UNPACKING THE LAW AND PRACTICE RELATING TO PAROLE IN SOUTH AFRICA

The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.


Introduction
Punishment has different purposes such as retribution, deterrence and rehabilitation. 1When a court sentences an offender to imprisonment it is guided not only by the law that stipulates the minimum or the maximum sentence that must be imposed but also by the objective(s) of punishment that the judge thinks the sentence imposed must achieve.However, whereas it is within the court's discretion to determine which sentence should be imposed on an offender after considering several factors such as the nature of the offence, the personal characteristics of the offender, and the purpose of punishment, as I illustrate shortly, it is not only the court that has an interest in sentencing.The Constitutional Court held in S v Dodo 2 , and recently in Centre for Child Law v Minister for Justice and Constitutional Development and Others 3 , that even the executive has an interest in sentencing.The executive's interest in sentencing lies in the fact that it is the executive, through the Department of Correctional Services (DCS), that enforces prison and certain non-custodial sentences imposed by courts. 4It has to be recalled that parole is an integral part of a sentence because it is a continuation of a sentence outside of the correctional facility.In other words, an individual who is on parole is still serving his/her sentence.The history of parole in South Africa is well documented and will  Post-Doctoral Fellow, Faculty of Law, University of the Western Cape (UWC); LLD (UWC); LLM (Human Rights and Democratisation in Africa), University of Pretoria; LLM (Human Rights Specialising in Reproductive and Sexual Health Rights), University of the Free State; LLB (Hons) Makerere University.This is a revised version of my paper published as Civil Society Prison Reform Initiative's (CSPRI) Occasional Paper 16 in 2009 when I was a Doctoral Researcher at the Community Law Centre, University of the Western Cape.I am grateful to Mr. Lukas Muntingh of CSPR, to Prof. Leeman of the Faculty of Law, UWC, and to the anonymous referees for their invaluable comments on the earlier versions of this article.The usual caveats apply.Email: djmujuzi@gmail.Section 2(a) of the Correctional Services Act provides that "[t]he purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by enforcing sentences of the courts in the manner prescribed by [the Correctional Services Act]".

JD MUJUZI
PER / PELJ 2011(14)5 206/240 not be repeated here. 5Parole has various motivations which include being an alternative to imprisonment,6 rewarding offenders for complying with their sentence plan and participating in rehabilitation programmes, and combating recidivism by ensuring the gradual re-integration of offenders. 7S is also equipped -because it employs social workers and other experts8 -to assess if the offender serving a prison term has been rehabilitated and therefore, where applicable, should be released from prison.The issue of whether or not an offender has been rehabilitated is central to determining if he should be paroled. 9As at the end of November 2009, there were 40520 parolees in South Africa. 10is article discusses the law and practice relating to parole in South Africa. 11A conscious decision has been made to exclude the discussion of medical parole and the law relating to the parole of offenders serving life sentences because these two areas have been the subject of recent academic studies. 12On 1 October 2009 some of the sections of the Correctional Services Amendment Act 13 came into force.
Among the sections that did not come into force on 1 October 2009 are section 48 (which deals with parole) and section 49 (which deals with the incarceration framework).The fact that those provisions are yet to come into force means that they are not discussed in this paper.The paper addresses the following issues relevant to In S v Myburgh 2007(1) SACR 11(W), where the accused, who has physiological problems, was sentenced to ten and a half years' imprisonment for public indecency and indecent assault, the court recommended that DCS should place the appellant on rehabilitation programmes during his imprisonment to enable the parole board to grant him parole when his application for parole was being considered.

PER / PELJ 2011(14)5
207/240 the question of parole in South Africa, which courts have had to deal with: parole as a privilege; the period to be served before an offender is paroled (excluding habitual and dangerous criminals); the meaning and legal status of a non-parole period; and some of the instances where courts have intervened where prisoners' applications for placement on parole have been declined by the relevant authorities.

Parole as a privilege
Section 73(1) of the Correctional where the applicant, a fully rehabilitated offender, was not released on parole on several occasions although the Court had ordered that he qualified for parole, that "[a]lthough no offender has a right to be paroled, parole is an integral part of the penal system", and that "[w]here an offender therefore has demonstrated by his conduct that he has been rehabilitated and is not a danger to society there is no reason why he should not benefit from the system". 18In S v Smith was passed after they had started serving their sentences had the effect of increasing the period they were required to serve before being considered for parole, the Court held that "… a prisoner has no right to be paroled…Parole is a privilege".341.What emerges from the above cases is that, although the release on parole is not a right, the offender has a legitimate expectation that he will be considered for parole and will be placed on parole should he fulfil all of the requirements, for example, that he has served the non-parole period and has been rehabilitated.In cases where the offender meets all of the requirements for placement on parole and is not placed on parole, courts may intervene and order that he be placed on parole, as was the case in Motsemme v Minister of Correctional Services and Others. 23 The issue of parole is not exclusive to the judiciary.The discussion now shifts to the roles that the legislature and the executive have played or can play in the parole process.This analysis will form the background to the discussion of the demarcation of the roles each branch of government can play in the parole process.The Constitution establishes and recognises the role of the National Assembly in the "oversight of the exercise of national executive authority including the implementation of legislation". 24In order to execute that mandate effectively and efficiently, parliament has, pursuant to section 57( 2 implemented to reduce parole violations and to improve the parole system in the year 2010/2011. 30condly, the Committee has also had its own discussions on issues relating to parole.These have included the need for the expeditious implementation of parole legislation,31 and overcrowding and the release of prisoners. 32Thirdly, some Committee members, using the question and reply procedure in parliament, have posed the following direct questions relating to parole to the Minister of Correctional Services.One Committee member, Mr. Selfe, asked the Minister of Correctional Services to inform parliament of the number of "offenders who were released on parole [who] committed crimes whilst on parole in each Province in the (i) 2007-08 financial year", and "for what crimes were the offenders serving a prison sentence in each case".The Minister answered these two questions in detail giving all the relevant statistics. 33In another question, the Minister was asked whether the DSC was "investigating and/ or developing the use of satellite-based tracking devices to monitor the movements of ... parolees".The Minister answered that question in the affirmative, and gave details of the actions being implemented to achieve that objective. 34The fourth way has been for the Committee to invite other stakeholders, such as the chairpersons of different parole boards, to address it on the challenges they face in the execution of their mandate. 35The DCS has also appeared before other parliamentary committees to brief members on the issue of parole.This has been the case with the Security and Constitutional Affairs Select Committee on the  Our parole system is not a wanton licence to freedom and neither does it nullify the actual sentence imposed by the courts.The parole system aims to extend and grant opportunities for second chances.We hope that as parole is considered, particular attention is paid to the matter of victims of crime, especially victims of violent crimes like murder, robbery and all forms of crimes against women and children.Similarly, offenders who commit further crimes whilst in custody must not expect any sympathy from our parole system.In his media briefing the Minister of Justice and Constitutional Development indicated the following as one of the measures to reduce prison overcrowding: The newly appointed ministerial task team in the Department of Correctional Services (DCS) will, over the next six months conduct an audit of certain categories of offenders with the overall objective of alleviating overcrowding in our correctional facilities.This includes looking into ... backlogs in the hearing of parole applications by Parole Boards. 39e following can be distilled from the above in relation to the role of the legislature, the executive and the judiciary in the parole system.The legislature, through the PCCS and the question and reply procedure, should ask the DCS and the Minister of Correctional Services to provide information relating to the manner in which parole is being administered in the country.In cases where the legislature is of the opinion that the DCS may not have adhered to the established procedure to release an offender on parole, the DCS should be summoned to justify to the Committee why a certain decision was taken or not taken.The Department of Justice and Constitutional Development should, as it has done, work hand in hand with the DCS to ensure that measures are put in place for the parole boards to work effectively and clear the backlog of parole applications.As for the judiciary, it has to be cognisant of the fact that the executive, through the DCS, has the capacity to assess whether an offender is fit to be released on parole without posing a danger to society.This means that unless the refusal by the DCS to release the offender on parole would amount to a violation of the law or principles of natural justice, judges should be very careful not to order the release of offenders on parole in a manner that would usurp the powers of the parole boards.

3.
The period to be served before an offender is paroled At the outset, it is important to highlight the structure of parole granting bodies.There are several provisions relating to parole in the Correctional Services Act. 42 This discussion will be limited to the provisions that govern the majority of prisoners, that is, prisoners serving between two years' imprisonment and life imprisonment. 43ction 73(6)(a) of the Correctional Services Act provides that: a prisoner serving a determinate sentence may not be placed on parole until such a prisoner has served either the stipulated non-parole period, or if no non-parole period was stipulated, half of the sentence, but parole must be considered whenever a prisoner has served 25 years of a sentence or cumulative sentences.
Section 73(6)(a) raises three important points.One, any prisoner serving a determinate sentence (apart from an offender sentenced to life imprisonment) may be placed on parole before (if the non-parole period is less) or after serving half of the sentence.The word "may" as opposed to "shall" gives the relevant parole authorities the discretion to place a prisoner serving a determinate sentence on parole when he has served more than half of the imposed sentence.The second aspect raised by section 73(6)(a) is that a prisoner who was sentenced to a nonparole period can be placed on parole only after he has served that period.In this case, the decision as to when an offender should be eligible for placement on parole is made by the court and not by DCS.However, when the non-parole period expires, DCS has full discretion to decide whether or not, and when, to release an offender on parole.Thirdly, the maximum number of years that a prisoner can serve before he must be considered for parole is 25.This means that even if the court imposed a non-parole period of longer than 25 years, the DCS is obliged to consider the prisoner for parole after he has served 25 years.
Under section 73(6)(v), an offender sentenced in terms of the Criminal Law Amendment Act 44 , which provides for minimum sentences for stipulated offences: 45 may not be placed on parole unless he or she has served at least four fifths of the term of imprisonment imposed or 25 years, whichever is the shorter, but the court, when imposing imprisonment, may order that the prisoner be considered for placement on parole after he or she has served two thirds of such term.
Regardless of whether an offender's parole is governed by section 73(6)(a) or section 73(6)(v), 25 years is the maximum number of years that an offender must serve before being considered for parole.However, there are two important differences when section 73(6)(v) is compared with section 73(6)(a).Firstly, under section 73(6)(v) an offender has to serve four-fifths of the sentence before being considered for parole, whereas under section 73(6)(a) he is eligible for parole after serving half of the sentence.For example, an offender sentenced in January 2000 to 15 years' imprisonment and whose sentence is governed by section 73(6)(a), will be eligible for parole in June 2007, whereas an offender sentenced at the same time but in terms of Act 105 of 1997 and whose parole is consequently governed by section 73(6)(v) will be eligible for parole in 2012 only.This means that DCS and the Case Management Committees which recommend to the Correctional Supervision and 44 Criminal Law Amendment Act, 105 of 1997.
These sentences range from 5 to 25 years' imprisonment depending on the offence and/or the manner in which the offence was committed.See section 51 of the Criminal Law Amendment Act, 105 of 1997.
Parole Boards must know exactly how to calculate these sentences to avoid releasing prisoners earlier than they should be released or to avoid being taken to court for keeping prisoners in prison longer than the law requires.

The stipulated non-parole period
Section 276B(1) of the Criminal Procedure Act 46 empowers the court to impose a non-parole period.It stipulates: (a) 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.(b) Such period shall be referred to as the nonparole-period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.
As stated earlier, section 73(6)(a) of the Correctional Services Act provides that "a prisoner serving a determinate sentence may not be placed on parole until such a prisoner has served ...the stipulated non-parole period ... but parole must be considered whenever a prisoner has served 25 years of a sentence or cumulative sentences".After the abolition of the death penalty 47 and before the coming into force of the 1998 Correctional Services Act there was uncertainty in relation for example to which court had the jurisdiction to impose a non-parole period and also to the practical effect of a non-parole period.In S v Mokoena, 48 where the Magistrate convicted the offender of drug trafficking and sentenced him to five years' imprisonment, the Court invoked section 287(4) of the Criminal Procedure Act 49 and ordered that the offender should not be considered for parole during the five year period, that is, that he should serve the whole sentence in full.Court held, inter alia, that because the magistrate had sentenced the appellant to direct imprisonment without the option of a fine, section 287(4) of the Criminal Procedure Act was not applicable, and consequently "the magistrate had no power to order that the accused could not be considered for parole". 50In S v Maseko 51 the appellant was sentenced to 50 years' imprisonment for murder and armed robbery with the trial judge "recommending that 30 years thereof should be served before the appellant became eligible for parole." 52On appeal it was held, inter alia, "that the recommendation of the trial judge, that at least 30 years of the sentence should be served, was a mere indication of his view of the period that ought to expire before parole was considered, and was not intended to bind the Executive". 53Likewise, in S v Sidyno 54 the accused was found guilty on seven counts of murder and sentenced to life imprisonment on each count.The Court also recommended that he not be released before he had served 40 years' imprisonment. 55The Court added that it had a right to make a non-parole period recommendation and concluded that "   Act. 60This is so because sections 73(6)(a) and (c) of the Correctional Services Act merely set out the applicable procedure when a court has prescribed or not prescribed a non-parole period.The High Court warned that section 276B of the Criminal Procedure Act should be invoked in exceptional circumstances only.
Furthermore, the Court added, the effect of section 276B is that the prisoner cannot "be released on parole or correctional supervision until the expiry of the non-parole period". 61However, in S v Botha 62 the High Court convicted the appellant of murder and attempting to defeat the ends of justice, sentenced him to 18 years' imprisonment, and recommended that he should serve at least two-thirds of the sentence before being considered for parole.On appeal, the Supreme Court of Appeal held, inter alia: The function of a sentencing court is to determine the term of imprisonment that a person, who has been convicted of an offence, should serve.A court has no control over the minimum period of the sentence that ought to be served by such a person.A recommendation of the kind encountered here is an undesirable incursion into the domain of another arm of State, which is bound to cause tension between the Judiciary and the executive.Courts are not entitled to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive… Albeit just a recommendation, its persuasive force is not to be underestimated.It, no doubt, was intended to be acted upon.In making the recommendation which it did, the trial Court may have imposed, by a different route, a punishment which in truth and in fact was more severe than originally intended.Such a practice is not only undesirable but also unfair to both an accused person as well as the correctional services authorities.The Registrar has been instructed to forward a copy of this judgment to the Department of Correctional Services with a request that the remarks [above] be taken account of in relation to the present case. 63S v Botha, which was decided before the amendment to the Criminal Procedure Act came into operation, raises at least two critical issues in relation to the power of the court to recommend a non-parole period.First, it showed that the Court was very careful not to encroach on the territory of the executivethat is to say, courts should be concerned only with sentencing and not with how much of the sentence should be  served.The latter issue falls within the discretion of DCS.Secondly, the Supreme Court of Appeal was of the view that although it is "just a recommendation", a nonparole period would be considered by DCS in deciding when the prisoner should be released on parole.Unlike in S v Botha, where the Supreme Court of Appeal held that a non-parole period is just a recommendation whose persuasive as opposed to binding force cannot be ignored, courts are now, and correctly so, of the view that the non-parole period is a binding order as opposed to a mere recommendation.In S v Mshumpa and Another, 64 where the first accused was convicted of serious offences including murder and sentenced to 21 years' imprisonment, the High Court held that "in terms of s 276B of the Criminal Procedure Act, it is ordered that [the offender] will not be placed on parole for a period of 13 years..." 65 It is clear that in this ruling the High Court is making an order, as opposed to a recommendation, that the offender must not be paroled before he has served 13 years.
The Supreme of Court of Appeal's ruling in S v Botha that a non-parole period is a mere recommendation was informed by the fact that in its judgment the Court did not It seems to me that the legislature enacted the provisions [of section 276B] to address precisely the concerns raised [in S v Botha and in S v  Mhalakaza] by clothing sentencing courts with power to control the minimum or actual period to be served by a convicted person… The above ruling clearly shows that a non-parole period is not a mere recommendation.It is an order that must be adhered to by DCS.However, the Court's order contains an inherent problem.As we have seen earlier, in all their decisions courts have specifically stated the number of years that the offender must serve before being considered for parole.However, in the Pakane case the Supreme Court of Appeal held that the offender should not be considered for parole unless he has served "not less than ten years" of the 15 years' sentence.Although some people could argue that this amounts to a non-parole period of 10 years, it also could be argued that this ruling is vague as it could mean that the offender could serve anything between 10 years and 14 years and 11 months.The above discussion indicates that the non-parole period is now an established feature of the South African sentencing regime formally provided for in the Correctional Services Act and the Criminal Procedure Act.Moreover, courts increasingly seem to be imposing it, particularly in respect of offenders convicted of offences of a heinous nature.

Releasing prisoners on parole: judicial intervention
Although the Correctional Services Act provides for the circumstances in which a prisoner qualifies to be released on parole, prisoners have on several occasions litigated against DCS and CSPBs asking courts to order the CSPBs, among other things, to rely on the correct law in reaching parole decisions, exercising their parole powers in line with the law, and in some circumstances placing offenders on parole.
The law relating to parole has changed several times in South Africa with the result that many prisoners, correctional officials and parole board members have understandably found it difficult to establish which specific provision governs specific prisoners.In this growing confusion there has been an increase in the number of parole-related judgments emanating from South African courts.They indicate that there appears to be a general view held by many prisoners that parole proceedings are unfair to them.In order to be in a position to sufficiently "rebut any baseless allegations of unreasonableness in the parole process", the High Court, although in The applicants argued before the court that "[t]he respondent's actions in making this document applicable to them and to other prisoners who were in prison as at April 1998 thus constitutes retrospectively an infringement of their constitutional rights and in particular to s 33(1) of the Constitution". 75After holding that the parole boards are indeed empowered to take administrative actions when deciding whether or not to place prisoners on parole, the court concluded: [T]he administrative action referred to in this judgment falls foul of s 33 of the Constitution and indeed infringes the applicants' right to fair, that is to say, procedurally fair, and reasonable administration.Prisoners incarcerated prior to 1998 had at the very least a legitimate expectation that, upon the happening of defined events such as having served half their sentence, their case for placement on parole would be considered and would be done in accordance with existing criteria and guidelines set out in the Act.The document alters all this and does so retrospectively.intervene before the latter makes its decision.With the law as it stands now, all the decisions of the CSPB will be taken as final and therefore open to challenge before the courts.Lastly, the Court did not shy away from ordering the CSPB to place prisoners on medical parole within a stipulated number of days.However, in what could be interpreted as a claw-back provision, the Court makes it clear that DCS and the CSPB could still, if they deem it fit, refuse to place the prisoners on parole should the conditions be inappropriate for their placement on parole.Here the court makes it clear that it remains within the powers of the executive to determine whether or not a prisoner should be placed on parole, but that that power must be exercised in accordance with the law.

Conclusion
The above discussion has dealt with some legal provisions, case law and the practice of the legislature and the executive relating to parole in South Africa.
)(a) of the Constitution 25 , read in conjunction with Rules 121(1)(e) and 199 -203 of the National Assembly Rules 26 , established various committees, including the Portfolio Committee on Correctional Services (PCCS or the Committee), which has oversight over the DCS's activities, including the manner in which parole is administered. 27Practice shows that the PCCS has dealt with the question of parole in at least four ways.First, the PCCS has asked the Minister of Correctional Services or department officials to address it on various aspects of the implementation of the parole legislation.These issues have included the rationale for including civilians on the parole boards; 28 the functioning of and challenges facing parole boards in the country; 29 and the policies being 23 Motsemme v Minister of Correctional Services and Others 2006(2)SACR 277(Wa) is to the effect that "[t]he rules and orders of the National Assembly must provide for the establishment, composition, powers, functions, procedures and duration of its committees".26 National Assembly Rules (as of June 1999) available at http://www.pmg.org.za/parlinfo/narules. 27 Rule 201(1)(b)(i) of the National Assembly Rules provides that a portfolio committee "must maintain oversight of the exercise within its portfolio of national executive authority, including the implementation of legislation".28 Human Resources, Construction New Generation Prisons and Parole Boards: Department Briefing, 21 June 2005, at http://www.pmg.org.za/minutes/20050620-human-resourcesconstructing-new-generation-prisons-and-parole-boards-department-br(accessed 6 May 2010). 29http://www.pmg.org.za/minutes/20060904-parole-board-implementation-input-twelve-parole-boardchairpersons-minister[date of use 6 May 2010].
parole supervision and the effectiveness of parole supervision measures.36It is not only the DCS that has a role to play in the parole process.When addressing the PCCS the chairpersons of the 12 parole boards in the country expressed the need for "greater involvement of the South African Police Services and the Department of Justice in the parole process".37The executive, especially the Correctional Services Minister and the Justice and Constitutional Development Minister, also have a role to play in the parole process.Although parole forms part and parcel of the justice system, the author is of the view that it is vital for more research to be carried out justifying the need and/or importance of the South African Police Service's and the Department of Justice and Constitutional Development's direct involvement in the parole process.Notwithstanding the foregoing, there are grounds to believe that the Department of Justice and Constitutional Development, like DCS, is indeed playing that role.As indicated earlier, the Minister of Correctional Services has appeared before the PCCS to answer questions relating to parole.He has also answered questions put by individual members of parliament on policies relating to parole.In his 2009 budget speech the Minister of Correctional Services told Parliament: Under section 75(1) of the Correctional Services Act, the Correctional Supervision and Parole Board (CSPB) is empowered, after considering the report on a prisoner submitted to it by the Case Management Committee, to place on parole any prisoner serving a determinate sentence exceeding 12 months.In respect of dangerous 39 Media briefing for Justice, Crime Prevention and Security Cluster presented by Minister of Justice and Constitutional Development, J Radebe, 4 March 2010, at http://www.pmg.org.za/briefing/20100304-justice-crime-prevention-and-security-cluster [date of use 6 May 2010].serving life sentences, the CSPB is empowered to make a recommendation to the court for their placement on parole. 40In terms of section 77(1), the Correctional Supervision and Parole Review Board (CSPRB) is empowered to review the decision of the CSPB should a submission be made to it by the Minister of Correctional Services, the Commissioner of Correctional Services, the Inspecting Judge 41 , or the "person concerned."Under section 75(7)(a) of the Correctional Services Act, the Commission of Correctional Services is empowered to place on parole a sentenced offender serving a sentence of incarceration of 24 months or less.

S
[t]here were also indications that such recommendations were taken into account by the prison authorities".56With the coming into force of the Correctional Services Act 57 and the insertion in 1997 of section 276B into the Criminal Procedure Act 58 there is still confusion in relation to the non-parole period.In S v Williams and S v Papier 59 , where the Magistrate relied on sections 73(6)(a) and (c) of the Correctional Services Act to impose a non-parole period on the offenders, the High Court, on review, held that in imposing sentence a court cannot fix a non-parole period in terms of sections 73(6)(a) and (c) of the Correctional Services Act, but rather that a court wishing to fix a non-parole period has to do so in terms of section 276B of the Criminal Procedure 50 , (n 54) 614.In S v Leholoan 2001(2) SACR 297(T), the Court had erroneously imposed a non-parole period on an offender sentenced to life imprisonment before the coming into force of sections 276B of the Criminal Procedure Act and 73(6)(a) of the Correctional Services Act.57 In October 2004.58 Section 276B was inserted into the Criminal Procedure Act by section 22 of the Parole and Correctional Supervision Amendment Act, 87 of 1997.59 S v Williams; S v Papier 2006(2) SACR 101(C).

60
In S v Mshumpa and Another 2008(1) SACR 126(E), the accused were found guilty of various serious offences, and the Court invoked section 276B of the Criminal Procedure Act to fix a nonparole period.61 S v Williams; S v Papier (n 59) 103.62 S v Botha 2006(2) SACR 110 (SCA).
refer to sections 276B(1) of the Criminal Procedure Act and section 73(6)(a) of the Correctional Services Act, both of which provide for a non-parole period.Had the Supreme Court of Appeal referred to the above two sections, its ruling probably would have been different.Another problem associated with the Supreme Court of Appeal's ruling in S v Botha is in relation to the principle of the separation of powers in sentencing, based on the 1997 case of S v Mhlakaza and Another, 66 which was decided before the coming into force of section 73(6)(a) of the Correctional Services Act, which specifically provides that a non-parole period imposed by the court has to be completed before a prisoner is released on parole.In late 2008 the Supreme Court of Appeal clarified the legal position relating to the non-parole period.In S v Pakane and Others 67 the Supreme Court of Appeal upheld the High Court's conviction of the appellant, a police officer, for murder and defeating the ends of justice, sentenced him to 15 years' imprisonment, and ordered that he should serve a non-parole period of "not less than ten years". 68Maya J concluded: 64 S v Mshumpa and Another (n 60).65 S v Mshumpa and Another (n 60) para 87.66 S v Mhlakaza and Another 1997(1) SACR 515(SCA).67S v Pakane and others 2008(1) SACR 518(SCA).68S v Pakane and Others (n 67) para 48.
It has been illustrated that this is an area in which confusion reigns because, inter alia, of the various amendments to the Correctional Services Act regulating parole, the various policies and/or regulations adopted by DCS to regulate the release of prisoners on parole, and the different understanding that different courts have had in relation to the length of the sentence an offender should serve before being considered for parole.The above confusion could be minimised inter alia by simplifying the law relating to the release of offenders on parole so that prisoners, members of the Case Management Committees and parole boards who are not well conversant with the law understand it and apply it consistently.Parole manuals in different languages could be developed and made widely accessible to prisoners so that they can calculate or be helped by their colleagues or prison authorities to determine the exact date on which they are eligible to be considered for parole and also what is expected of them to enhance their prospects of being released on parole.This will possibly reduce the number of prisoners who resort to courts for orders to force DCS to consider them or release them on parole.Acta Criminologica Bruyns HJ and Cilliers CH "A review of imprisonment and deterrence programmes as a strategy to reduce prison populations" 2009 Acta Criminologica 22(1) 81 Cilliers Acta Criminologica Cilliers CH "New horizons for parole applications in South Africa" 2006 Acta Criminologica 19(3) ii Hudson Understanding Justice Hudson, BA Understanding Justice: An Introduction to the Ideas, Perspectives and Controversies in Modern Penal Theory (Open University Press, Buckhingham1996) Lidovho SACJ Lidovho GJ "A critical look at the past and current release policy of the Department of Correctional Services" 2003 SACJ 16 163 Louw and Luyt Acta Criminologica Louw FCM and Luyt WFM "Parole and parole decisions in South Africa" 2009 Acta Criminologica 22(2) 1 Moses, SAJHR Moses LJJ "Parole: Is it a right or a privilege?"2003 SAJHR 19 263 Mujuzi SACJ Mujuzi JD "Life imprisonment in South Africa: Yesterday, today and tomorrow" 2009 SACJ 22(1) 1 Mujuzi SAJBL Mujuzi JD "Releasing terminally ill prisoners on medical parole in South Africa" 2009 SAJBL 2(2Guide to Sentencing in South Africa (Lexis Law Publishing Durban 2007) Van Wyk SA Public Law Van Wyk C "The impact of HIV/AIDS on bail, sentencing and medical parole in South Africa' 2008 SA Public Law 23 50 Von Hirsch and Ashworth Principled Sentencing Von Hirsch A and Ashworth A (eds) Principled Sentencing: Readings on Theory and Policy 2 ed (Hart Publishing London1998) van Korrektiewe Dienste en Andere 2009(1) SACR 321(W) Motsemme v Minister of Correctional Services and others 2006(2) SACR 277(W) S v Boltney 2005(1) SACR 278(C) S v Botha 2006(2) SACR 110 (SCA) S v Bull and Another; S v Chavulla and Others 2002(1) SA 535(SCA) S v Dodo 2001(3) SA 382(CC) S v Khumalo en Andere 1983(2) SA 540(N) S v Leballo 1991(1)SACR 398(B) S v Leholoan 2001(2) SACR 297(T) S v Maseko 1998 (1) SACR 451(T) S v Matlala 2003(1) SACR 80(SCA) S v Mhlakaza and Another 1997(1) SACR 515(SCA) S v Mokoena 1997 (2) SACR 502(0) S v Mshumpa and Another 2008(1) SACR 126(E) S v Myburgh 2007(1) SACR 11(W) S v Nkosi and Athers 2003(1) SACR 91(SCA) S v Pakane and Athers 2008(1) SACR 518(SCA) Services Act 14 provides that "[s]ubject to the provisions of this Act -(a) a sentenced prisoner remains in prison for the full period of sentence; and (b) a prisoner sentenced to life imprisonment remains in prison for the rest of his or her life".The above provisions clearly stipulate that a prison sentence must be served in full, although there are circumstances in which the strict application of that provision may be waived.These are the circumstances under which an offender is released on parole in terms of the relevant provisions of the Correctional Services Act, or is pardoned.Should the parolee violate his parole conditions, 15 he could be arrested and imprisoned to serve his full sentence in prison.16Itwas held in Motsemme v Minister of Correctional Services and Others 17 ,
38Speech by Correctional Services Minister, electronically and to have the record typed and certified". 69e of the parole-related cases from different courts are discussed below to indicate how courts have dealt with the issue of the release of prisoners on parole.In Combrink and Another v Minister of Correctional Services and Another 70 the applicants were sentenced to long prison terms 71 before 1 April 1998.At the time of their sentence the Correctional Services Act 72 and the parole guidelines that were developed in terms of the Act required, among other things, that "a prisoner could be considered for parole after serving one half of his sentence less any credits 73 that he was entitled to".74On 23 April 1998 DCS issued and circulated to all prisons a policy document which intended, among other things, to bring about uniformity in relation to parole procedures and decisions.The adoption of the policy document meant that the first applicant (Combrinck) would have to be considered for parole after serving three-quarters of his sentence and the second applicant four-fifths of his sentence.
passing, has advised "the Department of Correctional Services to record parole hearings