Chapter 9 - Parole - South African Government Information

officials abdicating their responsibilities even further. It might be argued, as Mr.
S.J. Wilkins testified, that the judgments created confusion. If they did, then
officials used this confusion as a justification for not interpreting the guidelines in
favour of the prisoners.
The Commission says it was a justification because it is clear that the legal
system operates on the basis that the KwaZulu-Natal judgment is binding in
KwaZulu-Natal while the Western Cape judgment is binding in the Western Cape.
If the Department wanted to clarify any so-called confusion, the Department
should have taken the matter on appeal to obtain a judgement from the Supreme
Court of Appeal, which would have given direction on the matter nationally. 19 The
Department did not do this.
In any event, the Department should have given a more liberal interpretation of
the guidelines or reverted to the old parole rules and the Act to give some
direction or leadership on the matter. 20 The guidelines were established to
regulate parole and not to deny it. In addition, there is an established principle of
statutory interpretation, which holds that, where a provision is open to two
interpretations, the one which encroaches least on existing rights is to be
preferred. 21
Be that as it may, the Department, in all likelihood, would still be embroiled in a
lot of litigation with regard to parole, especially with those prisoners who were
sentenced before 1 st October 2004 (when the Parole Provisions of Act 111 of
1998 came into operation).
19
20
21
Moreover the Winckler Judgement had been criticised and was not followed in the
Eastern Cape, which should have provided even more reason for the Department to
follow the Combrinck Judgement (See Mohammed v Minister of Correctional Services
and Others 2003 (6) S.A. 169 (SE).
See Sections 65(4) and 22A of the 1959 Act above.
See Avex Air (Pty) Ltd. v Borough of Vryheid 1973 (1) SA 617 (A) 621 F-G.
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