Phaahla v Minister of Justice and Correctional Services and Another

• Jurisdiction: South Africa
• Judgment Date: 03 May 2019
• Citation: 2019 (2) SACR 88 (CC)

Phaahla v Minister of Justice and Correctional Services and Another
2019 (2) SACR 88 (CC)

2019 (2) SACR p88

Citation	2019 (2) SACR 88 (CC)
Case No	CCT 44/18; [2019] ZACC 18
Court	Constitutional Court
Judge	Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Heard	November 8, 2018
Judgment	May 3, 2019
Counsel	R du Plessis SC (with L Kellerman SC and RM Molea) for the applicant.; MTK Moerane SC (with TWG Bester) for the respondents.

Flynote : Sleutelwoorde

Prisoner — Parole — Eligibility of prisoner for placement on — Provisions of ss 136(1) and 73(6)(b)(iv) of Correctional Services Act 111 of 1998, in adopting date of sentence rather than commission of offence for coming H into operation of harsher parole regime, inconsistent with ss 9(1) and (3) and s 35(3)(n) of Constitution — Parliament required to amend provisions within 24 months.

Prisoner — Parole — Eligibility of prisoner for placement on — Rules lengthening parole non-eligibility periods resulting in increase of severity of I imprisonment and thereby imposing more severe 'punishment' within ambit of s 35(3)(n) of Constitution — Correctional Services Act 111 of 1998, ss 136(1) and 73(6)(b)(iv).

Headnote : Kopnota

The applicant and a man granted leave to intervene were prisoners serving life sentences. In terms of the provisions of s 136(1), read with s 73(6)(b)(iv), J of the Correctional Services Act 111 of 1998 (the 1998 Act), inmates

2019 (2) SACR p89

sentenced to life imprisonment before 1 October 2004 were eligible for A parole after having served 20 years. Inmates sentenced to life imprisonment from 1 October 2004 onwards, however, had to serve a minimum of 25 years before they could be considered for release on parole. Section 136(1) thus created a dual system of assessment, consideration and placement on parole of sentenced inmates determined by their date of sentence. B

The applicant was convicted on 25 September 2004 and sentenced to life imprisonment on 5 October 2004. Because he was sentenced four days after the commencement of the new parole regime, he had to serve a minimum of 25 years before he became eligible for consideration for parole. Had he been sentenced a few days earlier, he would have had to serve only 20 years of his sentence before he could be considered for release. Aggrieved by this, he challenged the constitutionality of ss 136(1) and 73(6)(b)(iv) of the C 1998 Act in the High Court, on the basis that they 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.

The High Court held that s 35(3)(n) of the Constitution did not apply because D non-eligibility for parole was not part of the punishment prescribed by a court, unless the court specifically imposed a non-parole period in terms of s 276B of the Criminal Procedure Act (the CPA). It did, however, find that the impugned sections amounted to a breach of the applicant's right to equality in terms of ss 9(1) and (3) of the Constitution because the use of the date of the sentence as a determining factor, rather than the date of commission of the offence, was arbitrary and irrational; led to a retroactive E application of the law; and amounted to unfair discrimination against the applicant and inmates in his position. It held that, to the extent that the impugned sections imposed a stricter parole regime on the basis of date of sentencing, they were constitutionally invalid. In the present application the applicant applied for confirmation of the order.

Held, that, on a broad interpretation of s 35(3)(n) of the Constitution, at the very F least, the legislated preconditions for parole eligibility in s 276B of the Criminal Procedure Act 51 of 1977 fell within the ambit of 'prescribed punishment' as intended by the section. (See [43].)

Held, further, that if it were accepted that parole was part of the punishment, then it also had to be accepted that people who committed similar offences at the same time could, depending on elements of the criminal-justice system G beyond their control, receive punishments that differed vastly in severity. The different treatment meted out to the applicant immediately implicated the right to equality, and the court had to consider whether the different treatment of sentenced inmates contravened either s 9(1) or (3). It also triggered the right to receive the least severe of the prescribed punishments in terms of s 35(3)(n). (See [44].) H

Held, further, that one of the tenets of the principle of legality enshrined by s 1(c) of the Constitution was non-retroactivity of the law. To afford protection from retroactivity only to one group and not to another therefore could not be a legitimate purpose. It could not have escaped the government's attention that, by extending the protection only to a group sentenced before 1 October 2004, the group sentenced after 1 October 2004 would be left exposed. (See [49].) I

Held, further, that to say that it could be for a legitimate government purpose to differentiate on the basis of the date of sentence was to say that a purpose at odds with the rule of law was legitimate. For this reason, the government's purpose in differentiating between inmates on this basis was not legitimate and failed the test for s 9(1). (See [51].) J

2019 (2) SACR p90

Held, A further, that the transitional arrangements discriminated between people on the basis of their status as convicted persons. Although not a listed ground, this status was an attribute that undoubtedly had 'the potential to impair the fundamental dignity of [these] persons as human beings, or to affect them adversely in a comparably serious manner'. In the present case the impact of this differentiation was unfair, as it subjected a group of people B to a more severe parole regime than those who happened to be sentenced earlier. This limitation of the right to equality could also not be justified under s 36 of the Constitution. (See [53].)

Held, accordingly, that the impugned provisions had to be declared constitutionally invalid insofar as they denied equal protection of the law on the basis of date of sentencing. This was, in itself, sufficient for holding the section C constitutionally invalid. (See [54].)

Held, further, in respect of the right to a fair trial, that, since the rules lengthening parole non-eligibility periods resulted in an increase of the severity of imprisonment, the impugned provisions clearly had the effect of imposing a more severe punishment, and thereby also contravening s 35(3)(n) of the Constitution. (See [69].)

Held, D further, as to what should take its place if the date of sentencing were abandoned: punishment and parole eligibility should be determined by the date of the commission of the offence. (See [70].)

Held, per Froneman J concurring, but disagreeing that s 9(1) had been contravened. Although s 9(1) required that the purpose and scheme be examined E in proper context, it did not require an analysis of the impact of the impugned action or of the policy choices made, but merely required the government to have a defensible purpose, together with reasons for its actions that bore a rational relationship to the stated purpose, which it had done. (See [78].)

Held, per Cameron J, Dlodlo AJ concurring, that the legislation violated s 9(1) of F the Constitution and had to be set aside on that ground too. (See [90].)

Cases cited

Southern Africa

Attorney General v Moagi 1982 (2) Botswana LR 124: referred to

Broodryk and Others v Minister of Correctional Services and Others 2014 (1) SACR 471 (GJ): overruled

Democratic Alliance v President of the Republic of South Africa and Others G 2013 (1) SA 248 (CC) (2012 (12) BCLR 1297; [2012] ZACC 24): referred to

Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA) ([2012] ZASCA 106): referred to

Du Toit v Minister for Safety and Security H 2010 (1) SACR 1 (CC) (2009 (6) SA 128; 2009 (12) BCLR 1171): considered

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): applied

International Trade Administration Commission v SCAW South Africa (Pty) Ltd I 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): referred to

Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC) (1999 (2) BCLR 139; [1998] ZACC 18): dictum in para [17] applied

Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others J 2004 (6) SA 505 (CC) (2004 (6) BCLR 569; [2004] ZACC 11): referred to

2019 (2) SACR p91

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; A [2002] ZACC 12): referred to

Lotus River, Ottery, Grassy Park Residents Association and Another v South Peninsula Municipality 1999 (2) SA 817 (C) (1999 (4) BCLR 440): referred to

Makaba v Minister of Correctional Services [2012] ZAFSHC 157: overruled

Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others B 2008 (5) SA 171 (CC) (2008 (10) BCLR 969; [2008] ZACC 10): dictum in para 114 applied

Minister of Correctional Services and Others v Seganoe 2016 (1) SACR 221 (SCA) ([2015] ZASCA 148): discussed

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) C (2001 (7) BCLR 652; [2001] ZACC 19): referred to

National Director of Public Prosecutions v Basson 2001 (2) SACR 712 (SCA) (2002 (1) SA 419; 2002 (1) BCLR 419; [2002] 2 All SA 255; [2001] ZASCA 111): considered

Phaahla v Minister of Justice and Correctional Services and Another 2018 (1) SACR 218 (GP): declaration...