The Constitutional Court on Friday confirmed an earlier ruling by three judges of the Gauteng High Court, Pretoria, that the date of the commission of the crime rather than the date of sentencing should be applicable to this group of offenders.
This decision will have far-reaching consequences for the parole system.
Prisoners were wanting their sentences to be determined by when they committed the crimes, not when new laws came into effect.
The full bench of the Gauteng High Court, Pretoria, in this regard ruled that certain sections of the Correctional Services Act were unconstitutional as they applied a regime of parole after October 1, 2004, which was not applicable at the time that the offence was committed.
Prior to October 1, 2004, prisoners sentenced to life imprisonment had to serve 20 years of their sentence before they were considered for parole.
In terms of the law applicable at the time, a “lifer” could be considered for parole after even serving about 13 years, if credits for good behaviour were taken into account.
The law, however, drastically changed after October 1, 2004, stating that anyone sentenced to life, had to serve at least 25 years before they were considered for parole.
Prisoner Oupa Phaahla, who was convicted on September 25, 2004, for murder and sentenced to life on October 5, 2004 - four days after the law had changed - challenged the Act.
He has spent the last 15 years in jail.
If he was sentenced four days earlier, he could have been on parole already. He had to serve about 13 years if his credits for good behaviour were taken into consideration. But those four days meant that he now had to serve 25 years before he was considered for parole.
Phaahla said this was simply not fair, as a person who had committed murder on the same date as he had, but who was sentenced four days earlier than he was, would have to serve a far less term than him before being considered for parole.
The high court earlier ruled that the date on which the crime was committed should be the benchmark to determine consideration for parole; not the date of sentencing.
But this judgment had to be confirmed by the Constitutional Court, as it meant that the Correctional Services Act had to be amended in this regard.
Acting Justice Daniel Dlodlo, in a majority judgment, agreed with the high court ruling and gave Parliament 24 months from the date of this order to amend the Act so that the parole regimes can be determined on the basis of the date of commission of an offence.
Justice Dlodlo, however, ordered that in the meantime those prisoners who fall under this category, should be considered for placement on parole.
The court accepted the argument by Phaahla’s legal team than an accused has no control over the length of a criminal trial or delays in the criminal justice process. It was argued that two accused could have committed the same offence on the same day prior to October 1, 2004 (when the new law came into effect). But because one was sentenced before this date, he or she would have to serve a lesser time in jail than the one sentenced afterwards, before being considered for parole.
Phaaha’s lawyer, Julian Knight, said there are a couple of thousand prisoners who will benefit from this judgment as their eligibility for parole will now be advanced.