Abstract

In terms of state organisation under the Constitution of the Republic of South Africa, 1996, the administration of justice, which encompasses the powers of the judiciary and the prosecuting authority, is clearly demarcated from the executive. Section 165(5) of the Constitution explicitly states that an order or decision of a court ‘binds all persons to whom and organs of state to which it applies’. Sentencing is a judicial power, and the discretion to grant parole is also a judicial power. The legislature attempted to reform the 1959 parole system, which conferred parole powers upon executive state organs, with the Correctional Services Act 111 of 1998 but failed to align the granting of parole with the constitutional norms of ss 165 and 35(2) of the Constitution. Instead, the legislature conferred these powers upon executive state organs in contravention of s 165(4). In practice, the executive is therefore usurping judicial power, although s 165(3) proscribes any organ of state from interfering with the functioning of the courts. The granting of parole cannot be transformed into some kind of ‘administrative action’ of the executive taken under s 85(2) of the Constitution. The rights of detained sentenced offenders are protected by s 35(2) of the Constitution, which offers relief for unlawful detention. Section 33 upholds just administrative action and does not apply to criminal justice.