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Decisions for grant of parole to prisoners should be based on the minimum period of imprisonment that a convicted person or offender should serve before they could be considered for parole and not on the seriousness of the offense that they had committed.

MMB Advocates > Uncategorized  > Decisions for grant of parole to prisoners should be based on the minimum period of imprisonment that a convicted person or offender should serve before they could be considered for parole and not on the seriousness of the offense that they had committed.

Decisions for grant of parole to prisoners should be based on the minimum period of imprisonment that a convicted person or offender should serve before they could be considered for parole and not on the seriousness of the offense that they had committed.


Janusz Jakub Walus v Minister of Justice and Correctional Services and Others

Case CCT 221/21

Constitutional Court of South Africa

Zondo CJ, & J; Madlanga, Majiedt, Mhlantla, Theron, Tshiqi and Unterhalter, JJ; Mlambo, AJ

November 21, 2022

Reported by Faith Wanjiku and Betty Nkirote

Download the Decision

Constitutional law-Bill of Rights-right to a fair administrative action-where the applicant sought leave to appeal against the judgment and order of the Gauteng division of the High Court, Pretoria in the matter concerning a decision of the 1st respondent rejecting the applicant’s application to be placed on parole-whether the court had the jurisdiction to determine the applicant’s application for leave to appeal against the judgment and order of the Gauteng division of the High Court, Pretoria (High Court) which had dismissed the applicant’s application to have the decision of the 1st respondent rejecting to release him on parole reviewed and set aside-whether it was in the interest of justice for the court to grant the applicant leave to appeal against the judgment and order of the High Court which had dismissed the applicant’s application to have the decision of the 1st respondent not to release him on parole reviewed and set aside-which type of remarks made by the trial court at the time of imposing a sentence were to be taken into account while deciding whether to release the applicant on parole-whether the decision by the 1st respondent not to release the applicant on parole was irrational- whether the court was in a position to determine whether the applicant could be released on parole.

Brief facts

The applicant brought an application for leave to appeal against a judgment and order of the Gauteng Division of the High Court of South Africa Pretoria (High Court) which had dismissed the applicant’s application to have the decision by the 1st respondent rejecting his application for parole reviewed and set aside.

The applicant was convicted for the offense of murder and illegal possession of firearm in October 15, 1993. He was sentenced to death for the murder and given five years for the illegal possession of the firearm. The death sentence was commuted to life imprisonment on November 7, 2000.

The applicant made numerous applications for parole which were all refused for various reasons. On March 16, 2020, the Minister made a new decision in accordance with the order of the High Court emanating from a review application of a previous parole application. The 1st respondent’s reasons for refusing parole were inter alia, that the positive factors in favor of parole being granted to the applicant were outweighed by the negative factors.

Issues i       Whether the Constitutional court had the jurisdiction to determine the applicant’s application for leave to appeal against the judgment and order of the Gauteng division of the High Court, Pretoria (High Court) which had dismissed the applicant’s application to have the decision of the 1st respondent rejecting to release him on parole reviewed and set aside.

ii      Whether it was in the interest of justice for the Constitutional court to grant the applicant leave to appeal against the judgment and order of the High Court which had dismissed the applicant’s application to have the decision of the 1st respondent not to release him on parole reviewed and set aside.

iii     Which type of remarks made by the trial court at the time of imposing a sentence was to be taken into account while deciding whether to release the applicant on parole?

iv    Whether the decision by the 1st respondent not to release the applicant on parole was irrational.

v     Whether the court was in a position to determine whether the applicant could be released on parole.

Relevant provisions of the law

Constitution of the Republic of South Africa, 1996

Section 33- Just administrative action

(1) Everyone has the righttoadministrative action1 that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has; the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights,and must-

(a) provide for the review of administrative action by a court or, where appropriate,, an independent and impartial tribunal.

Promotion of Administrative Justice Act, 2000

Section 6-review of administrative action

(1)Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

Correctional Services Act, 1998

Section 36

With due regard to the fact that the deprivation of liberty serves the purposes of punishment, the implementation of a sentence of imprisonment has the objective of enabling the sentenced prisoner to lead a socially responsible and crime-free life in the future.”

Section 78

“(1) Having considered the record of proceedings of the Correctional Supervision and Parole Board and its recommendations in the case of a prisoner sentenced to life imprisonment, the court may, subject to the provisions of section 73(6) (b)(iv), grant parole or day parole or prescribe the conditions of community corrections in terms of section 52.

Section 136

(3)(a) Any sentenced offender serving a sentence of life incarceration immediately before the commencement of Chapters IV, VI and VII is entitled to be considered for day parole and parole after he or she has served 20 years of the sentence.

(b) The case of a sentenced offender contemplated in paragraph (a) must be submitted to the National Council which must make a recommendation to the Minister regarding the placement of the sentenced offender under day parole or parole.

(c) If the recommendation of the National Council is favourable, the Minister may order that the sentenced offender be placed under day parole or parole, as the case may be.”

Held

  1. The decision of the High Court in respect to which the applicant applied for leave to appeal related to a review application under the Promotion of Administrative Justice Act (PAJA) which gave effect to section 33 of the Constitution. The matter was a constitutional matter and the court had jurisdiction.
  2. The issues raised in the matter did not only affect the applicant but also affected other prisoners who served life imprisonment sentences. The matter had reasonable prospects of success and it was in the interest of justice for the court to grant the applicant leave to appeal.
  3. The 1st respondent misconceived the sentencing remarks contemplated in the department’s document policy. The court’s remarks he took into account related to the seriousness of the offense that the applicant had committed and to the fact that the offense had been planned and committed in cold blood. The sentencing remarks referred to in the policy document could only be remarks about the minimum period of imprisonment that a convicted person or offender should serve before he or she could be considered for parole.
  4. The decision by the 1st respondent ot to release the applicant on parole was irrational. If more than 26 years after the applicant was sentenced for the crime of murder, it was appropriate for the 1st respondent not to release him 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 1st respondent to release him one or two or three or five years thereafter? The factors relied by the 1st respondent in his decision to deny the applicant parole were immutable. They would not change one or two or three or five years later.
  5. The 1st respondent’s decision not to place the applicant on parole was not rationally connected to the power conferred upon him. Denying the applicant parole simply on the basis of the nature of the crime, and the seriousness thereof and the trial court’s and the Supreme Court of Appeal’s sentencing remarks despite the fact that the applicant had complied with all other requirements for him to be placed on parole was inexplicable. The 1st respondent’s decision was irrational and therefore reviewed and set aside.
  6. The 1st respondent had considered all the factors that were to be considered in deciding whether to place the applicant on parole and concluded that, except for two, all the other factors supported the conclusion that the applicant be released on parole. The two factors that the 1st respondent considered to count against the applicant were immutable and could no longer stand in the way of the release of the applicant. The applicant had served more than 25 years of his sentence of life imprisonment during which he had kept a clean disciplinary record and complied with every requirement that he had been told by the prison authorities to comply with in order to improve his prospects of placement on parole. In the circumstances, it was just and equitable for the court to order the 1st respondent to place the applicant on parole.

Application allowed; costs awarded to the applicant.

Orders

  1. Leave to appeal was granted.
  2. The appeal was upheld.
  3. The decision of the Gauteng Division of the High Court, Pretoria dismissing the applicant’s application was set aside and replaced with the following order:
  4. The decision of the Minister of Justice and Correctional Services made in March 2020, rejecting the applicant’s application for parole was reviewed and set aside.
  5. The Minister of Justice and Correctional Services was ordered to place the applicant on parole on such terms and conditions as he deemed appropriate and to take all such steps as needed to be taken to ensure that the applicant was released on parole within ten (10) calendar days from the date of the order.
  6. The Minister of Justice and Correctional Services was ordered to pay the applicant costs including the costs of two counsel.
  7. The Minister of Justice and Correctional Services was to pay the applicant’s costs including the costs of two counsel as well as the applicant’s costs in the Supreme Court of Appeal in respect of the petition for leave to appeal.

Relevance to the Kenyan jurisprudence

In Kenya, the primary legislation on matters relating to prisoners and control of prisons is the Prisons Act Cap 90 Laws of Kenya. Section 49 of the said Act provides for release of prisoners on parole in the following terms:

49. Release on parole

(1)Within three months of the date upon which a prisoner serving a sentence of or exceeding four years is due for release, the Commissioner may allow such prisoner to be absent from prison on parole for such length of time and upon such conditions as the Commissioner may specify.

(2)The Commissioner or an officer in charge may at any time recall a prisoner released on parole.

(3)Any prisoner who fails to return to prison in accordance with the conditions of his parole or when informed that he has been recalled under subsection (2) of this section may be arrested without warrant, and he shall be guilty of an offence and liable to the same punishment as if he had escaped from prison.

(4)A prisoner who, when released on parole, contravenes or fails to comply with the conditions imposed upon him shall be guilty of an offence and liable to imprisonment for a term not exceeding six months.

However, despite the above provision, release of prisoners on parole is not practiced in Kenya. This can be attributed to the fact that Kenya does not have a national parole board and parole regulations. This in itself hinders the implementation of the parole system. Consequently, there is need for reform in the correctional services in Kenya. Criminal laws need to be reviewed to incorporate rules on parole.

Therefore, Kenya should take steps towards the implementation of section 49 of the Prisons Act so as to ensure placement of prisoners on parole after they have served a certain period of their term of imprisonment. This will help in solving the problem of overcrowding in prison as it will facilitate proper structure in prisons.

This case is relevant to the Kenyan jurisprudence since upon implementation and practice of the parole system, it can be used by prisoners to challenge the rationality of a decision of the Commissioner General of Prisons rejecting to place them on parole where they consider his decision irrational. Also, the case provides useful guidance to the courts on the factors to be considered when determining whether to order the release of a prisoner on parole.





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