MINISTRY: CORRECTIONAL SERVICES

REPUBLIC OF SOUTH AFRICA

Mr J Du Plessis
Jaco Du Plessis Attorneys

Dear Mr Du Plessis

IN RE VAN VUUREN V MINISTER OF CORRECTIONAL SERVICES AND OTHERS

Your letter dated 1 December 2010, received by this Office on 2 December 2010, refers.

The Minister and the Department stand by the view expressed in my letter of 29 November 2010.

The Minister has since 1982 only taken a decision regarding the placement of an offender sentenced to life imprisonment pursuant upon a favourable recommendation by an advisory body, such as the National Council for Correctional Services (NCCS).

As explained in previous correspondence. section 64 of the 1959 Act applied at the time of the sentencing of Mr Van Vuuren and in terms of this provision the Minister was empowered to authorise the release of an offender sentenced to life on parole after having been advised by the National Advisory Council. This position is clearly explained in paragraph 75 of the Constitutional Court's judgment. Reference in the Court's order to the Minister taking a decision on the placement on parole of a lifer is thus understood as the Minister taking such a decision upon a favourable recommendation by the NCCS.

The NCCS did not consider any lifers for placement on parole during its recent session from 1 to 2 December 2010, since it interprets the Court's order in the Van Vuuren judgment as having taken away its jurisdiction to consider the approximately 5373 lifers sentenced before 1 October 2004 (of whom 385 are in the same position as Mr Van Vuuren).

In the light of this development, the Minister has taken legal advice from senior Counsel on 3 December 2010. The Minister has been advised that in terms of the current legislative framework, as set out in section 136 of the Correctional Services Act. 1998 (Act No 111 of 1998) and which has not been found to be unconstitutional, the Minister can in terms of section 136(3)(c) only order the placement on parole of any offender sentenced to life incarceration based on a favourable recommendation by the NCCS.

Since the NCCS has not considered your client for placement on parole the Minister cannot act ultra vires and take a decision regarding your client's placement on parole in the absence of a recommendation by the NCCS.

In the circumstances, your client is therefore encouraged to approach the Constitutional Court as indicated in your letter to clarify the ambiguity in the order of the Constitutional Court with reference to the Minister's powers and the role of the NCCS in this regard.

Yours sincerely,

Dr L Louw

Legal Adviser to the Minister of Correctional Services

6 December 2010

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