Van Wyk v Minister of Correctional Services and Others

• Jurisdiction: South Africa
• Citation: 2012 (1) SACR 159 (GNP)

Van Wyk v Minister of Correctional Services and Others
2012 (1) SACR 159 (GNP)

2012 (1) SACR p159

Citation	2012 (1) SACR 159 (GNP)
Case No	40915/10
Court	North Gauteng High Court, Pretoria
Judge	Hiemstra AJ
Heard	April 20, 2011
Judgment	July 26, 2011
Counsel	TWG Bester for the applicant.; BR Tokota SC for the first respondent.; LD Halam for the second respondent.; T Williams for the third respondent.

Flynote : Sleutelwoorde

Prisons — Prisoner — Parole — Life imprisonment — Sentences imposed before commencement of Correctional Services Act 111 of 1998 — Effect of transitional provisions of s 136(1) of Act — Not having effect of excluding those sentenced to life incarceration from allocation of credits in terms of C s 22A of the Correctional Services Act 8 of 1959 — Correctional Service Order BVI (1A)(22) removing applicant's right to having consideration for parole advanced by earning such credits, inconsistent with Constitution, 1996 — Applicant and other offenders serving sentences of life incarceration before commencement of new Act entitled to credits earned being taken into account in determining when they qualify for parole. D

Prisons — Prisoner — Parole — Life imprisonment — Sentences imposed before commencement of Correctional Services Act 111 of 1998 — Effect of transitional provisions of s 136(1) of Act — Not having retrospective effect — Not abolishing any rights that offenders serving sentences of life incarceration enjoyed at time of committing offences incarcerated for — E Applicant and other offenders serving sentences of life incarceration before commencement of new Act entitled to be considered for parole in terms of policy which applied at date of commission of crimes for which they are serving such sentence/s.

Headnote : Kopnota

In terms of s 22A of the Correctional Services Act 8 of 1959 there was a system F for the allocation of credits to offenders for their observance of the rules of the correctional institution and their active participation in programmes which were aimed at their treatment, training and rehabilitation. While this system is abolished by its successor, the Correctional Services Act 111 of 1998, the system is retained by the transitional provisions in s 136 thereof. Subsection (1) preserves all the policies and guidelines applied by former parole boards prior to 1 October 2004 in respect of all offenders serving G sentences of incarceration immediately before that date. This applies to those sentenced to life incarceration and persons serving determinate sentences as at that date. These policies and guidelines included the allocation of credits in terms of s 22A of the old Act. Accordingly, it would appear that the applicant — who was sentenced during the currency of the old Act — had been entitled to have the date on which he could be H considered for parole advanced by the earning of credits. (Paragraphs [8]–[10], [13] and [19] at 162a–i, 163f and 165b, paraphrased.)

However, in terms of Correctional Service Order BVI (1A)(22), which purports to incorporate the transitional provisions, he no longer qualifies for credits. This constitutes a retrospective removal of a right he previously enjoyed, a deprivation of the offender's liberty and does not conform to the principles I of the rule of law. Insofar as the Order has retrospective effect, in militates against the objects and spirit of the Constitution. Correctional Service Order BVI (1A)(22) is therefore declared inconsistent with the Constitution. The applicant and other offenders who were serving sentences of life incarceration immediately before 1 October 2004 are entitled to have the date on which they may be considered for parole advanced by credits earned in terms of s 22A of the Correctional Services Act 8 of 1959, subject J

2012 (1) SACR p160

A to the applicable criteria for the allocation of credits; and to be considered for parole in terms of the policy of the Department of Correctional Services which applied at the date of the commission of the crimes for which they are serving life imprisonment. (Paragraphs [13], [22] and [27] at 163f, 165e–g and 166g–h, paraphrased.)

Annotations:

Cases cited

Reported cases

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): referred to B

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Distributors (Pty) C Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): dictum in para [22] applied

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): dictum in para [39] applied

Van Vuren v Minister of Correctional Services and Others 2012 (1) SACR 103 (CC) (2010 (12) BCLR 123): dictum in para [59] applied. D

Legislation cited

Statutes

The Correctional Services Act 111 of 1998, ss 136(1) and 136(3)(a): see Juta's Statutes of South Africa 2010/11 vol 1 at 3-138.

Case Information

E Application for number of orders aimed at restoring applicant's entitlement to having his parole date advanced through credits in terms of s 22A of the Correctional Sevices Act 8 of 1959.

TWG Bester for the applicant.

BR Tokota SC for the first respondent.

LD Halam for the second respondent.

T Williams for the third respondent. F

Cur adv vult.

Postea (July 26).

Judgment

Hiemstra AJ:

[1] The applicant was convicted on several counts, including three of murder, and sentenced on 5 September 2004 to life incarceration on each of the murder counts and further terms of incarceration on the H other counts. It does not appear from the papers whether the sentences are running concurrently. Nothing turns on this question. He has served 16 years of his sentences.

[2] His convictions and sentences arose from his involvement with the I National Socialist Partisans, an underground component of the Blanke Bevrydingsbeweging, whose objective it was to secure self-determination for Afrikaners through a right-wing uprising and to resist the National Party government's intended termination of white rule in South Africa. His convictions and sentences were the following:

•

Count 1: Car theft — 5 years;

•

J Count 2: Murder — life;

2012 (1) SACR p161

Hiemstra AJ

•

Count 3: Murder — life; A

•

Count 4: Murder — life;

•

Count 5: Attempted robbery with aggravating circumstances — 8 years;

•

Count 6: Contravention of s 2, read with ss 1, 39 and 40 of the Arms and Ammunition Act 75 of 1969 (unlawful possession of firearms) B — 1 year;

•

Count 7: Housebreaking with the intent to steal — 5 years;

•

Counts 8 and 9: Robbery: taken together for purposes of sentence — 12 years;

•

Count 10: Housebreaking with the intent to steal — 8 years; C and

•

Count 11: Unlawful possession of firearms — 10 years.

[3] The applicant applied to the Truth and Reconciliation Commission for amnesty but his application was dismissed on the ground that the National Socialist Partisans was not a recognised liberation movement. D

[4] When the sentences were imposed his...