Revocation of parole by the Minister: Parliamentary Legal Advisor briefing

Meeting report

Presentation of the legal opinion from the Parliamentary Legal Services

Mr Bulelani Simani, Parliamentary Legal Advisor, Constitutional and Legal Services Office, advised on the Portfolio Committee’s role regarding the Minister of Correctional Services’ parole revocation.

Purpose of the Legal Opinion
The Portfolio Committee on Correctional Services sought legal advice on its role regarding the Minister’s decision to revoke parole.

This relates to the Committee’s constitutional mandate to oversee executive actions.

Background of the Case
The case involves Theunis Kruger and Frans Adriaan du Toit, sentenced to life for crimes committed in 1997.

They were granted parole in July 2023, but the victim was unaware.

In December 2024, the Minister announced the intention to revoke their parole, citing safety concerns.
Kruger did not submit representations; du Toit did.

Their parole was revoked, and they were re-incarcerated in February 2025.

Legal Framework
Constitutional Oversight: The National Assembly (and its committees) can scrutinise executive actions but not overturn decisions.
Correctional Services Act (1998):
The Minister has the final authority on parole for life-sentenced offenders.
The Minister can revoke parole if deemed necessary but must reconsider within two years.

Legal Precedents:
Parole is a key part of South Africa’s criminal justice system, emphasising rehabilitation.
Previous court rulings state that parole decisions must be rational and cannot be arbitrarily denied.

The Minister’s Decision and Oversight Considerations
The Minister revoked parole due to:
Lack of victim participation in the parole process.
Psychological assessments suggest a continued risk to society.
The Committee can review the process but cannot overturn the Minister’s decision.
If the parolees find the decision irrational, they can seek judicial review.

Conclusion
The Minister acted within legal boundaries.
The Committee can only ensure proper procedures were followed but cannot intervene in judicial matters.
If needed, the Committee can propose legislative amendments for clarity on parole decisions.

(Further details can be found in the presentation attached)

Discussion

Mr C Niehaus (EFF) questioned why the Minister revoked parole after it had already been granted. He believed that since the Minister had the final authority, the parole board’s advice should have gone to him for consideration before a decision was made. The Minister should have decided at that stage whether parole was appropriate rather than granting it and later revoking it—an action that retraumatised the victim, who had no say in the process. He asked what safeguards exist to prevent such situations in the future.

He acknowledged that the Committee cannot instruct the Minister on parole decisions but can express its opinion and propose necessary legislative changes. He referenced Walus v Minister of Justice and Correctional Services, where Chief Justice Zondo ruled that denying parole indefinitely would be unconstitutional. The Chief Justice emphasised that prisoners should have the opportunity for rehabilitation. However, Mr Niehaus pointed out that Walus later admitted in a media interview that he had not been rehabilitated, calling the judge’s assessment into question.

Mr Niehaus also mentioned the case of Eugene de Kock, who was granted parole in 2015 despite Minister Michael Masutha’s opposition. In that case, the court overruled the Minister’s decision, and the victims were not consulted. In both Walus and de Kock’s cases, sentencing judges had stated that they should never be paroled due to the severity of their crimes and their societal impact. He argued that in cases involving particularly heinous crimes, parole should not be an option. He maintained that denying parole in such cases does not violate constitutional rights under sections 10 and 12.

While agreeing that the Committee cannot overrule the Minister or the courts, Mr Niehaus stressed that it could amend the law to ensure that certain offenders are permanently excluded from parole. He concluded by asking why the parole board did not consult the Minister before making its final decision.

Mr J Engelbrecht (DA) agreed that the law is clear and acknowledged the merit of Mr Niehaus’s examples. However, he pointed out a bigger issue—the flawed parole system. Decisions are often made based on incomplete or incorrect information, leading to the release of people who should not be paroled. He stressed that the Committee must fix these failures to ensure the system works as intended.

Mr M Sokopo (ANC) raised concerns about the legal risks if someone in a similar situation challenges their parole revocation under Section 33 of the Constitution. If such a case goes to court, the ruling may not always favour Correctional Services, yet the burden will fall on the Department rather than the Minister.

He pointed out a possible issue with the retrospective application of the law. The Minister’s authority comes from the 1998 Act, but Mr Theunis Kruger and Mr Frans Adriaan du Toit were sentenced in 1997, likely under the 1959 Act. Applying the 1998 law to them could be unconstitutional. He questioned whether any amendments were made between 1959 and 1998 that might clarify this issue.

Mr Sokopo suggested that lawmakers likely expected executive decisions to follow proper legal processes when the law was written. Yet today, the Committee finds itself restricted, unable to override the Minister’s decision. He proposed that the Ministry, rather than just the Minister (who could change at any time), be engaged to discuss how similar cases should be handled in the future.

Finally, he questioned why Walus’s parole was not reconsidered when the affected family objected.

Mr Simani referred the Committee to Section 136 of the Act, which states that prisoners serving sentences before the 1998 Act came into effect are not subject to the new law. Instead, they are governed by the Correctional Services Amendment Act of 1959 and its guidelines. According to this provision, life-sentenced prisoners could be considered for parole after 20 years. In contrast, under the 1998 Act, life-sentenced prisoners only become eligible after 25 years. Section 136 serves as a transitional provision, bridging the old and new legislation regarding parole eligibility for life prisoners.

He clarified that the Committee is not entirely powerless. As part of its oversight role, it can challenge the process followed by the Minister.

The key reason cited for the Minister’s decision to revoke parole was the lack of victim and complainant participation in the parole hearing. Section 75(4) of the 1998 Act requires that victims be invited to participate in parole proceedings, but in this case, they were only informed after the parolees had already been released. This, along with the sentencing judge’s remarks, formed the basis for the Minister’s decision to revoke parole.

Mr Niehaus felt that his question had not been answered. He clarified that he was asking about the process of informing the Minister about the parole court’s decision to grant parole, not about the reasons for the Minister’s later revocation.

He questioned why the Minister was not consulted from the start. If the Minister had been informed at the beginning, the parole board’s entire process—including whether the victim had been consulted—should have been part of the information submitted. He asked why the parolees were released without the Minister’s final approval.

Additionally, he raised concerns about cases where the victim or their family opposes parole. He asked how much weight the victim’s perspective carries in the final decision.

Mr Simani responded that the Ministry can best answer these questions, as they would have full details on the entire process—from when the parolees were considered for parole to when it was revoked. The parliamentary legal services did not have access to the recommendations submitted to the Minister.

Mr Niehaus then asked for Mr Simani’s opinion on how much the victim or their family’s opposition influences a parole decision. He pointed out that in the case of the late Chris Hani, his family strongly opposed the parole of Walus, yet it was still granted.

Mr Simani explained that in the case of Walus, the Constitutional Court overturned the Minister’s decision because the Chief Justice ruled that sentencing remarks alone cannot be used to block future parole applications. The court found no reason why Walus could never be eligible for parole.

He added that the parliamentary legal services had not prepared for this specific question, as their brief focused on the case of Mr Kruger and Mr du Toit, not on the victim’s ability to oppose parole. However, he emphasised that the Minister has the final authority on whether parole is granted.

The Chairperson noted that the legal services could still provide a written opinion on any outstanding issues later. Clearly, the Minister acted within his legal powers and had the authority to revoke parole. The Minister could also be summoned to explain the process he followed and how similar cases should be handled in the future to ensure consistency. The Chairperson suggested that the Committee meet with parole boards and the Minister to review the parole decision-making process.

Adoption of Minutes

Minutes dated 26 November 2024 were adopted by Mr Engelbrecht and seconded by Mr Niehaus.

Minutes dated 04 February 2025 were adopted by Ms B Diale (EFF), seconded by Mr E Cloete (ANC).

Minutes dated 11 February 2025 were adopted by Mr Niehaus, seconded by Ms Diale.
The Chairperson raised a correction that Mr M Gasa (MK) was in the meeting but had to leave early.

Minutes dated 18 February 2025 were adopted by Ms Diale and seconded by Mr Engelbrecht.

Minutes dated 11 March 2025 were adopted by Mr Cloete, seconded by Ms K Kgobisa-Ngcaba (DA).

The meeting was adjourned.