S v Niemand (CCT 28/00) [2001] ZACC 11; 2002 (1) SA 21 (CC); 2002 (3) BCLR 219 (CC); 2001 (2) SACR 654 (CC); 2001 (11) BCLR 1181 (CC) (8 October 2001)

S v Niemand (CCT 28/00) [2001] ZACC 11; 2002 (1) SA 21 (CC); 2002 (3) BCLR 219 (CC); 2001 (2) SACR 654 (CC); 2001 (11) BCLR 1181 (CC) (8 October 2001)

The Constitutional Court held that section 286 of the Criminal Procedure Act read with section 65(4)(b)(iv) of the Correctional Services Act is unconstitutional because it permits the indefinite detention of habitual criminals without a statutory maximum period. This indeterminacy exposes prisoners to the risk of lifelong incarceration for non-violent offences, which is grossly disproportionate and constitutes cruel, inhuman, or degrading punishment under section 12(1)(e) of the Constitution. The absence of a maximum period is not cured by departmental practice or inferred limits. The appropriate constitutional remedy is to read into section 65(4)(b)(iv) of the CSA the words 'provided...

Citation
[2001] ZACC 11
Parties
Appellant: Willem Hendrik Niemand; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
8 October 2001
Case Number
CCT 28/00
Procedural Posture
Constitutional Appeal / Final Judgment
Outcome
Appeal succeeds in part; declaration of constitutional invalidity granted; consequential relief sought by appellant refused; reading-in order imposed; appeal otherwise dismissed.
Judges
Madala, Chaskalson, Ackermann, Goldstone, Kriegler, Mokgoro, Ngcobo, Sachs, Yacoob, Madlanga
Legal Topics
Indeterminate Sentencing, Cruel Inhuman or Degrading Punishment, Habitual Criminals, Reading in Remedy, Section 12 Rights
Criminal Law Constitutional Law Indeterminate Sentencing Cruel Inhuman or Degrading Punishment Habitual Criminals Reading in Remedy Section 12 Rights

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Parties

Willem Hendrik Niemand

Appellant

The State

Respondent

Procedural Posture

Constitutional Appeal / Final Judgment

Legal Issues

  1. 1 Does section 286 of the Criminal Procedure Act 51 of 1977 read with section 65(4)(b)(iv) of the Correctional Services Act 8 of 1959 violate section 12(1)(e) of the Constitution by permitting indeterminate imprisonment for habitual criminals?
  2. 2 Is the absence of a statutory maximum period of incarceration for habitual criminals constitutionally valid?
  3. 3 Does the delegation of release decisions to the executive (parole board) constitute a shirking of judicial duty?

Ratio Decidendi

The Constitutional Court held that section 286 of the Criminal Procedure Act read with section 65(4)(b)(iv) of the Correctional Services Act is unconstitutional because it permits the indefinite detention of habitual criminals without a statutory maximum period. This indeterminacy exposes prisoners to the risk of lifelong incarceration for non-violent offences, which is grossly disproportionate and constitutes cruel, inhuman, or degrading punishment under section 12(1)(e) of the Constitution. The absence of a maximum period is not cured by departmental practice or inferred limits. The appropriate constitutional remedy is to read into section 65(4)(b)(iv) of the CSA the words 'provided...

Court Disposition

Appeal succeeds in part; declaration of constitutional invalidity granted; consequential relief sought by appellant refused; reading-in order imposed; appeal otherwise dismissed.

Orders

  • The order of the High Court in Pretoria made on 26 August 1999 is set aside and substituted.
  • Section 65(4)(b)(iv) of the Correctional Services Act 8 of 1959, read with section 286 of the Criminal Procedure Act 51 of 1977, is declared inconsistent with the Constitution.