and South African National Defence Union v Minister of
Defence [1999] ZACC 7; 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC) at para 8.
DLODLO AJ
29
guarantee of equality before the law but does not require unequal treatment to be
engaged.
It is important to appreciate the self -standing pedigree of section 35(3)(n)
because of the various meanings and applications that it holds as the constitutional
embodiment of nulla poena sine lege (no punishment without law).74 As an expression
of legality, section 35(3)(n) prohibits punishmen t that has not been clearly set out in
statute or common law, thus demonstrating how nulla poena sine lege (no punishment
without law) is inextricably intertwined with nulla crimen sine lege (no crime without
law).75 As an interpretive presumption, section 35(3)(n) has been applied to resolve
ambiguities in sentencing legislation in favour of prospectivity rather than
retrospectivity.
As a substantive rights guarantee, however, section 35(3)(n) creates a prohibition
against the retrospective application of punishment that is more severe than the
prescribed punishment applicable at the time the offence was committed. As this Court
emphasised in Savoi, this interpretive function does not detrac t from the self-standing
pedigree of section 35(3)(n) as a substantive rights guarantee:
“In pre-constitutional South Africa the notion of retrospectivity served no more than as
a tool of interpretation: laws were presumed not to have been meant to operate
retrospectively. Nothing stood in the way of Parliament – in accordance with the
principle of parliamentary supremacy, which we were subject to – to enact laws that
operated retrospectively. Converting a general principle of interpretation into a
fundamental right signifies the intrinsic worth the framers of the Constitution saw in
not having criminal laws that operate retrospectively.”76
74 For an illuminating account of the historical origins and development of nulla poena sine lege, see Hall “Nulla
Poena Sine Lege” (1937) 47 Yale Law Journal 165.
75 Snyckers and Le Roux “Criminal Procedure: Rights of Arrested, Detained and Accused Persons” in CLOSA
above n 56 at 51-170.
76 Savoi v National Director of Public Prosecutions [2014] ZACC 5; 2014 (5) SA 317 (CC); 2014 (5) BCLR 606
(CC) at para 78.
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30
The conceptualisation of section 35(3)(n) as a substantive rights guarantee is
supported by the “substantive fairness”77 which is embraced by the “comprehensive and
integrated” right to a fair trial.78 This Court has emphasised on many occasions that the
discrete sub-rights under section 35(3) are the hallmarks or specified elements of a fair
trial, but this list is by no means exhaustive, with the residual right to a fair trial being
casuistically developed through a substantive rather than formal or textual approach in
our constitutional jurisprudence. 79 In Dzukuda this Court showed that there may be
more than one way for the legislature to devise a system of criminal procedure which
effectively secures the norm of a fair trial pr escribed by section 35(3), but “ [t]he
question to be determined in each case is whether the criminal procedure scheme, or the
relevant pa rt thereof, devised by the Legislature, whatever its form, conforms in
substance to that norm”.80 Similarly, this is the ultimate question in assessing whether
the legislative framework of a sentencing system is constitutionally valid.81
All three branches of government contribute to the prescription and
implementation of punishment in the criminal justice system, but the constitutional
norms of section 35(3) enjoy supreme authority. In Dodo, this Court specifically
recognised the legitimate interest that the Legislature has in prescribing punishments,
but was careful to point out that the Legislature cannot oblige the courts to enforce a
sentence that violates section 35(3) or any other fundamental rights:
“When the nature and process of punishment is considered in its totality, it is apparent
that all three branches of the state play a functional role and must necessarily do so.
No judicial punishment can take place unless the person to be punished has been
convicted of an offence which either under the common law or statute carries with it a
punishment. It is pre -eminently the function of the Legislature to determine what
conduct should be criminalised and punished. Even here the separation is not complete,
77 Zuma above n 38 at para 16.
78 Dzukuda above n 68 at para 9.
79 See, for example, Zuma above n 38 at para 16; Jaipal above n 59 at para 27; Dzukuda id at para 9.
80 Dzukuda id at para 10.
81 Van Zyl Smit CLOSA above n 56 at 49-3.
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31
because this function of the Legislature is checked by the Constitution in general and
by the Bill of Rights in particular, and such checks are enforced through the courts.”82
Thus even if the usual interpretive function of section 35(3)(n) could not assist
directly in the sentencing process, as an i ndependent substantive rights guarantee it
nevertheless could serve as an important check on sentencing legislation , ensuring that
it does not retrospectively impose more severe punishments on unsentenced accused
persons than those to which they would have been subject at the time they committed
the offence.
We have already found that the rules lengthening parole non -eligibility periods
result in an increase of the severity of imprisonment. Clearly then the impugned
provisions have the effect of imposing a more severe punishment. They are thus also
in contravention of section 35(3)(n) of the Constitution.
Date of commission of offence or date of conviction?
The question that remains is: if the date of sentencing is to be abandoned, what
date should take its place – the date of conviction or the date of commission of the
offence? During oral argument it was put to counsel whether the date of conviction
would provide a compromise. Counsel for the applicant argued that although in this
instance using the d ate of conviction would provide the applicant with a satisfactory
result, generally the use of the date of conviction would face similar obstacles to those
encountered when using the date of sentencing. Firstly, an accused has no control over
the length of a criminal trial or frequent delays in the criminal justice process. As with
sentencing, two accused could commit the same offence on the same day, be arrested
on the same day and still be convicted on different dates. The result would be that the
two accused would not be treated equally by the law. Secondly, if parole is part of the
punishment, as we have held that it is, then the relevant date must be the date of the
offence. This accords with section 35(3)(n), which provides that if the punishment has
82 S v Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) at para 22.
DLODLO AJ
32
changed between date of offence and date of sentence, the accused has the right to the
benefit of the least severe of the two punishments. The relevant dates are those of the
commission of the offence and those of sentencing; the date of conviction does not enter
the equation. For these reasons, the applicant’s proposition should win the day:
punishment, and parole eligibility, should be determined by the date of commission of
the offence.
The respondents referred to two decisions, Makaba83 and Broodryk,84 that both
run counter to the determination in this case. It is plain that, to the extent that they do,
they must be considered to be overruled.
Order
In the result, I make the following order:
1. The application for condonation is granted.
2. Mr Makome Stefanas Tlhakanye is admitted as an intervening party.
3. The application for the admission of further evidence in terms of rule 31
of the Rules of the Constitutional Court is dismissed.
4. The order of invalidity of the High Court is confirmed and paragraph 1 is
varied to read:
“Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act 111 of
1998 (Correctional Services Act) are declared inconsistent with section
9(1) and (3) and section 35(3)(n) of the Constitution.”
5. Parliament must, within 24 months from the date of this order, amend
section 136(1) of the Correctional Services Act to apply parole regimes
on the basis of date of commission of an offence, pending which the
section shall read as follows:
83 Makaba v Minister of Correctional Services [2012] ZAFSHC 157 at paras 24-33.
84 Broodryk v Minister of Correctional Services 2014 (1) SACR 471 (GJ) at paras 11-2.
DLODLO AJ / FRONEMAN J
33
“Any person serving a sentence of incarceration for an offence committed
before the commencement of Chapters 4, 6 and 7 of the Correctional
Services Act is subject to the provisions of the Correctional Services Act
8 of 1959, relating to his or her placement under community corrections,
and is to be considered for such release and placement by the Correctional
Supervision and Parole Board in terms of the policy and guidelines
applied by the former Parole Boards prior to the commencement of those
chapters.”
6. The Minister of Justice and Correctional Services must pay costs of the
applicant and the intervening party in this Court, including the costs of
two counsel.
FRONEMAN J:
I have read the judgment of my brother Dlodlo AJ (first judgment) an d agree
with the outcome. I agree that the impugned provisions are constitutionally invalid for
infringing, separately and independently, section 9(3) and the substantive rights
guaranteed85 in section 35(3)(n) of the Constitution. I disagree that section 9(1) has
been infringed.
The first judgment holds that—
“it can never be a legitimate government purpose to d ifferentiate between two groups
of people in order to protect only one of them from the prejudicial retroactive
application of the law. To say that it could be a legitimate government purpose is to
say that a purpose at odds with the rule of law is legitimate. For this reason, I find that
the government’s purpose in differentiating between inmates on the basis of their date
of sentence is not legitimate and fails the test for section 9(1).”86
85 As explained, and contrasted to its interpretative function, in the first judgment at [64] to [69].
86 First judgment at [51].
FRONEMAN J
34
But that is not what the Department stated as its purpose. The Department
explained how the amendments balance a range of competing considerations in crafting
transitional arrangements that would avoid the retrospective application of a new parole
regime to inmates sentenced before 1 October 2004. In choosing to rely on the date of
sentencing as the operative date for the new parole regime, the Legislature
simultaneously sought to avoid retroactive application of the new parole eligibility
regime and to strive for practicable and efficient implementation. In the context of our
criminal justice system, it is legitimate – even laudable – for the Legislature to strive
towards a legislative framework that is clear and easy for the many moving parts of the
system to implement efficiently and consistently.
In addition, the further three substantive examples proffered by the Department
illustrate its rationale for tying the parole changes to the date of sentencing. Its first two
examples, of continuing crimes and multiple offences, demonstrate how the date of
sentencing provides lega l certainty and clarity for determining the applicable parole
regime which may extend on both sides of the operative date. The Department argued
that confusion would ensue in these very common types of cases if the date of
commission of the offence were t o be used as the determining factor. The third
example, drawn from the Supreme Court of Appeal’s decision in Seganoe,87 points to
how prolonged delays in sentencing could result in difficulties where the
implementation mechanisms of the old parole regime are no longer operational.
The Department did not articulate its purpose as being to undermine the rule of
law or to retroactivel y make people suffer longer sentences. The Department’s
proffered purpose was to avoid imposing a harsher punishment on people who were
already incarcerated and to do so in a way that facilitated efficient and workable
implementation. Accepting the Depar tment’s stated purpose requires no reading -in or
generosity in interpretation. To the contrary, it is both the most natural and the most
87 Minister of Correctional Services v Seganoe [2015] ZASCA 148; 2016 (1) SACR 221 (SCA) at para 16.
FRONEMAN J / CAMERON J
35
logical understanding of the legislative intent in this case.
It is tempting to reformulate this purpose with a broader perspective, as the first
judgment does, but it is a temptation that should be resisted. Although section 9(1)
requires that the purpose and scheme be examined in proper context, it does not require
an analysis of the im pact of the impugned action or of the policy choices made. It
merely requires the government to have a defensible purpose, together with reasons for
its actions that bear a rational relationship to the stated purpose. 88 And that has been
done.
CAMERON J (Dlodlo AJ concurring):
At issue is a statute that introduced harsher parole conditions, after the offences
in issue were committed, for those upon whom sentences of life imprisonment were
imposed after 1 October 2004. Those sentenced before 1 October 2004 continued to
benefit from the more beneficent parole conditions that applied when they committed
their offences. Those sentenced the next day, and after, were subject to new, and very
much harsher, parole conditions.
The question is whether differentiating between inmates, in every other respect
alike, whose sentences were imposed on one day, as opposed to those sentenced the
very next day, is a rational exercise of Parliament’s power to legislate. In the first
judgment Dlodlo AJ concludes that tying the harsher parole conditions to the date of
sentence, rather than the date of commission of the offence, violates the Bill of Rights
because it imposes a more severe punishment, changed between the time of the offence
88 Compare Union of Refugee Women v Director: Private Security Industry Regulatory Authority [2006] ZACC
23; 2007 (4) SA 395 (CC); 2007 (4) BCLR 339 (CC) at para 37 and Albertyn and Goldblatt “Equality” in CLOSA
above n 56 at 35-21.
CAMERON J
36
and the time of sentencing. 89 In addition, he concludes that the date -of-sentence tie is
arbitrary and constitutionally noxious on the ground that it is irrational, too. I write to
express support for not only the first, but also the second conclusion.
A rationality challenge to legislation evaluates the relationship between means
and ends.90 There must be a rational link between what the legislation sets out to do
and how it does it.91 It is a very low bar.92 The evaluation does not probe whether some
other means would achieve the legislation’s purpose better, but only whether the means
actually employed are rationally related to the purpose for w hich the power is being
exercised.93
Here, Parliament in 1998 enacted that one sentenced to life imprisonment would
not be eligible for parole until after serving at least 25 years in prison94 – but the statute
was brought into operation only later, on 1 October 2004. The statute’s transitional
provision preserved pre -existing parole conditions for those already “serving a
sentence” on the day the statute commenced – but imposed the harsher conditions on
those sentenced the very next day and thereafter.95
89 Section 35(3)(n) of the Constitution as set out in fn 20 in the first judgment.
90 Democratic Alliance v President of the Republic of South Africa [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012
(12) BCLR 1297 (CC) at para 32, which summarises this Court’s jurisprudence on executive and administrative
decisions and law-making. At issue there was the exercise of a power that a statute conferred on the President to
appoint the National Director of Public Prosecutions.
91 As this Court explained in Merafong Demarcation Forum v President of the Republic of South Africa [2008]
ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) at para 114, what is required is a rational “link
between the means adopted by the Legislature and the legitimate governmental end sought to be achieved”.
92 See [48].
93 Democratic Alliance above n 90 at para 32.
94 Section 73(6)(b)(iv) of the 1998 Act. An exception is made for those reaching the age of 65 years. The statute
provides that one sentenced to life imprisonment—
“may not be placed on parole until he or she has served at least 25 years of the sentence but a
prisoner on reaching the age of 65 years may be placed on parole if he or she has served at least
15 years of such sentence.”
95 Section 136 of 1998 Act, headed “Transitional Provision”, provides in subsection (1):
“Any person serving a sentence immediately before the commencement of this Act will be
subject to the provisions of the Correctional Services Act, 1959 (Act No. 8 of 1959), relating to
his or her placement under community corrections but the Minister may make such regulations
as are necessary to achieve a uniform policy framework to deal with prisoners who were
CAMERON J
37
Was this rational? Was it any more rational than if the legislation had said that
those who had blue eyes would be subject to the old parole regime, and those with black
eyes would suffer the new? In my view, not. To tie the new parole regime to date of
sentence, rather than date of offence, creates irrational, absurd and capricious
disparities. These have no warrantable link at all to what Parliament set out to do, which
was to introduce the new parole system.
Parliament’s power to stiffen parole conditions for those sentenced to life
imprisonment was not placed in dispute before us. 96 The only issue was on what basis
the new harsher conditions were to be put into ef fect – date of offence or date of
sentence. That the new regime had to come into effect at some point is beyond doubt.
What is in issue is thus the means Parliament used to achieve that end, namely the
arbitrarily chosen date on which the legislation came into effect.
In the respondent s’ answering deposition in the High Court, the lawyer
authorised to depose on behalf of the Minister and the Department97 recognises that “the
retroactive application of a change in parole policy does not conform to the prin ciples
of the rule of law”. 98 He adds that the purpose of tying the introduction o f the new
parole regime to date of sentence was “accordingly to ensure that the pre-existing right
of offenders to be considered for placement on parole is not disturbed”:
sentenced immediately before the com mencement of this Act, and no prisoner may be
prejudiced by such regulations.”
96 The statement by this Court in Van Vuren above n 26 at para 60, quoted in the first judgment at [50], may be
wide enough to call into question the constitutional propriety of all retroactive parole-harshening provisions, but
the applicant did not seek to make this argument.
97 Jacques-Louis van Wyk, Acting Director: Legal Services in the Office of the National Commissioner.
98 In Du Toit v Minister for Safety and Security [2009] ZACC 22; 2009 (6) SA 128 (CC); 2009 (12) BCLR 1171
(CC) at para 33, this Court dealt with ‘the fine distinction between the broad concept of retrospectivity and the
distinctive notion of retroactivity’. Langa CJ on behalf of the Court pointed out that a r etrospective provision
operates for the future only but imposes new results in respect of past events, while a retroactive provision operates
from a time before the enactment of the provision itself by changing the applicable law with effect from a date in
the past.
CAMERON J
38
“Hence the reference in section 136(1) to offender s who were sentenced prior to
1 October 2004 (rather than offenders who committed the crime prior to
1 October 2004).”
But this does not meet the point. It explains why the legislation had to be brought
into effect. And it explains why those already sentenced on that day should be spared
the harsher parole regime. But it does not explain why those not yet sentenced on the
particular date when the legislation commenced should be treated more harshly. For
that, the respondents would have to explain why the statute was brought into operation
on 1 October 2004, rather than on 2 or 3 or 4 October 2004, or any date before or after
that. Of course, all time periods have to run from one specified day or another. But
when a time period imposes devastatingly different consequences on otherwise equally
placed persons on the sole basis of an arbitrarily chosen date, more is required. The
mere fact that an otherwise unexplained date dawned does not suffice.
The res pondents’ deposition explains quite lucidly why it changed the parole
system. They had logical reasons for doing so . These included harshening it and
rationalising within the system the position of those sentenced to life imprisonment
proper as distinct from those whose sentences were commuted to life imprisonment
after this Court declared the death penalty incompatible with constitutional values. 99
All this originated in the recommendations of the National Advisory Council on
Correctional Services, whose function under the present statute’s predecessor was to
advise the Minister of Correctional Services on general policy considerations.100
But why date of sentence, rather than date of offence ? The respondents
answering deposition gives no reason, other than invoking Seganoe.101 There the
Supreme Court of Appeal rejected an interpretation of the very transitional provisions
in issue here that would have preserved the existing parole regime for all inmates
99 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
100 Under section 64 of the 1959 Prisons Act.
101 Seganoe above n 87.
CAMERON J
39
convicted of offences committed during the operation of the 1959 Prisons Act, including
those sentenced after the current statute commenced.102 In rejecting that interpretation,
the Court pointed to practical difficulties and the possibility of “absurd results”:
“One glaring example is a case of, say, a murderer who commits murder before the
coming into operation of chapters IV, VI, and VII [of the 1998 Act] but evades capture
or is for any reason not brought to justice over a long period of time. If the respondent’s
[an inmate] interpretation were accepted, such an [inmate] would be entitled to demand
the implementation of a parole regime that no longer existed and for which there were
no implementation mechanisms when he was finally brought to justice. Clearly, the
legislature could not have contemplated such a scenario.”103
There are two difficulties with this reasoning. First, it makes a good point against
procrastinating criminal accused persons who, having eluded arraignment or conviction
or sentence for long years, then try to claim back the benefit of long-past parole regimes.
But what about those criminal accused persons trapped without fault in the law’s
delays? What about those tried promptly, who plead guilty without tarrying, who
happened to be sentenced on 2 October 2004, rather than the day before? Should they
suffer harsher punishment only and solely because of a change in clocks?
Second, Seganoe’s reasoning implicitly presupposes that additionally
burdensome parole conditions legislatively imposed post -offence, like those here, are
not a more severe “punishment” in violation of the fair trial guarantee in the Bill of
Rights.104 The first judgment rightly holds they are.105 The first judgment undoes the
point.106 That means the Seganoe reasoning cannot stand. It follows that it cannot be
rational for the Legislature to tie the imposition of a more burdensome parole regime to
the avoidance of a result t hat itself violates the Bill of Rights. And the Department’s
102 Id at paras 12-3.
103 Id at para 16.
104 Id at paras 15-7.
105 See [69].
106 See [64] to [69].
CAMERON J
40
and Legislature’s subjective intentions make no difference: the assessment is
objective.107
For these additional reasons I support the conclusion in the first judgment that
the legislation violat es section 9(1) of the Constitution and m ust be set aside on that
ground too.108
107 This Court explained in Pharmaceutical Manufacturers above n 63 at para 86:
“The question whether a decision is rationally related to the purpose for which the power was
given calls for an objective enquiry. Otherwise a decision that, viewed objectively, is in fact
irrational, might pass muster simply because the person who took it mistakenly and in good
faith believed it to be rational. Such a conclusion would place form above substance, and
undermine an important constitutional principle.”
108 See [51] to [54].
Counsel for the Applicant
Counsel for the Respondents
R Du Plessis SC, L Kellerman n SC and
R M Molea instructed by Julian Knight
and Associates Inc
M T K Moerane SC and T W G Bester
SC instructed by the State Attorney