Johannesburg - A murderer in his 19th year of life imprisonment has convinced the Constitutional Court that he should be eligible for release next year and not 2027, a year that would mark 25 years in jail for him.
Prisoners serving life terms for committing heinous crimes such as premeditated murder and child rape qualified for parole after 25 years in South Africa.
Gaolatlhe Senwedi, jailed in 2002 with accomplice Alfred Khonyane for counts including murder and aggravated robbery, approached the Constitutional Court to argue that the Kimberley High Court infringed his rights by ordering a non-parole period of 25 years.
Senwedi, represented by Legal Aid, attacked the constitutionality of the 25 years non-parole order.
His argument was that the minimum life imprisonment term in 2002 was still 20 years.
It was increased to 25 years in 2004, after the passing of amendments to the Criminal Procedure Act.
Senwedi pointed out in court papers that leaving the high court order unchallenged would result in him serving five more years than fellow inmates sentenced to life imprisonment prior to October 1 2004.
He took the matter up after being advised by a fellow inmate in January 2017.
Senwedi’s first push for release was dealt a blow in 2009 when the Supreme Court of Appeal dismissed his application to appeal both conviction and sentence.
The State did not oppose Senwedi’s application at the Constitutional Court. It conceded that the length of the non-parole period imposed by the high court was invalid.
In the Concourt’s unanimous judgment delivered on Friday, Justice Steven Majiedt set aside the order that Senwedi and Khonyane should not be considered for release on parole before 25 years.
He said the high court “fatally misdirected itself in fixing a non-parole period of that length”.
“At the time of sentencing, individuals serving life sentences were required to serve a minimum period of 20 years’ imprisonment before they became eligible for parole,” Justice Majiedt said.
He agreed that the high court order meant Senwedi and Khonyane would serve five years more than fellow inmates who were sentenced to life imprisonment prior to October 1, 2004.
“The additional five years of the applicant’s sentence would commence during 2022,” Justice Majiedt said.
The judgment was in line with the Constitution, he added. “Our courts must defend and uphold the Constitution and the rights entrenched in it.
“One of the most important rights, from a historical perspective, is unquestionably the deprivation of an individual’s liberty.”
The ruling was expected to apply to all other prior-2004 life imprisonment judgments in which courts ordered non-parole before 25 years.
The Star