Phaahla v Minister of Justice and Correctional Services and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
• Judgment Date: 03 May 2019
• Citation: 2019 (2) SACR 88 (CC)
• Docket Number: CCT 44/18 [2019] ZACC 18
• Hearing Date: 08 November 2018
• Counsel: R du Plessis SC (with L Kellerman SC and RM Molea) for the applicant. MTK Moerane SC (with TWG Bester) for the respondents.
• Court: Constitutional Court

Dlodlo AJ (Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring):

Introduction D

'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 right to the benefit of the least severe of the prescribed punishments.' [1] E

[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' F right to equality and fair-trial rights guaranteed by the Constitution.

Parties

[2] The applicant, Mr Oupa Chipane Phaahla, is an inmate sentenced to G life imprisonment and incarcerated in Zonderwater Correctional Centre. The application is opposed by the Minister of Justice and Correctional Services and the National Commissioner for Correctional Services, the first and second respondents, respectively.

[3] The application is opposed by the Minister of Justice and Correctional Services H and the National Commissioner for Correctional Services, the first and second respondents, respectively.

[4] 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 I illustrating the impact of the impugned sections on inmates other than the applicant.

Dlodlo AJ (Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

Background A

[5] The concept of parole was first introduced into South African law under the Prisons and Reformatories Act [2] 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 B behaviour. [4] However, parole has only been implemented systematically in the South African criminal-justice system since the 1950s, with the enactment of the Prisons Act [5] (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.

[6] C 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.

[7] D 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 s 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

Dlodlo AJ (Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

served, with the effect that the date for consideration for parole for those A inmates was moved earlier. The effect of this was that inmates sentenced to life incarceration between 1 March 1994 and 1 October 2004 became eligible for parole after having served a minimum period of 13 years and 4 months of their life sentence.

[8] The 1959 Prisons Act was repealed in 1998 and replaced by the B Correctional Services Act [9] (1998 Act) which, among other things, introduced a new parole release system. The 1998 Act was implemented in stages, with different chapters taking effect — and simultaneously replacing the corresponding chapters of the 1959 Prisons Act — over a number of years. The new parole system contained in ch VI of the C 1998 Act came into effect on 1 October 2004. [10] As of 1 October 2004, in terms of s 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 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] D

[9] 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 E 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.

[10] The applicant was convicted on 25 September 2004 and sentenced F 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 sentenced a few days earlier, he would have had to serve only 20 years of his sentence before he could be G 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 ss 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 s 35(3)(n) of the Constitution, and his right to equality under s 9 of the Constitution. H

Dlodlo AJ (Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

[11] A The High Court [14] found that s 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 s 276B of the Criminal Procedure Act [15] (the CPA). However, the High Court did find that the impugned sections amounted B to a breach of the applicant's right to equality in terms of sections 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 C sections imposed a stricter parole regime on the basis of date of sentencing, the sections were constitutionally invalid.

[12] The respondents applied to the High Court for leave to appeal to the Supreme Court of Appeal. Nothing appears to have come of that D application and it was struck off the roll.

[13] The applicant now applies to this court in terms of rule 16(4) of the Rules of the Constitutional Court [17] and s 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 E to equal treatment and protection of the law in terms of s 9(1) of the Constitution, and right not to be discriminated against under s 9(3) of

Dlodlo AJ (Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

the Constitution. [19] He also submits that the impugned sections breach A 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 B

[14] In terms of s 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. C

Condonation

[15] The applicant applied for confirmation of the High Court's declaration of invalidity outside of the time period required by rule 16(4). D 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.

Application for leave to intervene E

[16] 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 F

Dlodlo AJ (Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

intervene. A [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 B

[17] 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 C formulation of a just and equitable order.

[18] In summary, the evidence the respondents seek to introduce pertains...