Top court confirms new parole regime change date is unconstitutional

The Constitutional Court has held that rules lengthening parole periods increase the severity of the punishment and this is inconsistent with the constitution.
The Constitutional Court has held that rules lengthening parole periods increase the severity of the punishment and this is inconsistent with the constitution.
Image: NICOLENE OLCKERS/GALLO IMAGES

Parole was part of punishment and rules lengthening parole periods increased the severity of the punishment, the Constitutional Court ruled on Friday.

The court confirmed an order made by the high court that Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act of 1998 were invalid.

The two sections altered the requirements of eligibility for parole such that different requirements applied, depending on the date of sentence.

Under Section 136(1) of the act, anyone sentenced to life imprisonment before October 1 2004 would be eligible for parole after serving 20 years of their sentence in prison, in accordance with the old parole regime.

However, Section 73(6)(b)(iv) states that a person sentenced to incarceration for life after October 1 2004 may not be placed on parole until he or she has served at least 25 years of the sentence.

In this case, Oupa Phaahla, who is serving a life sentence, was convicted on September 25 2004, but sentenced on October 5 that year, a mere four days after the new parole regime took effect.

This meant that Phaahla was only meant to be eligible for parole after having spent 25 years in prison, whereas had he been sentenced a few days earlier, he would have been eligible for parole five years earlier.

Phaahla successfully challenged the constitutionality of these sections in the high court.

However, the court’s declarations of constitutional invalidity needed to be confirmed by the Constitutional Court.

In the majority judgment on Friday, acting justice Daniel Dlodlo said imposing the lengthier sentence violated section 35(3)(n) of the constitution.

The section provides that where the prescribed punishment for an offence has changed between the time the offence was committed and the time of sentencing, an accused person has the right to the benefit of the least severe of the prescribed  punishments.

Another concurring judgment was written by justice Edwin Cameron.

Cameron said bringing the new parole regime into effect on any arbitrarily chosen date, as October 1 2004 was, and to tie its application to date of sentence rather than the date of the commission of offence, created irrational and absurd disparities between those sentenced before and after the date the new regime came into force.

He said this was no more rational than if the legislation had subjected those with blue eyes to the old parole regime, but those with black eyes to the new parole regime.


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