‘THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: OSCAR LEONARD CARL PISTORIUS And THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES THE NATIONAL COMMISSIONER FOR THE DEPARTMENT OF CORRECTIONAL SERVICES: THE CHAIRPERSON OF THE CASE MANAGEMENT COMMITTEE, ATTERIDGEVILLE CORRECTIONAL CENTRE ‘THE CHAIRPERSON OF THE PAROLE BOARD, ATTERIDGEVILLE CORRECTIONAL CENTRE THE HEAD OF PRISON, ATTERIDGEVILLE CORRECTIONAL CENTRE BARRY STEENKAMP JUNE STEENKAMP CASE NO.: Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent FOUNDING AFFIDAVIT I, the undersigned, OSCAR LEONARD CARL PISTORIUS, hereby declare under oath as follows:I am an adult male person. I am currently incarcerated at the Atteridgeville Correctional Centre, Pretoria, Gauteng. The statements of fact that are set out in this affidavit are true and correct and fall within my own personal knowledge, unless the contrary clearly appears from the context or where it is expressly stated in converse terms. Where I deal with legal issues, I do so on the advice of my legal representatives. I accept the advice to be in accordance with the prevailing legal position. THE PARTIES 4. ‘The Applicant is OSCAR LEONARD CARL PISTORIUS, an adult male prisoner, presently incarcerated at the Attcridgeville Correctional Centre, Pretoria, Gauteng. The First Respondent is the MINISTER OF JUSTICE AND CORRECTIONAL SERVICES, cited in his capacity as the executive authority of the Ministry of Justice and Correctional Services c/o the State Attorney, 8% Floor, Bothongo Heights, 167 Andries Street, Pretoria, Gauteng. The Second Respondent is the NATIONAL COMMISSIONER OF CORRECTIONAL SERVICES, cited in his capacity as the Head of the Department of Justice and Correctional Services, in terms of section3(3) of the Correctional Services Act, 111 of 1998 and having his address at 8t Floor, Poyntons Building, Church Street West, Pretoria, Gauteng. The Third Respondent is the CASE MANAGEMENT COMMITTEE , constituted at the Atteridgeville Correctional Centre, Pretoria, Gauteng in terms of section 42 of the Correctional Services Act, 111 of 1998. ‘The Case Management Committee is, inter alia responsible for submitting a report to the Fifth Respondent regarding, inter alia, a prisoners’ illegibility for placement on parole in terms of section 42(2)(d) of the Correctional Services Act, 111 of 1998. The Third Respondent's address is situated at Atteridgeville Correctional Centre, Pretoria, Gauteng. ‘The Fourth Respondent is the CORRECTIONAL SUPERVISION AND PAROLE BOARD in respect of the Atteridgeville Correctional Centre, Pretoria, Gauteng and duly appointed by the First Respondent in terms of the provisions of section 74(2) of the Correctional Services Act, 111 of 1998. The Fifth Respondent has its address at the Atteridgeville Correctional Centre, Pretoria, Gauteng. ‘The Fifth Respondent is the HEAD OF THE ATTERIDGEVILLE CORRECTIONAL CENTRE, whose identity my attorneys were unable to ascertain, cited in his/her capacity as the correctional official designated by the Second Respondent to manage and control the Atteridgeville Correctional Centre, and having his/her address10. 11. 12. situated at the Atteridgeville Correctional Centre, Pretoria, Gauteng. ‘The Sixth Respondent is BARRY STEENKAMP, an adult male person, c/o Tanya Koen Attorneys at 60-274 Avenue, Newton Park, Port Elizabeth. No relief is sought against the Sixth Respondent. He is cited herein due to his direct and substantial interest in the outcome of the present application. The Seventh Respondent is JUNE_STEENKAMP, an adult female person, c/or Tanya Koen Attorneys at 60-254 Avenue, Newton Park, Port Elizabeth. No relief is sought against the Seventh Respondent. She is cited herein due to her direct and substantial interest in the outcome of the present application. ‘The Sixth - and Seventh Respondents are the parents of the victim of my crime. They consented to service of this application on their attorney of record, viz. Tanya Koen. INTRODUCTION 13. 14, This is an application to obtain leave for direct access to the Constitutional Court. I shall demonstrate in this affidavit that the peculiar and extraordinary facts of this matter render it in the interests of justice for the Constitutional Court to grant leave for direct access and to engage its jurisdiction,15. 16. 17. 18, 19. In essence, the substantive sets of relief sought are necessitated as a direct consequence of the utter confusion that currently prevails by reason of the manner in which the Supreme Court of Appeal (‘the SCA”) dealt with the sentence imposed by the SCA on 24 November 2017 (‘the November 2017-order”), I shall demonstrate in this affidavit that the confusion created by the manner in which the order was worded, was exacerbated by the subsequent conduct followed in the SCA. As matters presently stand, the only court that can reasonably bring a resolve to the issue is the Constitutional Court. I proceed immediately (and by way of general introduction) to provide @ terse explanation for my statement regarding the confusion that prevails following the manner in which the SCA dealt with the sentence imposed by the SCA in the November 2017-order, as well as the effect thereof. ‘The sentence that was imposed in the November 2017-order reads as follows: “The sentence imposed by the court a quo in respect of murder is set aside and substituted with the following: ‘The respondent is sentenced to imprisonment for a period of 13 ‘years and 5 months.” It is imperative to mention that the period of thirteen (13) years and % f.20. five (5) 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 fifteen (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. Hence, a sentence of thirteen (13) years and five (5) months was imposed. The SCA explained it as follows in the judgement: “24, 25. Lam of the view that there are no substantial and compelling circumstances which can justify the departure from the prescribed minimum sentence. In the light of the serious offence committed by the respondent and the absence of substantial and compelling circumstances, the court a quo erred in deviating from the prescribed minimum sentence of 15 years’ imprisonment for murder in the circumstances. The sentence of 6 years’ imprisonment is shockingly lenient to a point where it has the effect of trivialising this serious offence. The facts of this case demand the imposition of the minimum sentence of 15 years’ imprisonment. By the time the court a quo sentenced the respondent on 6 July 2016, he had however already served a period of imprisonment of 12 months and correctional supervision for a period of 7 months pursuant to the initial sentence imposed upon him on 21 October 2014. He should receive credit for those periods of imprisonment and of correctional supervision already served. The terms of our order should therefore be adapted to take account of both s 282 of the CPA and the length of incarceration and of correctional supervision of the respondent. (See S v RO21, 22. 23. 2010 (2) SACR 248 (SCA) para 44.) Importantly, the contents of paragraph 25 of the judgement makes provision for two distinct matters, where it provides for both of the following where it states that “The terms of our order should therefore be adapted to take account of both s 282 of the CPA and the length of incarceration and of correctional supervision of the respondent 21.1 First, the period of imprisonment of twelve (12) months and correctional supervision for @ period of seven (7) months that 1 already served by the time that the court a quo imposed its sentence on 6 July 2016; and 21.2 Second, the antedating (in terms of section 282 of the Criminal Procedure Act, 51 of 1977) of the sentence imposed in the November 2017-order to the date on which the court a quo imposed its sentence on 6 July 2016. As explained, the order properly made express provision for the period of twelve (12) months and correctional supervision for a period of seven (7) months that I already served by the time that the court a quo imposed its sentence on 6 July 2016. ‘The November 2017-order was worded in such a manner that that the allowance for an antedating of the sentence fas envisioned in paragraph 25] was not included expressly in the order. Instead of expressly dealing with antedating, the issue was seemingly dealt with oat24. 25. by making an order substituting the court a quo’s order. This would ordinarily then operate ex tune, The SCA evidently understood that interpretational difficulty that was created by the fact that the issue of antedating the order was not expressly included in the order itself. In an endeavour to correct the confusion that consequently arose, the ‘SCA then issued a sequence of unfortunate and conflicting orders and a communication from the Acting President of the SCA. I furnish a succinct summary of them: 25.1 25.2 At first, the SCA made an amended order on 21 January 2021, which reads as follows in relevant part: “3. The sentence imposed by the court a quo in respect of murder is set aside and substituted with the following: “The respondent is sentenced to imprisonment for a period of 13 years and 5 months.” 4. The sentence is antedated to 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 aniedate the sentence to 6 July 2016. Unfortunately, the court omitted to include the antedating of the sentence in the order itself’ LS25.3 25.4 25.5 Then, on 21 October 2021, the SCA issued a second amended order, which reads as follows in relevant part: 3. The sentence imposed by the Court a quo in respect of murder is set aside and substituted with the following: “The respondent is sentenced to imprisonment for a period of 13 years and 5 months.’ 4. The sentence is antedated to 21 October 2014.” In the penultimate incarnation, the SCA communicated on 20 October 2022 in relevant part that: () The correct order is that which is encapsulated in paragraph 25 of the judgment delivered on 24 November 2017; and (ii) The orders dated 21 January 2021 and 12 August 2021 were issued per incuriam and should therefore be disregarded; and (iii) The error (to have issued the amended orders) was deeply rogretted. In_the latest incarnation, the Acting President of the SCA communicated on 28 March 2023 (seemingly to the Fourth Respondent and through the Registrar of the SCA), as follows in no uncertain terms:26. 25.6 25.7 = 10- cH) Mr Oscar LC Pistorius was sentenced by the SCA to an. effective term of 13 years 5 months taking into account the period of 12 months’ imprisonment and correctional supervision of 7 months; and (i) The November 2017-order order is unqualified which means that the substituted sentence is effective from 24 November 2017 ie. the date on which the SCA’s judgement and order were delivered. 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 finding 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 court a quo on 6 July 2016 and the date of the November 2017-order. On application of the antedating of the sentence to 6 July 2016 in terms of paragraph 25 of the November 2017-order, the period of my imprisonment would end on 5 December 2029 and I was then already eligible for parole no later than 20 March 2023. The practical effect of the communication of 28 March 2023 is that (i)27. 28. atte the sentence is not to be regarded as antedated to 6 July 2016 (as provided for in paragraph 25 of the November 2017-order), and (ii) the period of my sentence commenced on 24 November 2017 and will end thirteen (13) years and five (5) months thereafter i.e., on 16 April 2031 and (iii) 1 would only be eligible for parole at the earliest in the beginning of August 2024. On my understanding of paragraph 25 of the judgement of November 2017, the SCA expressly dealt with the period that I served before the date of the sentence imposed a quo on 6 July 2016, by subtracting that period from the period imposed as a sentence. I therefore hasten to say that, on a proper interpretation of the judgment and order, ie., by applying the triad of interpretation [text, context and purposel!, the provision in the November 2017-order that the judgement of the court @ quo is substituted operates ex tune. This can only be interpreted to mean that the SCA antedated the sentence to 6 July 2016 because I have been incarcerated for the entire period between 6 July 2016 and the date of the November 2017-order. If my interpretation set out above is considered to be incorrect [an outcome that I deny], then, and in the alternative, it was a mere omission by the SCA not to have expressly included the unequivocal finding that the sentence must be antedated [paragraph 25 of the University of Johannesburg v Auckland Park Theological Seminary and another [2021] ZACC. 13, a \29. 30. 31. - 12. judgement] in the order. In the last-mentioned regard, I venture to submit that section 282 of the Criminal Procedure Act gives expression to a convicted person’s entrenched right in section 35 of the Constitution of the Republic of South Africa, 108 of 1996, not to be deprived of freedom of the person arbitrarily and without just cause. I say this because an important purpose of section 282 evidently is to ensure that a person is not imprisoned for a period longer that 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. It follows that, on a proper interpretation of the November 2017-order and judgement, the period of my imprisonment is to be reckoned for a period of thirteen (13) years and five (5) months, calculated from 6 July 2016. By parity of reasoning, the time that I would become eligible for parole must also be reckoned from 6 July 2016, and not from the date of the November 2017 order. Turning to the practical consequence of the communication of 28 March 2023 from the Acting President of the SCA [which I respectfully submit reflects an incorrect interpretation of the November 2017-order32. 33. 34, a13- and judgment], the Fourth Respondent simply followed course and adopted a position at my parole hearing of 31 March 2023 that I have not yet completed half of my sentence and that I am consequently not yet eligible to apply for parole The confusion that currently prevails has the effect that the First Respondent to Fifth Respondent adopted a position that translates to the following: 32.1 First, the period of my imprisonment is implemented in a manner that renders it substantially longer than the period of imprisonment imposed by the SCA in the November 2017- order. In fact, the effect is that the minimum sentence of fifteen (15) years that was imposed in the November 2017-order is effectively increased to a period of sixteen (16) years and four (4) months; and 32.2 Second, the time that ] am considered as eligible for parole is extended to well beyond the time that I am eligible for parole in terms of the November 2017-order. ‘The aforesaid unjustified, arbitrary and unlawful implementation of the November 2017-order infringes directly on my entrenched fundamental rights. I shall presently return to the identification of those entrenched rights It is evident from the above that the confusing and contradictory35. 36. 37. aide conduct from the SCA pursuant to and ex post facto the November 2017-order resulted in an incorrect and untenable firm interpretation position communicated by the Acting President of the SCA on 28 March 2023, which is now [for understandable reason] followed slavishly by the Fourth Respondent. More importantly, the incorrect and untenable firm interpretation Position communicated by the Acting President of the SCA on 28 March 2023 has a direct and substential impact on the period of sentence and imprisonment. If left unchallenged, the period of the sentence will unjustifiably and at variance with the November 2017- order be increased with a period of approximately one (1) year and four (4) months. I interpose to say that I have not been heard specifically on the issue before the communications by the SCA were made on 20 October 2022 and 28 March 2023. It is disconcerting that such important and invasive decisions are taken, without having called on representations on my part. The aforesaid implicates a variety of constitutional rights and considerations, most importantly the following: 37.1 The fundamental right to freedom and security of the person, more specifically the right not to be deprived of freedom arbitrarily or without just cause, entrenched in section 12(1)(a)38. 37.2 37.3 37.4 15. of the Constitution of the Republic of South Africa, 108 of 1996; ‘The right of access to courts to resolve the dispute by application in a fair public hearing, entrenched in section 34 of the Constitution; ‘The fundamental right to human dignity, entrenched in section 10 of the Constitution; The rule of law, in particular that legal certainty and finality are to be obtained. To exacerbate matters further, I have no legal recourse in relation to conduct followed by the SCA and the Acting President of the SCA, outside of this application to obtain leave for direct access to the Constitutional Court. In this regard: 38.1 38.2 Neither the Rules of the SCA, nor any other statutory provision make any provision to approach the SCA directly in relation to the issues that arose. In fact, the jurisdiction of the SCA is limited by section 168(3)(b) of the Constitution to the adjudicating of appeals, issues connected with appeals and any other matter that may be referred to it in circumstances defined by an Act of Parliament; Whilst the High Court can, in principle pronounce on the interpretation of all judgements (including a judgement by the GY39. 40. =16- SCA, the Acting President of the SCA has already pronounced on the interpretation of the November 2017-order in the communication of 28 March 2023. His pronouncement is in connection with the November 2017-order, which was made on appeal. It is highly unlikely that a High Court would thereafter Pronounce again differently on the issue. This applies irrespective of the nature of proceedings brought. In the unlikely event of a High Court pronouncing on the interpretation-issue, the time-factor in appeals against that order will most likely ultimately render the relief sought moot; 38.3 No appeal lies against the November 2017-order, or the communication of 28 March 2023; 38.4 The exceptional and far-reaching manner in which the SCA dealt with the issue renders it appropriate that only the Constitutional court pronounce finally on the issue and the conduct followed in the SCA. In the circumstances, it is in the interests of justice that leave be granted for direct access to the Constitutional Court. Tturn now to dealing in more particularity with the salient and relevant facts.“17- THE FACTS The November 2017-order and judgement 41. 42. 43. 44, On 12 September 2014 I was found guilty of one count of culpable homicide and one count of contravention of section 120(3)(b) of the Firearms Control Act, 60 of 2000. I was sentenced for the aforesaid convictions on 21 October 2014. An appeal by the National Prosecuting Authority against my conviction, based on section 319 of the Criminal Procedure Act, succeeded in the SCA. ‘The following order was made in this regard on 3 December 2015: “1, The first two questions of law reserved are answered in favour of the Director of Public Prosecutions. 2. The accused's conviction and sentence on count 1 are set aside and replaced with the following: “Guilty of murder with the accused having had criminal intent in the form of dolus eventualis”. 3. The matter is referred back to the trial court to consider an appropriate sentence afresh in the light of the comments in this judgment.” On 6 July 2016 I was sentenced by the High Court to six (6) years imprisonment. It is apposite to mention at this juncture that, by 6 July 2016 I have already served a period of imprisonment of twelve (12) a46. 47. 48. 49. 18. months and correctional supervision for a period of seven (7) months pursuant to the initial sentence imposed upon me on 21 October 2014. ‘The National Prosecuting Authority appealed the sentence imposed on. me. On 24 November 2017, the SCA delivered judgment in the appeal against the judgment and order of 6 July 2016. I annex a copy of the judgment of the SCA hereto, marked “CP1”. The ratio in the judgement of 17 November 2017 for the period of imprisonment is clear and unequivocal. I again refer to my submissions on the interpretation of the November 2017-order and judgment. The ratio in the judgement makes the following relevant matter plain: 50.1 The facts demanded the imposition of the minimum sentence of fifteen (15) years; and 50.2 Credit should be given for the period of imprisonment of twelve {12) months and correctional supervision for a period of seven {7) months that I served pursuant to the initial sentence imposed upon me on 21 October 2014. To give effect hereto, the sentence imposed was for a period of thirteen (13) years and five (5) months, as opposed to fifteen (15) years; and51. 52. -19- 50.3 In addition, the terms of the order should be adapted to give effect also to the provisions of section 282 of the Criminal Procedure Act, which provides for the antedating of a sentence toa specified date, which date shall not be earlier than the date on which the sentence of imprisonment imposed on conviction was imposed. The following order was, however, made by the SCA on 24 November 2017: “1, The application for leave to appeal is granted. 2. The appeal against the sentence is upheld. 3. The sentence imposed by the court a quo in respect of murder is set aside and substituted with the following: ‘The respondent is sentenced to imprisonment for a period of 13 years and 5 months.” Notably, the order does not contain a specified date to which the order should be antedated. It is evident that the SCA considered the fact that, it substituted the court a quo’s sentence, with effect from 6 July 2016 {having the effect that it operates ex fund as sufficient to address the issue. If this is considered to the be incorrect interpretation then, in the alternative the order contains an omission in regard to the antedating of the sentence when regard is had to the ratio for the order. wy-20- The subsequent events and confusing conduct in the SCA 53. 54, 55. 36. ‘The omission in the order of the SCA to include expressly the specified date of 6 July 2016 as the date to which the sentence was to be antedated then gave rise to a series of unfortunate events. I have already canvassed the events in general terms and I now proceed to deal with them in more particularity. During or about the beginning of May 2020, the prison authorities on interpreting the new Committal Warrant, adopted the view that the 13 years and 5 month sentence constitutes a new sentence, the commencement date being the date of judgment of the SCA on 24 of November 2017 and not the antedated date of 6 July 2016. My previous attorney of record, Julian Knight, then addressed an e- mail to the SCA on 7 May 2020. I annex a copy of the e-mail hereto, marked “CP2”. In relevant part, it read as follows: “3, The prison authorities on interpreting the new Committal Warrant, issued pursuant fo the above case number, are of the view that the 13 years and 5 month sentence constitutes a new sentence, the commencement date being the date of judgment of the SCA on the 24% of Noveriber 2017 and not the date that he commenced his sentence after having been sentenced in the court A Quo on the 21s of October 2014 4. The writer is writing to you to request clarity regarding the87. 58. 2 commencement of the sentence in order that this be conveyed to the Prison Authorities. 5. Our client will be entitled to be considered for Parole on reaching a half of his sentence. It is of critical importance to establish the commencement date of the sentence in order to establish when he will be eligible to be considered for parole.” In response to the aforesaid e-mail a new order was issued by the SCA on 21 January 2021. I annex a copy of the order received from the SCA hereto, marked “CP3”. The communication and the order read as follows: “Having heard counsel on 3 November 2017 on an appeal from the judgment of the North Gauteng Division of the High Court of South Africa, Pretoria, delivered on 2 November 2016 and having read the record of the proceedings in the said court (case number CC113/2013) an order was made on 24 November 2017. It is quite clear from the judgment delivered in para 25 that the court intended to antedate the sentence on 6 July 2016. Unfortunately, the court omitted to include the antedating of the sentence in the order itself. The State has consented to the amendment of the order to antedate the sentence to the said date. No prejudice will be suffered by the respondent as a result of the amendment of the order. The order of the court is therefore amended to reflect the intention of the court to antedate the sentence by inserting para 4 which will read as follows: 1. The application for leave to appeal is granted. 2. The appeal against sentence is upheld.59. 60. 3. 4. Then, on 7 July 2021 my previous attorney addressed a further e-mail ‘The sentence imposed by the court a quo in respect of murder is set aside and substituted with the following: “The respondent is sentenced to imprisonment for a period of 13 years and 5 months.” The sentence is antedated to 6 July 2016” to the SCA. I annex a copy of the e-mail hereto marked, “CP4”. This e-mail reads as follows: “1 We refer to the above matter and advise that we act on behalf of Oscar Pistorius herein. In terms of the amended order of the Supreme Court of Appeal dated 21* of January 2021, the court antedated the sentence of 13 years and 5 months to the 6 of July 2016, and we attach hereto a copy of the amended court order. At paragraph 24 of the judgment of the Court, the judgment reads ‘the facts of this case demand the imposition of the minimum sentence of 15 years imprisonment.’ At paragraph 25 of the judgment, it is stated that by the time the Court a quo sentenced the respondent on 26 July 2016 he had however served a period of imprisonment of 12 months and correctional supervision for a period of 7 months pursuant to the initial sentence imposed upon him on 21 October 2014. He should receive credit for those periods of imprisonment of correctional supervision already served. The terms of our Court order should therefore be adapted to take account of both section 282 of the CPA and the length of incarceration of correctional supervision of the respondent.61. 62. 23. In terms of the provisions of the Correctional Services Act, Act 111 of 1998, an offender may be considered for placement on parole after having served half of his sentence. The Department of Correctional Services calculates the half of sentence at which stage client will be eligible for consideration for placement on parole at half of the 13 years and 5 months as calculated from the 6% of July 2016. The result thereof is that the period served by the offender, prior thereto, which was taken into account by the SCA in the judgment, effectively serves as a non-parole period, as the period served cannot be brought into account. Had the SCA sentenced the offender to 15 years and antedated the operation of that sentence to the 21* of October 2014, the calculation of half of his sentence would have been approximately 12 months earlier than is his current first consideration date which according to the Department of Correctional Services is the 21% of March 2023 and we enclose herewith for your ease of reference, a copy of a letter received from them regarding their calculations. The writer is writing to yourself to seek a direction from the court as to whether, given the apparent oversight, the court would be prepared to amend the order to 15 years imprisonment antedated to the 21* of October 2014 or whether it would be necessary to launch a formal application in this regard. We look forward to hearing from you at your earliest convenience.” I am advised to refrain from commenting on the correctness of the contents of the letter. For purpose of transparency and completeness, I also annex a copy of the letter received from the Department of Correctional Services [to mn63. 64. 65. 2h which reference is made in the aforesaid letter] hereto, marked “CPS”, In response to the last-mentioned communication by my erstwhile attorney, the SCA again issued an amended order. On this occasion, the SCA antedated the sentence to 21 October 2014. I annex a copy of the amended order hereto, marked “CP6”. The second amended order reads as follows: “Having heard counsel on 3 November 2017 on an appeal from the judgment of the North Gauteng Division of the High Court of South Africa, Pretoria, delivered on 2 November 2016 and having read the record of the proceedings the said Court (case number CC113/2013) an order was made on 24 November 2017, Jt is quite clear from the judgment delivered in para 25 that the Court intended to antedate the sentence to the date he was sentenced by the High Court which is 21 October 2014. Unfortunately, the Court omitted to include the antedating of the sentence in the order itself. The State has consented to the amendment of the order to antedate the sentence to the said date, No prejudice will be suffered by the respondent as a result of the amendment of the order. The order of the Court is therefore amended to reflect the intention of the Court to antedate the sentence by inserting para 4 which will read as follows: 1. The application for leave to appeal is granted. 2. The appeal against the sentence is upheld. Ge.3. The sentence imposed by the Court a quo in respect of murder is set aside and substituted with the following: ‘The respondent is sentenced to imprisonment for a period of 13 years and 5 months.” 4. The sentence is antedated to 21 October 2014.” 66. I interpose to say that both the communications on the amended orders included that the National Prosecuting Authority had no objection to the amendments. 67. My previous attorney utilised the services of a correspondent in Bloemfontein, Hendre Conradie Inc. 68. On 9 July 2021 Hendre Conradie addressed a letter to the Registrar of the SCA. I annex a copy of this letter hereto, marked annexure “CP7”, 69. On 18 August 2022 Hendre Conradie addressed a further letter to the Registrar of the SCA. I annex a copy of this letter hereto marked annexure “CP8”, The last mentioned letter reads as follows: “We refer to the above and acknowledge with thanks receipt of your letter dated 17 August 2022. Kindly confirm that you are referring to the order dated 12 August 2021. Kind regards” 70. On 18 August 2022 an e-mail was received from the Chief Registrar of the SCA, The e-mail reads as follows:7. 72. 73. -28- “Good day T confirm that I refer to the order dated 12 August 2021, please see attached.” I annex a copy of the aforesaid e-mail hereto, marked annexure “CP9”. On 11 October a representative of Hendre Conradie (Annemie Botha) addressed an e-mail to the Registrar of the SCA. I annex a copy of the e-mail hereto, marked annexure “CP10”. The e-mail reads as follows: “Dear MS Vermeulen, We refer to the above and our telephone conversations on 24 August, 14 and 26 September 2022. Kindly provide us with a letter on the official letterhead of the Supreme Court of Appeal, addressed to all the parties involved, confirming the date of the correct order as per your e-mail of 18 August 2022. (A copy of which is attached hereto for your convenience.) Your assistance is much appreciated.” On 20 October 2022the Registrar of the SCA [with the concurrence of the Acting President of the SCA] addressed a letter to all the parties which reads as follows: “The e-mail received from Messrs Hendre Conradie on 11 October 2022 concerning the abovementioned case, requesting confirmation of the date of the correct order has reference. In reply thereto I advise that the correct order in relation to this matter is that which is encapsulated in paragraph 25 of the judgment of this court74. 27+ delivered on 24 November 2017. The rationale for this order is sufficiently explained in the judgment itself. The orders dated 21 January 2021 and 12 August 2021 were issued per incurium and should therefore be disregarded. The error is deeply regretted. Kindly therefore be guided accordingly. For the sake of completeness I might add that this letter is addressed to all interested parties with the concurrence of the Acting President of this Court.” Tannex a copy of this letter hereto marked annexure “CP11”, My application for parole 75. 76. 77. 78. 79. T issued an application for consideration of parole on 23 March 2023. ‘The Department of Correctional Services opposed the aforesaid application. The dispute in essence concerned the question whether or not I served half of my sentence and the confusion that arose pursuant to the November 2017-order, as well as the subsequent orders and communication from the SCA. My parole hearing was scheduled to take place on 31 March 2023. On 28 March 2023 the SCA addressed a letter to the Case Management Committee at the Atteridgeville Correctional Centre. Tannex a copy of this letter hereto marked annexure “CP12”. The letter vf80. a1. 82. =28- reads as follows: “Please see the response received from Acting President Petse for your farther attention: “Your e-mail of 24 March 2023 in connection with the abovementioned case has reference. In reply thereto I advise as is apparent from the judgment of this court detivered on 24 November 2017, that Mr Oscar LC Pistorius was sentenced by this court to an effective term of 13 years 5 months taking into account the period of 12 months’ imprisonment and correctional supervision of 7 months (see paragraphs 24, 25 and 26 of the judgment). The order of this court is unqualified which means that the substituted sentence is effective from 24 November 2017 ie. the date on which this court's judgment was delivered. Trust that the aforegoing sufficiently clarifies the position to you.” The e-mail presumably received from the Case Management Committee dated 24 March 2023 [to which reference is made in the letter] is not in my possession. It has never been furnished to me. It was exclusively based on the aforesaid communication received from the SCA that the parole board took the view that I have not yet completed half of my sentence and that I am consequently not entitled to apply for parole, The effect thereof is far-reaching. As mentioned, it means in particular the following: 82.1 The sentence is not to be regarded as antedated to 6 July 2016 (as provided for in paragraph 25 of the November 2017-order);83. 84, 85. -29- and 82.2 The period of my sentence commenced on 17 November 2017 and will end thirteen (13) years and five (5) months thereafter i.e. on 16 April 2031; and 82.3 1 would effectively serve a sentence of sixteen (16) years and four (4) months, after taking into account the one (1) year and seven (7) months that I was imprisoned and served correctional supervision before my sentence in the court a quo on 6 July 2016 [which period the SCA took into account in imposing a sentence for a period of thirteen (13) years and five (5) months]. 82.4 I would only be eligible for parole at the earliest in the beginning of August 2024. ‘The communication by the Acting President of the SCA on 28 March 2023 is, with respect incorrect and untenable. My erstwhile attorney directed a letter to the Acting President of the SCA to seek clarification, after the 28 March 2023 communication was furnished to me. I attach a copy of this letter, dated 19 April 2023, hereto marked “CP13". I also attach a copy of the response received from the Acting President of the SCA on 2 May 2023 hereto, marked “cP14". Notably, the SCA adopted the position that the SCA would effectively30+ not provide advice on interpretation of court orders. The position stands in stark contrast to the position taken when the explanation was given to the Fourth Respondent on 28 March 2023. As mentioned, that explanation does not withstand muster, with due respect to the Acting President of the SCA. 86. I proceed to deal with the issue. THE INTERPRETATION OF THE 17 NOVEMBER 201’ JUDGEMENT 87. I have already dealt with the import and effect of the ratio of the 17 November 2017-order, as well as the omission in the order. 88. The antedating of the order lies at the substantive issue. Against that background, it is apposite to deal with the provisions of section 282 of the Criminal Procedure Act. It reads as follows: “282 Antedating sentence of imprisonment Whenever any sentence of imprisonment, imposed on any person on conviction for an offence, is set aside on appeal or review and ‘any sentence of imprisonment or other sentence of imprisonment is thereafter imposed on such person in respect of such offence in place of the sentence of imprisonment imposed on conviction, or any other offence which is substituted for that offence on appeal or review, the sentence which was later imposed may, if the court imposing it is satisfied that the person concerned has served any part of the sentence of imprisonment imposed on conviction, be antedated by the court to a specified date, which HL89. 90. -3t- shall not be earlier than the date on which the sentence of imprisonment imposed on conviction was imposed, and ‘thereupon the sentence which was later imposed shall be deemed to have been imposed on the date so specified.” I have stated above that section 282 of the Criminal procedure Act gives expression to section 35 of the Constitution, The matter of Sv RO 2010 (2) SACR 248 (SCA) at paras 44 and 45 provides a useful illustration in this regard. In relevant part, the following was said: “44, The appellants have been continuously held in custody as convicted prisoners since 17 September 2002 when the Regional Court imposed the initial ‘sentence’. That ‘sentence’ was set aside as invalid on 25 February 2005 (ie. 2 years and 5 months into the ‘sentence’) and replaced by the sentence imposed by the High Court, The last-mentioned date is ‘the date on which the sentence of imprisonment imposed on conviction was imposed’ within the terms of s 282. The 15 years’ imprisonment was the appropriate sentence then the terms of our order should be adapted to take account of both the statute and the true length of incarceration of the appellants. 45. In the result: 1. The appeal succeeds. 2. The sentence imposed by the Court a quo are set aside and substituted by the following: ‘The first and second appellants are sentenced to imprisonment for 12 years and 7 months, all counts to be treated as 1 for the purpose of sentence.” Similarly in the November 2017-order and judgment, the SCA made it oO.91. 92. 93. 94. 95. 96. -32- plain in paragraph 25 that the 15 years’ imprisonment was the appropriate sentence and that the terms of the order should be adapted to take account of both the statute and the true length of my incarceration. It is clear from the judgment of the SCA that the prescribed minimum sentence of 15 years had to be imposed. On 6 July 2016, when I was sentenced by the Court a quoI had already served a period of twelve (12) months imprisonment and correctional supervision for a period of seven (7) months. Itis for this reason that the November 2017-order reduced the 15-year period to thirteen (13) years and five (5) months ie, with the exact period of one (1) year and seven (7) month}. Unfortunately, the November 2017-order does not expressly contain an order in relation to antedating of the order to provide for the period of imprisonment of one (1) year and four (4) months in the period between 6 July 2016 and the date of the November 2017-order. After the granting of the November 2017 order, the first amended order was granted on 21 January 2021. ‘The effect of the first amended order was to make it clear that the 13- year and 5-month sentence commenced on 6 July 2016. I venture to say that this amended order was correctly made and encapsulates a97. 98. 99. 100, 101. -33- proper addressing of the omission. ‘The first amended order also poses no interpretational difficulty. Based on this order the 13-year 5-month period commenced on 6 July 2016. On 12 August 2021 the second amended order was granted. The effect of the second amended order was to antedate the sentence to 21 October 2014. It is evident that this order was not competently made. This is so because section 282 of the Criminal Procedure Act permits only of the antedating of a sentence to the date of the order made by the court appealed against. In this case it was 6 July 2016. Furthermore, the second amended order would give me a credit that I was neither entitled to, nor afforded i.e., a double credit for the period of one (1] year and seven (7) months that I served imprisonment and community service before 6 July 2016. I remind that the period of thirteen (13) years and five (5) months already discounts this period. Neither of the amended orders were formally set aside or rescinded. On the acceptance that the second amended order by necessary implication rescinded or substituted the first amended order, the second amended order is extant. I am advised that the SCA could not simply have set aside the second amended order by letter informing that it was issued “per incuriam’, ‘The communication by the Acting President of the SCA similarly has102 103. 104. no binding effect on the interpretation of the November 2017-order and cannot add to, amend or vary the order. ‘The parole board nevertheless has accepted that the SCA effectively withdrew the first and second amended orders and has also accepted as correct the following statement in the letter from the Registrar of the SCA dated 28 March 2023: “The order of this court is unqualified which means that the substituted sentence is effective from 24 November 2017 i.e. the date on which this court's judgment was delivered.” ‘The interpretation of the November 2017 order by the Acting President of the SCA will have the effect that the sentence of 15 years be increased to 16 years and 4 months. ‘This result is clearly incorrect, untenable and leads to my incarceration without just cause, which is an infringement of my entrenched fundamental rights. It is only the Constitutional court that can interfere effectively to address the infringement caused by the events described above. THE GROUNDS RELIED UPON FOR DIRECT ACCESS 105. Irely on the provisions of section 167(6}(a) read together with Rule 18 of the Constitutional Court rules for direct access. For the reasons that follow it will be in the interests of justice to grant an order for direct access.106 107. 108. 109. As a result of the nature of the relief sought in this application, it is not necessary for any oral evidence to be presented. There is no factual dispute at all in the present matter. ‘The issues in this application are exclusively of a legal nature and concern the interpretation of the November 2017-order and relief incidental thereto. It has, as I have mentioned a direct and a material impact of my most fundamental entrenched rights. The President of the SCA has communicated to all the parties that the November 2017-order has to be understood in such a manner that the 13-year and 5-month sentence will commence from 24 November 2017. If J launch an application in the High Court, the High Court will ‘be bound by the statement from the President of the SCA. The SCA made it clear that it finally pronounced on the issue. The only court that can realistically grant a declaratory order in the present circumstances is this honourable Court. The present application is accordingly aimed at: 109.1 Establishing that I am eligible to apply for parole in terms of section 73(6)(a) of the Correctional Services Act, 111 of 1998. Unless this application is heard by this honourable Court, I will only be eligible to apply for parole on 8 August 2024; and 109.2. In addition, to establish that my sentence was for a period of fifteen (15) years, and not sixteen (16) years and four (4) Ha110. 111. 112 months. This has a direct and substantial impact on my constitutional right not to be detained arbitrarily and without just cause. ‘There will not be any prejudice to any of the parties if this honourable Court finally pronounces on the question whether or not I am currently entitled to apply for parole. For the reasons that I have already set out above, I believe that I have good prospects of success in the present application. ‘The issue involved in the present application will have a significant practical benefit. If the relief is granted, | will be entitled to approach the parole board immediately. THE DELAY SINCE 31 MARCH 2023 113. 114. 115, After the postponement of my parole hearing on 31 March 2023, my erstwhile attorney addressed the letter, referred to above, on 19 April 2023 to the Acting President of the SCA. A response was received on 2 May 2023. After receipt of the last mentioned letter, 1 was advised to proceed with an application to review the refusal of the parole board to hear my application for parole. Itwas only after I perused the draft application for review that I decided Be116. 17. 118. 119. -37- to obtain a second opinion. It was based on the second opinion obtained by me that I was advised to launch the present application. A final decision to proceed with the present application was taken on 23 June 2023, when counsel was immediately instructed to proceed with the drafting of the present application. After counsel were instructed to proceed with the drafting of this application, it was first necessary to present counsel with all the relevant documents concerning this matter. It was also necessary to consult with me. ‘The process that has to be followed to enable my legal representatives to consult with me is challenging. I know that, for a considerable period, the telephones at the Atteridgeville Correctional Facility have been out of order. ‘This application was launched as expeditiously as reasonably possible in the circumstances. In considering the issue of delay, I respectfully submit that section 35 of the Constitution entrenches my fundamental right not to be detained arbitrarily and without just cause. On the incorrect application of the November 2017-order [as explained above], I will be detained without a court order that sanctioned such detention ~ both in respect of the now increased period of incarceration and the increased period before I become eligible for parole. The deprivation of iA120. 98 - my freedom of person without just cause [a sentence by a competent court to that effect], weighs heavily to grant direct access despite the marginal lapse of time, Based on the aforementioned facts there was no undue delay in the launching of this application. THE IMPERATIVE OF TIME 121, 122. 123. It goes without saying that the confusion is to be determined finally as. a matter of relative urgency. Every day that I am detained and prohibited from applying for parole in circumstances that | am already eligible for parole and might be successful to obtain parole constitutes an infringement on my fundamental rights identified above. Similarly, should the period of my sentence be effectively increased, I will be incarcerated in circumstances that constitute an infringement on my fundamental rights identified above. Unless expedient resolve is finally brought to the confusion by the Constitutional Court, I will be prohibited unlawfully to apply for parole until August 2024, when [on the incorrect interpretation followed by the Fourth Respondent] I will belatedly become eligible for parole. CONCLUSION 124, In the premises the honourable Court is requested to grant an order= 39- as sct out in the notice of motion. ia DEPONENT rq 1 Signed and sworn before me at Prete na this_24th day of 3 2023 after the deponent declared that the deponent is familiar with the contents of this statement and regards the prescribed oath as binding on the deponent’s conscience and has no objection against taking the said prescribed oath. There has been compliance with the requirements of the Regulations contained in Government Gazette R1258, dated 21 July 1972 (as amended). fi COMMISSIONER OF OATHS: FULL NAMES: Antenne CL Bouwer Checered Accountent CAPACITY: ADDRESS: ANTONIE CHRISTOFFEL LOMBARD BOUWER COMMISSIONER OF OATH S.A. EX OFFICIO , CA (SA) ~ Membership No. 20003193 Botterklapper Street, Die Wilgers, 0184 Tel: 087 9800 980AY amet ne, HBOFOR | PCOUBTS HO? Vat ANP, - BuOBvoNTIEN fs 2 apag i pe rac | sis ue eae o.oo | aS Brae comers THE SUPREME COURT OF APPEAL OF SOUTH AFRICA APPEAL CASE NO: 950/46 NGHC CASE NO: GC113/2013 BLOEMFONTEIN FRIDAY the 24™ day of NOVEMBER 2017 BEFORE : JHEHONOURABLEMR.JUSTICE BOSIELO uA THE HONOURABLE MR, JUSTICE SERITI JA THE HONOURABLE MR, JUSTICE LAMONT AJA THE HONOURABLE MR. JUSTICE MEYER AJA ‘THE HONOURABLE MS. JUSTICE © MOKGOHLOA AJA In the appeal: THE DIRECTOR OF PUBLIC. PROSECUTIONS, GAUTENG: APPELLANT and OSCAR LEONARD CARL PISTORIUS RESPONDENT Having heard counsel on 03 NOVEMBER 2017 on an appeal from the judgment of the (North ‘Gauteng Division of the High Court of South Attica, Pretoria, delivered on 2 NOVEMBER 2016 and having read the record of the proceedings in the said Court, (Case number 0113/2013) JUDGMENT WAS RESERVED. THEREAFTER, on this day, the following order is made: 1. The application for leave to appeat is granted. 2. The appeal against sentence is upheld. 3. The sentence imposed by the court a quo in respect of murder is set aside and substituted with the following: Ge“The respondent is sentenced to imprisonment for @ period of 13 yetats and five months.’ .W MYBURGH (Mr)/SM REGISTRAR wf.iy Jian Knight 07 Nay 220 0938 0M, ‘Paliurdh@seabedcayoraz Osea Patol sae nmber 95072036 Inmportanest, igh ‘Dane sir, "The writer acts for Oscar Pistorius tho accused hereln who is currently sarvng his prison sentence at Attvisgovile ‘Prison with Prison Number 214636608, ‘Dur clients sentence was increased from 6 years imprisonment, to 13 years and § months imprisonment , on the +24" of November 2017 under the above case number (The Director of Puble Proseettions, Gauteng V Oscar Leonard ‘art Pstorus(980/2016 [2017] ZASCA 158 (24 November 2017), ‘The prison authorities on interpreting the new Committel Warrant Jssued pursuant tothe above case number, are ‘Fhe view thatthe 13 years and 5 month sentence constitutes anew sentence, the commencement date being the [ste of Judgment of the SCA on the 24° of November 2027 and not the date that he commenced his sentence ser \aving been sentenced in the court A Quo on the 21" of October 2014, ‘The wrtar Is writing to you to request larly regarding the commencement ofthe santence In order that this be ‘fonveyed to the Prison Authorities, ‘Our cient wil be entted to be considered for Parole on reaching a half of his sentence. tis of rtcal importance ‘o-estabish the commencement date ofthe sentence In order to establish when he wil be eligible tobe considered for parole. ook forward to heating fromm you. est regards ¥ {ullan Knight JULIAN KNIGHT AND ASSOCIATES INC. ‘ATTORNEYS {29 MURRAY STREET BROOKLYN fReroRA i 12 34614636852 Pax 08661664984 NY CP3 ‘Supreme Court of Appeal, Registrar's Office + PO Box 258, Bloemfontein, 9300 « clo Elizabeth- & President Brand Street, Bloemfontein + Tel (054) 4127 400 + Fax (051) 4127 449 » www.supremecourtofappeal.gov.za Enquiries; Mr Myburgh Date: 21 January 2021 Ref: 950/2016 REGISTERED MAIL: HIB + U YOUR REF: €C113/2013 THE REGISTRAR OF THE HIGH COURT P OBOX x67 PRETORIA 0001 Your ref: Andrea Johnson YOUR REF: 612455°MR YAZBEK/mn/AD332/16 THE DIRECTOR PUBLIC ATTORNEY FOR RESPONDENT PROSECUTIONS Lovius BLOCK PRIVATE BAG X300 P.O. BOX 12196 RETORIA 0001 BRANDHOF 9324 JUDGEMENT OF CRIMINAL APPEAL: THE DIRECTOR OF PUBLIC PROSECUTIONS GAUTENG DIVISION, PRETORIA V OSCAR LEONARD CARL PISTORIUS py of the amended judgment order.THE SUPREME COURT OF APPEAL OF SOUTH AFRICA APPEAL CASE NO: 950/2018 NGHC CASE NO: €C113/2013 BLOEMFONTEIN THURSDAY the 215" DAY OF JANUARY 2021 BEFORE : THE HONOURABLE MR. JUSTICE BOSIELO JA ‘THE HONOURABLE MR. JUSTICE SERITI JA THE HONOURABLE MR. JUSTICE LAMONT AJA THE HONOURABLE MR. JUSTICE MEYER, AJA ‘THE HONOURABLE MS, JUSTICE MOKGOHLOA AJA In the appeal: THE DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG APPELLANT and OSCAR LEONARD CARL PISTORIUS RESPONDENT Having heard counsel on 03 NOVEMBER 2017 on an appeal from the judgment of the (North Gauteng Division of the High Court of South Africa, Pretoria, delivered on 2 NOVEMBER 2016 and having read the record of the proceedings in the said Court. (Case number CC113/2013) and order was made on 24 November 2017. Itis quite clear from the judgment delivered in para 26 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. The State has consented to the amendment of the order to antedate the sentence Y) &.to the said date. No prejudice will be suffered by the Respondent as a result of the amendment of the order. ‘The order of the court is therefore amended to reflect the intention of the court to. antedate the sentence by inserting para 4 which will read as follows: 4. The application for leave to appeal is granted. 2. The appeal against sentence is upheld. 3. The sentence imposed by the court a quo in respect of murder is set aside and substituted with the following: ‘The respondent is sentenced to imprisonment for a period of 13 years and five months.’ 4, The sentence is antedated to 6 July 2016. So rr BERET REGISTRAR MYBURGH (Mr.) OM aa. bend “Cie g tenet \stW " C Py Julian Knight and Associates Inc. Attorneys 129 Murray Str Tel (012) 346 3889/ Brooklyn 346 1463 ‘THE PRESIDENT OF 0181 Int. 42712 346 3863 ‘THE SUPREME COURT OF APPEALS. Pretoria Fax : (012) 346 6852 Direct Fax : 086 676 6498 Internet Add: P.OBox345 ni 2 Pretoria www.knight.co.za 001 Reg. No, 97/020154/21 RSA. Vat. Reg. No 4920173343, ‘Your Ref: 950/2016 Our Ref: Mr Knight/ P139. Date : 7 JULY 2021 Dear Sir InRe: JUDGEMENT OF CRIMINAL APPEAL — THE DIRECTOR OF PUBLIC PROSECUTIONS GAUTENG DIVISION, PRETORIA // OSCAR LEONARD CARL PISTORIUS 950/2016 1. We refer to the above matter and advise that we act on behalf of Oscar Pistorius herein, fa In terms of the amended order of the Supreme Court of Appeal dated the 21" of January 2021, the Court antedated the sentence of 13 years and 5 months to the 6" of July 2016 and we attach hereto a copy of the amended court order. 3. At paragraph 24 of the judgement of the Court, the judgement reads “the facts of this case demand the imposition of the minimum sentence of 15 years imprisonment.” 4. At paragraph 25 of the judgment, it is stated that “by she time the court a quo sentenced the respondent on 26 July 2016, he had however served a period of imprisonment of 12 months and correctional supervision for a period of 7 months pursuant to the initial sentence imposed upon him on 21 October 2014. He should receive credit for those periods of imprisonment and of correctional supervision already served. The terms of our court order should therefor be adapted to take account of both Section 282 of the CPA and the length of incarceration of correctional supervision of the respondent.” 5, In terms of the provisions of the Correctional Services Act, Act 111 of 1998, an offender may be considered for placement on parole after having served half of his sentence.10. The Department of Correctional Services calculates the half of sentence at which stage client will be eligible for consideration for placement on parole at half of the 13 years and 5 months as calculated from the 6" of July 2016 and not the 21" of October 2014. The result thereof is, that the period served by the offender, from 21 October 2014 to 6 July 2016, which was taken into account by the SCA in the judgment, effectively, serves as a non-parole period, as the Department of Correctional Services refuses to take this into account in advancing his parole eligibility date. Had the SCA sentenced the offender to 15 years and antedated the operation of that sentence to the 21* of October 2014, the calculation of half of his sentence, would have been approximately 10 months earlier than is his current consideration date, which according to the Department of Correctional Services is the 21" of March 2023 and we enclose herewith for your ease of reference, a copy of a letter received from them regarding their calculations. The writer is writing to yourself to seck a direction form the court as to whether, given the apparent oversight, the court would be prepared to amend the order to 15 years imprisonment antedated to the 21" of October 2014 or to give a written instruction to the Department of Correctional Services to take the aforesaid period into account, alternatively ,whether it would be necessary to Jaunch a formal application in this regard We look forward to hearing from you at earliest convenience. Yours fpéthfully JU! iGHT % oe.correctional services Department Correctional Services REPUBLIC OF SOUTH AFRICA Koa! Mampuru | Maragemont Ares rate Bag X48, PRETORIA 0004, 03 Sangari Steer, kanstop, 0031 THODI2 39440, Fx 12} 28 Too mi nuh nesersti@des. 0120 CONFIDENTIAL Reference: PISTORIUSO Enquites: — NNESAMARI Tet: (012) 3343459 JULIAN KNIGHT & ASSOCIATES INC PER EMAIL: knights@mweb.coza RE: OFFENDER: OSCAR PISTORIUS PRISON NO:214636684 ‘The above matter and your letters dated 19" May 2020, 16” October 2020 and 24" November 2020 refers. We acknowledge receipt of your above mentioned letters and the contents are noted, It is a known fact that Mr Pistorius was first sentenced to five (5) years imprisonment in 2014 for Culpable Homicide, in 2016 the High Court gave him a six (6) years imprisonment for murder dolus eventualis, in 2017 the Supreme Court of Appeals set aside the sentence of six years and substituted it with a thirteen (13) years and five (5) months Imprisonment sentence. The amended warrant of 2017/11/24 replaced the warrant dated 2016/07/08. Be advised that your client maximum release date is 2029/12/05 and his minimum detention period (half sentence) is 2023/03/21. Oscar Pistorius did not qualify for 2019 special remission of sentence. The calculations dane by the Attridgeville correctional centre are correct and the calculations were confirmed by the Centre Management Administration Office. When the Supreme Court of Appeal sentenced your client to 13 years and 5 months they did take into consideration the period he already served in 2014. The calculations of his sentenced starts from the 2016 warrant,Regards Manager Legal KGOSI MAMPURU II MANAGEMENT AREA 2020/12/09‘Suprome Courts 3 fon PO Boy 26, Bloemonitn, $800 lo Etenbath- et hnneh Raa ta BO oa icant Tot (051) 4127; settee “448 “io. supremepouttotannesl dov.2a Enquiries: Mr Myburgh ‘Date: 12 AUGUST 2021 Ref: 950/2016 REGISTERED MAIL: HIB +U YOUR REF: C6113/2013, ‘THE REGISTRAR OF THE HIGH COURT P.O BOX X67 PRETORIA 0001 Your ref; Andrea Johnson YOUR REF: C12455°MR- YAZBEKimn/AD33216 ‘THE DIRECTOR PUBLIC ATTORNEY FOR RESPONDENT PROSECUTIONS ‘LOVIUS BLOCK PRIVATE BAG:x300 P.O. BOX 42196 RETORIA 0004 BRANDHOF 9324 JUDGEMENT (OF GRIMINAL APPEAL: THE DIRECTOR OF PUBLIC PROSECUTIONS GAUTENG DIVISION, PRETORIA V: ‘OSCAR LEONARD CARL PISTORIUS: Attaches copy of the amended judgment order. ‘MYBURGH (Wir) REGISTRAR, 7h p‘THE SUPREME’GOURT OF APPEAL OF SOUTH AFRICA APPEAL CASE NO: 950/2016 NGHC CASE NO: 6113/2013 BLOEMFONTEIN THURSDAY: the 12" DAY OF AUGUST 2021 BEFORE : THE HONOURABLE MR. JUSTICE BOSIELO JA ‘THE HONOURABLE MR. JUSTICE SERITI JA THE HONOURABLE MR, JUSTICE LAMONT AMA THE HONOURABLE MR. JUSTICE MEYER AJA ‘THE HONOURABLE MS. JUSTICE MOKGOHLOA AJA In the appeal; 7 ‘THE DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG APPELLANT and RESPONDENT Havirig Heard counsel on D3 NOVEMBER 2017-on ‘an appeal from the judgment Of id. {NOHth Gautehy Division of the High Court OF South: Africa, Pretoria, defivared.on 2 NOVEMBER 2016 arid having read the recotd of the proceedings in the Said Coiirt, (Casé Humber \66113/7013) and order was made on 24 November 2017. leis quite clear fro the Jadgment delivered in para 26 that the court intended to. antedate the sentence to-the date: he was sentenced by the High Court which is. 24 October 2014. Unfortunately the court omitted to inclucle the antedating of thesentence in the order itself. The, ‘State fas, consented to the amendment of the order to ahtedate the ‘sentence to the said date. No-prejizdice will be Suffered by the Respondent as a restilt of thé amehdmeiit.of the order, ~ ‘The Ordar‘of the court is theteters athonded to reflect the Intention of the court to-antedate the sentence by Inserting para 4 which will read as follows: +, The application (or leave'ts appeat Is pratited. 2 The appeal against seritencé is upheta, 3 The, Sentance igoase athe courta que:tn HGdpect OF mute fe sot aekde arid substitutedwith the following: “This respondent is senisticee:to Iniprisonmient for a:périod-of 13 years and five monte? 4. The'sontence Is antedated:to 21 October 2014, MYBURGH (Mr)"CPT HENDRE CONRADIE ING/INC PROKUREURS & NOTARISSE ATTORNEYS & NOTARIES nena aa BIW /VAT no: 415 0293 613, (051) 430 6079 119 President Reitz Avenue /Laan 119 13772, Noordetad, Wesidene Bloemfontein, 9302 hhondre@rossous.com BLOEMFONTEIN 9 July 2021 ‘THE REGISTRAR (SCA) C/O SUPREME COURT OF APPEAL C/O ELIZABETH. & PRESIDENT BRAND STREETS BLOEMFONTEIN 9301 DELIVERY BY HAND Dear Sirs MR OLC PISTORIUS / THE STATE CASE NUMBER: 950/2016 7 We refer to the above and attach hereto a copy of a letter from our correspondent, Julian Knight & Ass. Inc, the contents of which are self explanatory. Kindly provide us with a direction from Court as to whether, glven the epparent oversight, the Court would be prepared to amend the order to 15 years imprisonment antedated to 21 October 2014 or to give a written instruction to the Depertment of Correctional Service to take the aforesaid petiod Into account, alternatively, whether it would be necessary to launch & formal application in this regard. We look forward to hearing from you. Yours faithfully Uelt C- HENDRE CONRADIE INC PER: JH CONRADIE @:hendre@rossouws.com #7 :051 508 2581 Original hereof received on__ July 2024 at obo THE REGISTRAR: SUPREME COURT OF APPEAL er sy HRSRUMECTOR REDRECONGADIE, ASOSMATASSOCIATE: ARAN ADA ASS MAA MA iossoons) vp,"OPS HENDRE CONRADIE ING/INC 2020/881854/21 PROKUREURS & NOTARISSE ATTORNEYS & NOTARIES BIW/ VAT no: 415 0293 613, (051) 506 2500 (031) 430 6079 119 President Reitz Avenue / Laan 119 13772, Noordstad, Westdene Bloenifontein, 9302 hnende@rossouws.com BLOEMFONTEIN uous, Me Vermeulen L \VERWYSING / REFERENCE ‘onsiour: JUL1S/0009 (JHC/AB) 18 August 2022 ‘THE REGISTRAR (SCA) CIO SUPREME COURT OF APPEAL CIO ELIZABETH- & PRESIDENT BRAND STREETS BLOEMFONTEIN 9301 VIA E-MAIL: EVermeulen@scajudiciary.org.za Deer Sir/Madam MR OLC PISTORIUS / THE STATE. CASE NUMBER: 950/2016 We refer to the above and acknowledge with thanks receipt of your letter dated 17 August 2022. Kindly confirm that you are referring to the order dated 12 August 2021 Kind regards Yours faithfully DIREKTEURIDIRECTOR : HENDRE CONRADIK. ASSOSIAAT/ASSOCIATE: BRIAN ASHMAN BYGESTAAN DEUR/ASSISTED BY: MARVIN MDHLULI uCPA JJ Qosthuizen From: Elizabeth Vermeulen Sent: Thursday, 18 August 2022 18:27 To: ‘Annemie Botha Subject: RE: MR OLC PISTORIUS / THE STATE Attachments: AMENDED ORDER OSCAR PISTORIUS pf Good day confirm that | refer to the order dated 12 August 2021, please see attached. Kind regards Ms € Vermeulen Chief Registrar: Supreme Court of Appeal, 5 rn, President Brand & Miriam Makeba Streets Bloemfontein 9300 Tel: 051 - 412 7400 \ Cell: 082 3399 729 Email: EVermeulen@sca.judiciary.ore.22 ayaa Website: www.judiciery.org.za From: Annemie Botha [maiito:annemie@rossouws.com] Sent: Thursday, 18 August 2022 11:20 To: Elizabeth Vermeulen Subject: MR OLC PISTORIUS / THE STATE Importance: High Your ref:/U Verw: 950/2016 Our ref: / Ons Verw: JUL15/0009 (JHC/AB) MR OLC PISTORIUS / THE STATE Kindly refer to the attachment(s) hereto. / Neem asb kennis van die inhoud van die aanhangsel(s) hierby, BBOSouns I you are unable to open pet-attachments, you ean dowmload and install Adabe Aerobot Reoder from htp:wuny.adebe com /producs/9 main it at ‘The views expressed inthis email ae, unless otherwige stated, thosa of the author and not those of Henéte Canad Inc or Roszouws Attorneys. The information in this e-mails confidential end Is intended solely for the addressee. Acces to Lis emai by anyone elses unauthorized. If you are nat the Iniended recipient, any scosure, conyng, dstrbution or any action taken or emits in eance on ths, pronllres and may be vnlawul. Wrist al reasonable sens are taken to ensure w pp.“CP10" From: Annemie Botha (mailto: ile@rossouws.com) Sent: Tuesday, 114 October 2022 13:07 To: Elizabeth Vermeulen Subject: OSCAR PISTORIUS / THE STATE - 950/2016 Dear Ms Vermeulen, We refer to the above and our telephone conversations on 24 August, 14 and 26 September 2022. Kindly provide us with a letter on the official letterhead of the Supreme Court of Appeal, addressed to all the parties Involved, confirming the date of the correct order as per your email of 18 August 2022. (A copy of which is attached hereto for your convenience) Your assistance is much appreciated. Kind regards Annemie Botha Tel: 051 506 2551 Fax: 051 430 6079 you re unable to open pd attachment, you can dwrloa¢ end install Adabe Acrobat Reader from robay/readermain ntl at no cost Indien ule sanhangsels wat in adFformast i kan oom re, kan u Adcbe Aerobot Reader gratis aaa venaf tto:/ vw. adobe.com/oroduts/acrobat/eadermaln Mn! installer op u rekonaar ‘The views expressed In this eomall ar, unles otherwise stated, those of the author and not those of Rosseuws Attorneys. 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' He“oN OFFICE OF THE CHIEF JUSTICE REPUBLIC OF SOUTH AFRICA ‘Supreme Court of Appeal - Registrar's Office + PO Box 258, Bloemfontein, 8800 « clo Elizabeth & Preskient Brand Street, Bloemfontein + Tel (051) 4127 400 « Fax (064) 4127 440 www suoremecourotenpeal.aov.za Enquiries: Ms C de Wee Date: 20 October 2022 Refi: 95072016 YOUR REF: JUL15/0009 (JHC/AB) Hendre Conradie Inc 149 President Reitz Avenue Westdene BLOEMFONTEIN 9301 YOUR REF: C12455°MR YAZBEK/mn/ AD332/16 Lovius Bloxk Attomeys PO Box 12196 BRANDHOF 9324 Mr. / Mrs. / Miss MR OLC PISTORIUS V THE STATE YOUR REF: Andrea Johnson The Director of Public Prosecutions Private Bag X300 PRETORIA 0001 YOUR REF: C Cronje State Attorney BLOEMFONTEIN YOUR REF: lJ-129-2020 Judicial Inspectorate for Correctional Services Private Bag X8177 CAPE TOWN 8000 YOUR REF: N NESMARI Manager Legal Correctional Services Kgosi Mampuru Il Management Area Private Bag X45 PRETORIA 0004 oy‘The email received from Messrs Hendre Conradie on 11 October 2022 concerning the abovementioned case, requesting confirmation of the date of the correct order has reference, In reply thereto | advise that the correct order in relation to this matter is that which is encapsulated in paragraph 25 of the judgment of this court delivered on 24 November 2017. The rationale for this order is sufficiently explained in the judgment itself, The orders dated 21 January 2021 and 12 August 2021 were Issued per incurium and should therefore be disregarded. The error is deeply regretted. Kindly therefore be guided accordingly. For the sake of completeness, | might add that this letter is addressed to all interested parties with the concurrence of the Acting President of this court. a & VERMEULEN (Ms) CHIEF REGISTRAROFFICE OF THE CHIEF JUSTICE "REPUBLIC OF SOUTH AFRICA ‘Supreme Court of Appeal - Registrar's Office » PO Box 258, Bloemfontein, ¢300 + clo Elizabeth & President Brand Street, Bloemfontein + Tel (051) 4127 400 Fax (051) 4127 449 + www supremecourtofappeal.cov. za, Enquiries: Ms C de Wee Date: 28 March 2023 Ref: 950/2016 YOUR REF: MS TM MOLOTO Department Correctional Services Case Management Committee Atteridgeville Gorrectional Centre Adolphine.Jivene@des.gov.za Mr. / Mrs. / Miss DPP GAUTENG V OLG PISTORIUS 950/2016 Please see the response received from Acting President Petse for your further attention: ‘Your email of 24 March 2023 in connection with the abovementioned case has reference. In reply thereto | advise, as is apparent from the judgment of this court delivered on 24 November 2017, that Mr Oscar L C Pistorius was sentenced by this court to an effective term of 13 years five months taking into account the period of 12 months imprisonment and correctional supervision of seven months (see paragraphs 24, 25 and 26 of the judgment), The order of this court is unqualified which means that the substituted sentence is effective from 24 November 2017 i.e. the date on which this court's judgment was delivered | trust that the aforegoing suificiently clarifies the position to you.’rds E VERMEULEN (Ms) CHIEF REGISTRARn cP 3° Julian Knight and Associates Inc. Attorneys ‘THE PRESIDENT OF THE oe ‘Tels012.346 1463 / 6852 SUPREME COURT OF Pretoria ne 427 10 800 1502 BLOEMFONTEIN oat PO Box 345 ‘Email: Pretoria, ion sy kobe za RSA Reg No, 977915421 ‘VatReg No, 4920173343, Your Refi 95022016 ‘Our'Reft Mr Knight/P139 Date: 19. April 2023 ‘Dear SitMadam. InRe; DPP GAUTENG / OSCAR LEONARD PISTORIUS. APPEAL No: 950/2016 1 L refer to the above matter and advise that I act on behalf of Mr OLC Pistorius the accused herein. 2. L have on previous occasions written to your Registrar secking clarity relating to the interpretation, of the. sentence of the accused that was increased on appeal ‘whilst he was serving his sentence for murder. 3 ‘The previous letters and emails seni were responded to by the Court issuing antedated orders on the 21* of January 2021 and the 12" of August 2021. 4, Both of the aforesaid orders were withdrawn in terms of a letter from your Rogistrar,of the 20" of October 2021 to out Bloemfontein Correspondent, where it is stated that “he Orders dated 21 January 2021 and 12 August 2021 were issued pet incuriam and should therefore be disregarded. ‘The error is deeply regretted.”10, Page2 of Further to this, on the 28" of March 2023, a letter was communicated to the Department of Correctional Services,Case Management Committee Atteridgeville Correctional Centre, by your Registrar, where it is stated that the substituted sentence is effective as fiom 24 November 2017, being the date on which the Court judgment was delivered. Tam espectfilly of the view that this interpretation cannot be neconciled with paragraphs 25 and 26 of the Judgment, In paragraph 25 of the Judgment, in calculating the effective sentence of 13 years and.5 mouths, the Court only takes into account the period of imprisonment and correctional supervision served under the! atiginal culpable homicide conviction (from.21 October 2014 to 26 July 2016), not the. period of imprisonment served, under the original murder sentence (26 July 2016 to 24 November 2017). Ih patagraph 26 of the Judgment, the Court ordets that the murder sentence imposed by the court a quo in July 2016 is ‘set aside and substituted’. The ordinary meaning of this phrase dictates that the 13 years and 5 months sentence commenced in July 2016. Furthermore, commencing the sentence in November 2017, in light of paragtaph 25 of the Judgment, would mean that the Coust failed 4p take account of the period of imprisonment for murder served by the accused from 26 July 2016 to the date of judgment, namely 24 November 2017, Tam accordingly of the view that the only way to read the Judgment in a manner that gives effect to the ordinary meaning of what paragraphs 25 and 26 of the judgement convey, is that the sentence of 13 years and 5 months commenced on 26 July 2016. It is respectfully submitted that the order of the court dated 12 August 2021,commencing the sentence on 26 July 2016,was in fact camect, T am therefore writing to you to seek a direction from the Court as to whether this apparent oversight and miscalculation is capable of being rectified expeditiously by the Court or whether you require, or will entertain, a substantive application in ‘this regard, Julian Bret Knight BA [LLB] RhodesPage 3 of3 11, Took forward to hearing from you as'a matter-of extreme urgency. 12, For your ese of reference, I attach hereto the various antedated ordersand relevant comespondence from yourself, ‘Yours faithfully JULIAN KNIGHT Tiilian Bret Knight BA [LLB] RhodescP, ‘ (CHAMBERS OF THE DEPUTY PRESIDENT. ANTOOR VAN DIE ADJUNK PRESIDENT SUPREME COURT OF APPEAL HOOGSTE HOF VAN APPEL 7.0. BOX 258 Possus 258 BLOEMFONTEIN BLOEMFONTEIN 9300 9300 pate oa ce sce iin Orson eee Tel (054) 4127 400 » Fax(054)4127.449 02 May 2023 Messrs Julian Knight and Associates Inc 69 Rigel Avenue North Waterkloof Ridge Pretoria ons Per email to: knighis(@mweb.coza Dear Sirs RE: DPP GAUTENG // OSCAR LEONARD PISTORIUS CASE NO:950/2016 I have to hand and thank you for your email of 19 April 2023 concerning the above subject whose contents have been noted. At the risk of stating the obvious, I recotd that you require of me to advise you on the following, namely: (@) the proper interpretation of the judgment of this Court delivered on 24 November 2017; and (6) to give ‘direction ... as to. whether’ what you describe as an ‘apparent oversight and miscalculation’ is capable of being rectified expeditiously by the Court or whether [1] require, ‘of will entertain, a substantive application in this regard’. Furthermore, I observe that in your letter under reply you also express your view as to how the Judgment, of this Court should be read in order to ‘give effect to the ordinaty meaning of what paragraphs 25 and 26 of the judgment convey’. | regret to advise that I am in no position to be of assistance to you in regatd to what you require of me. As you would no doubt appreciate, itis neither my responsibility nor duty (and indeed any Judge for that matter) to intexpeet a judgment of any Court or advise patties as to whether they have any legal remedies in regard theteto, and what course of action, if any, is open to them. That is exclusively the domain of legal practitioners. Judges interpret their previous judgments (or any judgment for that matter) only in a suite when the ‘matter is litigated upon by the parties and are, thus, seized with those matters in the ordinary course of litigation and not otherwise.| sincerely trust that you will find the foregoing in order. Kindly therefore be guided accordingly. Yours sincerely (te yoo XM Petse Acting President Supreme Court of Appeal