Abstract
Parole and the parole process, as well as the concept of lifelong sentences, are often perplexing to the layperson. Recent media reports in which victims of crime (or their next of kin) aver that they had not been included in the parole process of their perpetrators, necessitates an exposition of the rights of victims of crime regarding this process. The history of the parole process in South Africa is, therefore, briefly discussed and compared with the current parole process. The role of the victims of crime or their next of kin and their right (guaranteed to them by the Criminal Procedure Act 51 of 1977) to participate in this process with regard to perpetrators who have received lifelong sentences, are also considered. The recent release on parole of the sentenced attackers of Alison Botha is an important case study in this regard and is therefore discussed in detail. This contribution deals only with sentences of life incarceration or undetermined sentences. Undetermined sentences can be imposed by a court in terms of section 286B of the Criminal Procedure Act on perpetrators whom the court has declared to be dangerous criminals. (In such cases the sentencing court, and not the minister of correctional services or parole board, has the power to determine whether a sentenced offender should be released on parole.)
This contribution explores the possible remedies that are available to such persons who assert that their statutory right to participate in the parole process has been infringed upon. These remedies include an application in terms of the right to access to information, as well as an application for the possible setting aside of a parole decision based on an allegation of arbitrary administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It is not far-fetched that such a victim of crime or their next of kin could bring an application in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) for information regarding the parole conditions of their perpetrators. The information regarding parole conditions does not fall under any of the exclusionary provisions regarding access to information under PAIA, because the parole decision is usually taken by the Executive (i.e. the minister of correctional services) in terms of life sentences.
The contribution considers and analyses relevant judgments such as Van Wyk v Minister of Correctional Services2012 1 SACR 159 (GNP), Phaahla v Minister of Justice and Correctional Services (Tlhakanye Intervening) 2019 ZACC 18, and Waluś v Minister of Justice and Correctional Services 2022 ZACC 39 to determine the ambit of the courts’ power when determining a non-parole period, especially pertaining to lifelong sentences. The relevant judgments, as well as the Correctional Services Act 111 of 1998 and the Correctional Services Act 8 of 1959, are analysed to determine what a sentence of life incarceration actually entails, and also to explain what the victims of sentenced persons can expect from the parole process and the time frames applicable thereto.
The purpose is not to aver that the parole outcome of all “lifers” should be reviewed. Indeed, the hope is expressed that the goal of the Correctional Services Act (own emphasis) is achieved. This aim is to rehabilitate and correct sentenced offenders to ensure that they can once again become contributing members of society who pose no danger to their communities. It is, however, doubtful that the Department of Correctional Services can, in all cases, be relied on to achieve the correction of sentenced offenders, because of the high level of recidivism in the country. The case of S v Makhubela 2023-7-14 CC60/21 ZAGPPHC (KH) is singled out as an example case in which all three accused persons who had been found guilty and sentenced to life imprisonment for murder committed the act while out on parole for committing previous violent crimes.
One of the cornerstones of the rehabilitation process is remorse – this is reiterated by Chief Justice Zondo in the Waluś case. It is, however, doubtful whether remorse can truly be expressed if sentenced offenders are not afforded the opportunity to exhibit this penitence to the victims of their crimes (in writing or in person if the victims so wish). This cannot be done if there is no victim-offender dialogue before the parole process is concluded because the proven rehabilitation of a sentenced offender is a prerequisite of parole. It is the responsibility of the Department of Correctional Services to facilitate this dialogue and ensure that victims or their next of kin are at least informed of the commencement of the parole process. The Waluś judgment confirms the Department’s commitment to ensuring that the victims of crime or their next of kin are included in the parole process. It is, however, submitted that this commitment should be consistent across the board. The Department should afford all victims of crime in cases of offenders who have been sentenced to life incarceration the opportunity to participate in the parole process – as required by law.
The Waluś judgment confirms the principle that the Minister cannot arbitrarily decide to give or withhold parole. Unfortunately, the only existing recourse for victims or their next of kin who had expressed the wish to be, but were not, included in the parole process of their perpetrators, is therefore to approach the courts for intervention.
Keywords: community corrections; correctional services; Department of Correctional Services; life incarceration; life sentence; Minister of Correctional Services; parole; parole board; penalty; punishment; sentence; victims of crime
- This article’s featured image was created by Tim Hüfner and obtained from Unsplash.