Understanding parole – an in-depth discussion continued

July 22nd, 2016
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A prison corridor with open cell door and open prison gate

By Dr Llewelyn Gray Curlewis

This article is an attempt to explain and facilitate the basic functioning of the parole system and purports in no way to be comprehensive or without fault.

Any person serving any sentence in a correctional centre and who, based on the written evidence of more than one medical practitioner – of which one must be a specialist treating such person – is diagnosed as being in the final phase of any terminal disease or condition may be considered for placement under correctional supervision or on parole, by the Commissioner of the Correctional Supervision Parole Board or the court, as the case may be, to die a consolatory and dignified death.

Placement of medical grounds is always based on set conditions and such an offender is subjected to strict conditions and monitoring until the sentence expires. These conditions must be accepted by the offender before he or she can be placed on medical parole grounds.

As mentioned supra, the court also has a role to play in respect of offenders serving life sentences.

Having considered the record of proceeding of the Correctional Supervision and Parole Board and its recommendations in the case of an offender sentenced to life imprisonment, the court may, subject to the provisions of s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998 (the Act), grant parole or day parole or prescribe the conditions of community corrections in terms of s 52.

Where the court refuses or withdraws parole or day parole the matter must be reconsidered by the court within two years.

Parolees or probationers are subjected to certain parole or supervision conditions throughout their parole or supervision period, in terms of s 52. The parolee or probationer should accept the conditions before placement. These conditions are stipulated in s 52 of the Act, and, inter alia, include –

  • placement in house detention;
  • performing community service;
  • seeking employment;
  • taking up and remains in employment;
  • paying compensation or damages to victims;
  • taking part in treatment, development and support programs;
  • participating in mediation between victim and offender or family group conferencing;
  • contributing financially towards the cost of community corrections to which he or she has been subjected;
  • being restricted to one or more magisterial districts;
  • living at a fixed address;
  • refraining from using or abusing alcohol or drugs;
  • refraining from committing a criminal offence;
  • refraining from visiting a particular place;
  • refraining from making contact with a particular person or persons;
  • refraining from threatening a particular person or persons by work or action;
  • being subject to monitoring; and
  • in the case of a child, being subject to the additional conditions as contained in s 69.

On placement on parole, every parolee is integrated into the parole supervision system where he or she is subject to certain supervisory measures until the expiration of his or her total sentence. A ‘Supervision Committee’ in terms of s 58 of the Act is responsible to oversee and review such measures from time to time.

If a person subjected to community corrections, has failed to comply with any aspect of the conditions imposed on him or her, the Commissioner of Correctional Services may, in terms of the Act, and depending on the nature and seriousness of such non-compliance:

  • Reprimand the person.
  • Instruct the person to appear before the court, or Correctional Supervision and Parole Board or other body which imposed the community corrections.
  • Issue a warrant for the arrest of such person.
  • Must – if he or she is satisfied that the person has a valid excuse for not complying with any such condition or duty – instruct that the community corrections be resumed subject to the same conditions or duties applicable to that person.

The parole or the correctional supervision of the parolee or probationer who did not comply with the conditions may be revoked and the offender may be detained in the correctional centre to serve the unexpired portion of the sentence.

The Parole Board makes the final decisions but there are instances where the minister or the commissioner may refer the matter to the Correctional Supervision and Parole Review Board (the Review Board) for reconsideration. In such cases, the record of the proceedings before the Parole Board must be submitted to the Review Board.

The members of the Review Board are selected from the National Council and consists of –

  • a judge as a chairperson;
  • a director or a deputy director of Public Prosecutions;
  • a member of the Department of Correctional Services;
  • a person with special knowledge of the correctional system; and
  • two representatives of the public.

On consideration of a record submitted in terms of s 75 of the Act and any submission which the minister or commissioner may wish to place before the Review Board, as well as such other evidence or argument as is allowed, the Review Board must –

  • confirm the decision; or
  • substitute its own decision and make any other order, which the Correctional Supervision and Parole Board ought to have made.

The Review Board must give reasons for its decision, which are to be made available to the minister, commissioner, the offender and the Correctional Supervision and Parole Board concerned in a specific matter and all other Correctional Supervision and Parole Boards for their information and guidance.

It is important to note that, unlike with Parole Boards, the offender does not have access to the Review Boards.

Another issue, which seems to further complicate the parole debate in the media and between so-called ‘legal experts’, involve the capturing of different types of dates for placement consideration.

After a sentenced offender with a determinate sentence has been admitted, dates must be calculated, entered on the warrant and captured on computer. These dates are of importance, as it is an indication for the Case Management Committee and the Parole Board when an offender can be considered for possible placement.

Dates Description
Maximum release date. This is the date on which the imposed determinate effective sentence expires before amnesty or special remission of sentence is deducted.
Sentence expiry date. This is the date when the total determinate sentence expires after amnesty and/or special remission of sentence has been deducted from the maximum date.
One-sixth of sentence. This is the date on which the conversion of the sentence into correctional supervision can be considered, provided that such sentence was imposed in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (CPA).
One-third of sentence.

Half of sentence minus credits, which may not exceed one-third of such sentence. This is the date on which an offender can be considered for possible placement on parole.

Note: This is only applicable to those offenders sentenced prior to 1 October 2004.

One-quarter of the sentence. This is the date on which possible conversion of a sentence of five years and less or where the remaining portion of sentence are not more than five years, can be considered in terms of s 276A(3)(a)(ii) of the CPA and s 42(1)(c) of the Act.
One-half of sentence if the court did not indicate a non-parole or 25 years, whichever is the shortest. This is the date on which the placement on parole of an offender should be considered. It is known as the minimum detention period (subs 73(6) and 73(7)) of the Act.
Four-fifths of sentence. The court may make a ruling that two-thirds of a sentence may be served instead of four-fifths. If a sentence was imposed in terms of s 52(2) of the Criminal Law Amendment Act 105 of 1997 for an offence mentioned in sch 2 of the Criminal Law Amendment Act, the offender may then only be considered for parole.

 

Where the court determined a non-parole period, namely, the parole can only be considered after that date, the non-parole period may not exceed two-thirds of the relevant sentence imposed. The non-parole period may not be specified by the court for sentences less than two years.

An offender sentenced to life imprisonment must serve 25 years’ before parole can be considered and referred back to the court a quo for approval or disapproval. However, an offender may be considered for parole when he or she has reached the age of 65 and he or she has served at least 15 years’ of his or her sentence (only new admissions after implementation of the 1998 Act).

The new release policy and Act is not applicable to those offenders and including offenders serving life imprisonment (lifers) who were in the system before the implementation of Act. The minimum detention of lifers who were in the system prior to the implementation of new legislation remains 20 years of their sentence, and it must be referred to the minister after completion of 20 years’ imprisonment, who in turn, will request the National Council to advise him or her.

An offender sentenced in terms of s 286(a) of the CPA, and declared as a dangerous criminal must be referred to the court on the date determined by the court, for example, the full period is served as specified by court.

An offender declared as habitual criminal must serve at least seven years before parole can be considered, but should be released on completion of 15 years of such sentence.

The Parole Board may request recommendations from the South African Police Service (SAPS) and Justice regarding certain categories of offences. Such recommendations must be submitted to the Parole Board in writing within two months of being requested (s 75(1A)(a) of the Act).

The profile submission date must be six months prior to completion of the minimum detention date. On this date a profile report must be submitted to the Correctional Supervision and Parole Board by the Case Management Committee.

The aforementioned is only applicable on those offenders who are serving sentences of longer than two years of imprisonment to allow for:

  • Adequate time to request a report from the SAPS and or Justice Department, in terms of s 75(1A)(a) of the Act.
  • Adequate time for offenders to undergo a pre-release programme and to seek jobs, prior to being placed out on parole or supervision, immediately after the minimum detention period arise.

The profile submission date for those offenders sentenced to less than two years’ imprisonment remain two months before their consideration date.

The abovementioned methods of calculations are only some of the most frequently used and numerous other variations which are applied from time to time. I do not deal with those in this article, but young practitioners should familiarise themselves with those as well (eg, days served before release on bail pending appeal). The CSPB Manual (2005) provides, for example, the calculation of ‘fractions of days/months/years’. In short, it may sometimes prove to be very difficult to determine exactly when a person is eligible for parole or correctional supervision.

It must be mentioned that the minister apparently does not have the prerogative to alter ‘medical parole’ (once granted) into ordinary parole (see S v Shaik and Others 2008 (2) SA 208 (CC)). The minister, however, may intervene when a prisoner is still serving life-imprisonment (see Derby-Lewis v Minister of Justice and Correctional Services and Others 2015 (2) SACR 412 (GP)). What is even more frustrating is the fact that in many of these matters, no legislation, case-law or guidance exists, since they often represent a ‘first of a kind’ for the country. Why would anyone being terminally ill even apply for the alteration of medical-parole into ordinary parole? The only real answer seems to be that the last mentioned affords, for example a better opportunity to travel, (ie, greater freedom of movement). Readers will recall that Schabir Shaik served two years and four months of his 15 year sentence of imprisonment before he was granted medical-parole some seven years ago. He was according to the Department of Correctional Services (see Virginia Keppler ‘Minister kan nie inmeng by Shaik’ Beeld 25 Februarie 2015 and ‘Jammer, Schabir Shaik, jy’t jou eie bed gemaak’ Beeld 25 Februarie 2015) in his final stages of a terminal illness.

In the light of the abovementioned procedural rules and relevant considerations I leave it up to each reader to decide for himself or herself whether the law was applied correctly in the matters of, for example, Schabir Shaik, Clive Derby-Lewis and Oscar Pistorius.

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

This article was first published in De Rebus in 2016 (Aug) DR 22.

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