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[2017] ZAWCHC 23
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Naidu v Minister of Correctional Services (11215/2013) [2017] ZAWCHC 23; 2017 (2) SACR 14 (WCC); [2017] 2 All SA 651 (WCC) (9 March 2017)
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REPORTABLE
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No.:
11215/2013
In
the matter between:
SHERELLE
CAROLINE
NAIDU
Plaintiff
and
THE
MINISTER OF CORRECTIONAL
SERVICES
Defendant
JUDGMENT:
9 MARCH 2017
MEER
J.
[1]
The Plaintiff, a school teacher from Somerset-West issued summons
against the Defendant, the Minister of Correctional Services,
in
which she claimed damages in the amount of R1 332 000,00 arising from
an attack perpetrated upon her on 19 July 2010 by one
Marius Michaels
(“Michaels”) who was at the time on parole. She
claimed that the attack was a direct result of
the negligent release
of Michaels on parole, for which the Defendant was liable.
[2]
By agreement between the parties the issues of the merits and quantum
have been separated. This judgment deals with the
merits only
and calls for a determination as to the liability of the Defendant on
the grounds of negligence, as alleged.
[3]
In her particulars of claim the Plaintiff stated that she was
attacked in her home at […] Z. Street, Somerset-West, by
Michaels on 19 July 2010. Michaels threatened her with a knife,
bit her and threatened to murder and rape her. The
particulars
allege that the assault was a direct result of the negligence of the
Defendant who
inter alia
:
3.1 Failed to act with reasonable care and diligence in
determining whether Michaels should become the subject of community
corrections,
alternatively be granted amnesty. With the
exercise of reasonable care, it would have been ascertained that
there was a reasonable
risk that, if released, he would commit
further crimes and pose a risk to society;
3.2 Failed to take into account adequately Michaels’
previous convictions and that he had previously violated his parole
conditions;
3.3 Failed to have proper regard to the reports of the
Case Management Committee which was tasked with assessing Michaels;
3.4 By virtue of her position as custodian and guardian
of all sentenced prisoners, the Defendant had a legal duty to prevent
harm
from being caused to members of the public by sentenced
prisoners within her custody, and subject to community corrections.
It was at all relevant times reasonably foreseeable to the Defendant
that if acts or omissions such as those perpetrated on the
Plaintiff
were to take place, harm of the nature caused to the Plaintiff would
result.
[4]
In her plea the Defendant claimed no knowledge of the attack, denied
it was due to any negligence on her part, and further denied
that she
had any legal duty to protect the public as alleged. However,
contrary to her plea, at the commencement of the hearing
Mr. Jacobs
for the Defendant stated that it was no longer disputed that the
Plaintiff had been attacked by Michaels as alleged
in her particulars
of claim. He further conceded that if it were to be found that
the Defendant was negligent in releasing
Michaels on parole, such
negligence was causally connected to the harm that was ultimately
suffered by the Plaintiff. He
further conceded that there
existed a legal duty on the part of the Defendant to ensure the
safety of members of the public such
as the Plaintiff, sufficient to
found liability. Such, he accepted, was a legal duty akin to
that stipulated in the well-known
case of
Minister of Safety and
Security and Another v Carmichele
2004 (3) SA 305
(SCA)
alluded
to by Mr Acton for the Plaintiff. I note that in
Carmichele,
the Court, in finding at paragraph 43 that the state owed a
legal duty to the plaintiff flowing from the general norm of
accountability,
went on to say:
“
...the State is liable
for the failure to perform the duties imposed upon it by the
Constitution unless it can be shown that there
is compelling reason
to deviate from that norm”.
Mr
Jacobs acknowledged too that Section 131 of the Correctional Services
Act 111 of 1998 (“the Act”), also made provision
for the
Defendant's liability. Mr. Jacobs however persisted with the
stance that the Defendant had not been negligent in
releasing
Michaels on parole.
[5]
The issue that therefore remains to be determined is whether the
Defendant, acting through the Correctional Supervision and
Parole
Board (“the Board”) at Brandvlei Prison, was negligent in
releasing Michaels on parole in May 2009.
Common
Cause Facts
[6]
Marius Michaels assaulted the Plaintiff in her home on 19 July 2010
whilst he was on parole from Brandvlei Prison. As
a
consequence, he was convicted on 27 October 2010 on charges of
robbery with a weapon other than a fire-arm, housebreaking and
escaping from custody. He was sentenced to 15 years’
direct imprisonment for robbery, 6 months’ imprisonment
for
housebreaking to run concurrently with the sentence for robbery, 2
years’ direct imprisonment for escaping from custody,
and he
was declared unfit to own a fire-arm. Michaels is therefore
currently once again in custody.
[7]
Michaels’ criminal profile reveals that he has a long list of
previous convictions dating back some 26 years to 1980.
His
previous convictions and sentences include the following:
7.1 Theft on 30 July 1980, for which he was sentenced to
“5 houe met ‘n ligte rottang”;
7.2 Theft on 28 April 1983, for which he was sentenced
to “3 houe met ‘n ligte rottang”;
7.3 Assault with intent to do grievous bodily harm, and
escaping or attempting to escape from custody on 12 April 1984, for
which
he was referred to a reform school;
7.4 Theft on 6 July 1984, for which he was sentenced to
“7 houe met ‘n ligte rottang”;
7.5 Assault on 21 September 1984, for which he was
warned and discharged;
7.6 Theft, on 12 December 1985, for which he was
sentenced to 6 months direct imprisonment, suspended for 5 years;
7.7 Theft on 24 November 1986, for which he received a
sentence of “6 houe met ‘n ligte rottang”;
7.8 Theft on 23 October 1986, for which he received a
sentence of 12 months direct imprisonment;
7.9 Assault with intent to do grievous bodily harm, on 5
January 1987, for which he received a sentence of 9 months direct
imprisonment;
7.10 Murder, for which he was sentenced on 17 November
1987 to 12 years’ imprisonment which ran concurrently with the
sentence
which he was serving at the time;
7.11 Escaping or attempting to escape from custody
on 9 February 1993, for which he received a sentence of 9 months
direct
imprisonment;
7.12 Michaels was released on parole on 4 December
1996 whilst he was serving his sentence for murder, imposed in 1987.
Michaels violated his parole when he was found guilty of theft on 6
November 1997, an offence he committed whilst he was out on
parole.
He received a sentence of 4and a half years’ direct
imprisonment.
[8]
Details of the offences and sentence from which he was granted
parole, when he assaulted the Plaintiff in 2010, are as follows:
8.1 On 7 June 2004 he was convicted of theft, assault
with intent to do grievous bodily harm, assault and contravening the
Dangerous
Weapons Act. He was sentenced, on 8 July 2004, to
direct imprisonment of 7 and a half years at the Strand Magistrate’s
Court. The sentencing magistrate annotated the judgment by
adding the words “Beskuldigde mag nie op parool vrygelaat
word
voordat hierdie hof daarin geken is nie”.
8.2 On 22 October 2004 he was sentenced for theft again
and received a sentence of 2 years direct imprisonment.
[9]
For the above offences, Michaels commenced serving a sentence at
Brandvlei Prison of 9 and a half years. It was from this
term
of imprisonment that Michaels was granted parole when he assaulted
the Plaintiff in 2010.
[10]
The following dates and circumstances are relevant to Michaels’
period of incarceration:
10.1 Maximum release date: 7 January 2014;
10.2 Amnesty/remission granted: 10 months;
10.3 Sentence expiry date: 7 March 2013.
[11]
Michaels was considered for parole during 2007, but was not
recommended for parole.
On
29 August 2008, whilst serving his sentence, Michaels was found to
have contravened Section 23 (1) (g) of the Act, which offence
is
committed if an inmate conducts himself indecently by word, act or
gesture.
[12]
On 8 September 2008 Michaels was found to have contravened Section 23
(1) (m) of the Act, for being found in possession of
an unauthorized
article.
Michaels
attended a three day Aggression Programme over the period 22 to 24
October 2008.
[13]
On 21 December 2008 Michaels was found to have once again contravened
Section 23 (1) (m) of the Act, in that he was in possession
of dagga.
On
17 December 2008 to 19 December 2008 Michaels attended a three day
Life Skills Programme.
[14]
A report by the Unit Manager, S. Nȍthnagel, dated 9 March 2009,
stated of Michaels that: “
He adjusted well in the prison
system but he can give better full cooperation”.
[15]
On 28 April 2009 the Case Management Committee (established in terms
of Section 42 of the Act) of the Brandvlei Correctional
Centre,
recommended to the Board that Michaels be released on parole after
completing two thirds of his sentence. The Strand
Magistrate’s
Court was notified of Michaels’s Parole Board hearing and the
magistrate raised no objection thereto or
to Michaels being released
on parole.
[16]
The Board approved Michaels’ placement on parole from 17 March
2010 to 17 March 2013. Thereafter, as aforementioned,
on 19
July 2010 whilst out on parole Michaels assaulted the Plaintiff in
her home. This was the second time he had committed
an offence
whilst out on parole.
The
Evidence
[17]
In view of the Defendant's concession that the Plaintiff had been
attacked by Michaels as alleged in her particulars of claim,
the
Plaintiff elected not to testify. Instead, she relied on the
evidence of an expert witness, former social worker at Brandvlei
Maximum Correctional Services, (“Brandvlei”), Mr. Jacobus
Pansegrouw (“Pansegrouw”), to prove her claim.
[18]
Pansegrouw was the only expert to testify and his qualifications and
status as an experienced social worker formerly of Brandvlei,
specialising in the rehabilitation of offenders, was not challenged.
Pansegrouw worked as a social worker at Brandvlei Prison
for twenty
years, from 1994 until his resignation in 2014. He is currently
a businessman, but still maintains an involvement
with rehabilitation
projects at the Department of Correctional Services.
[19]
At the time of his resignation he was a head social worker at
Brandvlei Maximum Prison and an Assistant Director at the Department
of Correctional Services. His other qualifications are that of
a specialized HIV counselor, a sexual offender specialist
and a
marriage counselor. His expert report records that during his
time at Brandvlei Prison he was supervisor of social
workers and
social works students.
[20]
Pansegrouw had established a rehabilitation project, which he
described as internationally acclaimed, called “The Group
of
Hope”, during his time at Brandvlei. The programme
entailed over a year of daily therapy for inmates as compared
to the
standard programmes, averaging three days, and had a high percentage
of successful rehabilitation. The programme ran
for four years
and has stopped since he left Brandvlei.
[21]
In Pansegrouw’s opinion, group programmes of short duration
conducted at Brandvlei were not sufficient to promote rehabilitation
of offenders. It was, he said, impossible to change a life
marked by an abusive and violent history within 2 to 3 days of
group
programmes. He advocated individual therapy and a programme
similar to the one he had initiated at Brandvlei.
[22]
Pansegrouw testified that the Parole Board had the tools to assess
the existence and extent of rehabilitation and the chance
of
recidivism of inmates. The Board receives reports from
professionals and has the authority to call experts to inform Board
hearings. However, the decision to release or not to release on
parole, he said, had become a logistical consideration rather
than an
enquiry into rehabilitation and readiness to be released into
society.
[23]
Pansegrouw had studied the documents presented to the Board at
Michaels’ parole hearing. He had also familiarised
himself with a social work progress report dated 14 April 2009, by
social worker Ms. S Lewis, and a report by a unit manager dated
9
March 2009. He conceded that neither report expressed anything
out of the ordinary and agreed that the reports gave Michaels
“a
clean bill of health”. Pansegrouw noted that the two
programmes on Aggression and Life Skills attended by
Michaels, and
referred to in Lewis’ report, were only of three days duration
each. Whilst conceding that he could not
comment on Lewis’
programmes and their intervention with Michaels specifically, he
maintained that it was impossible to rehabilitate
a person with a
background like that of Michaels after a few days of group sessions.
The yardstick applied by the Defendant,
he said, was whether an
inmate had attended a programme, not how much impact the programme
had on an inmate. Further intervention
by the Board would have
been necessary for a determination on Michael’s parole
readiness. Based on his experience of more
than twenty years as a
therapist, he concluded that Michaels should not have been released
on parole on the information before
the Board.
[24]
During cross-examination Pansegrouw conceded that he had not worked
therapeutically with Michaels, but had spent a total of
one day with
him during his orientation on 10 October 2006, just over 2 years
after his incarceration in July 2004. The delay
in conducting
Michaels' orientation, he explained, was occasioned by the large
number of offenders to be processed.
[25]
The thrust of the cross examination of Pansegrouw by Mr. Jacobs, was
that Pansegrouw had “an axe to grind” with
the Department
of Correctional Services because of disciplinary proceedings that had
been brought against him. This, Pansegrouw
vehemently denied.
He however conceded that he had been found guilty of one offence,
namely that of starting the aforementioned
non-profit organization
for the rehabilitation of prisoners, without permission. The
sentence imposed upon him was the receipt
of a written warning, one
which he had never received. The fact that he continued to be
involved in projects of the Department
in Worcester, he said,
demonstrated that he harboured no ill will towards the Department.
[26]
Pansegrouw denied in cross examination that he had embellished his
curriculum vitae. When it was put to him that he had
not been
the supervisor of social workers and social work students as
reflected in his report, he replied that he had supervised
a social
worker for 6 months. When it was further put to him that he
could not have been a head social worker in 2014 when
he resigned, as
the description Head Social Worker was abolished in 2008, he admitted
to not being sure about this.
[27]
Mr. Jacobs was critical of Pansegrouw as an expert witness, arguing
that his testimony was tainted with bias and did not measure
up to
the objective standard required for experts. He took issue with
Pansegrouw’s failure to testify in chief that
he had conducted
Michaels' orientation in 2006 and described as a gross dereliction of
duty Pansegrouw’s two year delay in
the orientation of
Michaels. Mr. Jacobs was also critical of Pansegrouw's
testimony concerning the disciplinary charges against
him, stating he
had denied the charges in cross examination. He took issue
further with the fact that Pansegrouw, during
cross examination, was
unable to provide details of the social workers he had supervised,
and with his title as head social worker,
which Mr Jacobs submitted
was incorrect. Pansegrouw, he said, adduced this evidence to
bolster his status as an expert.
[28]
These criticisms of Pansegrouw are in the main unfair, given
Pansegrouw's ready admission to the disciplinary charge and
conviction
and his explanation for the two year delay in the
orientation of Michaels. Neither of these aspects, nor his
evidence concerning
his job title and those he supervised, serves to
render his expertise of 20 years in the field of rehabilitation with
the Department
of Correctional Services and his assessment of the
processes of the Parole Board, nugatory. I agree that
Pansegrouw's continual
involvement with the Brandvlei Prison does not
suggest he has an “axe to grind”. On balance,
Pansegrouw showed
himself to be a measured and fair witness making
concessions where they were appropriate. As there was no expert
evidence
adduced by the Defendant to contradict Pansegrouw, his
expert testimony stands.
Case
for the Defence
Testimony
of Shafiel Adonis
[29]
Mr. Shafiel Adonis (“Adonis”) is employed as a clerk of
the Parole Board at Brandvlei Prison. He was a member
of the
three member Board that took the decision to grant Michaels parole in
2009. At the time he was acting secretary to
the Board.
The other members were the Board chairperson, a Mrs. Bushwana, and a
community member, Mr. Mkentsha. Adonis
has been employed by the
Department of Correctional Services for 20 years and has been working
for the Board since 1997.
He has attended numerous Board
hearings. He said the Board deals with 5 to 6 parole
applications a day.
[30]
Prior to the Board hearing in respect of Michaels, its members had
been given a bundle of documents numbering some 45 pages,
said
Adonis. These included a number of reports, namely, the
aforementioned social worker and unit manager reports, as well
as a
report by a religious worker, a medical report and a report by an
educational officer. Adonis conceded that a report
in terms of
Section 42 (2) (d) of the Act, which obliges the Case Management
Committee to report to the Board regarding
inter alia
the
likelihood of relapse into crime, had not been furnished in respect
of Michaels.
[31]
The crucial reports on the basis of which parole was granted to
Michaels, were those of the case manager and social worker.
There was nothing negative about Michaels in these reports, said
Adonis. The social worker’s report that Michaels had
attended Life Skills and Aggression Programmes were factors which
weighed in his favour. Had he not attended these programmes
and
had the reports contained negative information, Michaels would not
have been granted parole, said Adonis.
[32]
Adonis explained that in arriving at its decision to release Michaels
on parole, the Board had weighed up both the negatives
and positives
pertaining to him. It had taken cognizance of his many previous
convictions, the fact that he had committed
an offence whilst out on
parole in 1997 and that he had been charged with 3 disciplinary
offences during his time in prison.
These, he said, were
outweighed by the positive reports, in particular those of the social
worker and unit manager.
[33]
As the offence committed whilst Michaels was out on parole in 1997,
had occurred more than 10 years before the parole hearing
in 2009,
Adonis said it was not an obstacle to the granting of parole.
When asked whether the Board could not have foreseen
that Michaels
would once again commit a crime on parole, Adonis replied that it was
possible in all cases for offenders to commit
crimes once released.
A person who had committed a crime whilst out on parole could, he
said, be considered again for parole.
[34]
Explaining the workings of the Board, Adonis testified that the
Chairperson goes through the profile of the offender, reads
the
reports and asks the Board if there are any questions.
Thereafter the Chairperson asks the offender if he or she wants
to
say anything, the offender is then excused and the Board makes a
decision. The hearing in respect of Michaels’ parole
took
approximately 34 minutes, commencing at 10h45 and ending at 11h19.
This, he said, was one of the shorter hearings, as
hearings can span
up to 2 hours.
[35]
During cross-examination Adonis acknowledged that Michaels had not
been referred to a psychologist and that there had been
no
psychologist’s report before the board. He explained that
parole is not a right but a privilege, and that the over-riding
issue
was whether an offender had been rehabilitated so as to be let out on
parole. He conceded that the negative factors
pertaining to
Michaels, namely his many previous convictions, his escapes from
custody, and the disciplinary offences whilst incarcerated,
did not
suggest rehabilitation.
[36]
For factors which pointed to meaningful rehabilitation on the part of
Michaels, Adonis pointed to the social worker’s
report and his
completion of the Life Skills and Aggression Programmes.
Completion of the courses, he said, was regarded
as the test to
counter the negative aspects. He however denied that the Board
engaged in an administrative process and did
not exercise proper
discretion in determining if Michaels should have been released.
[37]
Adonis was unable to point out how or where in the report by
Nȍthnagel, the unit manager, one could find that Michaels
had
been rehabilitated, but said that the content of the report was
suggestive of rehabilitation.
[38]
Adonis conceded that the timing of the courses that Michaels attended
appeared to be related to his disciplinary convictions
whilst in
prison. He however denied that these offences were a reason to
refuse parole. He said that were it not for
Michaels’
profile and disciplinary offences he would have been released after
serving a third of his sentence, adding that
various conditions had
been attached to the granting of parole to Michaels.
[39]
Adonis denied that once the minimum requirement for parole, being
service of one third of a sentence, had been achieved, the
Board
would be looking for a reason to grant parole.
Testimony
of Geraldine Suzanne Lewis
[40]
Ms. Lewis (“Lewis”) is the social worker and author of
the crucial Social Work Progress report, dated 14 October
2009, upon
which the Board took the decision to release Michaels on parole.
Lewis has been a social worker since 1992 and
has worked at Brandvlei
Medium Prison since 2005. Prior thereto she worked at Kroonstad
Prison.
[41]
Lewis' interaction with Michaels commenced in November 2007 when he
was transferred from the maximum to the medium section
of the
prison. She testified in chief that she had conducted
individual therapy with Michaels about five times, concerning
mostly
relationships with his family and contact with them. During
cross-examination she said that she could not actually
remember these
sessions.
[42]
The only other contact Lewis had with Michaels was during his
attendance of the Life Skills Programme between 17 – 19
December 2008 and his attendance at the Aggression Programme between
22 – 24 October 2008. She had selected Michaels
to attend
these programmes as part of his sentence plan. In each of these
programmes, there were two sessions a day and each
session lasted an
hour and a half. Not more than 12 inmates would have attended
the two programmes.
[43]
The Life Skills Programme had dealt with self-image, relationships,
communication and aggression. Lewis confirmed the
contents of
her report,
inter alia
that Michaels had completed the
programme, participated well, was open and honest about his feelings,
had shown no aggressive behaviour
and had gained insight into the
programme.
[44]
The Aggression Programme dealt with domestic violence, anger
management, conflict management styles, relationships, communication
and how to be assertive. Lewis similarly confirmed the contents
of her report under the heading Aggression Programme, namely
inter
alia
that the offender had completed the programme attending all
6 sessions, “never used any drugs and does not understand his
aggressive behaviour”, and participated very well throughout
the programme. Lewis had taken notes during the programmes
and
these, she said, had informed her report to the Board. She
could not remember precisely what Michaels had said that informed
her
opinion as expressed in her report.
[45]
When asked to comment on a statement in her report that Michaels had
committed his offences while intoxicated, Lewis said the
statement
had been informed by Michaels. In her opinion Michaels needed
no more social work intervention and she had therefore
recommended
that he be released on parole. Had there been negative aspects
she would not have recommended parole, she said.
Findings
[46]
The release of a sentenced prisoner on parole appears under the
section on Community Corrections at Chapter V1of the
Correctional
Services Act 111 of 1998
.
Section 50
(2) records the aim of
community corrections as being to ensure that persons subject to
community corrections abide by the conditions
imposed upon them in
order to protect the community from offences which such persons may
commit.
Section 64
(1) authorises the Board to impose
treatment, development and support programmes on a person subject to
community corrections.
Section 42
provides for the establishment of a
Case Management Committee (“CMC”) at a Correction
Facility. The function
of a CMC is to report to the parole
Board regarding the possible placement of an offender on parole. See
Van Vuren v Minister for Correctional Services and Others
2010
(12) BCLR 1233(CC)
at paragraph 26. Importantly
section 42
(2) sets out the mandatory duties of the committee and specifies what
reports must be placed before the Parole Board for the purposes
of
parole hearings.
“
42.
Case Management Committee.
—
(1)
At each correctional centre there must be one or more Case Management
Committees composed of correctional officials as prescribed
by
regulation.
(2)The Case
Management Committee must—
(
a
)
ensure that each sentenced offender has been assessed, and that for
sentenced offenders serving more than 24 months there is a
plan
specified in
section 38
(1A);
(
b
)
interview, at regular intervals, each sentenced offender sentenced to
more than 24 months, review the plan for such offenders
and the
progress made and, if necessary, amend such plan;
(
c
)
make preliminary arrangements, in consultation with the Head of
Community Corrections for possible placement of a sentenced offender
under community corrections;
(
d
)
submit a report, together with the relevant documents, to the
Correctional Supervision and Parole Board regarding—
(i)
the offence or offences for which the sentenced offender is serving a
term of incarceration together with the judgment on the
merits and
any remarks made by the court in question at the time of the
imposition of sentence if made available to the Department;
(ii)
the previous criminal record of such offender;
(iii)
the conduct, disciplinary record, adaptation, training, aptitude,
industry, physical and mental state of such offender;
(iv)
the likelihood of a relapse into crime, the risk posed to the
community and the manner in which this risk can be reduced;
(v)
the assessment results and the progress with regard to the
correctional sentence plan contemplated in
section 38
;
(vi)
the possible placement of an offender under correctional supervision
in terms of a sentence provided for in
section 276
(1) (i) or
287
(4)
(
a
)
of the Criminal Procedure Act, or in terms of the conversion of such
an offender’s sentence into correctional supervision
under
section 276A (3) (
e
)
(ii) or 287 (4) (
b
)
of the said Act, and the conditions for such placement:
(vii)
the possible placement of such sentenced offender on day parole,
parole or medical parole, and the conditions for such placement;
(viii)
a certified copy of the offender’s identity document and, in
the case of a foreign national, a report from the Department
of Home
Affairs on the residential status of such offender;
(ix)
the possible placement under correctional supervision or release of
an offender who has been declared a dangerous criminal,
in terms of
section 286B (4) (
b
)
of the Criminal Procedure Act; and
(x)
such other matters as the Correctional Supervision and Parole Board
may request; and
(
e
)
submit a report as contemplated in
paragraph (d)
to
the National Commissioner in respect of any sentenced offender
sentenced to incarceration of 24 months or less.
(3)
A sentenced offender must be informed of the contents of the report
submitted by the Case Management Committee to the Correctional
Supervision and Parole Board or the National Commissioner and
be afforded the opportunity to submit written representations
to the
Correctional Supervision and Parole Board or National Commissioner,
as the case may be.”
[47]
Finally Section 131 makes clear that the State is liable for delicts
committed by persons subject to community corrections.
It states:
“In the event of a person serving community corrections being
liable in delict for an act or omission in the course of such
service, the damages sustained may be recovered from the State.”
[48]
It is common cause that the Case Management Committee did not comply
with their mandatory duty to place
inter alia
the following
crucial reports before the Board hearing Michaels' parole
application:
48.1 A report on his mental state as required by Section
42 (2) (d) (iii);
48.2 A report on the likelihood of his relapsing into
crime, the risk posed to the community and the manner in which this
risk can
be reduced, as required by Section 42 (2) (d) (iv);
48.3 A report regarding the assessment results and
progress with regard to Michaels' correctional sentence plan
contemplated
in section 38 as required by Section 42 (2) (d) (v).
There
was also no evidence as to his sentence plan. Thus both the
Case Management Committee and the Parole Board failed to
comply with
their obligations under the Act. Decisions of this ilk taken by
Parole Boards without all the prescribed information
being available,
have been described as arbitrary and capricious and have been set
aside for that reason alone. See
CV v The Minister of
Correctional Services and Others,
unreported, North Gauteng
48967/2012 at paragraph 12. See also
Lebotsa and Another v
Minister of Correctional Services and Others
, unreported North
Gauteng 6478/2009 at paragraph 22.
[49]
The oft stated test for negligence, as expressed in
Kruger v
Coetzee
1966 (2) SA 428
(A)
at 430 E – G by Holmes
JA, is as follows:
“For the purposes of liability
culpa
arises if-
(a) a
diligens paterfamilias
in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii) would take reasonable steps to guard against such occurrence;
and
(b) the defendant failed to take such steps.
...Whether a
diligens paterfamilias
in the position of the
person concerned would take any guarding steps at all and, if so,
what steps would be reasonable, must always
depend upon the
particular circumstances of each case. No hard and fast basis
can be laid down.”
[50]
In my view the reasonable person in the position of the Board
appraised with:
50.1 Michaels' history prior to incarceration which
showed him to be a habitual violent criminal who was historically not
rehabilitated
by time spent in prison, nor by early release on
parole;
50.2 The fact that Michaels had previously violated the
parole conditions imposed on him while serving his sentence for
murder and
had committed a further crime while on parole;
50.3 The knowledge that after his 2004 incarceration
Michaels continued to commit offences in prison and his aggression
was flagged
on more than one occasion by officials, as pointed out by
the Plaintiff;
would
have foreseen, in the absence of any clear evidence of
rehabilitation, the reasonable possibility of his conduct, if
released
on parole, injuring another. It would have foreseen
the reasonable possibility that, if released, Michaels would cause
harm
of the kind that he ultimately caused to the plaintiff.
[51]
There simply was no clear evidence before the Board enabling a
decision that Michaels had been rehabilitated and could be granted
parole. Lewis' social worker report which was primarily relied
upon by the Defendant to justify Michaels' release on parole,
did not
offer clear evidence of rehabilitation. It did not assess
whether the programmes attended had actually led to rehabilitation.
The yardstick appeared to have been Michaels' mere attendance at the
programmes and not how the programmes had impacted on his
rehabilitation. As much was conceded by Adonis. In this
regard Pansegrouw's extreme scepticism about the prospects
of a
person with Michaels' criminal profile being rehabilitated by the
mere attendance of group sessions over a few days, is more
than
warranted.
[52]
Given the absence of clear evidence of rehabilitation in Lewis'
report, the Board should not have relied upon it to the extent
that
it did. The report ought to have been viewed cautiously also,
given that it was informed solely by Lewis' notes and
that she had no
independent recollection as to Michaels’ participation.
In contrast, had the Case Management Committee
and the Board complied
with their obligations under the Act and submitted and considered the
requisite reports as specified at
Section 42 (2) of the Act , the
situation might well have been different and there could have been
clear evidence of Michaels'
rehabilitation.
[53]
Given the absence of evidence that Michaels had been rehabilitated,
the Board ought in the circumstances to have taken reasonable
steps
to guard against the foreseeable harm of Michaels’ release on
parole, by refusing his parole application. Failure
to do so
was an act of negligence. A further act of negligence was the
failure to comply with the mandatory statutory requirements
of
Section 42 (2) of the Act. The negligence was causally
connected to the harm suffered by the plaintiff. But for
Michaels' release on parole, the plaintiff would not have been
attacked by him. The Board and the Case Management Committee
had a direct legal duty to protect members of the public from persons
on parole, as was correctly conceded by the Defendant, and
failed to
meet that duty by negligent commission, an act for which the
defendant is liable.
[54]
I accordingly grant the following order:
1. The Plaintiff's claim is upheld on the merits.
2. The Defendant shall pay the costs of the action to
date.
____________________
Y S MEER
Judge of the High Court
PRESIDING
JUDGE
: YASMIN
SHEHNAZ MEER
Counsel for
Plaintiff
: Adv Rob
Acton
Instructed
by
: G Van
Zyl Attorneys
Ref.: Mr Gideon Van Zyl
Counsel for
Defendant
: Adv
Donald Jacobs SC
Instructed
by
: State
Attorney
Ref.: Mr George Kohler
Date of
Hearing
: 28, 29
and 30 November 2016
Date of
Argument
: 6
February 2017
Date of
Judgment
: 9 March
2017