Phaahla v Minister of Justice and Correctional Services and Another (97569/15) [2017] ZAGPPHC 617; 2018 (1) SACR 218 (GP) (3 October 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 97569/15

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

3 October 2017

In the matter between:

OUPA CHIPANE PHAAHLA APPLICANT

and

THE MINISTER OF JUSTICE AND CORRECTIONAL FIRST RESPONDENT

SERVICES

COMMISSIONER OF CORRECTIONAL SERVICES SECOND RESPONDENT

JUDGMENT

THE COURT:

INTRODUCTION

[1] The Applicant is serving a sentence of life imprisonment. He was convicted on 25 September 2004 and sentenced to life imprisonment on 5 October 2004. The sentence of life imprisonment was handed down four days after 1 October 2004, a date of legislative significance.

In terms of Section 73 (6)(b)(iv) of the Correctional Services Act No 111 of 1998 ("the Act"). a person sentenced to life

imprisonment may not be placed on day parole or parole until he or she has served at least 25 years of the sentence. Section 73 (6) (b) (iv) of the Act came into force on 1 October 2004.

[2] Section 136 of the Act (in relevant part) provides that any person serving a sentence of incarceration immediately before the

commencement of Section 73 is subject to the provisions of the Correctional Services Act No 8 of 1959, relating to his or her placement under community corrections, and is to be considered for such placement by the Correctional Supervision and Parole Board in terms of the policy and guidelines applied by the former parole boards prior to commencement of Section 73.

[3] Had the Applicant been sentenced to life imprisonment before 1 October 2004, he would have enjoyed the benefit of Section 136 (3) (a) of the Act. It provides that any sentenced offender serving a sentence of life incarceration immediately before the commencement of Section 73 is entitled to be considered for day parole or parole after he or she has served 20 years of the sentence.

[4] The Applicant complains that he should not have to suffer the harsher provisions of the parole regime that came into force and applied to those sentenced after 1 October 2004. Rather, he should enjoy the benefit of the parole regime applicable to those sentenced prior to 1 October 2004. The Applicant contends that the Constitution requires that he should enjoy this benefit. To do otherwise, the Applicant submits, would infringe his right to a fair trial in terms of Section 35 (3) (n) of the Constitution and his right to equality in terms of Section 9 of the Constitution.

[5] We are thus asked to determine whether the Act wants for constitutional conformity with these rights because the Act imposes a harsher regime of eligibility for parole (25 years rather than 20 years) upon the Applicant who was sentenced to life imprisonment

after 1 October 2004, even though he committed the offence and was convicted before this date.

THE INTERPRETATION OF THE ACT

[6] Section 136 (3) (a) of the Act reads as follows:

"Any sentenced offender serving a sentence of life incarceration immediately before the commencement of chapters IV, VI and VII is entitled to be considered for day parole and parole after he or she has served 20 years of the sentence."

Section 73 (6) (b) (iv) provides in relevant part the following:

"A person who has been sentenced to .... life incarceration, may not be placed on day parole or parole until he or she has served at least 25 years of the sentence".

Section 73 (6) (b) (iv) forms part of chapter VII of the Act. Chapter VII of the Act came into operation on 1 October 2004.

[7] A plain reading of these provisions provides that, from 1 October 2004, a person sentenced to life incarceration falls under a parole regime that renders such person eligible for parole only after he or she has served at least 25 years of their sentence of life incarceration.

[8] The Applicant contends, that while Section 136 of the Act provides for parole in respect of different classes of persons serving

sentences of incarceration before the commencement of chapters IV, VI and VII, Section 136 fails to regulate the position of persons such as the Applicant, who were convicted prior to the commencement of chapter VI I, but were sentenced to life incarceration after the commencement of that chapter.

[9] That contention cannot be accepted. The legislative scheme is clear. Those persons serving a sentence of life incarceration immediately before the commencement of chapters IV, VI and VII are entitled to be considered for parole after serving 20 years of their sentence. Section 73 (6) (b) (iv) creates a different regime. Those sentenced to life imprisonment after 1 October 2004 become eligible for parole after serving 25 years of their sentence. The legislature has clearly provided for a different regime of parole eligibility, once the transitiona l provisions of Section 136 come to an end. There is no legislative gap; simply a different and harsher regime is applied.

[10] This interpretation is also compelled by the interpretation of the Act given by the Supreme Court of Appeal in Minister of Correctional Services and Others v Seganoe[1].

Although this case was concerned with offenders not yet sentenced and serving determinate sentences of incarceration on 1 October 2004, the Court was clear that Section 136 says nothing at all about offenders sentenced after the commencement of chapter VII and no lacuna arises in respect of such persons. (See Seganoe paragraph [14]). We are bound by this interpretation, and in any event, we agree with it.

SECTION 35 (3)(n) OF THE CONSTITUTION

[11] If, as we have held, the relevant provisions of the Act that are of application to the Applicant render him ineligible for consideration of parole until he has served 25 years of his life sentence, then the Applicant challenges the Act as inconsistent with Section 35 (3) (n) of the Constitution .

[12] Section 35 (3) (n) reads as follows:

"Every accused person has a right to a fair trial, which includes the right -

…

(n) to the benefit of the least severe of the prescribed punishments . If the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing".

[13] This provision of the Constitution gives expression to the venerable principle of the common law that liability for punishment is determined when a crime is committed and notwhen an accused is either convicted or sentenced. If there is a change to the law imposing a more severe penalty for a crime that was not of application at the time that the offence was committed, an accused person will not be subject to the retrospective application of the harsher punishment.

[14] The Applicant contends that Section 35 (3) (n) (which we refer to as the fair punishment provision) is of application to the parole regime in the Act that renders the Applicant subject to the harsher requirement of eligibility for parole.

[15] The issue that arises is whether the fair punishment provision, as an aspect of an accused's right to a fair trial, can be of application to the regime of parole set out in the Act.

[16] A number of Courts have ruled on this issue. In Broodryk & Others v Minister of Correctional Services & Others[2], Van Costen J considered a challenge similar to the one now brought by the Applicant. Citing the case of Makaba v The Minister of Correctional Services & Others[3], Van Oosten J found himself to be in agreement with Lekale J in the Makaba decision. These cases have found that Section 35(3) of the Constitution deals with an accused person's right to a fair trial, and a trial is concerned with whether an accused person is guilty of an offence , and, if so, what sentence should be passed. On the other hand, the serving of any sentence imposed by a Court forms no part of a trial, it is rather a process administered by the Executive. As the matter was put in the Broodryk case: "The word "punishment" as used in Section 35 (3) (n), in my view, does not refer to the way in which punishment is served. And, finally, and decisively, the subsection expressly, in clear wording, provides for changes in the prescribed punishments "between the time that the offence was committed" and "the time of sentencing". To extend the meaning of the subsection to include the serving of [a] sentence would constitute reading into what one wishes it to mean which plainly is impermissible. " (At paragraph [11])

[17] These cases interpret the fair punishment provision on the basis of a clear division between the power to impose a punishment and the power to regulate how a punishment imposed by a Court is served. This latter power is a matter for legislation and the application of executive competence.

[18] There can of course be no question that Parliament has determined the regime of parole, and consequently determined both eligibility for parole and the regime under which that eligibility is decided. The question is whether the legislated regime of parole is wholly

unrelated to the benefit to which an accused person is entitled of the least severe prescribed punishment.

[19] Section 2768 (1) of the Criminal Procedure Act 51 of 1977 provides that if a Court sentences a person convicted of an offence to imprisonment for a period of two years or longer , the Court may, as part of the sentence , fix a period during which the person shall not be placed on parole. This provision permits a Court, as part of its sentencing competence, to vary the ordinary eligibility for parole. Thus Section 2768 is a sentencing power which, if exercised, renders a sentence harsher because it varies the ordinary requirement of eligibility. Thus eligibility for parole may be a consideration relevant to sentencing.

[20] The power of a Court to fix a non-parole period as an aspect of its sentencing competence is a statutory exception to the general rule that separates the powers of the Court to punish and the powers of the Legislature and Executive to regulate how such punishments are served.

[21] It may well be that Courts, in determining an appropriate sentence, have regard to when it is that a person will become eligible for parole. But it does not seem to us that this renders the statutory regime of parole a "prescribed punishment" within the meaning of the language in Section 35 (3) (n). Parole is not a prescribed punishment. It is a prescribed regime under which the duration of punishments may be attenuated.

[22] The power of a Court in Section 2768 of the Criminal Procedure Act provides a useful point of comparison for determining a prescribed punishment. As we have indicated, Section 2768 gives express recognition to the power of a Court to use a non-parole period as an aspect of punishment. This is an instance where the Legislature has prescribed a punishment by permitting a Court to defer eligibility for parole, and thereby punish a person convicted of an offence where the sentence is a period of imprisonment of two years or longer.

[23] But it does not appear to us that where a Court imposes a sentence without fixing a non-parole period, the Court thereby makes part of its prescribed punishment the ordinary eligibility for parole that is provided for under the Act. In this situation, the punishment of the Court is the sentence that it pronounces. The eligibility for parole is not a part of the punishment. Rather it is a legal consequence of the sentence that is given by a Court, giving to the sentenced person a right to be considered for parole by executive action within a stipulated period and under prescribed conditions.

[24] Other jurisdictions have grappled with like problems. We were, in particular referred to certain of the decisions of the Courts in Canada. Two in particular were relied upon by the Applicant: R v Gamble[4] and Canada (Attorney General) v Whaling[5]. Although there is much useful learning in these decisions, neither of them is determining for the purpose of resolving the issue in this case. In Gamble, the issue was whether the appellant had been tried originally under the correct law. Had she been so, she would have enjoyed a preferential

parole dispensation. The Supreme Court gave the Appellant in that case the benefit of the parole regime applicable to the law under

which she should have been tried and ultimately convicted. But that is not at all the case we have before us. The Applicant before us does not complain that he was tried under the wrong law, but rather that the law that was of application at the time of his sentencing imposed a harsher parole regime.

[25] So too in Whaling, the question was whether the repeal of early parole provisions applied retrospectively to offenders already sentenced gave rise to an infringement of the Canadian Charter of Rights and Freedoms. Again in the matter before us, the question is not one of a retrospective change to the regime of parole that the Applicant was already enjoying. Rather it is a circumstance in which the Applicant is sentenced at a time when the regime of parole has changed.

[26] We are accordingly unable to find that Section 35 (3) (n) engages any rights of the Applicant that permit the Applicant to impugn the relevant provisions of the Act that are of application to him in respect of his eligibility for parole.

THE EQUALITY CHALLENGE

[27] The further challenge made by the Applicant to the applicable provisions of the Act is that the imposition of a more onerous parole regime simply for the fact that the Applicant was sentenced after 1 October 2004, amounts to unfair discrimination infringig the Applicant's rights under Section 9 of the Constitution.

[28] The equality jurisprudence of the Constitutional Court is well known[6].

[29] The Applicant relies both upon Section 9 (1) of the Constitution, as well as the prohibition against unfair discrimination in Section 9 (3) of the Constitution. The pleaded case, by the Applicant, appears from his Supplementary Founding Affidavit. In essence his complaint is this: using the date of sentence as the basis for imposing a harsher regime of parole upon him is both irrational and constitutes unfair discrimination.

[30] The Applicant, having committed his offence prior to 1 October 2004, and having been convicted prior to that date, is aggrieved that simply by reason of the short delay in his sentencing, he is now subject to a more onerous regime of parole.

[31] The first question that we must consider is whether the provisions of the Act that came into force on 1 October 2004 differentiate between categories of people, and if so, whether there is a rational connection between the differentiation in question and the legitimate government purpose that the differentiation is designed to achieve.

[32] There can be little question that upon the coming into force of Section 73 (6) (b) (iv) of the Act, persons sentenced thereafter to life incarceration suffer a harsher parole regime than persons sentenced to life incarceration before that date. There is plainly

differentiation between these two classes of sentenced persons.

[33] Is such differentiation rational?

[34] In the Supplementary Answering Affidavits of the Respondents, an account is given as to how the revised parole system that is reflected in the impugned Sections of the Act came into being. In essence, a final report of the National Advisory Council on

Correctional Services ("NACOCS") was submitted to the Minister with certain recommendations in respect of eligibility for parole applicable to prisoners sentenced to life imprisonment. The matter was also debated before the relevant Parliamentary Portfolio Committees. It appears that the parole provisions finally adopted in legislation in respect of persons sentenced to life incarceration reflected, in the first place, a range of general factors such as rehabilitation, the risk of danger to the public, the need to maintain public confidence and the increased prevalence of crimes. More specifically the determination was made in the light of the extinction of the distinction that had existed between offenders sentenced to life incarceration due to extenuating circumstances and offenders who were sentenced to death, where that sentence was no longer capable of being carried out because of its unconstitutionality.

[35] It is also explained by the deponent to the Answering Affidavit that care was taken not to effect retrospective change to the parole system for offenders already sentenced to life imprisonment. And hence the transitional regime reflected in Section 136 of the Act.

[36] What is not explained by this account of things is whether the date of sentence is a rational basis for differentiating between the eligibility of persons for parole. Nothing is pertinently said on this score. That the general objects described in the Answering

Affidavit (the balancing of rehabilitation and public risk) are relevant and worthy objects relevant to a defensible legislative

scheme of parole is not to be doubted.

[37] The issue before us however is much narrower. The question is not, whether a 20 or 25 year period for eligibility is justified, the question is rather whether applying the 25 year period to persons who committed the offence and were convicted before 1October 2004 but sentenced after 1 October 2004 , is rationally defensible.

[38] Every change of law must come into effect at a particular point in time. Depending on the change, there are persons who may be worse off as a result of such change. The fact of the change and the necessity that it comes into force on a particular date cannot of itself be impugned as irrational.

[39] If, as was the case, the Legislature wished to change the time period relevant for parole eligibility, there are three logical points by reference to which the new regime might apply. Section 73 of the Act selected the date of sentencing, after 1 October 2004, as the point from which the new parole regime would apply. The second alternative might have been to apply the new parole regime to offences committed after 1 October 2004. Lastly, the new parole regime might have become of application in respect of convictions that occurred after 1 October 2004.

[40] The Applicant contends that because parole is an aspect of punishment the rational point of reference is the date on which the offence is committed. On this view of things, when the Act passed into law (in 1998) those who committed offenses would have known that they were at risk of a more onerous parole regime should they be sentenced to life imprisonment after Section 73 (6) (b) (iv) came into force . The Applicant's affidavits are remarkably sparse as to when he committed the offence for which he has been sentenced to life imprisonment. The Applicant does say that the parole provisions changed between the time he committed the offence and the time of his sentencing.[7] He may mean no more than that he committed the offence before 1 October 2004. The more charitable reading is that he committed the offence before the Act passed into law. We proceed to consider the matter on the factual premise, more favourable to the Applicant.

[41] The force of the Applicant's argument rests centrally on the proposition that parole should be understood to be an aspect of

punishment and consequently an offender is entitled to know the punitive regime that may flow from a crime. It does appear however

that this is not the understanding of parole that the Constitutional Court has endorsed. In Jimmale & Another v S[8] the Court characterised the decision to grant parole as a matter within the exclusive field of the Department of Correctional Services. The Constitutional Court states that this is an incident of the principle of separation of powers because the Courts obtain their sentencing jurisdiction from statute. Section 2768 of the Criminal Procedure Act is thus a statutory power to sentence, as we have observed. It is an exception to the general characterisation of parole and the importance of Courts adhering to the principle of separation of powers.

[42] It does not necessarily follow however that because parole is not any part of the power of sentencing, it forms no part of the regime of punishment that applies to the commission of an offence. If a crime carries a life sentence and the provisions of the Act provide that eligibility for parole accrues after 25 years, then the possibility of parole would seem to be an attribute of the regime of punishment. It forms part of that regime not because it flows from the judicial power to sentence but rather because it flows from the executive competence to shorten sentences, and thus to effect the burden of punishment.

[43] It would thus appear that there is a relationship between the commission of a crime and the reasonable expectation as to what

punishment, in the sense described, may be visited upon a person who is convicted and sentenced to life imprisonment. The punishment

exacted under law is not of necessary equivalence to the sentence passed.

[44] In Seganoe it was said that it would be absurd to permit a person the benefit of a more benign parole regime, if such person committed an offence years before and sought to evade capture. We are not inclined to think that this example is determinative of the question of principle we must decide. If parole forms part of the effective burden of punishment, then it is the knowledge of such burden at the time of committing the offence that is relevant rather than how long an offender escapes arrest and prosecution.

[45] We are accordingly inclined to the view that the adoption of the date of sentencing as the relevant point for the application of the new parole regime, without regard to what provision the law allowed for parole as at the date of the commission of the offence, gives rise to arbitrary results of the kind illustrated by the Applicant's case. It is not the happenstance that had the Applicant been sentenced a few days earlier he would have enjoyed a materially different outcome. That, as we have indicated, is a feature of almost every change to the law. The arbitrariness of the result visited upon the Applicant is that the harsher parole regime applied to him requires him to suffer a burden that others who committed similar offences at the same time did not have to bear. On this analysis, the principled basis upon which a change to parole should take place in a rational manner is to link it to offences committed after the legislation creates the new regime of parole. From that point, all who offend know the punitive burden to which they might be subjected.

[46] The use of the date of sentencing or indeed conviction can give rise to arbitrary and irrational consequences because the burden of punishment (imprisonment without being eligible for parole for a further five year period) borne by the Applicant arises from a legislated change that was not the law at the time the offence was committed. Other offenders who committed equally serious crimes at the same time as did the Applicant, but were sentenced to life imprisonment before 1 October 2004, would have endured a different

and lighter burden, consistent with the parole regime of application at the time they offended.

We make two cautionary observations in respect of this conclusion. First, the Act passed into law in 1998 and offenders were on notice from that date as to changes to parole that the Act brought about, including prospective changes. Second, the Applicant's rights will only have been implicated if he indeed committed the offence for which he has been imprisoned prior to the Act coming into force.

[47] On this basis we find that Section 73 (6) (G) (iv) infringes upon the Applicant's rights in terms of Section 9 (1) of the Constitution. We consider also, that this provision infringes Section 9 (3) in that it unfairly places the Applicant in a position where he suffers a harsher regime of parole than he would legitimately have expected at the time that he committed the offence.

[48] In the result we make the following order:

1. That Sections 136 (1) and 73 (6) (B) (iv) of the Correctional Services Act 111 of 1998 ("the Act") is declared inconsistent with Section IX of the Constitutional of the Republic of South Africa Act 108 of 1996 in that it applies a regime of parole after 1 October 2004 that was not of application at the time that the offence was committed.

2. It is declared that the Applicant is entitled to be considered for parole in terms of the provisions of the Correctional Services Act number 8 of 1959 and in terms of the policy and guidelines applied by the former parole boards prior to the commencement of chapters VI and VII of Act 111 of 1998, in the event that he committed the offence for which he serves a sentence of life imprisonment was committed prior to the Act coming into force.

3. The orders in 1 and 2 above are of no force, pending referral to the Constitutional Court and its consideration of the order of constitutional invalidity.

4. The first and second Respondents are ordered to pay the costs of this application, jointly and severally, the one paying the other to be absolved.

BY THE COURT

________________

Legodi, J

JUDGE OF THE HIGH

COURT OF SOUTH

AFRICA, GAUTENG

DIVISION, PRETORIA

Molefe, J

_________________

Unterhalter, AJ

ACTING JUDGE

THE HIGH COURT OF

SOUTH AFRICA,

GAUTENG DIVISION,

PRETORIA

27 September 2017

APPEARANCES:

On behalf of Applicant : Adv. R du Plessis SC

: Adv. L Kellermann SC

Instructed by : Julian Knight & Associates Inc.

On behalf of 1st and 2nd Respondent : Adv. M T Moerane S

: Adv. T W G Bester SC

Instructed by : State Attorneys

Date of Hearing : 27 June 2017

Date of Judgment : 03 October 2017

[1] 2016 (1) SACR 221 (SCA).

[2] 2014(1) SACR 471 (GJ)

[3] (2012) ZAFSHC 157

[4] [1988] [2] SCR 595 (SC).

[5] 2014 SCC 20.

[6] Prinsloo v Van der Linde 1997 3 SA 1012 (CC) and Harksen v Lane NO 1998 (1) SA 300 (CC).

[7] Applicant's Supplementary Founding Affidavit para 8.7. Unhelpfully, the averment is baldly denied: Answering Affidavit para 13.6

[8] 2016 (2) SACR 691 (CC) at paragraph [11].