Authored By: Mpolokeng Dludlu
Abstract
This article looks at the legal and constitutional challenges in South Africa’s parole system, using the Alison Botha case as a focal point. The Minister of Correctional Services’ decision in early 2025 to cancel the parole of Frans du Toit and Theuns Kruger offers a key example of how administrative law plays out in practice, especially where the executive’s wide-ranging powers clash with victims’ rights to take part in the justice process. The discussion unpacks the laws that control life imprisonment, focusing on sections 73 and 136 of the Correctional Services Act and the objectives of incarceration in section 36 of that Act, alongside the constitutional requirement of just administrative action in section 33 of the Constitution. By comparing the Botha matter with the important Walus v. Minister of Justice and Correctional Services ruling, the article traces how victim participation has developed and where the boundaries of ministerial power lie. It argues that although the Minister holds broad authority under section 75(9) to cancel parole, any such decision must be rational and procedurally fair if it is to survive court review.
1. Introduction
A sentence of life imprisonment appears, at first glance, to offer an uncomplicated answer: life means life. South African correctional law, however, complicates that proposition. Section 73(1) of the Correctional Services Act 111 of 1998 (“CSA”) provides that a sentenced prisoner must serve the sentence imposed, while section 73(4) permits a prisoner to be placed on parole before the expiry of the term of incarceration. The Constitutional Court has therefore recognised that parole does not erase a life sentence; rather, it permits a sentenced prisoner to serve the remainder of that sentence outside a correctional centre, subject to the statutory framework.[1]
That tension between life imprisonment and conditional release came sharply into focus in the case of Alison Botha. On 18 December 1994, Botha was abducted, raped and brutally attacked in what was then Port Elizabeth (now Gqeberha). Frans du Toit and Theuns Kruger were subsequently sentenced to life imprisonment in August 1995.[2] Almost three decades later, on 4 July 2023, the two men were released on parole after serving approximately 28 years in prison. The Department of Correctional Services stated that they had served the minimum period required for consideration and that their placement on parole followed the statutory parole process.[3]
But the controversy surrounding their release was not confined to the question of how long they had spent behind bars. It also concerned the role of the victim in the parole process. Contemporary reporting indicated that Botha had not been informed beforehand of Kruger’s parole and had not received the conditions of the men’s release.[4] Parliament later recorded that Botha was unaware that the two parolees had been released and that, in December 2024, the Minister issued notices of his intention to cancel their parole and invited the men to make representations.[5]
This raises an important legal question. South African law does not treat the victim merely as a passive observer of the parole process. Section 299A of the Criminal Procedure Act 51 of 1977 recognises a victim’s right to make representations when parole is considered and to participate in the relevant proceedings. The statutory framework therefore attempts to give victims a voice within a process that remains fundamentally a legal decision-making process rather than a mechanism by which a victim determines the offender’s fate.[6]
The events that followed made the controversy even more significant. On 4 February 2025, Minister of Correctional Services Dr Pieter Groenewald announced the cancellation of Du Toit and Kruger’s parole and their return to incarceration. The Minister stated that the decision was made in accordance with the CSA following an evaluation and consultation of legal opinions, with the protection and security of the community identified as the primary consideration.[7] The issue is therefore no longer simply whether the two offenders should have been released. It is whether a parole decision, once made, can subsequently be undone by the Minister; what statutory authority permits such intervention; what procedural safeguards apply; and what role the victim’s participation should play in determining the legality of the process. Parliament’s subsequent scrutiny of the revocation demonstrates that these are not merely theoretical questions: the Portfolio Committee on Correctional Services specifically sought greater clarity on the processes and factors involved in granting and revoking parole.[8]
The Alison Botha controversy becomes even more illuminating when contrasted with Walus v. Minister of Justice and Correctional Services and Others. In Walus, Limpho Hani, the widow of Chris Hani, opposed the parole application of her husband’s killer. Her opposition was taken into account, yet it did not amount to a veto over the parole decision. The Constitutional Court ultimately reviewed the Minister’s refusal of parole and ordered that Walus be released on parole, holding that the Minister’s decision was irrational.[9] The comparison exposes an important distinction between having a voice and possessing a veto. The law may require that victims be heard without making the victim the ultimate decision-maker. The Botha controversy raises the corresponding question of what happens when that legally protected voice is allegedly not adequately facilitated.
This article therefore examines the legal framework governing parole for life prisoners, the transitional regime applicable to offenders sentenced before the commencement of the relevant provisions of the 1998 Act, the statutory position of victims in parole proceedings, and the extent of the Minister’s power to revoke parole. It uses the Walus decision as a counterpoint to the Botha controversy and considers whether the existing framework adequately reconciles rehabilitation, public safety, victims’ rights, administrative justice and the rule of law.
Quick Answers
Before turning to the detail, three short answers may help orient the reader.
Can parole be cancelled?
Yes. The law gives the Minister power to cancel parole for life-sentence prisoners, but only under certain conditions and after a fair process. Here, the Minister issued notice, allowed the men to make representations, and then decided. Parliament’s Correctional Services Committee later asked for more clarity on how parole is granted and revoked, which shows that this affects the whole system, not just two people.
What role does the victim play?
South African law doesn’t give victims the final say in parole, but it does give them a voice. Section 299A of the Criminal Procedure Act says victims of serious crimes have the right to be told when parole is considered, to make representations, and to attend relevant Parole Board meetings. But the victim’s view is one factor among many. It’s not a veto. The final decision rests with the Minister, based on the recommendations of the Parole Board and the advice of the National Council for Correctional Services. In Botha’s case, the controversy is whether her right to be informed and to participate was respected, not whether she could block parole outright.
The Walus case: a useful contrast
Janusz Walus, who killed Chris Hani in 1993, was also serving a life sentence (his original death sentence was commuted to life imprisonment). Limpho Hani opposed his parole, but her objections didn’t stop it. In 2022, the Constitutional Court ruled that the Minister’s repeated refusal was irrational and ordered Walus’s release.[10] The Court made it clear: victims must be heard, but they don’t decide the outcome. Having a voice doesn’t mean having a veto.
2. Life Imprisonment and Parole in South Africa
In South Africa, life imprisonment does not mean “locked up until death” in a literal sense. Section 73(1) of the CSA confirms that the sentence imposed remains in force, but section 73(4) allows for conditional release on parole before the full term expires. This creates an important legal distinction: the sentence of life imprisonment continues, but the offender may serve the remainder outside a correctional centre, subject to strict conditions and ongoing supervision.[11] The underlying philosophy, set out in section 36 of the CSA (not the limitations clause in section 36 of the Constitution), is that imprisonment must balance punishment, deterrence, rehabilitation, and reintegration. The Act explicitly requires the Department to develop programmes that prepare sentenced prisoners for release, recognising that even those guilty of the most serious crimes retain the potential for reform. Parole, therefore, is not an automatic right but a conditional privilege, granted only when statutory criteria are met and when the Parole Board is satisfied that the offender no longer poses an unacceptable risk to society.
Which statutory criteria applied to Du Toit and Kruger, however, depends on when they were sentenced. That is the subject of the next section.
3. The Transitional Regime Applicable to Botha’s Attackers
The big question is: what parole rules actually applied to Frans du Toit and Theuns Kruger, who were sentenced in 1995, before the parole chapters of the current Correctional Services Act of 1998 came into force?
The answer lies in section 136 of the CSA, which created a “transitional” arrangement for prisoners already serving sentences when the new law started. Those prisoners were not simply moved onto the new rules; instead, section 136 preserved the earlier approach under the Correctional Services Act 8 of 1959. For life prisoners, section 136(3)(a) entitles them to be considered for parole after serving 20 years of the sentence, not the 25 years required under the newer rules.[12]
This transitional position was tested in several high-profile cases. In Van Vuren and Derby-Lewis, the courts grappled with which transitional rule, and therefore which minimum period, applied to prisoners sentenced before the 1998 Act.[13] The Walus case, involving Chris Hani’s killer, also fell under this transitional framework, although the Constitutional Court focused more on whether the Minister’s repeated refusal of parole was rational than on the eligibility period itself.
So, for Du Toit and Kruger: if they were sentenced before the relevant parts of the 1998 Act took effect, the 20-year rule likely applied. That would mean they became eligible for parole consideration around 2015. Their actual release in 2023, after about 28 years, suggests they waited well beyond the minimum. But that does not automatically make the decision “legally sound.” Their 2023 release cannot be assumed lawful without first establishing which regime governed them, and even if they were eligible after 20 years, eligibility says nothing about the fairness of the process that followed. We still need to ask: was the process followed correctly? Were all the legal requirements met? And, crucially, was the victim properly involved? The real question is not just whether they qualified, but whether the process respected both the letter and the spirit of the law, including the victim’s right to be informed and to make representations under section 299A of the Criminal Procedure Act.
4. Victims: A Voice, Not a Veto
South African law gives victims of serious crimes a real say in parole decisions, but not the final say. Section 299A of the Criminal Procedure Act says that qualifying victims (or their close relatives) have the right to:
1. Make written or oral representations about whether parole should be granted; and
2. Take part in relevant parole proceedings, including attending Parole Board meetings.
The law sets up a clear communication chain: the victim’s views must be passed from the Commissioner of Correctional Services to the Parole Board, and the Board must consider them before making a recommendation. Additional provisions of the CSA, especially section 75(4), reinforce this by requiring that victims be informed and given a fair chance to participate.[14]
But here is the critical point: participation is not a veto. Just because a victim opposes parole does not mean it must be denied. The Walus case makes this crystal clear. Limpho Hani, widow of Chris Hani, strongly opposed Janusz Walus’s parole. Her objections were heard and taken seriously, but they did not decide the outcome. In fact, the Constitutional Court eventually ruled that the Minister’s repeated refusal to grant parole was irrational and ordered Walus’s release.
So the law draws a careful line: victims must be given the participation the legislation promises, but the final decision stays with the Minister, guided by the Parole Board, the advice of the National Council for Correctional Services and the broader statutory framework. That balance protects both victims’ dignity and the rule of law.
5. The Walus Counterpoint
In the Botha matter, the complaint is that the victim was not properly involved before the attackers were released. In Walus, Limpho Hani was fully involved and objected, yet the offender was ultimately ordered onto parole. Together they show the same principle: a victim has a voice, but not necessarily a veto. That raises a sharper question: if participation is a statutory right, what happens when that right is not properly facilitated? That question leads straight back to Botha, and to the Minister’s power to revisit the original decision.
6. Ministerial Revocation of Parole
The core issue is whether the Minister had lawful authority to cancel the parole of Frans du Toit and Theuns Kruger, and whether that power was exercised correctly. The statutory basis for cancellation must be identified from the official notice and the Department’s records. The CSA gives the Minister power to place lifers on parole and to cancel parole under certain conditions, but the exact provision relied on matters for assessing lawfulness.[15]
As section 3 explained, the transitional regime shaped their eligibility. Because they were sentenced in 1995, section 136 of the CSA likely governed, meaning parole consideration after 20 years rather than 25.
The identity of the original decision-maker also matters. Parole for lifers is typically recommended by the Parole Board, considered by the National Council for Correctional Services, and approved by the Minister. The answer to whether the Minister’s later cancellation depends on who originally granted parole turns on the statutory grounds for revocation, which are generally tied to the parolee’s status and risk factors rather than to the specific official who approved release. The Minister’s statement emphasised community safety as the primary consideration, not necessarily a specific breach of parole conditions. If no breach was alleged, the cancellation rests more heavily on risk assessment and the statutory grounds for revocation.
Before cancelling, the Minister issued notices inviting the men to make representations, a key procedural safeguard. The government statement says the decision followed an evaluation and consultation of legal opinions, with community safety as the main factor. Parliament later examined the process, underscoring that these decisions are not beyond oversight. The critical distinction is whether the Minister was correcting an unlawful or defective process, or simply reconsidering a completed decision. If the original parole process failed to respect victim participation or other legal requirements, the cancellation could be framed as correcting a defective process.[16] If the process was lawful, the cancellation looks more like a policy-driven reversal, which raises different legal concerns.
Any exercise of public power in parole matters is subject to judicial review for lawfulness, rationality, and procedural fairness. The official record shows the Minister cancelled parole on 4 February 2025 after consulting legal opinions and prioritising community safety. The question is not whether the Minister “overrode” a final decision, but whether he acted within lawful authority and followed a fair process.
7. Administrative Justice and the Rule of Law
The constitutional and legal framework centres on section 33 of the Constitution, which guarantees the right to just administrative action. If the parole decision, whether granting or cancelling, constitutes administrative action, it must be lawful, reasonable, and procedurally fair. Where the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) applies, the decision must be tested for lawfulness, reasonableness, procedural fairness, consideration of relevant factors, and rationality.[17] Even where PAJA does not strictly apply, the principle of legality requires that public power stay within the bounds of lawful authority and not be exercised arbitrarily.
Walus is crucial here because the Constitutional Court closely scrutinised the Minister’s exercise of parole power, finding irrationality in repeated refusals. Anderson and Combrink further show that parole decisions carry administrative-law consequences and that retrospective changes to parole criteria can raise procedural-fairness concerns.[18] These authorities reinforce that parole is not a purely political or discretionary space; it is constrained by administrative justice and the rule of law.
8. Conclusion: Who Decides?
The answer is not simple, and that is the point. No single actor has unrestricted power to determine when a life sentence ends. The sentencing court sets the sentence. Parliament sets the parole framework. The relevant parole authority or Minister exercises statutory powers within that framework. Victims have legally recognised participation rights. And courts provide judicial oversight where power is exercised unlawfully, irrationally, or unfairly. In the Botha matter, the Minister’s power to cancel parole is therefore real, but it is only as secure as the rationality and procedural fairness of the process behind it. That balance between punishment, rehabilitation, victim participation, and the rule of law is what the Botha and Walus cases together illuminate.
References
[1] Correctional Services Act 111 of 1998 §§ 73(1), 73(4) (S. Afr.); Walus v. Minister of Justice & Correctional Services [2022] ZACC 39 (S. Afr.).
[2] Eunice Masson, Rape Survivor Alison Botha Doesn’t Know Parole Conditions of Her Attackers, MAIL & GUARDIAN (July 13, 2023).
[3] [Citation to be supplied: Department of Correctional Services statement on the July 2023 release.]
[4] Masson, supra note 2.
[5] Portfolio Committee on Correctional Services, Media Statement: Correctional Services Committee to Engage with Minister and Parole Board on Revocation of Parole, Parliament of the Republic of South Africa (Mar. 18, 2025).
[6] Criminal Procedure Act 51 of 1977 § 299A(1)–(3) (S. Afr.); Correctional Services Act 111 of 1998 § 75(4) (S. Afr.); Minister of Justice & Correctional Services v. Walus [2017] ZASCA 99, ¶¶ 17–18 (S. Afr.).
[7] Department of Correctional Services, Minister Pieter Groenewald Cancels Parole for Alison Botha’s Attackers (Feb. 4, 2025).
[8] Portfolio Committee on Correctional Services, supra note 5.
[9] Walus, supra note 1.
[10] Walus, supra note 1.
[11] Correctional Services Act 111 of 1998 §§ 73(1), 73(4)–(5) (S. Afr.); Walus, supra note 1, ¶¶ 49–51.
[12] Correctional Services Act 111 of 1998 §§ 73(6)(b)(iv), 136(1), 136(3)(a) (S. Afr.); Correctional Services Act 8 of 1959 (S. Afr.).
[13] Van Vuren v. Minister of Correctional Services [2010] ZACC 17, 2010 (12) BCLR 1233 (CC) (S. Afr.); Derby-Lewis v. Minister of Correctional Services [2009] 3 All SA 55 (GNP) (S. Afr.).
[14] Criminal Procedure Act 51 of 1977 § 299A (S. Afr.); Correctional Services Act 111 of 1998 § 75(4) (S. Afr.).
[15] Correctional Services Act 111 of 1998 §§ 75(1)(c), 75(2)(c), 75(9), 78(1), 78(3)–(4) (S. Afr.).
[16] Correctional Services Act 111 of 1998 §§ 75(2)(c), 75(3), 75(9), 78(3)–(4) (S. Afr.).
[17] S. Afr. Const., 1996, § 33; Promotion of Administrative Justice Act 3 of 2000 (S. Afr.).
[18] Anderson v. Minister of Justice & Correctional Services [2024] ZAGPPHC 1355 (S. Afr.); Combrink v. Minister of Correctional Services 2001 (3) SA 338 (D) (S. Afr.).
Additional Sources Consulted
CV v. Minister of Correctional Services [2012] ZAGPPHC 324 (S. Afr.).
Shebe v. Minister of Correctional Services [2013] ZAFSHC 154 (S. Afr.).
J.D. Mujuzi, Unpacking the Law and Practice Relating to Parole in South Africa, 14 POTCHEFSTROOM ELEC. L.J. (2011).
J.D. Mujuzi, Victim Participation in Parole Proceedings in South Africa (2019).
Francois C.M. Louw & Ephraim K. Sibanyoni, A Critical Review of South Africa’s Current Parole System (2026).
