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.

Parole can be defined as a period whereby an offender who has served the prescribed minimum detention period of his or her sentence in a correctional centre, is conditionally released to serve the remaining sentence in the community under the supervision and control of the Department of Correctional Services. Parole placement is subject to certain conditions (until the expiry of the full sentence), being accepted prior to release. These offenders are referred to as ‘parolees’ while on parole in the system of community corrections.

Parole should not be confused with ‘correctional supervision’. Correctional supervision is a sentencing option exercised by the court and is served within the community. This sentencing option can be imposed where a person must firstly serve a portion of the sentence in a correctional centre or is admitted directly into the community corrections system from court. These offenders are referred to as ‘probationers’ who are subject to the rendering of community service and compliance with set conditions while in the system of community corrections.

Definitions

‘Day parole’ is a management mechanism preceding the parole phase to gradually assist an offender to be released into the community at his own responsibility under controlled circumstances. The offender will be compelled to return to a correctional centre after hours.

The ‘sentence expiry date’ is the date when the total determinate sentence expires after amnesty and/or special remission of sentence have been deducted from the maximum date. That is, the release of the offender occurs at the expiry of his or her total sentence.

The granting of ‘amnesty’ is the prerogative of the President and is usually allocated on special occasions or events. Amnesty is a sentence reduction and the terms and conditions are determined by the President. In this regard the Department of Correctional Services must comply with the administrative steps as specified in the presidential decree.

Section 80 of the Department of Correctional Services Act 111 of 1998 (the Act) makes provision that the commissioner may allocate ‘special remission of sentence’ to an offender where he or she has acted highly meritoriously. Such special remission of sentence can only be deducted from the parole period and not from the non-parole period (if applicable) and does not affect the minimum detention period (half of the sentence or non-parole period). If special remission of sentence has no effect on the offender’s term of imprisonment such as life imprisonment a monetary reward may be allocated.

‘Medical parole’ is considered when an offender suffers from a highly contagious disease or is terminally ill due to his or her physical condition and on recommendation of more than one medical practitioner or specialist physicians, the minister, the commissioner, the parole board or where the relevant court may approve that such an offender be released on medical parole to die a dignified and consolatory death.

‘Non-parole period’ is a term that can be imposed by a court, but may not exceed two-thirds of the relevant sentence imposed by such court.

A ‘determinate sentence’ refers to a definite period of imprisonment imposed by a court with or without the option of a fine.

Case management committee

In terms of the Act, a case management committee must be established at each correctional centre. This multi-disciplinary committee consists of representatives composed of custodial staff, as well as specialists such as educationists, social workers, psychologists and spiritual workers. The case management committee is responsible for:

• Ensuring that each sentenced offender is assessed and that a sentence plan is created.
• Interviewing each offender on a regular basis, reviewing the sentence plan and the progress made and, if necessary, amend such plan.
• Submit a report to the Correctional Supervision and Parole Board regarding the –

– offence for which the offender has been sentenced;

– previous criminal record of such an offender;

– conduct, disciplinary record, adaptation, training, aptitude, industry, physical and mental health state of such an offender;

– likelihood of relapse into crime, the risk posed and the manner in which this risk can be reduced; and

– possible placement of such an offender on day parole, and the conditions for such placement.

In this article, I do not deal with the sentence plan as a mechanism per se, neither with any of its many key service delivery areas.

The Correctional Supervision and Parole Board

The Correctional Supervision and Parole Board’s composition is as follows –

• chairperson;
• vice-chairperson;
• one member from Department of Correctional Services nominated as secretary;
• two members of the community;
• one representative from the South African Police Service (SAPS) (can be co-opted when necessary); and
• one representative from the Department of Justice (can be co-opted when necessary).
• The minister may appoint one or more such boards. The functions of the board may be summarised as follows:
• A Correctional Supervision and Parole Board, after having considered a profile report (Form G326) submitted by the case management committee or any other representation on any offender serving a determinate sentence exceeding 12 months may:

– Place an offender on medical grounds.

– Place an offender under correctional supervision, day parole or parole.

– Make recommendations to the court a quo for the conversion of sentence of imprisonment into correctional supervision.

– Make recommendations to the court a quo regarding day parole or parole, offenders sentenced to life imprisonment and those declared as dangerous offenders in terms of s 286B of the Criminal Procedure Act 51 of 1977 (CPA).

– The release of offenders on the expiration of their total sentence.

– Consider amendment of conditions or cancellation of placement on day parole; parole; or correctional supervision on serious violation or substantial change in circumstances in respect of cases pertaining to ss 276(3)(a) and 287(4)(b) of the CPA.

– Recommend amendment of conditions or cancellation of placement to the court or National Council on serious violation or substantial change in circumstances in respect of those sentenced to life imprisonment.

This article does not cover the many duties of the board members, neither the working procedures between a case management committee and the Correctional Supervision and Parole Board. Needless to say, that a special inter-relationship exists and is fostered between these institutions.

The secretary of the Correctional Services and Parole Board has a huge responsibility, starting two months before the actual parole board hearing, to ensure all relevant information is readily available for consideration, including informing victim/s in writing of same and notifying every one of the date, venue, time, etcetera. The arrangements regarding facilities and equipment are also the responsibility of the secretary.

• Regarding the hearing, the following general points are adhered to:
• The chairperson must ensure that the profile report (Form G326) minimum detention period and sentence expiry dates are correctly calculated and adjusted according to allocated special remission(s) of sentence or amnesty (if applicable).
• The chairperson must convene a meeting of the board in terms of the general procedures, which is applicable to meetings in general, for example, the meeting must be addressed through the chairperson, the chairperson must ensure that no unruly behavior is allowed, etcetera.
• The chairperson or vice-chairperson must ensure that a quorum is formed prior to the sitting.
• Members present at the meeting must give meaningful inputs to formulate a recommendation where after a decision in respect of placement and/or release must be taken. Should additional information be required, the board may request such information and reconsider the case once the information is available.
• After the Correctional Supervision and Parole Board have deliberated over a case and consensus is reached in terms of a formulated recommendation, the board must approve or disapprove conditional placement.
• Only one offender at a time appears before the Correctional Supervision and Parole Board. All co-accused should be taken into consideration. If they are not in the same correctional centre or management area, the chairperson should liaise with other relevant parole boards.
• The Correctional Supervision and Parole Board, before considering conditional placement of the offender, must also consider written or oral representations or inputs from the complainant or victim or the complainant or victim’s next of kin.
• The chairperson must fully comment or deal with, on the offender’s profile report (Form G326) as to why the offender is not considered to be a suitable candidate for placement. If placement is recommended or ordered, full motivated reasons must also be noted. In the aforementioned cases it is imperative that any decision taken by the board must be motivated, as it can serve in a court of law as to why parole is granted or not granted (principles of administrative law).
• The offender may have legal representation or representation by a lay person, but not a fellow offender or member from the Department of Correctional Services, SAPS or Department of Justice. The representative for the offender may only deliver representation for placement on behalf of the offender – no legal arguments or cross-examination will be allowed. Arguments related to the trial will also not be allowed.
• A decision of the majority of members eligible to vote and present at the meeting constitute a resolution of the board. The chairperson has a casting vote in addition to a deliberative vote in the case of an equality of votes on any matter.

Who qualifies for placement on parole or under correctional supervision?

In terms of the provisions of the Act: ‘All offenders qualify to be considered for placement under correctional supervision or parole once they have served the prescribed minimum detention period of their sentence’ (CSPB Manual 2005 (at 29 para 3.3.1)). The conditional placement of offenders sentenced to 12 months imprisonment or less is dealt with by the area manager and are dealt with in accordance with the policy applicable to offenders serving sentences longer than 12 months. Offenders sentenced to terms of longer than 12 months imprisonment are dealt with by the Correctional Supervision and Parole Board.

Offenders sentenced to life imprisonment and offenders sentenced in terms of s 286B of the CPA, who have been declared as dangerous persons, are referred to the court a quo for a decision (only new admissions after implementation of the Act). Offenders sentenced prior to the implementation of the Act still have to be referred to the Minister (see s 136 of the Act).

Emphasis is placed on consideration and an offender is not automatically placed out after completion of the minimum detention period of his or her sentence. Each and every case must therefore be considered on its own merits.

Although an offender has to serve his full sentence, the Department of Correctional Services realises that, in the interests of the successful re-integration of the offender, it is normally not appropriate for him or her to serve the full period of his or her sentence in a correctional centre. The possible parole placement or conversion of sentence of each offender is, therefore, considered individually on own merit in order to determine the most appropriate stage for placement. When consideration is given to releasing an offender the potential risks related to such a placement are thoroughly considered and specific measures are put in place to ensure that the necessary control and supervision will be exercised over the offender until expiration of sentence.

Although an offender has no right to be paroled, parole is an integral part of the penal system and where an offender has demonstrated during his or her incarceration that he or she has been rehabilitated; that he or she is unlikely to be a danger to society and that there is a full awareness of and a contrition for the crime committed the case management committee may recommend that an offender be released on conditions. Parole, therefore, provides offenders with the incentive to demonstrate their commitment to rehabilitate and reform, which is an important element of punishment.

The Correctional Supervision and Parole Board must function and consider cases in accordance with the provisions of ss 73, 74 and 75 of the Act.

Specific attention must be given to the type of crime committed, the length of the sentence and the gravity thereof must be counterbalanced with other factors for consideration, including circumstances surrounding the committing of crime rather than the crime itself. Even the initial remarks of the presiding magistrate or judge also play a vital role.

In practice, cognisance is taken regarding basically any or all relevant applicable and reliable aggravating and/or mitigating circumstances pre- or during and post-trial.

One of the conditions that may be set, if not ordered by the court, is the rendering of community service as specified in ss 52 and 60 of the Act. This is an important part of the restoration of justice and all offenders released on parole or correctional supervision should be compelled to do community service where practicably possible.

• In the next article, which will be published in the August issue, I will explain medical parole and write about the members of the Review Board. I will also discuss placement dates and various terms and conditions thereof.

• Read the first part of this article ‘Understanding imprisonment – an in-depth discussion’ (2015 (June) DR 34).

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 (July) DR 34.