South Africa has one of the highest prison populations in the world. As of 1 April 2022, there were 143 223 inmates in the country’s jails, of whom 96 079 had been sentenced.
Section 73(1) of the Correctional Services Act (1998) provides that “a sentenced offender remains in a correctional centre for the full period of sentence; and an offender sentenced to life incarceration remains in a correctional centre for the rest of his or her life”.
However, the act also provides for circumstances in which offenders may be placed on parole. In some countries, such as the US, an offender sentenced to life imprisonment spends the rest of their life in prison. In South Africa, section 73(6)(b)(iv) of the Correctional Services Act provides that a lifer “may not be placed on day parole or parole until he or she has served at least 25 years of the sentence”.
In terms of section 73(5)(a)(ii) of the act, it’s the minister responsible for correctional services who has the power to determine the date on which a lifer is to be placed on parole.
However, when the minister refuses an application for parole, he or she is empowered to make “recommendations in respect of treatment, care, development and support of the sentenced offender which may contribute to improving the likelihood of future placement on parole or day parole”.
There were lifers in South Africa before the commencement of the Correctional Services Act in 1998, and their placement on parole is governed by section 136 of the act.
Under sections 78 and 136 of the act, it is only the minister who has the power to grant parole to a lifer.
However, in the case of Walus v Minister of Justice and Correctional Services, the constitutional court has ordered the minister “to place the applicant (a lifer) on parole on such terms and conditions as he may deem appropriate and to take all such steps as may need to be taken to ensure that the applicant is released on parole within ten calendar days from the date of this order”.
The court made that order after finding the minister’s decision to reject Janusz Walus’
parole application was irrational. This was so because, among other things, the applicant had served the minimum period he had to serve – 13 years and four months before being considered for parole.
The court also observed that Walus could do nothing to change the two grounds on which his parole application was rejected – the comments made by the sentencing court and the seriousness of the offence.
In justifying its order, the constitutional court referred to, among others, sections 78 and 136 of the Correctional Services Act (CSA) and held that it “is quite clear that under the CSA a court has the power to grant parole to prisoners who are sentenced to life imprisonment”.
The court reached that conclusion because it relied on the 2004 version of section 78. Between October 2004 and September 2009, section 78 of the act empowered a court to grant parole to lifers. In my view, however, the court erred in holding the act gives it power to grant parole to lifers.
With the commencement of the Correctional Services Act 25 of 2008 on October 1 2009, it is only the minister who has the power to grant parole to lifers. It can only make an order if it finds that the minister’s decision was
irrational – as it did – but only under the Promotion of Administrative Justice Act, 2000.
The court held that Walus’ sentence is governed by the 1959 Correctional Services Act. But, both in the 1959 act and in the 1998 act, the court does not have the power to release a lifer on parole.
The second weakness of the judgment is that it equates a non-parole order to a remark at sentencing. A non-parole period is an order which the Department of Correctional Services must comply with. It is not a mere remark. It is part of the sentence. That is why in the 2016 case Jimmale and Another v S, the constitutional court held that a non-parole order must be made in exceptional circumstances “because the imposition of that kind of an order has a drastic impact on the sentence to be served”.
The court also held that the minister should not make parole decisions based on the remarks of a sentencing court, and the seriousness of the offence. This is because these are conditions over which the offender has no control.
The decision also shows that the offender’s rehabilitation is the most important factor that should be considered.
Therefore, any offender who is not rehabilitated is likely to have his or her parole application rejected. This then imposes a duty on the department to ensure that effective rehabilitation programmes are available.
However, an inmate has to remember they do not have a right to parole. As the supreme court has reiterated, inmates have “the privilege to be released on parole if they so qualify”.
- Mujuzi is professor of law at the University of the Western Cape. This article first appeared on The Conversation.
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