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Case CCT44/18 
[2019] ZACC 18

Hearing Date: 08 November 2018 
Judgement Date:03 May 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 3 May 2019 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of a declaration of constitutional invalidity by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared invalid section 136(1) of the Correctional Services Act of 1998 (1998 Act) on the grounds that the impugned provision breaches the constitutional rights to equal treatment by the law and not to be discriminated against unfairly.

Under the previous Correctional Services Act of 1959 (1959 Act), anyone sentenced to life imprisonment was eligible to apply for parole after serving a minimum of 20 years. In terms of the 1998 Act, however, someone serving a life sentence is eligible for parole only once they have served a minimum of 25 years. Section 136(1) of the 1998 Act governs the transition from the parole eligibility requirements under the 1959 Act to those under the 1998 Act. Section 136(1) provides that inmates sentenced before 1 October 2004 are subject to the 1959 Act and must serve a minimum of 20 years, but inmates sentenced after 1 October 2004 are subject to the 1998 Act and must therefore serve a minimum of 25 years.

The applicant, Mr Phaahla, is an inmate serving a sentence of life imprisonment. He was convicted on 25 September 2004 for a crime committed earlier, but was sentenced only on 5 October 2004. This means that he is required to serve 25 years before he may apply for parole. If Mr Phaahla had been sentenced a few days earlier, he would have had to serve only 20 years before being eligible for parole. Mr Phaahla challenged section 136(1) in the High Court on the grounds that the use of the date of sentence rather than the date of commission of offence violated his fair trial right under section 35(3)(n) of the Constitution. Section 35(3)(n) of the Constitution provides that where the prescribed punishment for an offence has changed between the time the offence was committed and the time of sentencing, an accused person has the right to the benefit of the least severe of the prescribed punishments.

Mr Phaahla also argued that section 136(1) breaches his right to equal protection of the law and the right not to be unfairly discriminated against in terms of section 9 of the Constitution.

The High Court upheld Mr Phaahla’s challenge and declared section 136(1) constitutionally invalid on the basis that it breached his right to equality, but held that section 35(3)(n) was not applicable because parole is not a part of punishment.

Mr Phaahla applied to the Constitutional Court for confirmation of the High Court’s declaration of invalidity. The Minister of Justice and Correctional Services and the National Commissioner of Correctional Services (respondents) opposed the application for confirmation and appealed against the High Court order. Another inmate in the same position, Mr Tlhakanye, successfully applied to be admitted as an intervening party.

In a judgment penned by Dlodlo AJ, the Constitutional Court unanimously confirmed the High Court’s declaration of invalidity. The majority held the impugned provisions invalid on the grounds that the use of date of sentence in section 136(1), rather than the date of commission of offence, breaches the constitutional right to equal protection of the law and also the right to the benefit of the least severe punishment. The majority held that it amounts to retroactive application of the law, which violates section 35(3)(n) and the principle of legality.

Dlodlo AJ held that parole is part of the punishment and therefore that rules lengthening non-parole periods increase the severity of the punishment. Section 136(1) differentiates between inmates sentenced before and after 1 October 2004 by imposing a harsher punishment on the latter. For this differentiation to pass constitutional muster under section 9(1) of the Constitution, it must be shown by the respondents to be rationally connected to a legitimate government purpose. The respondents argued that the purpose of using the date of sentence is to protect inmates sentenced before 1 October 2004 from a prejudicial retroactive application of the criminal law. However, Dlodlo AJ found that differentiation for the purpose of protecting only one group of inmates rather than all inmates from retroactive application of the law violates the rule of law, a cornerstone of our constitutional democracy, and that a government purpose contrary to the rule of law can never be legitimate. On these grounds, Dlodlo AJ held that section 136(1) violates section 9(1).

Further, Dlodlo AJ emphasised the self-standing pedigree of section 35(3)(n), which entrenches the principle of legality in the criminal law by prohibiting the retroactive application of a punishment that is more severe than that prescribed when the offence was committed. Because rules lengthening non-parole periods increase the severity of a sentence of life-imprisonment, the effect of section 136(1) is to impose a punishment that is more severe than what was applicable at the time the offence was committed. This amounts to a retroactive application of the law and violates both the principle of legality and section 35(3)(n) of the Constitution.

In a separate concurring judgment, penned by Cameron J and concurred in by Dlodlo AJ, Cameron J found favour with the first judgment. He pointed out that bringing the new parole regime into effect on any arbitrarily chosen date, as 1 October 2004 was, and then to tie its application to date of sentence, rather than date of commission of offence, creates irrational, absurd and capricious disparities between those sentenced before and after the date the new regime comes into force. This was no more rational than if the legislation had subjected those with blue eyes to the old parole regime, but those with black eyes to the new parole regime.

Regarding government’s reason for employing the date of sentence, rather than date of commission of offence, Cameron J considered the Supreme Court of Appeal judgment in Minister of Correctional Services v Seganoe. This held that using the date when the offence was committed, instead of date of sentence, was beset by practical difficulties and could yield absurd results that the Legislature could not have contemplated. The reasoning in Seganoe, Cameron J held, cannot stand. Seganoe presupposes that additionally burdensome parole conditions legislatively imposed after the offence is committed, like those here, are not a more severe “punishment” violating the fair trial guarantee in the Bill of Rights. But the first judgment rightly holds the contrary. The consequence is that it cannot be rational for government to tie the imposition of a more burdensome parole regime to the avoidance of a result that itself violates the Bill of Rights.

In a separate concurring judgment, Froneman J agreed with the outcome of the first judgment but differed on the particular question of whether the impugned provisions infringe section 9(1) of the Constitution. Froneman J held that government’s proffered purpose in tying parole regime changes to the date of sentence was to avoid imposing a harsher punishment on people who were already incarcerated, and to do so in a way that facilitated efficient and workable implementation. The transitional arrangements sought to provide legal certainty and clarity for determining the applicable parole regime, and thus bear a rational connection to a defensible purpose.

In the result, the High Court’s order of constitutional invalidity was confirmed.          

The Full judgment  here