South Africa Case Law

Senwedi v S (CCT 225/20)

Senwedi v S (CCT 225/20) [2021] ZACC 12; 2022 (1) SACR 229 (CC); 2023 (4) BCLR 449 (CC) (21 May 2021)

Court

Constitutional Court

Case number

CCT 225/20

Judges

Mogoeng, Jafta, Khampepe, Madlanga, Majiedt, Mathopo, Mhlantla, Theron, Tshiqi, Victor

The Constitutional Court held that the High Court was not empowered to impose a non-parole period of 25 years at the time of sentencing, as section 276B of the Criminal Procedure Act only came into operation on 1 October 2004, after the applicant's conviction and sentence. The imposition of the non-parole period constituted an increased sentence not permitted by law at the relevant time and was therefore invalid. The Court further found that the applicant and his co-accused were not afforded an opportunity to address the fixing of the non-parole period, which amounted to a fatal procedural mi…

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• Non Parole Period
• Retrospective Application Of Statute
• Right To Freedom
• Least Severe Punishment
• Fair Trial Rights

Phaahla v Minister of Justice and Correctional Services and Another (Tlhakanye Intervening) (CCT44/18)

Phaahla v Minister of Justice and Correctional Services and Another (Tlhakanye Intervening) (CCT44/18) [2019] ZACC 18; 2019 (2) SACR 88 (CC); 2019 (7) BCLR 795 (CC) (3 May 2019)

Court

Constitutional Court

Case number

CCT 44/18

Judges

Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Petse, Theron

The Constitutional Court held that parole eligibility is a component of punishment for constitutional purposes. Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act create arbitrary and irrational differentiation between inmates based on date of sentencing rather than date of commission of offence, resulting in unequal treatment and retrospective imposition of harsher punishment. This violates section 9(1) and (3) (equality before the law and non-discrimination) and section 35(3)(n) (right to least severe punishment) of the Constitution. The impugned provisions are declared incon…

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• Parole Eligibility
• Equality Before The Law
• Least Severe Punishment
• Retrospective Application
• Correctional Services Act
• Fair Trial Rights

Makaba v Minister of Correctional Services and Others (5369/2011)

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

Court

Free State High Court, Bloemfontein

Case number

5369/2011

Judge

L J Lekale

The court dismissed a challenge to the new parole regime, holding that section 35(3)(n) protects accused persons before sentencing, not sentenced inmates.

• Parole Eligibility
• Least Severe Punishment
• Correctional Services Act
• Constitutional Interpretation
• Parole-eligibility
• Least-severe-punishment