LEGISLATION – PAROLE IN TERMS OF THE PRISONS ACTS, 1959, 1998 OR 2012

LEGISLATION – PAROLE IN TERMS OF THE PRISONS ACTS, 1959, 1998 OR 2012

In this application, some inmates serving sentences in the High Treason matter sought an order that they be considered eligible for parole consideration in accordance with the provisions of the Prisons Act, 1959, alternatively in terms of the Prisons Act, 1998.

DETERMINATION OF WHICH ACT APPLIES IN RESPECT OF ELIGIBILITY FOR PAROLE

The court had to ascertaining which of three related statutes was applicable in determining when the applicants became (or will become) eligible for parole consideration. The three statutes under consideration are the Prisons Act 8 of 1959, (the ‘1959 Act’) the Prisons Act 17 of 1998 (the ‘1998 Act’) and the Correctional Service Act 9 of 2012 (the ‘2012 Act’). The court also had to consider the determinative date for parole consideration, being either the date of sentencing or the date of commission of the offences, the latter being the determinative date as argued by the applicants.

The 1959 Act was repealed by the 1998 Act on 24 August 1998. The 1998 Act was subsequently repealed on 1 January 2014 when the 2012 Act came into force. In terms of the 1959 Act and the 1998 Act an inmate qualified for parole consideration after having served half of his or her sentence. In terms of the 2012 Act however, an inmate who has been sentenced to a term of imprisonment of less than 20 years for any of the scheduled crimes or offences, is eligible for release on full parole after having served two-thirds of his or her sentence. At the time of commission of the offences the 1998 Act was in force, however the 2012 Act was in force at the time of the applicants’ sentencing.

ANGULA DJP held that:

1. The 1959 Act was not in operation on 2 August 1999 when the applicants committed the offences, and therefore they did not derive any right from that Act or its regulations.
2. The determinative date for eligibility of parole consideration is to be calculated from the date of sentence, as per the wording of section 97(8) of the 1998 Act. Having been sentenced on 8 December 2015, the applicants did not qualify for parole consideration under the 1998 Act.

CONSTITUTIONAL CHALLENGE OF SECTION 114(1) FOR VOILATING FUNDAMENTAL RIGHTS

The applicants contended that section 114(1) of the Correctional Service Act 9 of 2012 violated Article 10(1) & (2), alternatively, Article 12(3) of the Constitution, in that it required offenders sentenced to imprisonment of less than 20 years for any of the scheduled crimes to serve two thirds of their sentence before they become eligible for parole consideration. The court found that the classification of offenders in the 2012 Act based on the seriousness of the offences they have been convicted of and sentenced for is not arbitrary and is rationally connected to a legitimate government purpose, and thus constitutional.

In the result, the application was dismissed.

Chika v Commissioner General Raphael Amunyela NAHCMD 10 May 2022