Chance at freedom for Evilina Moloi after nearly 30 years in jail

A woman who was sentenced more than 29 years ago to 60 years' imprisonment, with the judge ordering at the time that she had to serve at least 50 years behind bars before she is even considered for parole, has a flickering of hope that she may be released soon.

Come January next year, Evilina Moloi will have been in jail for three decades. She has, over the years, tried to appeal this non-parole period stipulated by the now deceased judge.

Moloi was faced with obstacles such as missing court records and limited legal support.

However, a full bench (three judges) of the Gauteng High Court, Pretoria, eventually came to her rescue and ordered that the part of the late judge’s order that she must remain in jail for at least 50 years be deleted from his judgment.

The court made it clear that the determination of when a prisoner should be released on parole is up to Correctional Services to determine, and not up to the sentencing judge.

Moloi was sentenced in January 1996 on charges of robbery and murder. She received 30-year sentences for each charge, and the judge specified they should run consecutively, also instructing Correctional Services not to release her before she has served 50 years.

Moloi’s co-accused, who were sentenced alongside her, have meanwhile been released on parole.

The State did not oppose the appeal, and the court noted that the 50-year non-parole period must be deleted. “A non-parole order is exceptional. It is a judicial intrusion into the ordinary executive domain of parole management,” the court said.

It pointed to the fact that the Supreme Court of Appeal (SCA) emphasised that parole is an executive function, and courts should not sentence in a manner that seeks to remove parole from consideration altogether.

The SCA furthermore held that non-parole periods must not undermine the executive's role in parole. 

“The function of a sentencing court is to determine the maximum term of imprisonment a convicted person may serve. The court has no control over the minimum or actual period served or to be served,” the court said in finding that the judge had overstepped his sentencing jurisdiction.

The late judge, in sentencing Moloi nearly 30 years ago, remarked at the time: “The politicians have done away with one of the most potent weapons against crime, the death penalty, but that does not mean that people can simply commit crimes of this nature and be let out by some bureaucrat on parole.”

The judge added at the time that as long as he is on the bench, he will see to it that appropriate sentences are meted out.

Both the State and the defence in this present appeal pointed out that Moloi’s incarceration does not align with current sentencing standards and the interests of justice.  

The law governing non-parole periods came into effect in 2004 - eight years after she was sentenced. The Correctional Services Act stipulated that offenders (excluding those who receive a life sentence) are eligible to be considered for parole after serving half of their sentences.

The executive must now consider Moloi’s parole in accordance with current legislation.

Cape Times