Makaba v Minister of Correctional Services and Others (5369/2011) [2012] ZAFSHC 157 (16 August 2012)

Makaba v Minister of Correctional Services and Others (5369/2011) [2012] ZAFSHC 157 (16 August 2012)

The court held that section 35(3)(n) of the Constitution applies only to accused persons who have not yet been sentenced, and not to sentenced inmates. The applicant was sentenced after 1 October 2004 and was therefore subject to the parole regime of the new Act. The impugned provisions do not affect the applicant's constitutional rights, nor do they aggravate his punishment. The parole regime does not constitute punishment within the meaning of the Constitution. The application was dismissed as the applicant failed to establish any constitutional inconsistency or entitlement to be considered for parole under the old Act.

Citation
[2012] ZAFSHC 157
Parties
Applicant: Phillip Phil Makaba; Respondent: The Minister of Correctional Services; Respondent: The Regional Commissioner of Correctional Services; Respondent: The Area Commissioner (Groenpunt Management Area); Respondent: The Head of Correctional Centre (Groenpunt Maximum Prison); Respondent: The Chairperson of the Correctional Supervision and Parole Board; Respondent: The Chairperson of the Case Management Committee
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
16 August 2012
Case Number
5369/2011
Procedural Posture
Constitutional Application / Opposed Application for Declaratory and Mandatory Relief
Outcome
Application dismissed.
Judges
L J Lekale
Legal Topics
Parole Eligibility, Least Severe Punishment, Correctional Services Act, Constitutional Interpretation
Constitutional Law Administrative Law Parole Eligibility Least Severe Punishment Correctional Services Act Constitutional Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Phillip Phil Makaba

Applicant

The Minister of Correctional Services

Respondent

The Regional Commissioner of Correctional Services

Respondent

The Area Commissioner (Groenpunt Management Area)

Respondent

The Head of Correctional Centre (Groenpunt Maximum Prison)

Respondent

The Chairperson of the Correctional Supervision and Parole Board

Respondent

The Chairperson of the Case Management Committee

Respondent

Procedural Posture

Constitutional Application / Opposed Application for Declaratory and Mandatory Relief

Legal Issues

  1. 1 Whether section 136(1) of the Correctional Services Act, 111 of 1998, is inconsistent with section 35(3)(n) of the Constitution and therefore unconstitutional.
  2. 2 Whether the applicant is entitled to be considered for parole under the old Act and policies applicable before 1 October 2004.
  3. 3 Whether the new parole regime unlawfully aggravates the applicant's punishment.

Ratio Decidendi

The court held that section 35(3)(n) of the Constitution applies only to accused persons who have not yet been sentenced, and not to sentenced inmates. The applicant was sentenced after 1 October 2004 and was therefore subject to the parole regime of the new Act. The impugned provisions do not affect the applicant's constitutional rights, nor do they aggravate his punishment. The parole regime does not constitute punishment within the meaning of the Constitution. The application was dismissed as the applicant failed to establish any constitutional inconsistency or entitlement to be considered for parole under the old Act.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs is made.