NON-PAROLE PERIODS IN SOUTH AFRICA: ANOTHER REMINDER FROM THE CONSTITUTIONAL COURT IN SITHOLE v S, 2024

The early release of offenders on parole allows them to leave prison before the expiry of the sentence and serve the remainder in the community. In South Africa, the decision to grant an offender parole was traditionally the sole function of the executive. Since 2004, courts are empowered by section 276B of the Criminal Procedure Act 51 of 1977 to postpone the release of offenders on parole until they have served a determined period, known as a non-parole period.

This provision is an extension of the sentencing process and potentially limits the rights of offenders to not be deprived of liberty arbitrarily and to a fair trial. Thus, non-parole periods may only be exercised in prescribed situations when exceptional circumstances exist and the parties have been given an opportunity to be heard. However, it is evident from case law that, in practice, these requirements are not always complied with by courts.

In December 2024, the Constitutional Court of South Africa in Sithole v S [2024] ZACC 31 again reminded trial courts of the requirements for the imposition of non-parole periods. Sithole demonstrates that despite 20 years of established judicial precedent, the practice of non-parole periods in South Africa remains non-compliant with the legal framework. This leaves offenders at risk of unjustifiable violations of their constitutional rights and warrants legislative intervention.