The principle that offenders may be released on parole is an integral and necessary part of the South African criminal justice system and it is their Constitutional right to be considered for parole after they had served the prescribed time behind bars.
This is according to the Gauteng High Court, Johannesburg, which was faced by applications from 10 inmates - mostly people who are serving a life imprisonment sentence.
They complained that despite having completed all the courses they were told to do and despite having served the time they should have before being considered for parole, they are not being released.
Some of them said they have been awaiting word from correctional services - ultimately the minister - for four years in excess to the dates upon which they became eligible to be considered for parole.
The inmates, who represented themselves before court, relied on the earlier Constitutional Court judgment which ordered the release of Janusz Walus (one of Chris Hani's killers) on parole. He too, was sentenced for life and was considered a "lifer" - a term used for this category of prisoners.
Acting Judge WJ du Plessis noted that the legislature in South Africa acknowledges the principle of parole, and that sentenced offenders can be released before their prison sentence expires. This is subject to certain parole or correctional supervision conditions.
Parole does not shorten the sentence; it merely allows for the release from prisons subject to certain conditions. Thus, the sentenced offender is still serving his sentence, but outside prison, and subject to the supervision and authority of the department of correctional services for the remainder of their sentence.
In focussing on the parole system regarding lifers, the judge explained that generally, the parole principle in South Africa has undergone some change from the 1959 to the 1998 Correctional Services Act. In 1959 the Act emphasised the release of sentenced offenders.
Subsequently the Act seems to focus more on the incarceration of sentenced offenders – a shift from rehabilitation to deterrence. "The latter is a more punitive approach," the judge said.
The current law - since October 1, 2004 - is that life imprisonment means that a sentenced offender will spend the rest of their natural life in prison. However, such a person may be considered for parole after 25 years.
This differs from the previous Act that still applies in certain instances, depending on when the offender was sentenced. Those sentenced between 1 March 1994 and 3 April 1995, are entitled to be considered for parole after 20 years.
Inmates sentenced before September 30, 2004 were part of a scheme of remissions and credits for good behaviour that could shorten 20 years based on good behaviour.
Those who were sentenced before March 1994 have to serve 15 years, although parole is also possible after 10 years in exceptional circumstances. Some of the lifers in this application were sentenced in the 1990's and were thus not subjected to the current 25 years before they are considered for parole.
Judge Du Plessis considered the circumstances of each of the 10 inmates, but he made general remarks regarding the system and the right to parole.
He said sentenced offenders retain their constitutional rights when sentenced, subject to the limitation clause in the Act. Without the possibility for "lifers" to be released on parole, life imprisonment in South Africa would be unconstitutional as it would contravene the Constitution, he said.
"This is because a life sentence without possibility of review and release denies sentenced offenders the right to hope, their humanity, capacity to change and ability to atone. This is degrading and violative of human dignity."
In addition, irreducible life sentences violate the principle of proportionality and that detention be based on legitimate grounds, because offenders may remain in prison even if the justification for their sentences no longer exists, the judge added.
"Once a person has been incarcerated for a long time and has satisfied all the principles and the requirements for parole, they should not continue to be incarcerated when they have become eligible for parole unless the minister has legitimate reason to deny parole."
The judge added that in the absence of sound reasons, denials of parole applications of this kind may rob prisoners of hope as they are left with no clear way to demonstrate rehabilitation and earn their freedom.
While it is up to the minister to approve parole for a lifer, based on recommendations from the department, the judge said "this does not give the minister a free pass to delay (making a decision)."
The various applications in this judgment highlights some common fault lines in the parole system for "lifers". If these issues are not effectively addressed, the courts will continue to be inundated with applications such as these, by people who are justifiably frustrated, Judge du Plessis said.
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Pretoria News
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