The Constitutional Court will on Thursday deal with the question of whether an offender sentenced after a harsher parole regime takes effect for a crime committed before the change should be subjected to the harsher system.
On Tuesday, the ConCourt will hear an application by Oupa Phaahla, who is serving a life sentence in prison, that the court confirms an order made by the high court in Pretoria last year.
The high court declared that Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act of 1998 were invalid in that they applied to a regime of parole after October 1 2004 that was not of application at the time that the offence was committed.
The two sections altered the requirements of eligibility for parole such that different requirements applied, depending on the date of sentence.
Under Section 136(1) of the act, anyone sentenced to life imprisonment before October 1 2004 would be eligible for parole after serving 20 years of their sentence in prison in accordance with the old parole regime.
However, Section 73(6)(b)(iv) states that a person who has been sentenced to life incarceration after October 1 2004 may not be placed on parole until he or she has served at least 25 years of the sentence.
Phaahla was convicted on September 25 2004 but sentenced on October 5 2004, a mere four days after the new parole regime took effect.
This meant that Phaahla would only be eligible for parole after having spent 25 years in prison, whereas had he been sentenced a few days earlier, he would have been eligible for parole five years earlier.
Phaahla was aggrieved by this and launched a constitutional challenge to sections 136(1) and 73(6)(b)(iv) of the act.
The high court found that the challenged sections breached Phaahla’s right to equality because the differentiation between sentenced inmates for the purposes of parole on the basis of sentencing date, rather than the date of commission of the crime, was irrational and compromised the right of sentenced inmates to equal treatment under the law.
The court will hear Phaahla’s application for confirmation of the order made by the high court.
However, the minister of justice and correctional services and the national commissioner for correctional services will ask that the high court’s order of invalidity should not be confirmed by the Constitutional Court.
They are expected to argue that the sections are rational and not arbitrary – and that using the date of the commission of the offence to determine parole eligibility would lead to certain difficulties.
For example, they are expected to cite cases of continuous crimes that began before October 1 2004 and ended after October 1 2004, or cases of multiple offences.