Deciding on parole for offenders serving life sentences

• Author: Robert Nanima
• DOI: 10.10520/EJC-634136d61
• Published date: 05 April 2017
• Date: 05 April 2017
• Record Number: iscrime_n59_a3
• Pages: 19-26
• publishedBy: Institute for Security Studies (ISS)

19

SA Crime QuArterly No. 59 • mArCh 2017

* Robert Nanima is a Graduate Lecturing Assistant and a

doctoral candidate in the Faculty of Law at the University of

the Western Cape.

Barnard v Minister

of Justice: the

minister’s verdict

Deciding on parole for offenders

serving life sentences

Robert Nanima*

rnanima@gmail.com

http://dx.doi.org/10.17159/2413-3108/2017/v0n59a1406

According to Section 78(2) of the Correctional

Services Amendment Act 25 of 2008 (CSAA),

the Minister of Justice and Correctional Services

may deny parole to an offender serving life

imprisonment. This role was performed by

the Minister of the Department of Correctional

Services even before the department was

merged with the Department of Justice and

Constitutional Development.1 In 2015, Ferdi

Barnard applied to the court for a review of

the minister’s decision denying him parole. The

court declined to review the decision because

it found it to be reasonable. The applicant

only discovered the reasons that informed the

minister’s decision in the course of hearing

his review application. The minister’s failure to

Granting parole to offenders serving life sentences has raised questions in public and political

discourse. This contribution evaluates the discretion of the minister to decline parole under Section

78(2) of the Correctional Services Amendment Act 25 of 2008 (CSAA). It examines the drafting

history of Section 78(2) of the CSAA, evaluates the full extent of the ministerial powers, and reviews

its recent application in Barnard v Minister of Justice, Constitutional Development & Correctional

Services and Another. It argues that ministerial discretion to refuse parole needs to be re-examined

in the wake of that decision, and recommends elements for inclusion in the minister’s decision to

refuse parole.

give the applicant information regarding the

outcome of his parole, and the reasons for his

decision before Barnard applied for review,

are problematic. This contribution analyses

the minister’s refusal in light of the drafting

history of the section and its application in

Barnard v Minister of Justice, Constitutional

Development and Correctional Services and

Another (Barnard).2 It is argued that an offender

should know the decision and the reasons that

informed it, at the time the decision is passed.

The terms applicant, offender and prisoner are

used interchangeably to refer to the offender

under Section 78 of the CSAA.

Bounds of the minister’s discretion

to deny parole

After the National Council (NC) has considered

the record of proceedings and recommendations