Phaahla v Minister of Justice and Correctional Services and Another (Tlhakanye Intervening)

The applicant, Mr Oupa Chipane Phaahla, is serving a life sentence. He committed his offence before 1 October 2004 but was sentenced on 5 October 2004, four days after the new parole regime under the Correctional Services Act 111 of 1998 came into force. As a result, he must serve a minimum of 25 years before being eligible for parole, whereas inmates sentenced before 1 October 2004 need serve only 20 years. This distinction arose from sections 136(1) and 73(6)(b)(iv) of the Act, which determine parole eligibility based on date of sentence rather than date of commission of the offence. The applicant challenged these provisions in the High Court, alleging infringement of his constitutional rights to equality (section 9) and to the benefit of the least severe punishment (section 35(3)(n)). The High Court declared the provisions unconstitutional on equality grounds, and the matter came before the Constitutional Court for confirmation of invalidity.

The order of constitutional invalidity was confirmed. Sections 136(1) and 73(6)(b)(iv) of the Correctional Services Act 111 of 1998 were declared inconsistent with sections 9(1), 9(3), and 35(3)(n) of the Constitution. Parliament was directed to amend section 136(1) within 24 months to apply parole regimes based on the date of commission of the offence. An interim reading-in was ordered, and the Minister was ordered to pay the costs of the applicant and the intervening party.

This case is significant for affirming that parole eligibility is part of punishment in South African law and thus subject to constitutional protections against harsher retrospective punishment. It reinforces the principle that differentiation in criminal justice must be rational and consistent with the rule of law, and clarifies that administrative convenience cannot justify unequal treatment. The judgment has wide implications for sentencing, parole administration, and the interpretation of section 35(3)(n) of the Constitution.