Oscar Pistorius and s 276(1)(i) placement on correctional supervision

March 23rd, 2016
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By Brenda Wardle

In S v Pistorius (GP) (unreported case no CC113/2013,12-9-2014) (Maspia J), Masipa J sentenced Oscar Pistorius to a five year imprisonment term pursuant to the provisions of s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (the CPA). This section, provides for an offender to be placed on correctional supervision, in the discretion of the Correctional Supervision and Parole Review Board (previously the Commissioner), on expiry of one sixth of the sentence.

The legislative prescripts, which kick in once an offender is admitted to the correctional centre, are those contained in the Correctional Services Act 111 of 1998 (CSA), as amended. The most important provisions are those contained in s 38 and these deal with the assessment of an offender as soon as possible after admission to the correctional centre. The assessment is based, among others, on the sentence which was imposed by the court.

Section 42 of the CSA flows from these provisions and regulates the case management committee. Of importance to this discussion is the sentence plan, which must be prepared by the case management committee. In this section there is specific reference to preliminary arrangements with community corrections on possible placement dates, conditions of placement, etcetera, but, one of the most important functions of this case management committee, is the making of a recommendation to the Correctional Supervision and Parole Board for possible placement.

Shortly prior to the placement of Pistorius on correctional supervision there was an intervention by the Minister of Justice and Correctional Services, in which the minister sought the review of the approved date of placement of Pistorius. The minister was of the opinion that the provisions of s 276(1)(i) of the CPA read with the relevant provisions of the CSA, had been misinterpreted and that the approved date of release was premature.

However, it was clear, as it continues to be, that the interpretation of the relevant sections, which came under the minister’s attack, were attacked erroneously. The case management committee and Correctional Supervision and Parole Board are enjoined by the CSA to consider possible placement long before the actual consideration – as in this case – the one sixth milestone is reached. This is the practice for all other releases and placements.

The Correctional Supervision and Parole Review Board considers placement in terms of s 75 of the CSA. Mr Manelisi Wolela, spokesperson for the Department of Correctional Services, reiterated at the time of the original approval, that a date for the placement of Pistorius had been approved and that the parents of the victim, in terms of the Victim’s Charter, had been invited to make representations to the Correctional Supervision and Parole Board. He also confirmed in an earlier statement that all processes had been followed and that finally, the stage was set for the placement of Pistorius on correctional supervision.

I disagreed with this stance as the Victim’s Charter in as far as s 299A of the CPA is concerned, is not applicable to the Pistorius matter. Be that as it may, the Correctional Supervision and Parole Board, were at liberty to take into consideration any factor they considered relevant, including input from the parents of the victim, albeit it could never be argued that such inputs were sought pursuant to s 299A of the CPA or even the Victim’s Charter.

The reasoning by the minister was, in my opinion, anomalous, if regard is had to ss 38 and 42 of the CSA, as well as the established practice at correctional services. The decision by the minister to refer the matter to the Correctional Supervision and Parole Review Board in terms of s 75(8) of the CSA, led to the suspension of the date of placement and thereafter this matter continued in a rapid, downward trajectory.

It became clear that Pistorius’s rights to just administrative action, including his right to have his legitimate expectations protected, his right to human dignity and freedom of the person, were violated. Besides, Pistorius was definitely not the first high profile offender or offender for that matter, to be sentenced in terms of this section but for the first time, the public saw someone sentenced in terms of this section being dealt with in a grossly unfair manner.

The first date announced for the sitting of the Correctional Supervision and Parole Review Board led to much anticipation that Pistorius might be released. However, that was not to be. Section 77 of the CSA deals with the powers of the Correctional Supervision and Parole Review Board and this section is clear that the review board can either confirm the decision of the Correctional Supervision and Parole Board or it can substitute that decision with its own. There is no provision in the CSA for the remittance of the matter back to the Correctional Supervision and Parole Board, as happened in this case.

In my opinion, therefore, the Correctional Supervision and Parole Review Board acted ultra vires of the provisions of the Act by remitting the matter back with a further condition for psychological intervention. Nothing, to my knowledge was even said about the correct interpretation of the Act or whether or not the decision had been taken prematurely, as the minister had argued on referral. It is trite that the review board is under a duty to consider or review the decision within the confines of the terms of reference or grounds on which it was referred. Contrary to media reports there was only Judge Lucy Mailula as chairperson so the reports that a ‘panel of judges’ had cancelled Pistorius’s placement on correctional supervision, were in fact, untrue.

Besides, s 75(8) states clearly that a decision of the Correctional Supervision and Parole Board is final and binding. That being said, it thus means that the parole board, once a decision has been made, becomes functus officio, meaning therefore, that it may not revisit an earlier decision made. The only instance where a matter can be remitted back to the Correctional Supervision and Parole Board, would be where a court is approached in terms of the Promotion of Administrative Justice Act 3 of 2000 and where such court, directs that the matter be remitted back to the board for a decision afresh.

There were widespread fears that other offenders who had been sentenced in terms of the same section would face the same delay in their releases but this was not to be. I had hoped that the review board would clarify when consideration ought to take place but not even that happened. So we have all to stick to the previous, and in my view correct, interpretation of the provisions of s 276(1)(i).

Something not previously considered the nemo iudex in sua causa (no one can be a judge in his own cause) rule. The Correctional Supervision and Parole Boards are appointed by the minister. The National Council is appointed by the minister. The Correctional Supervision and Parole Board is selected from among members of the National Council, and thus appointed by the minister. A decision of the Correctional Supervision and Parole Review Board is final except that the minister may refer any decision to the Correctional Supervision and Parole Review Board. This essentially means that the minister has full powers to interfere in the process at leisure and if a cautionary approach is not adopted this has the potential of leading to abuse of the process for ulterior purposes or even ulterior motives, affecting as it were, both the legislated independence of the Correctional Supervision and Parole Boards and by necessary implication the independence of the Correctional Supervision and Parole Review Board.

Pistorius was eventually released a day before the anniversary of the imposition of his sentence and prior to a rumoured application for judicial review by his legal representatives. We should, as South Africans, guard against violating the rights, especially of the most vulnerable members of society.­­

Brenda Wardle LLM (Unisa).

This article was first published in De Rebus in 2016 (April) DR 47.

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