IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT Case Number:44/18 NGHC Case Number 97569/2015 In the matter between:
OUPA CHIPANE PHAAHLA Applicant
and
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES First Respondent
COMMISSIONER OF CORRECTIONAL SERVICES Second Respondent
APPLICANT’S PRACTICE NOTE
NATURE OF THE PROCEEDINGS
1. Application in terms of rule 16(4) of the Constitutional Court rules for the confirmation of an order of invalidity under section 172(2)(d) of the Constitution of the Republic of South Africa, Act 108 of 1996, in terms of which sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act, Nr 11 of 1998 was declared inconsistent with section 9 of the Constitution of the Republic of South Africa, Act 108 of 1996 in that it applies a regime of parole after 1 October 2004 that was not of application at the time that the offence was committed. A further declaratory order followed the order of the court a quo.
2. It will be argued on behalf of the applicant that the applicant was convicted of an
offence before 1 October 2004 when the 1998 Act referred to above, was brought into operation, and sentenced shortly thereafter, which has led to the applicant being subject to far harsher parole conditions as a result of his sentencing after 1 October 2004 than another prisoner who may have committed the same offence at the same time, but who had been sentenced before 1 October 2004. It will be submitted that the court a quo’s finding that this leads to unjustified and unfair discrimination in terms of section 9 of the Constitution of the Republic of South Africa, Act 108 of 1996 is correct.
PORTIONS OF THE RECORD TO BE READ AND CONSIDERED
3. The application was originally brought on different grounds and at a second hearing only the argument pertaining to discrimination was dealt with. It is therefore more important to read the affidavits filed in respect of the discrimination issue, than the affidavits filed in respect of the application that was originally brought. Therefore, affidavits filed from page 61 to 190, including the amended notice of motion, should be read first and will form the basis of the argument.
4. The original application that was brought, that was based on section 35(3)(n) of the Constitution may be read cursorily without it being necessary to be read in detail. It serves as background.
ESTIMATED DURATION OF ORAL ARGUMENT
5. ± 3 to 5 hours.
SUMMARY OF APPLICANT’S ARGUMENT
6. Applicant will argue that the judgment of the court a quo was correct in that the use of the date of sentencing for conviction can give rise to arbitrary and irrational consequences, because the burden of punishment by the applicant arises from a legislative change that was not the law at the time when the offence was committed.
7. Therefore the adoption of the date of sentencing as the relevant point for the application of the new parole regime that was brought in on 1 October 2004, without regard to what provision the law allowed for parole as at the date of the commission of the offence, gives rise to arbitrary results of the kind illustrated in the applicant’s case.
8. The arbitrariness of this result visited upon the applicant is that the harsher parole regime applied to him and requires him to suffer a burden that others who had committed similar offences at the same time, did not have to bear.
9. A change to parole had to be done in a rational manner, which was not the case with the provisions in the Act.
10. It will also be submitted that parole forms part of the regime of punishment that applies to the commission of an offence and it is an attribute of the regime of
punishment. It flows from the executive competence to shorten sentences and to effect the burden of punishment.
11. It will be submitted in argument that the application of the test for unfair discrimination as set out in Harksen v Lane NO and others 1998 (1) SA 300 (CC) and later decisions was correct.
SUMMARY OF RESPONDENT’S ARGUMENT
12. Respondent argues that there is no question of discrimination as found by the court a quo, and that the amendment to the 1998 Act was correctly done and it was rational in all respects.
COUNSEL FOR APPLICANT
13. Adv Roelof du Plessis SC / 083 225 7134 / 012 452 8760
14. Adv Leon Kellermann SC / 082 464 7974 / 012 452 8757
COUNSEL FOR RESPONDENT
15. Adv M Moerane SC / 082 553 0943
16. Adv G Bester SC / 072 221 0002
LIST OF AUTHORITIES
17. The applicant will rely on the following authorities in argument:
17.1. Harksen v Lane NO and others 1998 (1) SA 300 (CC);
17.2. Van Der Merwe v Road Accident Fund 2006 (4) SA 230 (CC);
17.3. Prinsloo v Van Der Linde and another 1997 (3) SA 1012 (CC);
17.4. Moses, Parole Law in South Africa 1st edition.
Signed at Pretoria on this 27th day of August 2018.
Roelof Du Plessis
________________________
ROELOF DU PLESSIS SC
Leon Kellerman
______________________
LEON KELLERMAN SC
