Clinton Loyd Houston v The State

The applicant was convicted in the KwaZulu-Natal High Court, Durban in two separate cases in 1997 and 1998. In the first case (September 1997) he was convicted of murder, kidnapping and robbery with aggravating circumstances and sentenced to an effective 30 years' imprisonment. In the second case (February 1998) he was convicted of two counts of murder and two counts of robbery with aggravating circumstances and sentenced to an effective 40 years' imprisonment. The sentences were ordered to run consecutively, resulting in an effective 70-year sentence. The High Court in the second case considered but rejected imposing a life sentence, finding that the applicant had potential for rehabilitation. An application for leave to appeal the second sentence was dismissed by the High Court on 31 May 2005. The Supreme Court of Appeal refused special leave to appeal on 22 September 2010. The applicant had been a model prisoner and was recommended for parole by the Department of Correctional Services, but would only become eligible for parole on 28 June 2020 after serving one-third of his sentence. He applied to the Constitutional Court for leave to appeal on 7 November 2012.

• Whether leave to appeal against sentence should be granted in circumstances not involving fair trial issues
• Whether the parole policy of the Department of Correctional Services that treated life prisoners sentenced before 1 October 2004 more favourably than those serving definite sentences amounted to unfair discrimination
• Whether this Court should entertain an appeal against sentence where the complaint relates to administrative parole policies rather than trial unfairness
• What remedy, if any, is available to a prisoner who may be unfairly prejudiced by parole policies

The Court made the following order: (1) Condonation for the late application was granted; (2) Leave to appeal was refused; (3) The Registrar was directed to forward a copy of the judgment to Legal Aid South Africa, which was requested to advise and assist the applicant in considering further steps in view of the judgment.

The Constitutional Court will not ordinarily grant leave to appeal against sentence unless the appeal raises fair trial issues that may result in a failure of justice. Where a prisoner's complaint concerns the application of parole policies by the Department of Correctional Services rather than unfairness in the trial itself, the appropriate remedy is judicial review of those policies in the High Court, not an appeal against sentence to the Constitutional Court. The Constitutional Court should not ordinarily deal with review applications of administrative policies as a court of first instance.

The Court observed that "something is wrong with a system which makes the granting of parole easier for persons sentenced to life imprisonment - and thus assumed to be unlikely to be rehabilitated or reformed - than for those, like him, who at the time of sentencing were considered to have potential for rehabilitation or reform." However, the Court expressly stated it was expressing no opinion on whether the applicant was correct in his contention that the parole policy amounted to unfair discrimination. The Court's comments about the apparent illogicality of the parole system were made without deciding the substantive issue, leaving it open for determination in appropriate review proceedings. The Court also made positive observations about the applicant being a model prisoner who had been recommended for parole, implicitly supporting his claim of rehabilitation.

This case clarifies the Constitutional Court's approach to sentencing appeals and establishes important principles about the appropriate forum for challenging administrative policies in the correctional services context. It highlights the distinction between challenges to the fairness of criminal trials and challenges to post-conviction administrative policies affecting prisoners. The judgment also draws attention to an apparent anomaly in South Africa's parole system where life prisoners sentenced before October 2004 may achieve parole eligibility sooner than prisoners serving lengthy determinate sentences who were deemed to have better rehabilitation prospects. While not deciding the merits of this discrimination claim, the Court's observations may have influenced subsequent policy considerations. The case demonstrates the Court's reluctance to act as a court of first instance for administrative law matters, even where constitutional rights may be implicated, preferring such matters to be dealt with first in the High Court.