By Dr Llewelyn Curlewis and Prof Dr Steve Cornelius University of Pretoria Centre for Sports Law
South Africa has a very proud, if very chequered, history in sport and has produced some of the most iconic moments in the annals of Global sport. This ranges from the very historic Gleneagles Accord which signalled the heyday of the anti-Apartheid movement in sport, to Nelson Mandela handing the Webb Ellis trophy to Francois Pienaar when South Africa defeated New Zealand in a tense final of the 1995 rugby union world cup.
But South Africa has also had more than its fair share of great sports heroes who ended up with feet of clay. One only needs to think of former Proteas Cricket captain, Hansie Cronjé, considered to be a true gentlemen of a gentleman's game and one of the best players to ever grace a cricket field – that is, until it was revealed that he was a key player in a Global web of match fixing and corruption in cricket.
Then there is Oscar Pistorius – the iconic Blade Runner – whose rise to stardom and his battle to participate in the regular Olympic Games, made him a hero of the fight for disability rights and a role model for aspiring athletes everywhere. That is until that disastrous evening on St Valentine's Day, 2013, when he shot and killed his girlfriend, Reeva Steenkamp.
Pistorius was charged with murder and eventually, after a series of appeals, convicted and sentenced to fifteen years' imprisonment. In 2015, Pistorius was released from prison and placed under correctional supervision and house arrest. This was overturned and Pistorius had to report back to prison.
Now that Pistorius is nearing the halfway mark of his fifteen-year sentence, he could become eligible for parole.
The situation with regard to parole is a complex one as our laws have changed over time. The laws that applied to offenders at the time when they were sentenced, are the laws that will determine their release and placement on parole. Simply put, this means that laws that are made today cannot change sentences that were impose yesterday. It is, therefore, important to know all the detail of a particular case and the laws applicable at the time of sentencing. This is exactly why the issue relating to parole of Oscar Pistorius is not necessarily a straightforward one. Naturally, this makes it difficult to formulate general rules of what applies in which cases. The conditions set out below, nevertheless, will apply to Mr Pistorius.
The situation with regard to parole and release is in essence one where there are few rules and many exceptions. The basic rules applicable specifically to Oscar are: [Section 73(1) of the Correctional Services Act 111 of 1998 promulgated in 2004]. This Act created a rights-based framework for South Africa’s correctional system, and it has been amended twice since:
1) A sentenced offender (such as Pistorius) will remain in a correctional centre for the full period of the sentence [section 73(1)].
2) A sentenced offender must be released when he has served his term of incarceration (or community corrections) [section 73(2)].
3) A sentenced offender may be placed (under certain conditions) on parole or correctional supervision before he has served the full term of incarceration [section 73(4)].
4) The decision to release a sentenced offender on parole or correctional supervision is made by the Correctional Supervision and Parole Board if that offender he has been sentenced to imprisonment for a period of more than 24 months, but not life imprisonment [section 73(5)(a)].
The above rules are subject to the following conditions or exceptions:
In the case of Pistorius, he will soon be eligible to be considered for parole. This is not to say that he will necessarily be granted parole the first time. He definitely appears to be a candidate to be considered favourably for parole. Many factors, including but not limited, to expert reports, victim dialogue feedback, his rehabilitation and behaviour in prison, and so on will be considered. At the end of the day, even the Minister of Justice and Correctional Services and/or a Court may be approached to review any decision (either in favour or against his parole) afterwards.
It would seem that victim dialogue may be a key element in this case, which reports suggesting that the willingness of Reeva Steenkamp's parents to meet with Pistorius and whether or not they would be opposed to him being granted parole, would play an important role – and so will the inevitable media frenzy that will surround this case. Whether it is appropriate or not and whether one likes it or not, the media will give a clear expression of the public sentiment in this matter and that will inevitably influence the decision of the Correctional Supervision and Parole Board when the application lands on their desk.