All prisoners deserve at the very least to know which sentencing and parole regime they fall under, writes Brenda Wardle.
Pretoria - Minister of Justice and Correctional Services Michael Masutha has announced that he was not going to recommend placing Eugene de Kock on parole because victims of his crimes had not, through “no deliberate dilatoriness or malice on the part of the Department of Correctional Services” made representations to the Correctional Supervision and Parole Board.
The release policies of prisoners sentenced to life in South Africa have often been marred by controversy and the situation is worsened by there being almost as many categories of lifers as there are amendments to parole and release policies.
There is a real need for a certain, consistent and an unambiguous parole release regime in South Africa.
All prisoners currently within the system deserve at the very least to know which sentencing and parole regime they fall under as well as the policies governing their possible placement on parole.
That certainty would no doubt, drastically reduce disputes which often lead to unnecessary litigation in the high courts.
It is common cause that parole is a privilege not a right.
However, in Campbell and Fell v United Kingdom it was held that the court, for its part, did not find that the distinction between privilege and right was of great assistance to it for the present purposes.
What is more important is the practice of granting remission – where a prisoner will be set free on the estimated date of release given to him at the outset of his sentence unless remission has been forfeited in disciplinary hearings – creates in him a legitimate expectation that he will recover his liberty before the end of his term of imprisonment.
De Kock was in 1995 tried for other “non-political” crimes against humanity and was subsequently convicted on 89 charges including six counts of murder, conspiracy to commit murder, assault, attempted murder, kidnapping and fraud.
He was sentenced to two life terms plus a total of 212 years in prison.
The Supreme Court of Appeal has ruled that in instances where more than one life term or number of years was imposed, the subsequent life term(s) or years too, shall run concurrently with the first life term.
At the very heart of the decision by the minister to deny De Kock parole was the already-mentioned absence of representations by the victims of his crimes.
De Kock has, in terms of our law, become eligible to be considered for possible placement on parole.
It thus becomes critical to examine what the law says. The doctrine of precedent is a well-established doctrine in our law, inherited from English law.
Decisions are either binding or of persuasive force, depending on whether it is the reason for the decision or the finding of law or a remark made in passing or by the way by the judge, which, to an extent can carry weighty persuasive value.
A full bench in the North Gauteng Division dismissed an application by Janusz Walus (co-accused in the murder of Chris Hani) to be placed on parole by the court.
The court held that Hani’s widow, Limpo Hani, had a right to make representations to the board. It is this decision which binds tribunals and forums, including the decision by Masutha.
In 1996, the year during which De Kock was convicted and sentenced, the Department of Correctional Services published its release policy in the Government Gazette.
This policy stipulated that prisoners sentenced to life imprisonment were to be considered for placement on parole after serving at least 25 years of their sentences, or having served 15 years and reached the age of 65 years.
Nothing in the word “consider” implies actual placement, so trying to extend the period by another five years is not only grossly unfair, it is irregular.
If the correctional supervision and parole made at the expiry of both the 15- year term (if the age of 65 has been reached) or expiry of 20 years, hold a hearing where they consider a report compiled in terms of Section 42 from the Case Management Committee, and they take into consideration all relevant circumstances including representations by the offender and his victims where relevant.
If the board is not convinced on reasonable grounds that the offender does qualify to be placed on parole, nothing stops them from making that decision and communicating their reasons fully.
The Parole and Correctional Supervision Amendment Act, which came into operation in 1997, provided that any person serving a prison sentence before the commencement of the act shall have their sentence and release governed by the law which was in place at the time when they were sentenced.
This was a clear and emphatic statement by the legislature that the act was not to be retrospective in effect.
The Correctional Services Act 111 of 1998 came into effect on 1 October 2004. Its provision that a prisoner who is serving a life sentence may not be placed on parole until he has served 25 years is clearly not applicable to persons sentenced prior to December 12, 1997.
Furthermore, in terms of the Correctional Services Act of 1998 “any prisoner serving a sentence of life imprisonment immediately before 1 October 2004 is entitled to be considered for day parole and parole after he or she has served 20 years of the sentence”.
Such prisoners may only be released on parole by the minister of correctional services after the recommendation by the National Council on Correctional Services.
The Correctional Services Amendment Act 2008, Act 25 of 2008, (the CSSA) was assented to on November 8, 2008.
The Department of Correctional Services has, in line with international trends, to give more recognition to victims and in support of the victim empowerment strategy of the government, developed procedures to facilitate and promote the involvement of complainants in parole board meetings when the release of offenders is considered.
* Brenda Wardle is a legal analyst with specialised knowledge in parole release policies. She has facilitated training to judges and magistrates on the subject.
** The views expressed here are not necessarily those of Independent Newspapers.
Pretoria News