Life imprisonment in South Africa: Yesterday, today, and tomorrow

• Jurisdiction: South Africa
• Citation: (2009) 22 SACJ 1
• Author: Jamil Ddamulira Mujuzi
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 1-38

ARTICLES

Life imprisonment in South Africa:

yesterday, today, and tomorrow

Jamil Ddamulira Mujuzi*

ABSTRACT

Life imprisonment has been part of South Africa’s penal regime for decades.

This article analyses how this form of punishment has changed in meaning in

since 1906. The author looks at life imprisonment during the death penalty

period; life imprisonment in the aftermath of the abolition of the death pen-

alty; life imprisonment under the Criminal Law Amendment Act, when it could

only be imposed by the High Courts; and life imprisonment during the Crim-

inal Law Amendment Act, when the regional courts were also empowered to

impose this sentence. The author discusses the laws and circumstances which

prevailed in the above four periods. With life imprisonment now being the

severest sentence that can be imposed in South Africa, the author highlights

the challenges associated with it and calls upon the government, courts and

civil society to think seriously about how this form of punishment should be

administered so as to avoid confusing inmates and exposing the government

to litigation.

1. Introduction

Life imprisonment (life sentence)

1

is probably the most confusing sen-

tence in South Africa, as it does not mean what it actually says. If many

*Doctoral Researcher, Civil Society Prison Reform Initiative, Community Law Centre (CLC),

University of the Western Cape (UWC) and LLD Candidate, Faculty of Law, UWC; LLM

(Human Rights and Democratisation in Africa) University of Pretoria; LLM (Human Rights

Specialising in Reproductive and Sexual Health Rights) University of the Free State; LLB

(Hons) Makerere University; Diploma in International Humanitarian Law, Institute for

Human Rights, A

˚bo Akademi University. I am indebted to Mr. Lukas Muntingh and Prof

Julia Sloth-Nielsen for the comments on the earlier drafts of this paper and to Ms Jill

Claassen, librarian at CLC, for helping me find most of the cases cited in this paper. OSF-

SA’ s funding for this research is acknowledged. Ford Foundation’s funding to CLC is also

acknowledged. The usual caveats apply. This as an updated and slightly revised paper of a

report written by the author for CSPRI titled The Changing Face of Life Imprisonment in

South Africa CSPRI Research Paper No 15 (2008). The author is grateful to CSPRI for

permitting him to publish this paper as an article.

1

‘Life imprisonment’ and ‘life sentence’ are used interchangeably in this paper.

1

(2009) 22 SACJ 1

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people, including lawyers and, let it be whispered, some judicial officers,

were asked for the meaning of life imprisonment, they would say that it

means that a person sentenced to life imprisonment will spend the rest

of his or her natural life in prison. This, however, has never been the

meaning of life imprisonment in South Africa.

2

While life imprisonment

has never meant life imprisonment in the literal sense in South Africa, its

meaning has changed substantially in the past decades. This article

investigates the meaning and use of life imprisonment in South Africa in

four major legal historical eras: life imprisonment at the time when the

death penalty was still lawful in South Africa (including life imprison-

ment as early as 1906); life imprisonment in the immediate aftermath of

the abolition of the death penalty (1994-1998); life imprisonment follow-

ing the introduction of the minimum sentences legislation (1998-2007);

and life imprisonment after December 2007, when the sentencing juris-

diction of the regional courts was extended to include life imprisonment.

In assessing the meaning and use of life imprisonment during these four

historical periods, the article looks at the law in place at the time and at

how courts interpreted it to justify the imposition of life imprisonment. It

also looks at the relevant statistics to assess the extent to which life

imprisonment was imposed. The article illustrates that, despite the term’s

evident simplicity, the meaning of life imprisonment in South Africa has

changed over time and particularly in the last 20 years. These changes,

especially since the early 1990s, were the result of two macro-political

forces. On the one hand, was the democratisation of South Africa with

the enactment of a new Constitution, with a progressive Bill of Rights

including the right to life and the right not to be subjected inhumane

and degrading punishment or treatment. Pulling in the other direction,

was government’s reaction to crime, characterised by its over-emphasis

on punishment and retribution. By 31 October 2008, South Africa’s pris-

ons were home to 8634 prisoners serving life sentences.

3

In the last 10

2

Diemont JA observed in S v Qeqe and another 1990 (2) SACR 654 (CkA) at 659 that

‘[d]oes a ‘‘life sentence’’ mean that the appellants must remain incarcerated in prisons

until they die? The answer is no. It has been widely accepted for many years [in the for-

mer Ciskei] that a life sentence will not exceed 25 years and that even 25 years is an ex-

ceptionally longsentence. . . [section]18(1)(b) of the Police and Prisons Act 36 of 1983

(Ck) provided that any person sentenced under the provisions of any law to imprison-

ment for life, shall be detained in a prison for a period not less than 10 years and not

more than 25 years.’ In S v Siluale en ander 1999 (2) SACR 102 (SCA) at 103 the Court

observed that ‘[i]f the circumstances of a case require that an offender should receive a

sentence which for all practical purposes removes him permanently from society, life

imprisonment is the only appropriate sentence. It is intended to be the most severe sen-

tence that can be imposed, although there are acknowledged procedures which make

parole possible in appropriate circumstances, eg where the offender (contrary to all ex-

pectations) genuinely reforms.’

3

See http://www.dcs.gov.za/WebStatistics/, accessed on 1 December 2008.

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years South African courts sentenced more people to life imprisonment

than they had done in the previous century.

4

The meaning of life impri-

sonment has also changed drastically during this period. The increase in

the number of prisoners serving life and the consequent changes in the

meaning of life imprisonment did not happen without reason, and this

issue will be interrogated in this article.

2.Life imprisonment during the period of the imposition of

the death penalty (1906-1994)

Life imprisonment has been part of the South African legal system for

many decades. South African case law indicates that as early as the

beginning of the 20th century, courts started granting divorce decrees

based on the fact that one spouse proved that the other was serving a

life sentence. In Nefler v Nefler

5

the High Court of the Orange Free State

was petitioned by Mrs Nefler for a divorce decree on the ground that

Mr Nefler had been found guilty of assault with intent to cause grievous

bodily harm and ‘sentenced to be imprisoned and kept to hard labour

for the term of his natural life’.

6

The Court held that ‘[e]quity will demand

that ... in this case where the man is imprisoned for life’ it necessitated

the granting of ‘a divorce on the ground of imprisonment for life’.

7

The

reasoning in Nefler v Nefler would later be followed in the cases of Jooste

v Jooste (1907)

8

,Van Broemsen v Van Broemsen (1933)

9

and Smith v

Smith (1943).

10

From these cases it is also clear that in the early 20th

century courts rarely imposed life imprisonment. In all the cases cited

above, except Nefler v Nefler, the defendants had been sentenced to

death and their sentences commuted to life imprisonment. It is also

important to note that life imprisonment in South Africa in the late 19th

century and the early 20th century was not as long as the terms would

later become in the first decade of the 21st century. It was reported by

one of the prison officers in the early 20th Century that the longest per-

iod he had known for a person to have served life imprisonment was

20 years and that in one case a prisoner who had been sentenced to life

imprisonment served only one year and two months.

11

In R v Mzwakala

the Court observed that there were ‘two Government Notices (GN 1551

4

In 1995 there were 443 prisoners serving life sentences in South Africa. See C Giffard &

L Muntingh The Effect of Sentencing on the Size of the South African Prison Population

(2006) 10.

5

Nefler v Nefler (1906) ORC 7.

6

Nefler supra (n5) at 7.

7

Nefler supra (n5) at 12.

8

Jooste v Jooste (1907) 24 SC 329.

9

Van Broemsen v Van Broemsen (1933) SR 58.

10

Smith v Smith (1943) CPD 50.

11

Jooste supra (n8) 330.

Life imprisonment in South Africa: yesterday, today, and tomorrow3

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