The Portfolio Committee of Justice and Correctional Services received a submission from the Helen Suzman Foundation (HSF) on the Correctional Services Amendment Bill. The second entity which made a public submission opted not to give an oral submission.
HSF made comments on redundant amendments and additional amendments required. It said the Bill provides no certainty on the applicable parole regime for inmates convicted and sentenced in these very common types of cases. We recommend that the Bill specify that the date of commission in cases of continuous or multiple offences is the earliest date connected with the commission of the offence(s). This ensures that the inmate will receive the least severe of the prescribed punishments where the offence(s) extend on both sides of the operative date on which the new regime came into effect
The Department will engage further on points made in the meeting and an indication will be given in the next meeting on how the Department recommends the Portfolio Committee should deal with issues before it. The Committee aimed to complete its processing of the Bill by the end of February.
The Chairperson asked all present to observe a moment of silence for Ms Priscilla Tozama Mantashe (ANC), a Member of the Portfolio Committee on Trade and Industry.
Submissions on the Correctional Services Amendment Bill
Ms Catherine Kruyer, Legal Researcher, Helen Suzman Foundation (the Foundation), University of Cape Town, briefed the Committee on the submission the Foundation made on the Correctional Services Amendment Bill.
The Correctional Services Act, 111 of 1998, Section 73(6)(b)(iv), states inmates sentenced to life imprisonment are eligible for parole only after serving 25 years. The Act previously said inmates sentenced to life imprisonment would be eligible for parole after serving 20 years. The new regime applies to inmates sentenced on or after the date on which it came into effect, October 1, 2004. The old regime applies to inmates sentenced before the date on which the new regime came into effect, so as to avoid the retroactive application of the new regime.
Persons who committed the same offence at the same time would have different sentences despite being in similar positions. The Constitutional Court held that this denies persons the equal protection of the law and amounted to unfair discrimination, violating Sections 9(1) and (3) of the Constitution. The Constitutional Court also held, the provisions lengthening the periods of parole non-eligibility have the effect of imposing a more severe punishment than the prescribed punishment applicable at the time the offence was committed, violating section 35(3)(n) of the Constitution.
There is no need to amend sections 73(6)(a) and (b) of the Correctional Services Act.
Additional amendments required
The Helen Suzman Foundation recommend Section 136(4) be amended to harmonise it with the Constitutional Court’s judgment in Phaahla, and with Section 136(1) as amended in the Bill. This links the applicable parole regime to the date of commission of an offence.
The HSF recommended that section 136(4) be amended to read: If a person is sentenced to life incarceration for an offence committed after the commencement of Chapters IV, VI and VII while serving a life sentence imposed for an offence committed prior to the commencement, the matter must be referred to the Minister who must, in consultation with the National Council, consider him or her for placement under day parole or parole.
Continuing and multiple offences
The Bill provides no certainty on the applicable parole regime for inmates convicted and sentenced in these very common types of cases. The Helen Suzman Foundation recommends that the Bill specify that the date of commission in cases of continuous or multiple offences is the earliest date connected with the commission of the offence(s). This ensures that the inmate will receive the least severe of the prescribed punishments where the offence(s) extend on both sides of the operative date on which the new regime came into effect. This is in line with the substantive rights guarantee of section 35(3)(n) of the Constitution, as understood by the Constitutional Court in Phaahla
The Deputy Minister of Justice and Correctional Services, Nkosi Patekile Holomisa, thanked all in attendance and said he is observing the meeting to prepare for further deliberations.
Dr W Newhoudt-Druchen (ANC) asked what the purpose was of using the earliest date, instead of the date of the last offence committed.
Ms Kruyer said using the earliest date is important as it complies with the constitutional requirements in this case. If there are significant changes to the parole conditions from the time the earliest crime is carried out, the accused person should have the benefit of the least severe of the possible parole conditions. It would be inconsistent with the constitutional scheme, which guarantees the right to least severe prescribed punishments, if there is a change in punishment over time. This could open up a requirement to change the constitutional amendment at a later stage.
Mr Jacques Van Wyk, Legal Services, Department of Correctional Services (DCS), said the issue of using the earliest date for continuing and multiple offences was not in dispute. The earliest date was always used due to the different parole regimes and parole policies applicable. The Van Wyk and Van Vuuren judgments are examples of parole policies which changed around 1993/1994. Previously persons sentenced to life received parole for three years. This was amended to parole for life. The principle established by the Constitutional Court in the Phaahla judgment is, the date of sentencing is no longer considered, but rather the date of the commission of the crime. In the application of the Act and the proposed Amendment Bill, the parole conditions will not be changed as it makes provision for using the earliest date.
The Phaahla judgment pays regard to the date of the commission of the crime, and which parole regime must be applied. The Parole Act which came into effect on October 1, 2004, says a person sentenced to life must serve a period of 25 years before being eligible for parole. Before the Amendment Bill, one must take into account the date of sentencing. If one was sentenced before October 1, 2004 then the old regime which determines only 20 years must be served before being eligible for parole applies. As it stands, the date of sentencing determines the parole conditions. The Phaahla judgment made provision for the date of the commission of the crime to be considered, which will determine if the old or new parole regime will be applicable.
The Department is in the process of reviewing the entire Correctional Services Act and its regulations. The processes and procedures regarding parole are receiving urgent attention, alongside gender based violence (GBV) issues. The envisaged changes to the Act will provide the full process in the regulations. Currently it is contained in departmental policies. As a matter of legal certainty, the Department will include the earliest date utilised for continuing and multiple offence perpetrators, in accordance with Section 35(3)(n) of the Constitution.
Although this is already practiced, it is not necessary to be included in the Act, as when one determines the parole regime which must be applied, the date of the commission of the crime and not the date of sentencing applies.
The Chairperson noted one other submission was made by the public. However, the person opted not to give an oral submission before the Department and Portfolio Committee. The submission made suggested the law on parole be rewritten by the chiefs of local villages in all official languages, and in accordance with the wishes of the relevant King in the area, not in terms of a democracy. The submission further said government should teach people the law and provide people with booklets on the law which the people must acknowledge. Only after this, people should be convicted on the law which was taught.
Mr Van Wyk said some issues were in the jurisdiction of the Department of Justice, and it would respond to those issues. He said all law must be in accordance with the Supreme Law of South Africa. The Constitution enshrines the right to an open democracy and the legislator is tasked with enacting legislation. The Department does not support the notion that parole should be dealt with by local chiefs. The translation of law into plain language as far as possible, to make it understandable to the people and not only understandable to the courts and judges, is supported. The Department supports the Amended Act being published in all official languages however it is not in the domain of the Department to respond as other arms of government are involved in this.
Dr Newhoudt-Druchen asked if the Phaahla case was brought forward because he was sentenced after the law was passed in 2004, and asked if, according to the amendment, he would serve 20 years and not 25 years before being eligible for parole.
Ms N Maseko-Jele (ANC) said the Amendment does not address the issue of convicts who are older than 65 years, and if such convicts will be eligible for parole upon turning 65. She asked the Department to clarify this issue.
Ms J Mofokeng (ANC) asked how many people are currently incarcerated under the Van Wyk ruling, and how many offenders are in the same position as Mr Phaahla. This will give an indication regarding if the Department is solving the matters or if it was resolved completely.
Mr Van Wyk said Mr Phaahla was convicted of crimes committed before October 1, 2004. He was only sentenced on October 5, 2004. Before his case, the date of sentencing was considered to determine which parole regime would be applied. According to his sentencing date, he was supposed to serve 25 years before being eligible for consideration of parole. The date of the commission of his crimes took place before October 1, 2004 and thus the parole regime applicable is 20 years served before being considered for parole.
Mr Van Wyk said regarding the current and the proposed Amendment Bill, offenders only qualify to be considered for parole, it is not an entitlement to be placed on parole. The decision still depends on the parole board and the Minister of Correctional Services to determine if an offender serving life should be granted parole.
The Van Vuuren judgment and Van Wyk judgment increased the amount of cases which need to be considered for a change in parole regimes. This created a backlog, as a profile needs to be created for each offender, which requires reports by teachers, social workers, as well as programmes which need to be attended. There are 1 690 offenders who were sentenced to serve life in prison, whose consideration dates were advanced. 653 of these cases were already considered. 88 offenders sentenced to determent sentences will benefit from the Phaahla judgment, of which 341 were already considered. Act 111 of 1998, Section 76(3)(b) stipulates any term of incarceration, excluding people considered as dangerous criminals, may be placed on parole when reaching the age of 65, provided the offender has served at least 15 years of such sentence. This is not being amended in the proposed Bill, thus it has not been tabled.
Ms Kruyer said prior to the proposed amendment coming into force, the date of sentence was used in cases where an offender is charged with continuing and multiple crimes, as the date of sentence is a single date which can be easily picked out. In line with the changes made to comply with the Constitutional Court, if the date of commission is used, it introduces confusion in such cases. Thus, the Helen Suzman Foundation proposes an attempt to clarify what the date of commission is in the case of continuing and multiple crimes. This will allow courts to easily apply the amended Act, when applicable
Ms Maseko-Jele said there is still much work to be done in reviewing parole cases according to the old and new regime. She proposed the Department look into these issues.
The Chairperson said the Department should respond to the issues raised by the Helen Suzman Foundation in a final response in the next meeting. The date for deliberations and voting will be determined in the next meeting, for the Amendment Bill to go to the National Assembly by February 23, 2021.
Ms Mofokeng asked the Department to furnish the Committee with the statistics of cases reviewed in line with the Van Wyk judgment.
Deputy Minister Closing Remarks
Deputy Minister Holomisa said the Department will engage further on points made in the meeting and an indication will be given in the next meeting on how the Department recommends the Portfolio Committee should deal with issues before it. The amendments made to the entire Correctional Service Act needs to be expedited so there are no longer recurring concerns.
Consideration and adoption of Committee Minutes
Minutes dated 26 January 2021
The minutes were adopted with minor amendments.
Consideration of Committee Programme: Term 1 2021
The Chairperson of the sub-committee and Secretary of the Committee and research team will meet to finalise the programme of this term. The Office of the Chief Justice is to meet with the Committee in February. The Chairperson said all Members should prioritise attending this meeting.
Discussion on process to fill South African Human Rights Commission (SAHRC) vacancies
Curriculum Vitae for applicants to fill the SAHRC vacancies were circulated to Members.
Ms Maseko-Jele proposed summarised versions of CVs be circulated as having both full and summarised versions requires a lot of storage on Members’ devices.
The Chairperson advised Ms Maseko-Jele to communicate her preference to the secretary.
The Committee programme required updating as the State Liability Bill is no longer with the Committee and should no longer show up on the Committee programme. It is now before the Executive.
Correspondence from the Office of the Chief Justice
The Chairperson said the Minister requested an extension. The correspondence will be circulated and discussed in the following meeting.
The meeting was adjourned
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