Abstract

Keywords

Parole; life imprisonment; parole board; non-parole period; Walus.

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1 Introduction

Walus v Minister of Justice and Correctional Services 1

* Esther Gumboh. PhD, LLM (UCT); LLB Hons (Malawi). Senior Lecturer, Department of Criminal and Procedural Law, Nelson Mandela University. E-mail: esther.gumboh@mandela.ac.za. ORCiD: https://orcid.org/0000-0002-9286-6869.

** Mahlubandile Ntontela. LLM (NMU), LLB (NMMU), Post-Graduate Diploma in Labour Law Practice (NMU), Post-Graduate Diploma in Drafting and Interpretation of Contracts (UJ). Lecturer, Department of Criminal and Procedural Law, Nelson Mandela University. E-mail: mahlubandile.ntontela@mandela.ac.za. ORCiD: https://orcid.org/0000-0002-3927-9825.

1 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC).

2 Existing legal framework

According to section 73(1) of the 1998 Correctional Services Act, a prisoner convicted of an offence must remain imprisoned for the full sentence. Thus, for prisoners sentenced to life, the expectation is that they will spend the rest of their lives in prison. 4

4 Section 73(4) of the Correctional Services Act 111 of 1998.

automatically entitled to be released after serving a certain period of detention, but a determination is made by the parole board on whether a prisoner is eligible for parole. However, a prisoner has a right to be considered for parole through a fair procedure as prescribed by law. 10

10 Van Gund v Minister of Correctional Services 2011 1 SACR 16 (GNP) para 11.

Parole is an essential aspect of the penal system. 13

13 Motsemme v Minister of Correctional Services 2006 2 SACR 277 (W) 285.

The exercise of these powers by the Board and the Minister amounts to an administrative action. 20

20 Combrink v Minister of Correctional Services 2001 3 SA 338 (D).

legislation conferred the power. 23

23 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC) para 84.

For prisoners sentenced to life before 1 October 2004, the 1959 Correctional Services Act is applicable. 28

28 Section 136 of the Correctional Services Act 111 of 1998.

Criminal Procedure Act, 31

31 Criminal Procedure Act 51 of 1997.

The policy of the Department on parole requires the Minister to consider the following factors:

a. the remarks made by the court in imposing sentence;

b. the nature and seriousness of the crime and the consequence thereof;

c. the behaviour and adjustment of the offender during his or her incarceration;

d. the programmes attended by the offender within the correctional centre aimed at his or her rehabilitation;

e. the availability of support systems to the offender in the event of his or her being placed on parole;

f. whether the offender has a fixed address which can be monitored on his or her being placed on parole;

g. the offender's scholastic or technical achievements during his or her incarceration; and

h. the risk of recidivism in the event of the offender being placed on parole. 34

34 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 7.

Furthermore, where the 1959 Act is applicable the Minister must consider "the nature of the offence and any remarks made by the court at the time of the imposition of the sentence". 35

35 Section 63(1) of the Correctional Services Act 8 of 1959.

exercise which must serve the interests of the community and the prisoner through a fair and just evaluation. 36

36 See the introduction in Chapter VI(1A)(19) of Department of Correctional Services 2019 http://www.dcs.gov.za/wp-content/uploads/2019/01/Procedure-Manual.pdf.

Courts have generally not differed in the sentencing remarks applicable to the parole decision. There has been consensus that the remarks relate to the nature and seriousness of the crime. In Barnard v Minister of Justice, Constitutional Development and Correctional Services, 41

41 Barnard v Minister of Justice, Constitutional Development and Correctional Services 2016 1 SACR 179 (GP).

In Walus the central issue was whether there is a point at which the denial of parole for a prisoner serving life imprisonment is no longer justifiable by the crime's seriousness and the court's sentencing remarks. 44

44 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 36.

3 Facts

Mr Walus and his co-accused, the late Clive Derby-Lewis, were convicted of murder and sentenced to death in terms of the then-section 277(1)(a) of the Criminal Procedure Act. He was convicted of assassinating a struggle icon, the South African Communist Party Secretary General, Mr Chris Hani. 45

45 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 6.

The offender' on parole is not approved at this stage. The victim's family and any other interested party must be given opportunity to provide either a victim impact statement or a statement of opposition. 51

51 Walus v Minister of Justice and Correctional Services [2018] JOL 40332 (GP) para 5.

Mr Walus filed a case in the Gauteng Division of the High Court in Pretoria to have the Minister's March 2020 decision rejecting his parole application reconsidered and overturned. In dismissing the matter, the court ruled that the Minister had properly considered all the factors required before deciding whether to place Mr Walus on parole. It emphasised that the Minister had noted that his decision and the grounds for it did not entail that Mr Walus would never be rereleased on parole. Relying on reports such as the social

worker's assessment, the Minister acknowledged that there was little chance that Mr Walus would commit another crime after being released. Mr Walus' application was dismissed with costs by the High Court. 52

52 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 27.

4 The Constitutional Court judgment

The court held that it had jurisdiction to hear the matter. The court based this reasoning on Mr Walus' High Court application to review a decision using the PAJA, which gives effect to section 33 of the Constitution. After settling the issue of jurisdiction, the court noted that its decision to allow Mr Walus' leave to appeal depended on several factors. The factors the court had to consider included the gravity of the case, whether granting permission would significantly impact on society at large or just the parties, and whether Mr Walus had a reasonable chance of succeeding. The court then granted Mr Walus leave to appeal in the interests of justice. The court first discussed section 36 of the Correctional Services Act, which deals with the objectives of imprisonment. It found that section 36 provides a legal foundation for the idea that one of the main goals of incarceration in our correctional facilities is to rehabilitate the prisoners so that, upon release from prison and reintegration into society, the prisoner can lead a crime-free life. 54

54 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 37.

The court highlighted three significant reasons for the Minister's parole refusal: the nature and seriousness of the offence committed by Mr Walus, and the trial court's sentencing remarks. The court started by considering the rejection based on the trial court's comments. The trial court's statements considered by the Minister, as reflected in the Minister's paper to the Court, relate to how Mr Walus committed the offence in cold blood and almost led the country to a civil war. The court found that the minister had misconstrued the interpretation of the law and policy guidance on the

factors to be considered. The court explained that the remarks to be reviewed should not be those in relation to the seriousness of the offence but rather those, if any, relating to the release of the prisoner on parole. Thus, when the Department's policy paper refers to the trial court's sentencing remarks, this relates to the sentencing court's statements that reflect the minimum amount of time the offender was required to serve in prison before being eligible for parole. The court acknowledged that section 276B(1)(a) of the Criminal Procedure Act conferred such powers upon courts. Section 276B(1)(a) entails that a court may specify a period during which a person convicted of an offence will not be eligible for parole as part of the punishment if the prison term is two years or more. The court may invoke section 276B(1)(a) on condition that this period, known as the non-parole period, may not be more extended than two-thirds of the sentenced time in jail or 25 years, whichever is shorter. 55

55 Section 276B[1][b] of the Criminal Procedure Act 51 of 1977.

In considering whether the decision to refuse Mr Walus' parole was rational, the court turned to the Minister's remarks in his submissions. The Minister had hinted that his refusal of parole in 2020 did not mean he would not grant Mr Walus parole on the same factors in the future. Regarding this aspect, the court rhetorically asked,

If the Minister were to release Mr Walus on parole on the same facts in the future, how would he justify his two conflicting conclusions on the same facts?. 56

56 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 81.

According to the court, the Minister's papers had not answered this question. After analysing the Minister's reasons for refusing the parole application, the court concluded that there was no relationship between the Minister's use of his authority and the reason the law gave it to him. Having found that the Minister's decision was irrational, the court had to consider whether to remit the matter to the Minister. The court decided to release Mr Walus on parole. 57

57 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 98.

The court set aside the Minister's decision and ordered that Mr Walus be released on parole within ten business days of the order. 58

58 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 98.

5 Discussion

5.1 Interpretation of "sentencing remarks"

There are several reasons why it may be said that the court erred in interpreting what constitutes "sentencing remarks" in the parole board manual. Firstly, section 276B is irrelevant to offenders sentenced to life imprisonment. The non-parole provisions in section 276B apply only to determinable sentence periods. Several factors support the claim that section 276B does not apply to a sentence of life imprisonment. As previously indicated, section 276B(1)(b) allows courts to fix a non-parole period to a maximum of 25 years. In terms of section 73(6)(b)(iv) of the Correctional Services Act, a person sentenced to life in prison may not be granted parole until he or she has served at least 25 years. 59

59 Correctional Services Act 111 of 1998.

Secondly, a prisoner subject to section 276B 60

60 Criminal Procedure Act 51 of 1977.

court's reasoning for this conclusion is not apparent from the judgment that "sentencing remarks" apply only to remarks relating to section 276B.

5.2 Consideration of "unchanging" factors

The second issue with the Walus case is that the court erred in grounding irrationality on the "unchanging" factor of the seriousness of the offence. This is the context of the court's analysis of the proper weighting of unchanging factors beyond a prisoner's control. The court rightly cautions against refusing parole because of unchangeable factors. The judgment reads in paragraphs 81 and 82:

[I]f, in the future, the Minister can or will release the applicant on parole on the same facts as those which prevailed in 2020 when he denied him parole, does that mean that he will have reached two different and mutually exclusive conclusions on the same facts? If he could reach the conclusion to release the applicant on parole on these facts in the future, why is it that he did not release him in 2020 on the same facts. If the Minister were to release the applicant on parole on the same facts in the future, how will he justify his two conflicting conclusions on the same facts? The Minister did not explain any of this in his answering affidavit. His failure to explain this renders his decision to deny the applicant parole inexplicable. If it is inexplicable, it follows like night follows day that it is irrational.

[I]f more than 26 years after the applicant was sentenced for the crime he committed, it was appropriate for the Minister not to release the applicant on parole in 2020 because of the nature of the crime, the seriousness thereof and the Court's sentencing remarks, why would it be appropriate for the Minister to release him one or two or three or five years thereafter? These three factors are immutable. They will not change one or two or three or five years later. This the Minister has not explained … Therefore, this Court must vitiate the Minister's decision. If it were not to do so, it would in effect be giving its approval to the proposition that in future it would be appropriate for the Minister to deny the applicant parole even when he may have served 30 or 35 or even 40 years of imprisonment. That, simply on the basis of the nature of the crime, the seriousness thereof and the trial court's and Supreme Court of Appeal's sentencing remarks despite the fact that the applicant has complied with all other requirements for him to be placed on parole which the Minister concedes. 63

63 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) paras 81-82.

Does the court suggest that denying parole solely based on immutable factors renders the refusal of parole irrational? The answer must be in the affirmative. To contextualise the court's remarks, Walus' circumstances must be recalled. He qualified for parole 17 years before the decision and had served a total of served 28 years. He was "an exemplary prisoner" with a low risk of offending upon release, had no record of ill-discipline, 64

64 Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC) para 47.

argue that a different decision could be made in the future. The court found that the Minister's failure to explain how he would justify another decision in the future rendered the decision irrational and unconnected to the purpose for which the power to consider parole was conferred on him. On this reasoning it is difficult to fathom a scenario where a court would reach a different conclusion if a prisoner had fulfilled all the parole requirements and was yet denied release based on the seriousness and nature of the crime. A denial of parole due to the nature and severity of the offence where all other factors are met would likely run into similar problems.

Was the court right to characterise the nature and seriousness of the offence as an unchanging factor? The issue is not that the factors in themselves are unchanging. Instead they cannot pass as the sole justification for continued detention post eligibility for parole. Considering the nature and seriousness of an offence speaks to the retributive purposes of punishment. As noted in S v Makwanyane, retribution entails that "[p]unishment must to some extent be commensurate with the offence". 65

65 S v Makwanyane 1995 6 BCLR 665 (CC) para 129.

What weight should be given to retribution when an offender has satisfied all other requirements in the parole process? The discretion ultimately lies with the Minister. Therefore, resorting to retribution as a justification for the continued detention of a prisoner who otherwise qualifies for parole cannot,

without more, be deemed irrational. Such a determination will have to be made on a factual basis. A general principle is that a penal system based on human rights must not give undue weight to retribution. 70

70 S v Makwanyane 1995 6 BCLR 665 (CC) para 130.

6 Conclusion

The Walus case demonstrates that the parole framework for offenders sentenced to life is complex. The Minister must weigh up several factors to reach a decision. This requires a consideration of all the factors laid out in the policy and the law. None of the factors must be rendered redundant. The policy requires the Minister to consider the nature and seriousness of the crime and the sentencing remarks. The finding in Walus that sentencing remarks refer to the section 276B non-parole period is problematic. For one thing, it overlooks the inapplicability of these non-parole periods to life prisoners. It also undermines the nature of section 276B non-parole periods as court orders, which cannot be characterised as sentencing remarks or factors. Walus can also be criticised for its conclusion that denying parole to life prisoners on the sole basis of the nature and seriousness of the offence is irrational. This decision is inimical to the discretion vested in the Minister, including considering retribution as a sentencing purpose. While life prisoners must not be locked away for the rest of their lives, the Minister must fully apply the policy and the law to achieve a legally sustainable approach to their early release.

Bibliography

Literature

Lidovho 2003 CILSA

Lidovho GJ "Parole Boards in South Africa: On the Road to Extinction? A Comparative Perspective" 2003 CILSA 365-385

Moses 2003 SAJHR

Moses JJ "Parole: Is It a Right or a Privilege?" 2003 SAJHR 263-277

Terblanche Guide to Sentencing

Terblanche S A Guide to Sentencing in South Africa 3rd ed (LexisNexis Durban 2016)

Legislation

Constitution of the Republic of South Africa, 1996

Correctional Services Act 8 of 1959

Correctional Services Act 111 of 1998

Criminal Procedure Act 51 of 1997

Promotion of Administrative Justice Act 3 of 2000

Case law

Baloyi v Minister of Justice and Correctional Services 2019 2 SACR 501 (GJ)

Barnard v Minister of Justice, Constitutional Development and Correctional Services 2016 1 SACR 179 (GP)

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC)

Combrink v Minister of Correctional Services 2001 3 SA 338 (D)

Derby-Lewis v Minister of Justice and Correctional Services 2015 2 SACR 412 (GP)

Du Preez v Minister of Justice and Correctional Services 2015 1 SACR 478 (GP)

Groenewald v Minister of Correctional Services 2011 1 SACR 231 (GNP)

Minister of Justice and Correctional Services v Walus 2017 2 SACR 473 (SCA)

Mohammed v Minister of Correctional Services 2003 6 SA 169 (SE)

Motsemme v Minister of Correctional Services 2006 2 SACR 277 (W)

Naidu v Minister of Correctional Services 2017 2 SACR 14 (WCC)

Ndlovu v S (925/2016) [2017] ZASCA 26 (27 March 2017)

Phaahla v Minister of Justice and Correctional Services [2018] JOL 39671 (GP)

Phaahla v Minister of Justice and Correctional Services 2019 7 BCLR 795 (CC)

Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC)

S v Chavulla 2002 1 SA 535 (SCA)

S v Makwanyane 1995 6 BCLR 665 (CC)

S v Smith 1996 1 SACR 250 (E)

Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited 2015 5 SA 245 (CC)

Van Gund v Minister of Correctional Services 2011 1 SACR 16 (GNP)

Van Wyk v Minister of Correctional Services 2012 1 SACR 159 (GNP)

Walus v Minister of Justice and Correctional Services [2018] JOL 40332 (GP)

Walus v Minister of Justice and Correctional Services 2023 2 BCLR 224 (CC)

Walus v S [2001] JOL 7629 (A)

Internet sources

Department of Correctional Services 2019 http://www.dcs.gov.za/wp-content/uploads/2019/01/Procedure-Manual.pdf

Department of Correctional Services 2019 Volume 5: Revised Procedure Manual: Supervision (UNIT 1-8) http://www.dcs.gov.za/wp-content/uploads/2019/01/Procedure-Manual.pdf accessed 19 October 2024

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