By Estelle Ellis
The legality of the heaviest sentence that can be given to convicted rapists and killers will soon be challenged in the Supreme Court of Appeal, with lawyers describing it as a cruel and inhuman punishment.
The legal teams of two murderers are preparing an appeal against Section 286a of the Criminal Procedure Act, which allows for someone to be declared a dangerous criminal.
This means they are sentenced to an undetermined period in prison with no right to parole. They can be released only by the court that sentenced them.
In theory, life imprisonment is supposed to be the heaviest sentence for a crime and is deemed to have replaced the death penalty which was declared unconstitutional in 1995.
According to the Correctional Services Act, anyone serving a life sentence, or any other sentences handed down with it, will be eligible for parole after 25 years.
Section 286a is also under review by the South African law commission.
On Thursday, this sentence option was once again under discussion when Mr Justice Deon van Zyl refused to declare the Franschhoek Pass killers as dangerous criminals because of their lack of previous convictions for violence.
Lawyers said that the section may well be unconstitutional because it was vaguely and broadly phrased. They will also argue that it is a "cruel and inhuman punishment" and is not keeping "with the spirit of the constitution".
The Supreme Court of Appeal will review the sentences passed on Laston Chavulla from the Flower Gang murder trial and Morne Ricardo Bull, who were both declared dangerous criminals by the Cape High Court last year.
Passing sentence in the Flower Gang murder trial where Dawid "Doggy Dog" Ruiters and his gang were declared dangerous criminals after a murder rampage in Namaqualand, Mr Justice Braam Lategan said it was the only sentence he could impose to prevent a similar crime recurring.
He said the courts' hands had been tied since the death penalty had been dropped, and Section 286a was the only way left to deal with dangerous criminals.
Apart from the psychological profile of the criminals, the court also had to look at the brutality of the deeds they had committed.
The Mental Health Act was changed in 1993 by parliament to keep up with the changing professional opinion in the rest of the world.
These changes were made after the Booysen Commission found that most psychiatrists in South African and in other countries did not view psychopathy as a mental illness, but as an anti-social personality disorder.
On Thursday, the Cape High Court handed down two life sentences on each of the four Franschhoek Pass killers who hijacked and killed two young people on the scenic pass in July last year.
The four men, Heinrico Pietersen, 18, Morne Lakay, 23, Dawid Williams, 23 and Jehan Abrahams, 27, each got two life sentences for the murder of Dorian van Rensburg, 25, and Marisa du Toit, 21.
They were sentenced to 15 years for the attempted murder of Audrey Myburg, 21, who survived the ordeal.
The four were given an additional 15 years' jail for the armed robbery of Van Rensburg's car. Pietersen and Lakay were sentenced to a further six years' imprisonment for the illegal possession of firearms and ammunition.
Lakay and Williams were given another five years and three months behind bars for escaping from Groot Drakenstein prison where they were held while awaiting this trial.
Passing sentence, Mr Justice Deon van Zyl said he had decided against declaring them to be dangerous criminals because of their lack of violent previous convictions.
A series of violent previous offences has in the past been used by judges as a reason to declare someone to be a dangerous criminal.