On 25 July 2011, the North Gauteng High Court delivered judgment in the matter of CJ Van Wyk v Minister of Correctional Services and others (case number 40915/10), the case related to the consideration of offenders sentenced to life before 1 October 2004 and the minimum time served prior to being eligible for consideration for placement on parole.
Since the coming into effect of the 1998 Correctional Services Act, offenders sentenced to life incarceration before 1 October 2004 had to serve a minimum detention period of 20 years before being eligible for consideration for placement on parole.
However, the North Gauteng High Court found that sentenced offenders have a right under our Constitution to be sentenced in terms of the least severe punishment applicable at the time the offence was committed and that the new Correctional Services Act of 1998 could therefore not treat offenders harsher than the system applicable when they committed the crimes as per the dictates of the 1959 Act.
The net effect of the Van Wyk judgment is to change the minimum detention period for offenders sentenced to life before 1 October 2004 prior to being eligible for consideration for placement on parole.
The Minister of Correctional Services, Hon. NN Mapisa-Nqakula, has studied the judgment and developed an implementation plan to give immediate effect to the North Gauteng High Court's ruling.
In summary the court has ruled as follows:
That the applicant (an offender sentenced to life before 1 October 2004) and other offenders who were serving sentences of life incarceration immediately before 1 October 2004 are entitled to:
a) Have the date on which they may be considered for parole advanced by credits earned in terms of section 22A of the Correctional Services Act, 1959, subject to applicable criteria for the allocation of credits.
b) Be considered for parole in terms of the policy of the Department of Correctional Services which applied at the date of the commission of the crimes for which they are serving life imprisonment.
The credit system was indeed applied within the Department from 1 August 1993 to 30 September 2004. In order to implement the judgment without unnecessary delay, the Department of Correctional Services has taken a decision based on a number of considerations that:
1. To grant all lifers sentenced before 1 October 2004, the maximum credits that a lifer could have earned under section 22A of the 1959 Act.
2. That the minimum detention dates for offenders sentenced to life before 1 October 2004 will therefore now be calculated as 13 years and 8 months.
It is, however, important to note that these offenders do not qualify for parole but merely qualify for consideration by the Minister of Correctional Services for placement on parole.
Since all lifers sentenced up to 1 March 1994 are being considered for placement on parole at present as a result of the Van Vuren judgment handed down last year by the Constitutional Court, it means therefore that the Van Wyk judgment and the new minimum detention periods for lifers apply to all those lifers sentenced as from 1 March 1994 up to 30 September 2004.
According to the Department of Correctional Services' preliminary audit list, the totals are as follows:
- Sentenced as from 1 March 1994 until 31 December 1997 (the last of these completes the 13 years and 8 months minimum on 30 August 2011) who must be considered as soon as possible: 361
- Sentenced as from 1 January 1998 until 30 June 1998 (they will qualify within the next 6 months - after 30 August 2011): 41
- The rest who will benefit from earlier considerations are (sentenced from 1 July 1998 until 30 September 2004):4267
This judgment must however not be understood to mean that any inmate sentenced to life incarceration before 1 October 2004 has a right to be placed on parole or day parole.
All this judgment intends to facilitate is that inmates sentenced to life incarceration during different periods when different legislative and policy provisions applied have a right to be considered for placement on parole after having served the minimum detention period applicable to their specific circumstances.
The Minister hereby calls on all victims (or relatives) of offenders sentenced to life before 1 October 2004 to participate in the parole process by filing victim impact statements or statements of opposition.
The victim submissions can be made at the following contact points:
Victims can call (012) 307 2166 or Fax to 012 325 8080 or E-mail us on victimsandparole@dcs.gov.za or visit our website for more information at: www.dcs.gov.za.
Enquiries:
Sonwabo Mbananga - Spokesperson
Tel: 012 305 8850
Cell: 082 045 3963
