Victim participation in parole proceedings in South Africa

• Date: 03 December 2019
• Author: Jamil Ddamulira Mujuzi
• Record Number: sapr1_v34_n1_a5
• Pages: 1-18
• Published date: 03 December 2019
• DOI: 10.10520/EJC-19c16530d6

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/3690

https://upjournals.co.za/index.php/SAPL

ISSN 2219-6412 (Print) | 2522-6800 (Online)

Volume 34 | Number 1 | 2019 | #3690 | 18 pages

© Unisa Press 2019

Victim Participation in Parole Proceedings in South

Africa

Jamil Ddamulira Mujuzi

Professor of Law, Faculty of Law, University of the Western Cape, South Africa

djmujuzi@gmail.com

Abstract

South African law provides for circumstances in which victims of crime may

participate in the criminal justice system at the investigation, prosecution (trial),

sentencing and parole stages. In South Africa, a prison inmate has no right to

parole although the courts have held that they have a right to be considered for

parole. In some cases, the victims of crime have a right to make submissions to

the Parole Board about whether the offender should be released on parole.

Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right

of victims of crime to participate in parole proceedings. The purpose of this

article is to discuss section 299A and illustrate ways in which victims of crime

participate in the parole process. The author also recommends ways in which

victims’ rights in section 299A of the Criminal Procedure Act could be

strengthened.

Keywords: victim participation; parole; section 299A, Criminal Procedure Act; South

Africa; Correctional Services; inmate; prisoner; right; released

2

Introduction

South African law provides for circumstances in which victims of crime may participate

in the criminal justice system. This participation takes place at the investigation,

prosecution (trial), sentencing and parole stages.

1

In some pieces of legislation or

government policies, victim participation in the criminal justice system is a right.

2

This

right should be understood broadly as part and parcel of the global human rights

movement that champions the right to redress, which has been recognised by regional

3

and international human rights bodies.

4

South African courts have in several decisions

recognised the position of victims of crime in the criminal justice system.

5

It is beyond

the scope of this article to discuss the issue of victim participation in the criminal justice

system generally. Section 299A of the Criminal Procedure Act

6

provides, inter alia, for

the right of victims of crime to participate in parole proceedings. The purpose of this

article is to analyse this section and the relevant case law emanating from South African

courts on victim participation in parole proceedings. The author also suggests ways

through which the victim’s right to participate in parole proceedings may be

strengthened. In order to put the discussion in context, the author will also highlight the

jurisprudence emanating from South African courts dealing with the issue of the

placement of offenders on parole generally.

Victim Participation in Parole Proceedings

Before discussing the issue of a victim’s participation in parole proceedings, i t is

necessary to highlight a few issues that are relevant to parole in South Africa. It is

beyond the scope of this article to discuss in detail the law relating to parole in South

1

See generally Annette van der Merwe, ‘A New Role for Crime Victims? An Evaluation of

Restorative Justice Procedures in the Child Justice Act 2008’ (2013) 46(4) De Jure 1022. See also ss

158, 170A and 274 of the Criminal Procedure Act 51 of 1977. For a detailed discussion of ss 158 and

170A of the Criminal Procedure Act and the relevant case law, see PJ Schwikkard and SE van der

Merwe, Principles of Evidence (4edn Juta 2015) 403–418.

2

See, for example, s 299A of the Criminal Procedure Act (which is discussed in this article in detail).

See also Service Charter for Victims of Crime in South Africa

<http://www.justice.gov.za/VC/docs/vc/vc-eng.pdf> (accessed 18 November 2018). In Phiri &

Another v S (A240/ 2017) [2017] ZAGPPHC 1261 (15 December 2017) para 31, the Court referred

to jurisprudence on the rights of victims of crime and observed that ‘[i]t is high time that we should

start to emphasize the rights of the victims more than emphasizing the rights of the perpetrators’.

3

African Commission on Human and Peoples’ Rights, General Comment No 4 on the African Charter

on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel,

Inhuman or Degrading Punishment or Treatment (Article 5), adopted at the 21st Extra-Ordinary

Session of the African Commission on Human and Peoples’ Rights, held from 23 February to 4

March 2017 in Banjul, The Gambia.

4

Committee against Torture, General Comment No 3 (2012): Implementation of Article 14 by States

Parties, CAT/C/GC/3, 13 December 2012.

5 See generally Annette van der Merwe, ‘Justice “Beyond” the Law in The Secret in their Eyes: Rights

of Victims and Offenders in the Post-sentencing Phase’ in Frans Viljoen (ed), Beyond the Law:

Multi-Disciplinary Perspectives on Human Rights (Pretoria University Law Press 2012) 235–252.

6

Act 51 of 1977.