Phaahla v Minister of Justice and Correctional Services and another (Tlhakanye Intervening) [2019] ZACC 18

Case CCT 44/18

Constitutional Court of South Africa

Mogoeng CJ; Basson, Dlodlo, Goliath, & Petse, AJJ; Cameron, Froneman, Khampepe, Mhlantla, & Theron, JJ

May 3, 2019

Reported by Faith Wanjiku & Moses Rotich

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Constitutional Law-fundamental rights and freedoms-protection from discrimination-equality before the law-whether a law that introduced harsher parole conditions for convicted persons based on the date of sentencing was discriminatory-Constitution of the Republic of South Africa,1996, section 9(1)&(3);Correctional Services Act, sections 73(6)(b)(iv) & 136(1); Parole and Correctional Supervision Amendment Act, section 276B

Constitutional Law-interpretation of the constitutional provisions-interpretative presumption of section 35(3)(n) of the Constitution-application of section 35(3)(n) to resolve ambiguities in sentencing legislations in favour of prospectivity rather than retrospectivity-the test to apply when interpreting legislations imposing retrospective punishment-Constitution of the Republic of South Africa,1996, section 35(3)(n)

Statutes-interpretation of statutory provisions- interpretation of sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act– length  and  form  of  sentences; transitional  provision-where the provisions of sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act were contested for being discriminatory against convicted persons based on the date of sentencing-what was the threshold for interpretation of sentencing legislation in view of the Constitution- whether sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act were discriminatory for introducing harsher parole conditions for convicted persons based on the date of sentencing rather than the date of commission of the offence- Constitution of the Republic of South Africa,1996, section 9(1)(3) & 35(3)(n);Correctional Services Act, sections 73(6)(b)(iv) & 136(1)

Constitutional Law– fundamental rights and freedoms – non-discrimination-guiding principles in cases of non-discrimination- what amounted to unfair discrimination-whether every aspect of differentiation amounted to discrimination-under what circumstances was differentiation considered permissible-whether sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act was discriminatory and accorded differential treatment to convicted persons in giving out parole conditions-Constitution of the Republic of South Africa,1996, section 9(1)(3) & 35(3)(n);Correctional Services Act, sections 73(6)(b)(iv) & 136(1)

Constitutional Law-fundamental rights and freedoms-right to fair trial-right to receive the least severe of the prescribed punishments-whether a legislation that increased parole eligibility period for convicted persons infringed on their right to fair hearing-Constitution of the Republic of South Africa, 1996, section 35(3)(n); Correctional Services Act, sections 73(6)(b)(iv) and 136(1); Criminal Procedure Act, section 276B

Criminal Law –parole vis-à-vis punishment- role and nature of parole-eligibility for parole-whether parole was a type of punishment-whether parole was a shared role between the Executive and the Judiciary- -whether parole was privilege not a right-Criminal Procedure Act, section 276; Correctional Services Act, sections 1, 51. 52(1)

Jurisdiction-jurisdiction of the Constitutional Court-confirmation by the Constitutional Court of a High Court order of constitutional invalidity- whether the Constitutional Court had the mandate to make the final decision as to the constitutionality of a Statute- Constitution of the Republic of South Africa, 1996, section 167(5)

Brief facts

The applicant was convicted on September 25, 2004. Before he could be sentenced, Chapter VI of the Correctional Services Act became operational on October 1, 2004, introducing a new parole release system. It provided that inmates sentenced to life imprisonment before October 1, 2004 were eligible for parole after serving twenty years in prison. Inmates sentenced to life imprisonment after October 1, 2004 had to serve a minimum of twenty-five years before they could be considered for release on parole. When the applicant was sentenced to life imprisonment on October 5, 2004, he had to serve a minimum of twenty-five years before he could be eligible for consideration for release on parole.

 Aggrieved, the applicant applied to the High Court challenging the constitutionality of sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act, 1998 for infringing on his right to the benefit of the least severe of the prescribed punishments and the right to equality in terms of sections 9 and 35(3)(n) of the Constitution of the Republic of South Africa,1996, (the Constitution).

The High Court found that section 35(3)(n) of the Constitution did not apply because non-eligibility for parole was not part of the punishment prescribed by a court, unless the court specifically imposed a non-parole period in terms of section 276B of the Criminal Procedure Act, 1977. However, the High Court found that the impugned sections amounted to a breach of the applicant’s right to equality in terms of section 9(1) and (3) of the Constitution because the use of the date of the sentence as a determining factor, rather than date of commission of the offence, was arbitrary and irrational, led to a retroactive application of the law, and amounted to unfair discrimination against the applicant and other inmates in his position. The Court held that to the extent the impugned sections imposed a stricter parole regime on the basis of date of sentencing, the sections were constitutionally invalid.

The applicant then filed the instant application for confirmation of the order of the High Court on grounds that the impugned sections breached his right to equal treatment and protection of the law in terms of section 9(1) of the Constitution, and right not to be discriminated against under section 9(3) of the Constitution. He urged the Court to find that the impugned sections breached his right to fair trial, specifically, his right to receive the least severe of the prescribed punishments.

Issues

1. What was the nature and role of parole in the criminal justice system and whether its imposition was a shared role between the three arms of government.
2.  Whether the rules that governed non-eligibility for parole were part of the rules that governed punishment in sentencing.
3. What was the test applicable to determine whether statutory provisions constituted unfair discrimination?
4. How was a trial court to apply section 35(3)(n) of the Constitution as an interpretive presumption when faced with a legislation that imposed potentially retrospective punishment?
5. Whether sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act, 1998 harshening parole conditions for convicted persons based on the date of sentencing rather than the date of commission of the offence were unconstitutional for;
   1. infringing the right to equal protection and benefit of the law under section 9(1) of the Constitution;
   2. unfairly discriminating against convicted persons in violation of section 9(3) of the Constitution; and,
   3.  contravening the right to fair trial guaranteed under section 35(3) of the Constitution.

Relevant Provisions of the Law

The Constitution of the Republic of South Africa, 1996

Section 9(1) & (3)

1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. …
3.  (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

Section 35(3)(n)

(3) “Every accused person has a right to a fair trial, which includes the right

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”

Correctional Services Act No 111 of 1998

Section 73(6)(b)(iv)

(b) A person who has been sentenced to-

(iv) life imprisonment, may not be placed on parole until he or she has served at least 25 years of the sentence but a prisoner on reaching the age of 65 years may be placed on parole if he or she has served at least 15 years of such sentence;

Section 136 (1)

“Any person serving a sentence immediately before the commencement of this Act will be subject to the provisions of the Correctional Services Act, 1959 (Act No. 8 of 1959), relating to his or her placement under community corrections but the Minister may make such regulations as are necessary to achieve a uniform policy framework to deal with prisoners who were sentenced immediately before the commencement of this Act, and no prisoner may be prejudiced by such regulations.”

Criminal Procedure Act, 1977

Section 276B (1)

(a) If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of the sentence, fix a period during which the person shall not be placed on parole.

(b) Such period shall be referred to as the non-parole period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.

Held

1. Section 167(5) of the Constitution mandated the Constitutional Court to make the final decision as to the constitutionality of an Act of Parliament; and, any other order of constitutional invalidity by the High Court had to be confirmed by the Constitutional Court before that order could have any force. The Court’s jurisdiction was properly engaged.
2. The applicant applied for confirmation of the High Court’s declaration of invalidity outside of the time period required by rule 16(4) of Rules of the Constitutional Court (the Rules). The applicant’s explanation was that the respondents’ application for leave to appeal to the Supreme Court of Appeal resulted in confusion as to the relevant requirements. The applicant was an inmate and the explanation was credible. Condonation was granted.
3. Applications to intervene as a party to proceedings was governed by rule 8(1) of the Rules and the overriding consideration was whether it was in the interests of justice to allow a party to intervene. The intervening party demonstrated that he had a direct and substantial interest in the outcome of the instant matter and he applied for leave to intervene timeously. It was therefore in the interests of justice to admit him as an intervening party.
4. The respondents sought to introduce new facts not in the record in terms of rule 31 of the Rules on the basis that they were common cause or incontrovertible, of an official or statistical nature capable of easy verification, and relevant to the formulation of a just and equitable order. The evidence sought to be introduced pertained to the respondents’ computer system, which managed the data on correctional centre inmates.
5. The threshold that had to be met for a rule 31 application to be successful was that the tendered evidence was relevant to the issues before the Court; and the facts sought to be adduced either had to be common cause or incontrovertible, or they had to be official, scientific, technical or statistical in nature and easily verifiable. The proffered evidence was capable of verification but was not of great relevance to the issues before court. It was in the interests of fairness for the party tendering the application late to provide an explanation for lateness. The respondents failed to account for the lateness. In light of the circumstances of the applicant and the intervening party, both of whom were incarcerated and the latter, self-represented, as well as the fact that the respondents had the opportunity to introduce the evidence at any point, including during proceedings in the High Court, the prejudice to the applicant and intervening party warranted a dismissal of the rule 31 application.
6. A question that arose was whether the rules that governed non-eligibility for parole were part of the rules that governed punishment. For if they did not, there would be no basis on which the impugned provisions could be found to infringe on either the right to equality or the right to fair trial. If the impugned sections, which had the effect of lengthening or shortening a term of imprisonment, were not found to result in inmates receiving different punishments for the same offences, then there would be no basis on which to find that there was differentiation or discrimination that would trigger section 9 of the Constitution, or that the applicant’s right under section 35(3)(n) of the Constitution had been infringed.
7. Punishment was difficult to define; its definition was often determined by reference to the different measures taken to punish law-breakers. Section 276 of the Criminal Procedure Act set out the different types of sentences that could be meted out by courts to a person convicted of an offence. It included; imprisonment, including life imprisonment; correctional supervision; and imprisonment from which a person could be placed under correctional supervision in the discretion of parole and correctional supervision boards. Significantly, correctional supervision was among the types of punishments listed therein. Parole and correctional supervision were substantively identical. Correctional supervision was defined by section 1 of the Criminal Procedure Act as a community-based sentence to which a person was subject in accordance with Chapters V and VI of the Correctional Services Act.
8. Section 1 of the Correctional Services Act defined community corrections as all non-custodial measures and forms of supervision applicable to persons who were subject to such measures and supervision in the community and who were under the control of the Department of Correctional Services (the Department). That had to include parole, which was a non-custodial measure and form of supervision in the community, indicating that parole was in fact a kind of punishment. Parole itself was defined by the Correctional Services Act as a “form of community corrections contemplated in Chapter VI”. The purpose of community corrections was set out in section 50 of the Correctional Services Act; to enable persons subjected to community corrections to lead a socially responsible and crime-free life during and after the period of their sentence, and to ensure they abide by the conditions imposed upon them in order to protect the community from offences which such persons may commit. The description surely applied equally to parole and correctional supervision.
9.  Section 51 of the Correctional Services Act then listed the different types of community corrections governed by Chapter VI, among which were correctional supervision and parole. Section 52(1) of the 1998 Act empowered a parole board granting parole and a court sentencing someone to correctional supervision to impose the same conditions for each, again indicating that the two were not substantively distinct.
10.  Correctional supervision was a class of punishment, and so the rules prescribing correctional supervision prescribed a form of punishment. Parole was defined in substantively the same way, served the same purpose, and was governed by the same rules as correctional supervision. In substance, therefore, the two were identical and parole, like correctional supervision, had to be a type of punishment.
11.  It could be argued that parole was a privilege, not a right, and was merely a mitigation of the prescribed punishment of imprisonment, not a prescribed punishment in itself. It was simply a way of serving out one’s sentence in an environment other than a prison. On that reasoning, the rules prescribing parole eligibility did not amount to a prescribed punishment. However, parole was still a manner of serving out one’s sentence. It was therefore still a punishment although a lesser one than imprisonment. It still amounted to a deprivation of liberty for a set period, albeit outside of prison. Parolees remained subject to the supervision and authority of the Department for the remainder of their sentence. That it mitigated a sentence of imprisonment did not detract from that.
12.  The respondent also argued that parole was determined by the Executive, and it was therefore not part of the sentence, as sentencing took place in court and was undertaken by the Judiciary. On that reasoning, to consider parole as part of the punishment would create a tension between the executive and the judicial functions and allow the Executive to encroach upon the Judiciary. Previous Supreme Court of Appeal decisions touching on the issue whether a trial court’s imposition of a non-parole period encroached on the domain of the Executive have held that a recommendation of a non-parole period was an undesirable incursion into the domain of another arm of State.
13.  Before the promulgation of section 276B of the Criminal Procedure Act, the imposition of a non-parole period amounted to an encroachment of the functions of the Executive by the Judiciary. However, that was distinct from an automatic eligibility criterion established by legislation that, exceptional circumstances aside, would take effect through ordinary effluxion of time and had little or nothing to do with sentencing by a court.
14.  Section 35(3)(n) of the Constitution distinguished between sentence and punishment, indicating that in the eyes of the drafters, the two were distinct concepts. A sentence was a measure of punishment, but it was not the punishment itself; it was the decision, usually but not necessarily of a court, as to which punishment should be imposed. Sentencing was conducted by a court, which had to choose from the options provided to it by the Legislature and did not have the prerogative to decide precisely how and where that punishment would be carried out. Courts had to apply the appropriate punishment established by statute or the common law. However, when sentencing a person to imprisonment, the function of the sentencing court was to determine the maximum term of imprisonment a convicted person might serve. The court had no control over the minimum or actual period served or to be served.
15.  That the courts prescribed imprisonment as a punishment, or indeed any other penalty, did not mean that any material change in conditions that happened subsequent to the sentence was not a class of punishment. Of course, an inmate might move from a maximum-security centre to a medium security centre, or gain or lose privileges, but such conditions were the result of decisions taken in the administration of imprisonment, a type of punishment. Parole was a different class to security levels or privileges. It was a non-custodial punishment served in the community. It was a distinct form of punishment from that of imprisonment.
16.  Like parole, correctional supervision was implemented by the Executive in terms of section 276(1)(i) of the Criminal Procedure Act, which categorized it as a form of punishment; “imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board”. That was no different from a sentence of imprisonment during which almost every person would become eligible to apply for parole after serving their non-parole period and would be granted such parole subject to the discretion of the parole and correctional supervision board.
17.  The rules governing the length of the period to be served in prison before an inmate became eligible for parole were statutory and functioned automatically. They determined when inmates might apply for parole. Those rules determined not whether someone should be released, but when they would have their first opportunity to apply for release on parole. The effect of those rules was to lengthen or shorten a term of imprisonment, which was a type of punishment. Importantly, those rules were distinct from the application of parole policies and criteria by correctional service administrators in determining whether a parole application would be successful.
18.  The right to fair trial was one that embraced the concept of substantive fairness. Constitutional rights conferred without express limitation ought not to be cut down by reading implicit restrictions into them. The right to fair trial conferred by section 25(3) of the Interim Constitution of South Africa was broader than the list of specific rights set out in paragraphs (a) to (j) of the subsection. It embraced a concept of substantive fairness, which was not to be equated with what might have passed muster in the criminal courts before the interim Constitution came into force. Thus, even if on a narrow and technical analysis punishment were to exclude parole, section 35(3)(n) of the Constitution had to broadly interpreted so as to consider at the very least the legislated pre-conditions for parole eligibility to fall within the ambit of “prescribed punishment”.
19.  Having found that parole was part of the punishment, it meant that people who committed similar offences at the same time could, depending on elements of the criminal justice system beyond their control, receive punishments that differed vastly in severity. The applicant himself, had he been sentenced one week earlier, would have spent only 20 years in prison before becoming eligible for parole. However, because of a delay of a few days, he had to spend an additional five years deprived of his liberty. That different treatment immediately implicated the right to equality necessitating the determination on whether the different treatment of sentenced inmates contravened either section 9(1) or 9(3) of the Constitution. It also triggered the right to receive the least severe of the prescribed punishments in terms of section 35(3)(n) of the Constitution.
20.  The High Court held that the impugned sections contravened section 9(1) and (3) of the Constitution. However, it did not substantiate its finding in respect of the latter. Section 9(1) required all persons in a similar position to be afforded the same right(s). It was a well-established principle in law that where an impugned provision differentiated between categories of people, it had to bear a rational connection to a legitimate government purpose; otherwise, the differentiation was in violation of section 9(1) of the Constitution.
21.  The test used to determine whether statutory provisions amounted to unequal treatment by the law or constituted unfair discrimination was that the first enquiry had to be directed to the question as to whether the impugned provision differentiated between people or categories of people. If it did differentiate, then in order to fall foul of section 9(1), there had to be a rational connection between differentiation in question and the legitimate governmental purpose it was designed to further or achieve. If it was justified in that way, then it did not amount to a breach of section 9(1) of the Constitution. If the impugned provision did differentiate, it became necessary to consider the governmental purpose of the section, whether the differentiation did have a rational connection to that purpose.
22.  Having established that the impugned sections had the effect of retroactively imposing different punishments for the same offence based on date of sentencing, the question then became whether the differentiation connected to a legitimate government purpose. Concerning mere differentiation, a constitutional State was expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest naked preferences that served no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of a constitutional State. The purpose of that aspect of equality was, therefore, to ensure that the State was bound to function in a rational manner. That had been said to promote the need for governmental action to relate to a defensible vision of the public good, as well as to enhance the coherence and integrity of legislation. Before it could be said that mere differentiation infringed the constitutional right to equality and freedom from discrimination, it had to be established that there was no rational relationship between the differentiation in question and the governmental purpose which was proffered to validate it.
23.  When conducting a rational enquiry, the court had to focus only on whether the differentiation was arbitrary or not rationally connected to a legitimate government purpose. It was not for the court to decide if there was a better means to achieve the object of differentiation. When considering whether there was a rational link to the achievement of a legitimate government purpose, the question was not whether the government could have achieved its purpose in a manner the court felt was better, or more effective, or more closely connected to that purpose. The question was whether the means the government chose was rationally connected to the purpose, as opposed to being arbitrary or capricious.
24.  A provision or statute that differentiated between people without a legitimate government purpose would be irrational and unconstitutional due to its inconsistency with section 9(1) of the Constitution. The respondents submitted that section 136(1) was intended to avoid the retrospective application of a change in parole policy by preserving the existing policy for inmates sentenced before October 1, 2004. Stated differently, the purpose in differentiating was to protect a group of people from retroactive application of the law. However, the differentiation served to leave another group of people vulnerable to retroactive application of the law that affected them in a way that was prejudicial. One of the tenets of the principle of legality enshrined by section 1(c) of the Constitution was non-retroactivity of the law. Every person deserved protection from retroactivity of the law where the result of the retroactivity would be prejudicial. To afford protection from retroactivity only to one group and not to another therefore could not be a legitimate purpose.
25.  It could not have escaped the government’s attention that by extending that protection only to a group sentenced before October 1, 2004, the group sentenced after October 1, 2004 would be left exposed. It was a patently obvious consequence of the impugned provisions.
26.  In the context of correctional law, deprivation of liberty might occur in the retroactive application of a change in parole policy, as was the case in the instant matter. Deprivation of a person’s liberty in that manner did not conform to the principles of the rule of law. It offended the foundational values of constitutional supremacy and the rule of law, which the court should not countenance.
27.  That was not to say that any law that applied retroactively would be arbitrary or irrational per se. Even section 35(3)(n) of the Constitution contemplated circumstances in which the retroactive application of the law would be acceptable; where the punishment for an offence was changed between the commission of an offence and date of sentence, the least severe punishment should apply. That clearly indicated that where the retroactive application of the law would not prejudice an accused, it was possible that it would be constitutionally permissible. However, it could never be a legitimate government purpose to differentiate between two groups of people in order to protect only one of them from the prejudicial retroactive application of the law. To say that it could be a legitimate government purpose was to say that a purpose at odds with the rule of law was legitimate. For that reason, the government’s purpose in differentiating between inmates on the basis of their date of sentence was not legitimate and failed the test for section 9(1) of the Constitution. Thus, the impugned provisions were invalid for violating section 9(1) of the Constitution.
28.   In differentiating between people based on the date of their sentencing, the transitional arrangements discriminated on the basis of their status as convicted persons. Although not a listed ground, their status was an attribute or characteristic that undoubtedly had the potential to impair the fundamental dignity of those persons as human beings, or to affect them adversely in a comparably serious manner. The impact of that differentiation was unfair, as it subjected a group of people to a more severe parole regime than those who happened to be sentenced earlier. That limitation of the right to equality could not be justified under section 36 of the Constitution.
29.  Even if the purpose of the impugned sections was legitimate, the reasons provided by the respondents would not have justified their discriminatory impact; there were other less restrictive means to ensure legal certainty and effective implementation of the new parole regime. Failure to use those lesser means rendered the differentiation unfair. Section 136(1) of the Correctional Services Act would thus have been found to discriminate unfairly between people who were sentenced before October 1, 2004 and people who were sentenced after October 1, 2004 for all offences committed before that date. The impugned provisions therefore had to be declared constitutionally invalid insofar as they denied equal protection of the law on the basis of date of sentencing. That was in itself sufficient for holding the section constitutionally invalid.
30.   The Trial Court decided against the applicant on the question of whether the impugned sections breached his right to fair trial. Having found that parole was a kind of punishment and that the rules for parole eligibility lengthen or shorten the minimum period of imprisonment, then the right to receive the least severe of the prescribed punishments in terms of section 35(3)(n) of the Constitution was implicated. Section 35(3)(n) was a component of the right to a fair trial guaranteed by section 35(3) of the Constitution. The Constitution classified the rights listed in section 35(3) as non-derogable. The basic requirement that a trial had to be fair was central to any civilized criminal justice system. It was essential in a society which recognized the rights to human dignity and to the freedom and security of the person, and was based on values such as the advancement of human rights and freedoms, the rule of law, democracy and openness.  Fair trial rights protected by section 35(3) of the Constitutional embraced a concept of substantive fairness.
31.  Section 35(3)(n) of the Constitution incorporated the fundamental principle of legality expressed through the maxim nulla poena sine lege (no punishment without law). That required that punishment be governed by rules which comply with the principle of legality, including prospectivity, as an aspect of the rule of law. The rule of law embraced some internal qualities of all public law: that it should be certain, ascertainable in advance so as to be predictable and not retrospective in its operation; and be applied equally, without unjustifiable differentiation. Section 35(3)(n) of the Constitution protected an accused person against the retrospective application of increased prescribed punishment. That was because section 35(3)(n) ensured that a more severe punishment than what was prescribed for an offence at the time an accused committed the offence was not meted out to that accused.
32.  At a criminal trial, section 35(3)(n) of the Constitution would usually fulfill an interpretive function. As an interpretive presumption, section 35(3)(n) had been applied to resolve ambiguities in sentencing legislation in favour of prospectivity rather than retrospectivity. There was a strong presumption against the retrospective operation of a statute. Generally, a statute would be construed as operating prospectively only unless the Legislature had expressed a contrary intention.
33.  Unlike previously decided cases which had dealt with the potential retrospectivity of sentencing legislation, the instant matter bore out the limits of the interpretive function of section 35(3)(n) of the Constitution. That was because there was no ambiguity in section 136(1) of the Correctional Services Act in respect of its retrospective operation to an accused in the applicant’s position – it clearly envisaged that the new parole regime would apply to accused persons who were sentenced after October 1, 2004. It thus retrospectively changed the conditions for parole eligibility which governed inmates’ imprisonment. There were no other legislative provisions that allowed the trial judge to exercise any power over the legislatively imposed parole regime. It was essentially for that reason that the Trial Court held that section 35(3)(n) of the Constitution was not of any help in the inquiry into the constitutional validity of section 136(1) of the Correctional Services Act.
34.  Given the functions of section 35(3)(n) of the Constitution as an interpretive presumption, it was useful to set out briefly how a trial court ought to apply it when faced with legislation that imposed potentially retrospective punishment. A trial judge should first consider whether the sentencing legislation could be read down before entertaining a challenge to its constitutionality. A trial judge should:
    1. consider whether the sentencing legislation could be read down before entertaining a challenge to its constitutionality. The constitution required that judicial officers to read legislation, where possible, in ways which gave effect to its fundamental values;
    2. when the constitutionality of legislation was in issue, they should examine the objects and purport of that Act and to read the its provisions, so far as was possible, in conformity with the Constitution; and,
    3. if such provisions, properly construed, compelled the presiding officer (judicial or otherwise) to act or apply such provisions in a way which would infringe any of the accused’s constitutional rights, then the constitutionality of such provisions would properly be in issue.
35.  In short, section 35(3)(n) of the Constitution should first serve as an interpretive presumption that aided reading down sentencing legislation in conformity with the Constitution. If there was no ambiguity, however, and the express intention of the legislation was to prescribe a more severe punishment retrospectively, then the constitutionality of that legislation would be at issue.
36.  The principle of legality was closely related to the requirements of equality before the law and equal protection of the law contained in section 9(1) of the Constitution. There was thus an intersection between section 9(1) and section 35(3)(n) of the Constitution that illustrated the interdependence of rights in the Bill of Rights. Indirectly, section 35(3)(n) also ensured that accused persons who committed the same offences on the same date, but were convicted and sentenced on different dates, receive equal treatment under the law, reflecting the guarantee in section 9(1) of the Constitution. If two people committed offences at the same time, then, all other things being equal, they had to receive the same punishment, notwithstanding an amendment to the prescribed punishment between commission of offence and sentencing. One could not benefit from a lesser punishment or suffer from a harsher punishment, while the other was treated conversely. In that sense, section 35(3)(n) was linked to section 9(1) of the Constitution. Section 9(1) gave everyone the right not to be differentiated from others irrationally.
37.  To mete out two different punishments to two accused persons who committed substantially identical offences at a time when a single punishment was prescribed for that offence would be irrational differentiation. The differentiation would invariably amount to the retroactive application of criminal laws; a palpably illegitimate purpose that undermined fundamental tenets of criminal law. One of the functions of section 35(3)(n) of the Constitution was to give effect to equality before the law and the principle of non-retrospectivity. The instant Court had acknowledged on various occasions the intersection between different rights in the Bill of Rights. The instant matter was one of those intersections.
38.  That did not mean that the prohibition against retrospectivity in punishment required any comparison between two groups of accused persons. The retrospective application of a prescribed punishment might conceivably treat all prisoners equally, but in retrospectively prescribing punishment it would still fall foul of section 35(3)(n) of the Constitution. The prohibition against retrospectivity in punishment intersected with the guarantee of equality before the law but did not require unequal treatment to be engaged.
39.  It was important to appreciate the self-standing pedigree of section 35(3)(n) of the Constitution because of the various meanings and applications that it held as the constitutional embodiment of nulla poena sine lege (no punishment without law);
    1.  As an expression of legality, section 35(3)(n) prohibited punishment that had not been clearly set in statute or common law, thus demonstrating how nulla poena sine lege (no punishment without law) was inextricably intertwined with nulla criminen sine lege (no crime without law).
    2. As an interpretative presumption, section 35(3)(n) had been applied to resolve ambiguities in sentencing legislation in favour of prospectivity rather than retrospectivity.
    3. As a substantive rights guarantee, however, section 35(3)(n) created a prohibition against the retrospective application of punishment that was more severe than the prescribed punishment applicable at the time the offence was committed.
40. That interpretive function did not detract from the self-standing pedigree of section 35(3)(n) as a substantive rights guarantee. In pre-constitutional South Africa, the notion of retrospectivity served no more than as a tool of interpretation; laws were presumed not to have been meant to operate retrospectively. Nothing stood in the way of Parliament (in accordance with the principles of Parliamentary supremacy, which the country was subject to) to enact laws that operated retrospectively. Converting a general principle of interpretation into a fundamental right signified the intrinsic worth the framers of the Constitution saw in not having laws that operated retrospectively.
41.  The conceptualization of section 35(3)(n) of the Constitution as a substantive rights guarantee was supported by the substantive fairness which was embraced by the comprehensive and integrated right to a fair trial. The instant Court had emphasized on many occasions that the discrete sub-rights under section 35(3) were the hallmarks or specified elements of a fair trial, but that list was by no means exhaustive, with the residual right to a fair trial being casuistically developed through a substantive rather than formal or textual approach in the constitutional jurisprudence. There could be more than one way for the legislature to devise a system of criminal procedure, which effectively could secure the norm of a fair trial prescribed by section 35(3) of the Constitution. Nevertheless, the question to be determined in each case was whether the criminal procedure scheme, or the relevant part thereof, devised by the legislature, whatever its form, conformed in substance to that norm. That was the ultimate question in assessing whether the legislative framework of a sentencing system was constitutionally valid.
42.  All three branches of government contributed to the prescription and implementation of punishment in the criminal justice system, but the constitutional norms of section 35(3) of the Constitution enjoyed supreme authority. Parliament had legitimate interest to prescribe punishments, but the Legislature could not oblige the courts to enforce a sentence that violated section 35(3) of the Constitution or any other fundamental rights. No judicial punishment could take place unless the person to be punished had been convicted of an offence which under either the common law or statute carried with it a punishment. It was pre-eminently the function of the legislature to determine what conduct should be criminalized and punished. That function of the legislature was checked by the Constitution in general and by the Bill of Rights in particular, and such checks were enforced through the courts.
43.   Thus even if the usual interpretive function of section 35(3)(n) of the Constitution could not assist directly in the sentencing process, as an independent substantive rights guarantee it nevertheless could serve as an important check on sentencing legislation. That ensured that it did not retrospectively impose more severe punishments on un-sentenced accused persons than those to which they would have been subject at the time they committed the offence. Having found that the rules lengthening parole non-eligibility periods resulted in an increase of the severity of imprisonment, it meant the impugned provisions had the effect of imposing a more severe punishment. They were thus also in contravention of section 35(3)(n) of the Constitution.
44.   With regard to which date was relevant to determine eligibility for parole, the date of conviction would face similar obstacles as those encountered when using the date of sentencing. Two accused persons could commit the same offence on the same day, be arrested on the same day and still be convicted on different dates. The result would be that the two accused persons would not be treated equally by the law. An accused person had no control over the length of a criminal trial or frequent delays in the criminal justice process. Punishment, and parole eligibility, should be determined by the date of commission of the offence.
45.  The respondents referred to two decisions; Makaba v Minister of Correctional Services [2012] ZAFSHC 157 and Broodryk v Minister of Correctional Services [2014] (1) SACR 471 (GJ). The two decisions ran counter to the instant determination, and to the extent that they did, they were to be considered overruled.

Per Froneman, J (partly concurring)

46.  Sections 73(6)(b)(iv) and 136(1) of the Correctional Services Act were constitutionally invalid for infringing, separately and independently, section 9(3) and the substantive rights guaranteed in section 35(3)(n) of the Constitution as found by the majority judgment. However, the impugned provisions did not infringe section 9(1) of the Constitution.
47.  The majority judgment held that it could never be a legitimate government purpose to differentiate between two groups of people in order to protect only one of them from the prejudicial retroactive application of the law. Further, that to say that it could be a legitimate government purpose was to say that a purpose at odds with the rule of law was legitimate. For that reason, the majority judgment found that the government’s purpose in differentiating between inmates based on their date of sentence was not legitimate and failed the test for section 9(1) of the Constitution.
48.  However, that was not what the Department stated as its purpose. The Department explained how the amendments balanced a range of competing considerations in crafting transitional arrangements that would avoid the retrospective application of a new parole regime to inmates sentenced before October 1, 2004. In choosing to rely on the date of sentencing as the operative date for the new parole regime, the Legislature simultaneously sought to avoid retroactive application of the new parole eligibility regime and to strive for practicable and efficient implementation. In the context of the criminal justice system, it was legitimate, even laudable, for the Legislature to strive towards a legislative framework that was clear and easy for the many moving parts of the system to implement efficiently and consistently.
49.  In addition, the further three substantive examples proffered by the Department illustrated its rationale for tying the parole changes to the date of sentencing. The respondents’ first two examples of continuing crimes and multiple offences, demonstrated how the date of sentencing provided legal certainty and clarity for determining the applicable parole regime which could extend on both sides of the operative date. The Department argued that confusion would ensue in these very common types of cases if the date of commission of the offence were to be used as the determining factor. The third example pointed to how prolonged delays in sentencing could result in difficulties where the implementation mechanisms of the old parole regime were no longer operational.
50.  The department did not articulate its purpose as being to undermine the rule of law or to retroactively make people suffer longer sentences. The Department’s proffered purpose 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. Accepting the Department’s stated purpose required no reading-in or generosity in interpretation. To the contrary, it was both the most natural and the most logical understanding of the legislative intent in the instant case.
51.  It was tempting to reformulate that purpose with a broader perspective, as the majority judgment did, but it was a temptation that should be resisted. Although section 9(1) of the Constitution required that the purpose and scheme be examined in proper context, it did not require an analysis of the impact of the impugned action or of the policy choices made. It merely required the government to have a defensible purpose, together with reasons for its actions that bore a rational relationship to the stated purpose and that had been done.

Application allowed; costs to the applicant and the intervening party.

Orders

1. Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act 111 of 1998 declared inconsistent with section 9(1)&(3) and section 35(3)(n) of the Constitution.
2. Parliament given twenty-four months from the date of the order, to amend section 136(1) of the Correctional Services Act to apply parole regimes on the basis of date of commission of an offence, pending which the section should read:

“Any person serving a sentence of incarceration for an offence committed before the commencement of Chapters 4, 6 and 7 of the Correctional Services Act is subject to the provisions of the Correctional Services Act 8 of 1959, relating to his or her placement under community corrections, and is to be considered for such release and placement by the Correctional Supervision and Parole Board in terms of the policy and guidelines applied by the former Parole Boards prior to the commencement of those chapters.”

Relevance to Kenya’s Legal System

The Constitution of Kenya, 2010 guarantees the right fair trial under article 25. It is a right that cannot be limited. Article 50 entrenches the right to fair hearing while article 27 entitles every person the right to equality and freedom from discrimination. Article 50(2)(p) of the Constitution entitles every accused person the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. These provisions are similar, both in form and substance, to South Africa’s Constitutional provisions of sections 9(1)&(3) and 35(3).

Kenya, unlike South Africa, does not have a comprehensive framework on parole with only section 49 of the Prisons Act giving the Commissioner of Prisons the discretionary mandate to release prisoners on parole after serving a minimum of three months upon fulfilling certain conditions that the Commissioner may prescribe. The Prisons Act under section 46 also provide for remission of sentences for prisoners sentenced to a period exceeding one month. However, under section 46(1)(ii), remission was prohibited for prisoners serving life sentences and those who were sentenced under section 296(1) of the Penal Code. Section 46(1)(ii) has since been declared unconstitutional by the High Court in Jared Ochieng Jura v Republic [2019] eKLR for infringing the right to fair trial and equality of prisoners protected under article 50(2)(p).

In 2017, the Supreme Court, Francis Karioko Muruatetu & another v Republic [2017] eKLR, declared mandatory death penalty unconstitutional. It then recommended to the Attorney General to, inter alia, develop a law on the definition of what a life sentence means, which may include a minimum number of years to be served before a prisoner is considered for parole, or for prisoners under specific circumstances to serve whole life sentences. The Task Force set up by the Attorney General released its recommendations on October 3, 2018.

The Task Force proposed retaining the current provision of remission for offenders serving a term of imprisonment that is less than three years, and introducing a new system of parole (replacing remission) for offenders serving a sentence of three years or more, including a life sentence. It also proposed a definition of parole and recommended eligibility for parole should not be made automatic but rather should depend on circumstances of each case guided by set parameters. Further, it suggested that the Penal Code and Kenya Defence Forces Act be amended to categorize offences which attract the death penalty or life imprisonment with defined periods of ineligibility for parole. If the recommendations were to be adopted as they are, there would be convicts who will not be eligible for parole while others will be eligible for parole after serving 16 years, 20 years, 25 years, and others only two-thirds of their sentences.

This South African decision defines parole as a kind of punishment linking it to the right to fair trial. It will be instrumental in avoiding the pitfalls and challenges associated with transitioning to a new parole regime such as those experienced by South Africa. It offers a good guide to developing and implementing a parole release system which does not discriminate amongst convicted persons in any unlawful way and one that strictly conforms to the Constitution, specifically articles 25, 27, and 50.

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