Minister of Correctional Services and others v Tony Phakiso Seganoe

The respondent, Tony Phakiso Seganoe, was serving two determinate sentences totaling 22 years imprisonment for offences committed on 21 July 2001 and 29 April 2002 (during the operation of the Correctional Services Act 8 of 1959). He pleaded to charges in 2003, was convicted in June 2004 (first offence) and sentenced in January and November 2005 (after the Correctional Services Act 111 of 1998 came into force on 31 July 2004, with Chapter VII commencing on 1 October 2004). In March and May 2012, after serving one-third of his sentence, he applied for parole consideration. His applications were rejected on the basis that he did not qualify under the 1959 Act but under Chapter VII of the 1998 Act, since he was sentenced after the 1998 Act's commencement. The 1959 Act had provided a credit system under s 22A allowing early parole consideration, which was abolished under the 1998 Act.

• Which statutory regime governs the eligibility for placement on parole of sentenced offenders convicted of offences committed during the operation of the 1959 Act but sentenced after the commencement of the 1998 Act?
• Whether the date of commission of the offence or the date of sentencing is the operative date for determining parole eligibility?
• Whether the transitional provisions in s 136 of the 1998 Act apply to offenders not yet sentenced when Chapter VII came into force on 1 October 2004?
• Whether there is a lacuna in s 136 requiring words to be read in to protect offenders who committed offences before but were sentenced after the commencement of the 1998 Act?

The appeal was upheld with no order as to costs (this being a test case). The high court's order was set aside and replaced with: "The application is dismissed."

The binding legal principle is that the parole eligibility of a sentenced offender is governed by the statutory regime in force at the time of sentencing, not at the time of commission of the offence. Section 136 of the Correctional Services Act 111 of 1998 applies only to offenders who were already "serving a sentence of incarceration immediately before the commencement of Chapters IV, VI and VII" on 1 October 2004. It does not extend to offenders sentenced after that date, even if their offences were committed before the 1998 Act came into force. Such offenders are governed by s 73(6)(a) of the 1998 Act and are not entitled to the credit system that existed under s 22A of the 1959 Act. The transitional provisions were deliberately limited to protect those already serving sentences and were not intended to apply retrospectively to preserve rights based on when offences were committed.

The court noted that accepting the respondent's interpretation would lead to practical difficulties and absurd results, giving the example of an offender who commits an offence before 1 October 2004 but evades capture for a long period - such an offender would demand implementation of a parole regime that no longer existed and for which there were no implementation mechanisms. The court observed that the legislature could not have contemplated such a scenario. The court also commented that the high court's change of position between its main judgment and its judgment on leave to appeal was impermissible and constituted a material misdirection. The court expressed gratitude to the amicus curiae for assistance, as the respondent appeared in person.

This case definitively resolved a conflict between different divisions of the high court regarding which parole regime applies to offenders sentenced after the commencement of the 1998 Act for offences committed before that date. The SCA established that the date of sentencing (not the date of commission of the offence) determines which parole regime applies. The judgment provides authoritative interpretation of the transitional provisions in s 136 of the Correctional Services Act 111 of 1998, clarifying that they apply only to offenders already serving sentences when the new parole regime commenced, not to those sentenced thereafter. This has significant implications for numerous offenders in similar positions and for the administration of parole in South Africa's correctional system.