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LIFE IMPRISONMENT
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- Institution
ANY SENTENCE OF IMPRISONMENT FOR A CRIME UNDER WHICH CONVICTED PEOPLE ARE TO REMAIN IN JAIL FOR THE REST OF THEIR NATURAL LIVES OR INDEFINETELY
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ARTICLES
Life imprisonment in South Africa:
yesterday, today, and tomorrow
Jamil Ddamulira Mujuzi*
ABSTRACT
Life imprisonment has been part of South Africa’s penal regime for decades.
This article analyses how this form of punishment has changed in meaning in
since 1906. The author looks at life imprisonment during the death penalty
period; life imprisonment in the aftermath of the abolition of the death pen
alty; life imprisonment under the Criminal Law Amendment Act, when it could
only be imposed by the High Courts; and life imprisonment during the Crim
inal Law Amendment Act, when the regional courts were also empowered to
impose this sentence. The author discusses the laws and circumstances which
prevailed in the above four periods. With life imprisonment now being the
severest sentence that can be imposed in South Africa, the author highlights
the challenges associated with it and calls upon the government, courts and
civil society to think seriously about how this form of punishment should be
administered so as to avoid confusing inmates and exposing the government
to litigation.
1. Introduction
Life imprisonment (life sentence)1 is probably the most confusing sen-
tence in South Africa, as it does not mean what it actually says. If many
* Doctoral Researcher, Civil Society Prison Reform Initiative, Community Law Centre (CLC),
University of the Western Cape (UWC) and LLD Candidate, Faculty of Law, UWC; LLM
(Human Rights and Democratisation in Africa) University of Pretoria; LLM (Human Rights
Specialising in Reproductive and Sexual Health Rights) University of the Free State; LLB
(Hons) Makerere University; Diploma in International Humanitarian Law, Institute for
Human Rights, Åbo Akademi University. I am indebted to Mr. Lukas Muntingh and Prof
Julia Sloth Nielsen for the comments on the earlier drafts of this paper and to Ms Jill
Claassen, librarian at CLC, for helping me find most of the cases cited in this paper. OSF
SA’ s funding for this research is acknowledged. Ford Foundation’s funding to CLC is also
acknowledged. The usual caveats apply. This as an updated and slightly revised paper of a
report written by the author for CSPRI titled The Changing Face of Life Imprisonment in
South Africa CSPRI Research Paper No 15 (2008). The author is grateful to CSPRI for
permitting him to publish this paper as an article.
1
‘Life imprisonment’ and ‘life sentence’ are used interchangeably in this paper.
1
,2 SACJ *
(2009) 1
people, including lawyers and, let it be whispered, some judicial officers,
were asked for the meaning of life imprisonment, they would say that it
means that a person sentenced to life imprisonment will spend the rest
of his or her natural life in prison. This, however, has never been the
meaning of life imprisonment in South Africa.2 While life imprisonment
has never meant life imprisonment in the literal sense in South Africa, its
meaning has changed substantially in the past decades. This article
investigates the meaning and use of life imprisonment in South Africa in
four major legal historical eras: life imprisonment at the time when the
death penalty was still lawful in South Africa (including life imprison-
ment as early as 1906); life imprisonment in the immediate aftermath of
the abolition of the death penalty (1994-1998); life imprisonment follow-
ing the introduction of the minimum sentences legislation (1998-2007);
and life imprisonment after December 2007, when the sentencing juris-
diction of the regional courts was extended to include life imprisonment.
In assessing the meaning and use of life imprisonment during these four
historical periods, the article looks at the law in place at the time and at
how courts interpreted it to justify the imposition of life imprisonment. It
also looks at the relevant statistics to assess the extent to which life
imprisonment was imposed. The article illustrates that, despite the term’s
evident simplicity, the meaning of life imprisonment in South Africa has
changed over time and particularly in the last 20 years. These changes,
especially since the early 1990s, were the result of two macro-political
forces. On the one hand, was the democratisation of South Africa with
the enactment of a new Constitution, with a progressive Bill of Rights
including the right to life and the right not to be subjected inhumane
and degrading punishment or treatment. Pulling in the other direction,
was government’s reaction to crime, characterised by its over-emphasis
on punishment and retribution. By 31 October 2008, South Africa’s pris-
ons were home to 8634 prisoners serving life sentences.3 In the last 10
2
Diemont JA observed in S v Qeqe and another 1990 (2) SACR 654 (CkA) at 659 that
‘[d]oes a ‘‘life sentence’’ mean that the appellants must remain incarcerated in prisons
until they die? The answer is no. It has been widely accepted for many years [in the for
mer Ciskei] that a life sentence will not exceed 25 years and that even 25 years is an ex
ceptionally long sentence. . . [section] 18(1)(b) of the Police and Prisons Act 36 of 1983
(Ck) provided that any person sentenced under the provisions of any law to imprison
ment for life, shall be detained in a prison for a period not less than 10 years and not
more than 25 years.’ In S v Siluale en ander 1999 (2) SACR 102 (SCA) at 103 the Court
observed that ‘[i]f the circumstances of a case require that an offender should receive a
sentence which for all practical purposes removes him permanently from society, life
imprisonment is the only appropriate sentence. It is intended to be the most severe sen
tence that can be imposed, although there are acknowledged procedures which make
parole possible in appropriate circumstances, eg where the offender (contrary to all ex
pectations) genuinely reforms.’
3
See http://www.dcs.gov.za/WebStatistics/, accessed on 1 December 2008.
,Life imprisonment in South Africa: yesterday, today, and tomorrow 3
years South African courts sentenced more people to life imprisonment
than they had done in the previous century.4 The meaning of life impri-
sonment has also changed drastically during this period. The increase in
the number of prisoners serving life and the consequent changes in the
meaning of life imprisonment did not happen without reason, and this
issue will be interrogated in this article.
2. Life imprisonment during the period of the imposition of
the death penalty (1906-1994)
Life imprisonment has been part of the South African legal system for
many decades. South African case law indicates that as early as the
beginning of the 20th century, courts started granting divorce decrees
based on the fact that one spouse proved that the other was serving a
life sentence. In Nefler v Nefler5 the High Court of the Orange Free State
was petitioned by Mrs Nefler for a divorce decree on the ground that
Mr Nefler had been found guilty of assault with intent to cause grievous
bodily harm and ‘sentenced to be imprisoned and kept to hard labour
for the term of his natural life’.6 The Court held that ‘[e]quity will demand
that . . . in this case where the man is imprisoned for life’ it necessitated
the granting of ‘a divorce on the ground of imprisonment for life’.7 The
reasoning in Nefler v Nefler would later be followed in the cases of Jooste
v Jooste (1907)8, Van Broemsen v Van Broemsen (1933)9 and Smith v
Smith (1943).10 From these cases it is also clear that in the early 20th
century courts rarely imposed life imprisonment. In all the cases cited
above, except Nefler v Nefler, the defendants had been sentenced to
death and their sentences commuted to life imprisonment. It is also
important to note that life imprisonment in South Africa in the late 19th
century and the early 20th century was not as long as the terms would
later become in the first decade of the 21st century. It was reported by
one of the prison officers in the early 20th Century that the longest per-
iod he had known for a person to have served life imprisonment was
20 years and that in one case a prisoner who had been sentenced to life
imprisonment served only one year and two months.11 In R v Mzwakala
the Court observed that there were ‘two Government Notices (GN 1551
4
In 1995 there were 443 prisoners serving life sentences in South Africa. See C Giffard &
L Muntingh The Effect of Sentencing on the Size of the South African Prison Population
(2006) 10.
5
Nefler v Nefler (1906) ORC 7.
6
Nefler supra (n5) at 7.
7
Nefler supra (n5) at 12.
8
Jooste v Jooste (1907) 24 SC 329.
9
Van Broemsen v Van Broemsen (1933) SR 58.
10
Smith v Smith (1943) CPD 50.
11
Jooste supra (n8) 330.
, 4 SACJ *
(2009) 1
of the 8th September 1911, and GN 286 of the 28th February, 1936) in
terms of which a sentence of imprisonment for life [was] deemed for the
purposes of remission to be a sentence of imprisonment for twenty
years’.12 However, the Court observed in 1968 that
‘[T]he provisions of those Government Notices were, however, subsequently
repealed. No such provision [was] to be found in the consolidated regulations
issued under sec. 94 of the Prisons Act of 31st December 1965 (published
under Government Notice R 2080 in Regulation Gazette 604 of that date)
which repealed all prior regulations governing remission of sentences or
release of prisoners on parole or on probation.’13
It appears that even before 1965, when the above-mentioned govern-
ment notices were repealed, the meaning and length of life imprison-
ment was determined by the Executive. For example, a person
sentenced to life imprisonment (or whose death sentence was commuted
to life imprisonment), or sentenced to another term of imprisonment
under section 41(2) of the Prisons and Reformatories Act,14 was required
to serve both the life sentence, which was always fixed, and the addi-
tional sentence of imprisonment imposed for another offence, unless the
court ordered otherwise. For example, in November 1945 in Attwood v
Minister of Justice and Another, the applicant was sentenced to death in
addition to 10 years’ imprisonment. The Governor-General-in-Council
commuted his death sentence to life imprisonment in terms of which,
according to the Prisons Board, ‘the Executive Council had decided that
the life imprisonment sentence should be determined as imprisonment
for a period of 30 years’.15 After serving 14 years and 2 months of the
30-year sentence, the prison authorities did not release him, as they
opined that he was supposed to serve 40 years, since the 10-year sen-
tence had to run consecutively with the life sentence of 30 years.
Attwood applied to the court and argued that he was entitled to be
released, as the 10-year sentence ran concurrently with the life sentence.
The Court dismissed his application, holding that this was not the legal
position.
The Attwood case shows that in practice it was up to the Governor to
determine what life imprisonment meant and that the prison authorities
12
R v Mzwakala 1957 (4) SA 273 (A) at 278.
13
S v Masala 1968 (3) SA 212 (A) at 216 7.
14
Act 13 of 1911. Section 41(2) provided that ‘when a person receives more than one sen
tence of imprisonment or additional sentences while serving a term of imprisonment,
each such sentence shall be served the one after the expiration, setting aside, or remis
sion of the other in such order as the Director may determine, unless the court specifi
cally direct otherwise, or unless the court direct that such sentences shall run
concurrently’: As reproduced in Viljoen v Minister of Justice and Another 1948 (3) SA
994 (T) at 997.
15
Attwood v Minister of Justice and Another 1960 (4) SA 911 (T) at 912.
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