When only a court can set you free
The very few prisoners declared ‘dangerous criminals’ by the state face ‘flawed’ courts
Brannon Jonathan Petersen was declared a dangerous criminal and handed an indeterminate sentence by the Western Cape high court in 1998, with the prospect that the sentence would, in 17 years’ time, be reconsidered.
But 25 years later, Petersen’s sentence has been reconsidered twice in a legal process the supreme court of appeal (SCA) has described as “a manifest injustice” while Legal Aid SA, which represents Petersen, calls it “fundamentally flawed”.
Petersen is one of few offenders who have over the past eight years appeared in court for a reconsideration of sentences after they were declared dangerous criminals in terms of the Criminal Procedure Act and given an indeterminate period of imprisonment.
An indefinite sentence was inserted in the Criminal Procedure Act by the Criminal Matters Amendment Act of 1993, mainly as a result of the findings of the Booysen Commission of Inquiry. The commission made recommendations on how to handle people with antisocial personality disorders as well as dangerous, violent and sex offenders. It suggested a new sentence option for “dangerous criminals” by giving them a fixed minimum term to return to court for reconsideration of their sentence.
A “dangerous criminal” handed an indefinite sentence does not become eligible for parole and cannot be released by a parole board or the sign-off by the justice minister. They can only be released after the court that sentenced them reconsiders new evidence showing they no longer pose a danger to society.
This “places that person in a unique trajectory insofar as sentence administration is concerned”, said Lukas Muntingh, an Africa Criminal Justice Reform (ACJR) project coordinator, noting that there are not many people in our prisons who are declared dangerous criminals.
Neither the department of correctional services nor the National Prosecuting Authority could confirm how many offenders are currently declared “dangerous criminals”.
The constitutionality of declaring a person a dangerous criminal and the subsequent sentencing were challenged in the SCA in 2001 in the combined appeals of State v Bull and another and State v Chavula and others.
While the SCA found that the legislation is not inherently unconstitutional, it did order that the offenders be given a shorter sentence period before which they can appear in court for sentence reconsideration.
“The Bull and Chavula appeals demonstrate how the courts have on occasion declared offenders dangerous criminals where this was not justified legally, and where long determinate sentences or life imprisonment ought to have been imposed instead,” advocate Enrico Guarneri, the high court unit manager for Legal Aid SA, told the Mail & Guardian.
Guarneri however conceded that when implemented correctly, declaring
a person a dangerous criminal is “justified by the need to combat violent crime and remove dangerous criminals from society”.
In 2016, Krishna Govender was the first prisoner in the country to be returned to court for reconsideration. At the time, Govender — who spent 22 years in prison for rape and murder — was one of four prisoners in South Africa serving an indefinite prison sentence, according to a 2018 research paper by ACJR, a project of the Dullah Omar Institute at the University of the Western Cape.
The court ordered his release under correctional supervision for three years, subject to him wearing an electronic monitoring device and attending several courses.
For Petersen, who was found guilty of rape, attempted rape and murder at the age of 19, the path to a life outside prison seems inaccessible after the Western Cape high court in its 1998 judgment declared him a dangerous criminal and sentenced him to prison indefinitely.
Guarneri said Petersen’s case was an example “of where an offender’s declaration is reconsidered by a court, and the procedure followed is fundamentally flawed, resulting in an injustice”.
“The issue here was that the procedure followed was not in accordance with the provisions of the legislation. Moreover, the manner in which the judge presided over the matter … created the impression that he was biased and had made up his mind before hearing all the facts.”
After being sentenced in 1998, Petersen returned to court for the reconsideration of his sentence in December 2015. He was ordered by the then Western Cape judge president John Hlophe to return three years later, by 1 December 2018.
After a minimum of eight court postponements since reappearing in 2018, Hlophe re-sentenced Petersen
to a further five years’ imprisonment in August 2019.
“You shall be detained further in terms of section 286 of the Criminal Procedure Act for a further period of five years. You will come back to me. I will still be sitting in this seat, I will not have retired by then. You will come back to me on 29 August 2024. It will be a Thursday exactly as it is today,” Hlophe said in that ruling.
Hlophe was subsequently suspended pending a parliamentary impeachment process after the Judicial Service Commission found him guilty of serious misconduct in matters unrelated to the Petersen case in April 2021.
In March, Petersen won his appeal when the SCA ruled against the high court order imposing a further fiveyear sentence.
During the appeal, the SCA found that throughout the hearing the defence had been “admonished and berated for wasting the court’s time and made to believe that any attempts to place a contrary view to that of the state was a futile exercise”.
“There can be no doubt that immediately after the state witnesses had testified, counsel was called upon to argue without calling for evidence from the appellant,” SCA Justice Caroline Nicholls ruled.
In addition, “several glaring irregularities” with the high court’s procedure were found. The SCA ruled that the high court had failed to consider whether Petersen was still a dangerous criminal who posed a danger to society. It also never considered Petersen’s parole board report.
The sentencing review procedure set out in the Criminal Procedure Act says the court “must consider a report by the Correctional Supervision and Parole Board before re-sentencing”. To this day, the parole board’s review report on Petersen has not been submitted.
Furthermore, whether the prisoner continues to be deemed “dangerous” must be reconsidered in light of new evidence. Only after re-sentencing Petersen did Hlophe order that he be afforded an opportunity to consult a psychiatrist and have intensive psychotherapy with a psychologist.
In its 2018 research paper, the ACJR said there were impediments to such psychiatric assessments, which were “dependent on the availability of psychiatrists and space at a psychiatric hospital or other facility designated by a court”.
“It is well known that there is a huge backlog of assessments into the criminal capacity and criminal responsibility of accused persons which is also dependent on the same resources. During this period, the person concerned will in all likelihood remain in the custody of the department of correctional services at one of its already overcrowded facilities,” it said.
Moreover, Hlophe reconsidered Petersen’s sentence based on a psychiatric report which suggested that he was “not a suitable candidate for correctional supervision at that point, because he was unable to give up his daily use of cannabis” and “traces of heroin had also been found in his urine a month prior”.
Social worker Anneke Myburg testified for the state that Petersen was a member of the 28s prison gang. But during the S v Bull and others appeal, the SCA held gang membership was not necessarily indicative of dangerousness, as some people joined gangs for no other reason than self-protection or peer pressure.
At the beginning of September, Petersen’s parole board review report had still not been submitted to court. On 29 August, a psychiatrist for the defence, Dr Ashraf Jedaar, was denied access to Goodwood prison to evaluate Petersen.
This prompted Judge Lister Nuku last week to issue a court order compelling the correctional services department to allow Jedaar to see Petersen.
Petersen is expected to appear in court on 11 October. Before that, Jonathan Francke, who was also sentenced in 1998 and declared a dangerous criminal, is scheduled to appear in court from 28 September for a third reconsideration of his sentence.
Francke was found guilty on two counts of rape and attempted rape and was set to return to court in 15 years. After considering psychiatric reports, Western Cape high court judge Hayley Slingers sentenced Francke to a further three years in prison in 2020 for further rehabilitation.
When he returns to court later this month, Francke would have spent 25 years in jail, which translates to life imprisonment in South Africa. An indeterminate sentence was however never meant to replace this heaviest punishment in the country.
Offenders sentenced to life imprisonment between 1 August 1993 and 30 September 2004 can, according to the Correctional Services Act, be considered for parole after serving a minimum imprisonment of 12 years and four months.
This, however, excludes those declared dangerous criminals, and even after serving their indefinite sentence, they do not become eligible for parole.
According to Guarneri, the problem “lies not with the legislation itself but rather how it was incorrectly implemented by the courts”.
“The reality is that our courts do not always get it right,” he said.
The supreme court of appeal found that the legislation is not inherently unconstitutional