Oscar Pistorius has applied to the Constitutional Court to have his parole date clarified after a spat with the Department of Correctional Services over when he would be eligible.

Pistorius was initially convicted of culpable homicide after shooting his girlfriend Reeva Steenkamp on 14 February 2013. Judge Thokozile Masipa sentenced him to five years and the National Prosecuting Authority appealed first the judgment and later the sentence. As a result, Pistorius was convicted of murder and in 2017 the Supreme Court of Appeal sentenced him to 13 years and five months in prison. 

Read more in Daily Maverick: SCA increases Oscar Pistorius’s murder sentence to 13 years

However, the disagreement over his parole date arises from the interpretation of when his sentence would have begun. Pistorius has told the ConCourt that the SCA’s initial order was unclear and subsequent correspondence on the matter did not help resolve the issue.

Oscar Pistorius and his girlfriend Reeva Steenkamp photographed in Johannesburg, 7 February 7 2013. (Photo: Reuters /Thembani Makhubele) 

“It is imperative to mention that the period of 13 years and five months was imposed, after the SCA considered that there was no substantial and compelling circumstances which could justify the departure from the prescribed minimum sentence of 15 years. The SCA however took into account that, when I was sentenced in the court a quo on 6 July 2016, I had already served a period of imprisonment of twelve (12) months and correctional supervision for a period of seven (7) months,” Pistorius said in an affidavit. 

Pistorius added that when it became clear that there was confusion about the duration of his sentence, the SCA “issued a sequence of unfortunate and conflicting orders and a communication”. 

In January 2021, the court released an order clarifying that the order was “antedated” to the date of his original murder sentence, 6 July 2016. 

“In its reasoning for granting the amended order of 21 January 2021, the SCA inter alia said expressly that it is ‘quite clear from the judgment delivered in para 25 that the court intended to antedate the sentence to 6 July 2016. Unfortunately, the court omitted to include the antedating of the sentence in the order itself.” 

Oscar Pistorius during his sentencing in the Pretoria High Court on 16 October 2014. (Photo: Gallo Images / The Times / Alon Skuy)

Then in October 2021, the court issued a second amended order in which it said the sentence is antedated to 21 October 2014, the date of his initial sentencing by Judge Masipa for culpable homicide. On 20 October 2022, the SCA then communicated that the orders from January 2021 and October 2021 should be disregarded. 

There was then another communication, on 28 March 2023, saying that the effective start of his 13-year sentence is 24 November 2017. 

“I say, with respect to the SCA that the communication of 28 March 2023 is not correct because it does not take cognisance at all of the express findings in paragraph 25 of the November 2017-order that the terms of the order should be adapted to take account of, inter alia the antedating of the order in terms of section 282 of the Criminal Procedure Act and my period of imprisonment between the date of sentencing by the (High Court) on 6 July 2016 and the date of the November 2017-order,” Pistorius says.

Pistorius argues that he became eligible for parole no later than 20 March 2023, but if the sentence began in 2017, he would only become eligible in August 2024. He adds that a convicted person has an entrenched right to the protection of section 35 of the Constitution and 282 of the Criminal Procedure Act, to not be arbitrarily detained. 

The Kgosi Mampuru II Correctional Centre in Atteridgeville, where Oscar Pistorius is being held. (Photo: Felix Dlangamandla)

“I say this because an important purpose of section 282 evidently is to ensure that a person is not imprisoned for a period longer than the period of the sentence imposed. Therefore, the SCA clearly intended (as expressed in paragraph 25 of the judgement of November 2017) that the entire period of my incarceration since 6 July 2016 should be taken into account in terms of section 282. Any intention to antedate to a different date than 6 July 2016 would have been arbitrary and would not have been a judicial exercise of a discretion,” he said.

Pistorius also questions the SCA’s decision to issue the October 2022 and March 2023 communications without requesting representation from his legal representatives. 

“It is disconcerting that such important and invasive decisions are taken, without having called on representations on my part,” he says. 

Pistorius says the Department of Correctional Services has “slavishly” followed these orders, leaving him to serve more time in prison. 

Pistorius argues that his Constitutional rights to freedom and security of person, access to court, right to human dignity and the rule of law have all been infringed. 

The Department of Justice and Correctional Services has submitted a notice of intention to oppose the case and will file an affidavit to the court. In addition to citing the department in the case, he has also cited June and Barry Steenkamp, Reeva’s parents, as interested parties. DM