Civil disabilities of former prisoners in a constitutional democracy: Building on the South African experience

• Jurisdiction: South Africa
• Date: 15 August 2019
• Author: Dirk van Zyl Smit
• Citation: 2003 Acta Juridica 221
• Pages: 221-237
• Published date: 15 August 2019

Civil disabilities of former prisoners in a

constitutional democracy: Building on the

South African experience

DIRK VAN ZYL SMIT*

University of Cape Town

‘As bearer of guaranteed fundamental rights to human dignity the convicted

offender must be given the opportunity, after the completion of his sentence,

to establish himself in the community again.’

1

I INTRODUCTION

One of the salient features of the apartheid legal order was the extent to

which it used the criminal law to suppress opposition to the government.

Opponents were not only prosecuted for political offences but also

subjected to various forms of civil disability after they had served their

sentences. In the most extreme case, this took the form of legislation

allowing for their detention after they had served their sentence.

2

More

often the civil disability took the form of banning orders, which could

include ‘house arrests’.

3

Even those who had served their full sentences

were effectively removed from civil society. Former prisoners were

denied the right to stand for parliament if they had been convicted of an

offence involving imprisonment for more than 12 months within the

previous f‌ive years.

4

Not that this was necessarily such a hardship, as the

right to be a candidate for parliament was denied to the majority of the

population on the basis of race.

5

More importantly, banning orders

prevented their writings being quoted and even stopped them meeting

*Professor of Criminology, University of Cape Town and Professor of International and

Comparative Penal Law,University of Nottingham.

1

Decision of the German Federal Constitutional Court in the Lebach case, 5 June 1973

BVerfGE35 203 at 235–6. My translation, as are further translations from German below.

2

Section 4 of the General Law Amendment Act 37 of 1963, which inserted s 10(1)(a)bis

into the Suppression of Communism Act 44 of 1950. This provision was enacted specif‌ically to

detain the leader of the Pan-Africanist Congress, Robert Sobukwe, on Robben Island after he

had served a three-year sentence arising from the Sharpeville shootings in 1961. He was

subsequently released, but restricted to living in the city of Kimberley,seeCJRDugard Human

Rights and the South African Legal Order (1978) 113–4.

3

For a full description of the draconian list of restrictions that could be imposed on

organisations or individuals, see A S Mathews Freedom, State Security and the Rule of Law:

Dilemmas of the Apartheid Society (1986) 101–47.

4

Without the option of a f‌ine: s 5(4) of the Republic of South Africa Constitution Act 110

of 1983.

5

All ‘non-whites’prior to 1983. Thereafter, election to separate chambers for ‘Coloureds’

and Asians was possible, but still not for Blacks (Africans). An elaborate parliamentary system

221

2003 Acta Juridica 221

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more than one person at a time, effectively excluding them from taking

part in the life of civil society at all.

All this now has changed at the formal level. South Africa today is a

constitutional democracy with a justiciable Bill of Rights. This chapter

investigates the implications of these changes for the civil status of former

prisoners. In the process of political change there were developments,

such as universal suffrage, which improved the general civil status of the

majority of the population, including former prisoners, and which

brought particular benef‌its to former political prisoners. These particular

benef‌its could be pointers to how all former prisoners ought to be treated.

The chapter goes on to point out that in practice the position of most

former prisoners has not improved signif‌icantly and that most, if not all, of

the old legal disabilities remain intact. Nor has the new constitutional

order engaged directly with the position of former prisoners. Nonethe-

less, the new South African constitution does supply the basis for asserting

the rights of former prisoners in a way that could diminish their civil

disabilities. South African constitutional law should follow the lead of

English and German law in this regard though diff‌iculties of converting

such developments into practice must be acknowledged.

II FORMER POLITICAL PRISONERS COME TO POWER

In the transition to democracy after 2 February 1990 the overt

restrictions on former political prisoners were removed with the lifting of

the state of emergency and the unbanning of political parties and

individuals. Yet many, if not most, of the leaders of the liberation

movements were either already convicted prisoners or had committed

offences that could lay them open to prosecution. Some of these were

political offences in the narrow sense, such as joining an illegal organisa-

tion or leaving the country without permission, but others were

common-law offences, including murder, allegedly committed with

political motivation. The early 1990s was a somewhat confused period in

which agreements were reached between the various parties about

releasing offenders. These were cast in the form of indemnity legislation

passed by the minority parliament then still in power. The purpose of this

legislation was both to indemnify offenders who had not been prosecuted

and to release those already in prison. Actual releases were effected by

presidential exercise of the inherent constitutional power to pardon and

ensured that the majority in the white chamber could not be outvoted by a combination of the

white minority and the other chambers: see the Republic of South Africa Constitution Act 110

of 1983.

222 CRIMINAL JUSTICE IN A NEW SOCIETY

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