Understanding imprisonment – an in-depth discussion

June 1st, 2016

Close-up of male feet in chains

By Dr Llewelyn Gray Curlewis

A lot of confusion erupted over the last couple of months regarding the issue of parole. Cases, such as that of Schabir Shaik, Oscar Pistorius, Clive Derby-Lewis and many others added to the debate and public scrutiny. The procedures and principles described infra suggests the law in a perfect world would be where no interference by, inter alia, politicians, is tolerated.

Section 276 of the Criminal Procedure Act 51 of 1977 (CPA) mentions the possible punishments for crimes available to South African courts. Imprisonment is one such type of punishment. Although imprisonment is probably the best-known form of punishment, there is a great deal of ignorance about it, even among lawyers and sentencing officers.

So what is imprisonment?

Imprisonment can be defined as the admission into a prison, and confinement of an offender in a prison for the duration determined by the court (or, in some instances, by statute). The prison authorities, however, also have a fairly wide discretion to determine the duration of detention. That discretion has since been limited by s 73 of the Correctional Services Act 111 of 1998.

Section 36 of the Correctional Services Act reads:

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

The cold reality is more difficult to comprehend. South African lawyers, as a rule, receive very little training in penology – ironic and unfortunate in a country with a shockingly high rate of imprisonment and overpopulated prisons. Michel Foucault discusses in Discipline and Punish: The Birth of the Prison (US: Penguin 1991) at 264 – 265 the institution of prisons as the big failure of penology. Sentencing officers can fruitfully study his censure, criticisms which have been raised against imprisonment since 1820 and which can today be repeated almost unchanged (see A Kruger Hiemstra’s Criminal Procedure (Durban: LexisNexis 2008) Issue 1 at 28 – 25).

Imprisonment has two forms, namely ‘ordinary’ (continuous) and periodical. Other distinctions refer to the term of detention, namely –

  • life imprisonment (which will be discussed below);
  • declaration as habitual criminal (see s 286 of the CPA); and
  • imprisonment from which the prisoner can be released to correctional supervision (see s 276A of the CPA).

It is important to understand what exactly ‘parole’ is and to consider the relevant legislation, in order to determine whether remarks made by many individuals regarding, for example, the powers vested in the Minister of Justice and Correctional Services, are sound.

The relevant legislation should always be the starting point. Obviously, this implies that any person dealing with such issues should take cognisance of the Correctional Services Act; the previous Correctional Services Act 8 of 1959 (with specific reference to ss 5C, 22A, 63, 54 and 65); relevant sections of the CPA; relevant delegations of authority; relevant policies of the Department of Correctional Services (especially those under reference 1/8/B or 1/8P) and also the relevant Chapters of the Orders of the Department of Correctional Services (ie, the B-Order and the After Care Order) (see CSPB Manual 2005 (at 6 para 3)). Only if considered in conjunction with each other and not in isolation, will it be possible to give sound advice.

It is also necessary to take note of the existence of the so-called ‘Correctional Supervision and Parole Board’, which is an independent body that has certain recommendation and decision-making competencies.

The primary task of the Board is directed at the responsible consideration and approval or disapproval of placement of offenders under correctional supervision; on day parole; parole; medical grounds; and the release of offenders on expiry of sentence.

The minister may establish Roving and Non-Roving Correctional Supervision and Parole Boards for one or more management areas. A Roving Board may serve one or more prisons and a Non-Roving Board has a permanent seat at a specific prison. Currently, there are 52 boards country-wide and these will be expanded further within the next few years.

The primary purpose of the correctional system is to enforce the sentences of the courts and as such sentences of imprisonment remain valid until they expire. This does not imply that an entire sentence of imprisonment must be served in the correctional centre. Part of the sentence may be served in the community under the supervision of officials of the Department of Correctional Services. Persons can also be placed under correctional supervision by the court as an alternative to imprisonment.

Statutory limits of imprisonment

Courts have the power to impose imprisonment for any common-law offence and for any statutory offence for which it is expressly prescribed (which includes virtually all offences). Theoretically a High Court can impose any term, but in practice 25 years is regarded as so long that it is only imposed in exceptional cases (R v Mzwakala 1957 (4) SA 273 (A) at 278E; S v Sibiya 1973 (2) SA 51 (A)). In regional courts a general limit of 15 years applies. This is increased by five years if the regional court is imposing sentence under the minimum-sentences legislation (proviso to s 51(2) of the Criminal Law Amendment Act 105 of 1997). The limit in district courts is three years, but there are several statutory exceptions. In some circumstances the regional courts’ sentencing jurisdiction are in sync with that of a superior court.

When the Minister of Correctional Services is satisfied that the prison population in general or at a particular prison is reaching such proportions that the safety, human dignity and physical care of the prisoners are being materially affected, the matter must be referred to the National Council. The National Council may recommend the advancement of the approved date for placement of any prisoner or group of prisoners under community corrections and the minister may act accordingly (s 81(1) and (2) of Correctional Services Act). In view of the overpopulation in South Africa’s prisons and of the fact that heavier sentences are imposed as a result of the introduction of minimum sentences, and that only a few additional prisons are being built, there is little doubt that the space problem is not going to improve soon (see Hiemstra, (op cit) at 28 – 29).

The reason for long-term imprisonment, namely to protect the community through the prolonged removal from the community of dangerous criminals (S v Cele 1991 (2) SACR 246 (A) at 248I), applies more to life imprisonment.

In S v Tcoeib 1996 (7) BCLR 996 (NmS) it was held that life imprisonment is not unconstitutional in Namibia. It still allows for hope on the possibility of release (S v De Kock 1997 (2) SACR 171 (T) at 211 F – G).

Before the abolition of the death penalty, life imprisonment was seldom imposed and almost never served to the end. Originally such a sentence was regarded as a 20 year sentence. The Correctional Services Act provides that a prisoner sentenced to life remains in prison for the rest of his or her life (s 73(1)(b) of the Correctional Services Act). A person sentenced to life may not be placed on parole until he or she has served at least 25 years of the sentence; but a prisoner may, on reaching the age of 65 years, be placed on parole if he or she has served at least 15 years of such sentence (s 73(6)(b)(iv)) of the Correctional Services Act). Peet M Bekker expresses the view that life imprisonment is not the most severe sentence (‘The maximum length of imprisonment by South African Courts: Life, dangerous criminal or 60 years?’ 2002 (15) SACJ 207 at 222) (see also Hiemstra (op cit) at 28 – 29).

Rule 60(2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners stipulates with regard to the bridging of offenders from correctional centers to the community that:

‘Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same institution or another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.’

The social reintegration of sentenced offenders can be regarded as the most challenging aspect of rehabilitation in effectively combating recidivism. It is also recognised that offenders are especially vulnerable at the beginning of the social reintegration process. It is said that the strategy to allow offenders to serve part of their sentences in the community is, therefore, a crucial mechanism to facilitate the bridging between the correctional centre and the community.

It is important to note that the provisions of the Correctional Services Act are only applicable on ‘new admissions’ as from 1 October 2004. Section 136 of the Correctional Services Act stipulates that all offenders in the system prior to the enactment of the Correctional Services Act must be dealt with in accordance with the release policy applicable before the enactment of the Correctional Services Act.

For this reason alone, the matters and cases mentioned op cit as examples, which confuses the public, cannot necessarily be compared to each other.

In the next article, which will be published in the July issue, I will attempt to explain and facilitate the basic functioning of the parole system, which purports in no way to be comprehensive or without fault.

Dr Llewelyn Gray Curlewis BLC LLB LLM (cum laude) (Unisa) LLD (UP) is an attorney at Pieterse & Curlewis Inc in Pretoria.

This article was first published in De Rebus in 2016 (June) DR 34.