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[2015] ZAGPJHC 39
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Nobatana and Another v Head of Rooiground Correctional Centre and Others (72348/2012) [2015] ZAGPJHC 39 (6 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 72348/2012
DATE: 06 FEBRUARY 2015
In the matter between:
PRINCEDOM MABANDLA
NOBATANA
......................................................................
1st
Applicant
SYLVANUS MOREOTSILE
MADIBE
...........................................................................
2nd
Applicant
And
THE HEAD OF ROOIGROND CORRECTIONAL
CENTRE
..................................
1st
Respondent
THE DEPUTY HEAD OF ROOIGROND
CORRECTIONAL
CENTRE
.........................................................................................................................
2nd
Respondent
THE CHAIRPERSON OF THE PAROLE
BOARD
...................................................
3rd
Respondent
CHAIRPERSON OF THE CASE MANAGEMENT
COMMITTEE
.................................................................................................................
4th
Respondent
THE MINISTER OF CORRECTIONAL
SERVICES
................................................
5th
Respondent
J U D G M E N T
MASHILE, J:
[1] This is an application by two
inmates currently serving their imprisonment term at the Rooigrond
Correctional Centre in Mafikeng,
North West Province. They
approached this court seeking relief that:
1.1 They forthwith be considered for
placement on parole;
1.2 They be awarded maximum credits
under section 22A of the Correctional Services Act No. 8 of 1959
(hereinafter “Act 8 of
1959”);
1.3 It be declared that notwithstanding
the sentence imposed, all offenders are qualified to be placed on
parole on completion of
one third of their sentences.
[2] The Respondents made it plain that
they oppose the granting of the relief sought in paragraphs 1.1 and
1.3 above. Equally the
Respondents made it clear that they do not
oppose the granting of the relief that the Applicants be awarded
maximum credits under
section 22A of Act No. 8 of 1959.
[3] The First Applicant has been in
custody since 25 June 1999 and was convicted on two counts of murder
and one of attempted robbery.
On 2 February 2001, the court imposed
a sentence of two life terms and fifteen years direct imprisonment
respectively. The sentence
were ordered to run concurrently. At the
time of the hearing of this matter on 5 August 2013, the First
Applicant had accordingly
served 12 years 5 months of his sentence.
[4] The Second Applicant was arrested
on 18 October 1998 and was convicted and sentenced on 28 September
2000 to life imprisonment
for one count of murder and a further 20
years for one count of robbery. Like in the case of the First
Applicant, his sentences
were decreed to run parallel. The Second
Applicant had, by the time this matter was heard on 5 August 2013,
therefore served 12
years 9 months of his sentence.
[5] For their contention that they be
considered for placement on parole forthwith as they have served ten
years of their sentences,
the Applicants rely on Van Vuuren v
Minister of Correctional Services & Others
2010 (12) BCLR 1233
(CC). In this regard, the Applicants aver that:
5.1 “the court found that under
the old Correctional Services Act, Act No 8 of 1959, Van Vuren and
other inmates who were
sentenced to life imprisonment before the 1st
October 2004 qualified for consideration for placement on parole
after serving ten
years imprisonment on their sentences”;
5.2 “a Court Order was issued
ordering the minister to consider, with immediate effect all inmates
who had already served
ten years of their sentences and who were
sentenced before 1 October 2004 to life imprisonment, for possible
placement on parole”.
[6] The Respondents assert that the
Applicants’ approach on the Van Vuuren case SUPRA is completely
misguided. A proper perspective
of the facts in Van Vuuren is that
Van Vuren was sentenced to death on 13 November 1992. After the death
penalty was declared unconstitutional,
his death sentence was
converted in September 2000 to life imprisonment which was antedated
to the date of his original sentence,
13 November 1992.
[7] The policy which applied on 13
November 1992 (to which date Van Vuuren’s sentence of life
incarceration was backdated)
was that offenders serving life
sentences were required to serve ten years of their sentence prior to
consideration for placement
on parole but that placement on parole
would occur only in exceptional cases before fifteen years of the
sentence had been served.
[8] Van Vuuren who fell under section
136(1) of the Correctional Services Act No. 111 of 1998 (hereinafter
“Act No. 111 of
1998”), argued that he was entitled to be
considered for parole in terms of the policies and guidelines which
applied at
the date of his original sentencing on 13 November 1992
and the court agreed.
[9] The Respondents concession that
they are prepared to entertain the Applicants on the issue of the
award of maximum points leaves
only two questions to be determined by
this court. Those issues are that:
9.1 That the Applicants at once be
considered for placement on parole; and
9.2 It be declared that notwithstanding
the sentence imposed, all offenders are qualified to be placed on
parole on completion of
one third of their sentences.
[10] The legal position regarding the
above two issues is regulated by Section 136(1) of Act No. 111 of
1998 (hereinafter “Act
No. 111 of 1998”), which provides
as follows:
“136. Transitional provisions –
(1) Any person serving a sentence of
imprisonment immediately before the commencement of Chapters IV, VI
and VII is subject to the
provisions of the Correctional Services
Act, 1959 (Act 8 of 1959), relating to his or her placement under
community corrections,
and is to be considered for such release and
placement by the Correctional Supervision and Parole Board in terms
of the policy
and guidelines applied by the former Parole Boards
prior to the commencement of those Chapters.”
[11] Chapter IV of Act 111 of 1998 came
into operation on 31 July 2004 whilst Chapters VI and VII came into
operation on 1 October
2004. The operative date for purposes of
section 136(1) of Act No. 111 of 1998 is therefore 1 October 2004.
Offenders who were
sentenced before this date are considered for
placement on parole in terms of the policy and guidelines applied by
the former Parole
Boards.
[12] The policy applied by Parole
Boards with regard to the consideration of offenders who are serving
life imprisonment for placement
on parole has been inconsistent.
Thus, the applicable policy at the time of the sentencing of each of
the Applicants required
inmates serving life sentence to serve twenty
years imprisonment prior to consideration for placement on parole
subject to certain
specified exceptions, which do not apply in this
case.
[13] When one contrasts the above with
that which applied in the Van Vuuren case which required a period of
ten years to have been
served, it is apparent that in consequence of
the different policies that applied at various stages, not all
prisoners who fell
under Act No. 111 of 1998 would qualify without
exception. The ultimate determining factor is the policy that found
application
at that pertinent period hence the distinction between
1992 on the one hand and 2000 and 2001 on the other. The error the
Applicants
make is to apply the Act indiscriminately without any
reference to the relevant policies and guidelines.
[14] The constitutional court held in
van Vuuren case supra that Section 136(1):
14.1 Refers to any person serving a
term of incarceration, including lifers;
14.2 the phrase “prior to”
in section 136(1) (in the context of an offender being considered for
placement on parole
in terms of the policy and guidelines applied
“prior to” 1 October 2004) encompasses the policies and
guidelines in
existence at any time before 1 October 2004 (by way of
preserving all the policies and guidelines that applied before 1
October
2004);
14.3 the argument (as argued by the
Department of Correctional Services) that Van Vuuren could only be
considered for parole after
having served 20 years of his sentence
would render the policy and guidelines that applied at the time of
his having been sentenced
retrospective in effect;
14.4 deprivation of a person’s
liberty in the retrospective application of a change in parole policy
does not conform to the
principles of the rule of law;
14.5 given that his sentence of life
incarceration had been antedated to 13 November 1992, Van Vuren was
eligible to be considered
for placement on parole in terms of the
policy and guidelines that existed on 13 November 1992.
[15] A proper application of what the
Constitutional Court held in the Van Vuuren case supra is that one
must consider the policy
and guidelines that applied at the time of
the sentencing when about to place inmates on parole. To say that
the Applicants in
this case have served a third of their life
imprisonment term or more than half would be importing a policy that
does not apply
to their particular situation at all. According to
the policy that was applicable at the time when each of them was
sentenced,
each must serve twenty years before he can be considered
for placement on parole.
[16] While the Respondents have made it
clear that they do not oppose the crediting of maximum points to the
Applicants that applies
under Act 8 of 1959, I deem it necessary for
the sake of completion to discuss it anyway. The need to do so comes
to the fore
as a result of this judgment being handed down well after
the Applicants have served a period of thirteen years and eight
months,
which appears to be the required number of years that they
were suppose to serve prior to consideration for placement on parole.
The ‘credits system’ which applies in terms of section
22A of Act No. 8 of 1959 provides that :
“ 22A. Allocation of credits
(1) A prisoner may earn credits, , by
observing the rules which apply in the prison and by actively taking
part in the programmes
which are aimed at his treatment training and
rehabilitation ... Provided further that –
(a) a prisoner may not earn credits
amounting to more than half of the period of imprisonment which he
has served;
(b) ...
(c) ...
(2) The number of days and months
earned by a prisoner as credits may be taken into account in
determining the date on which a parole
board may consider the
placement of such prisoner on parole.”
[17] It was held in the case of Van Wyk
v Minister of Correctional Services & Others
2012 (1) SACR 159
(gnp), that prisoners serving life imprisonment term before 1 October
2004 were at liberty to have the date on which they may be
considered
for parole brought forward by credits. This could be done by way of
Correctional Services Order BVI (1A)(22)(d), which
subsequent to the
amendment thereof did away with the awarding of credits to prisoners
serving a life term, being declared inconsistent
with the
Constitution as it involved the retrospective application of a change
in parole policy which had previously applied to
life term prisoners.
[18] To give effect to the Van Wyk case
supra, the Department of Correctional Services adopted an
implementation plan in terms of
which prisoners serving life term
sentenced before 1 October 2004 are granted maximum credits under
section 22A of Act No. 8 of
1959.
[19] The minimum detention period for
prisoners serving life term sentenced after 1 March 1994 when the
twenty year policy was introduced,
and before 1 October 2004 is
accordingly thirteen years and eight months. This accords with the
provision in Section 22a of Act
No. 8 of 1959 that an offender may
not earn credits amounting to more than half of the period of
incarceration, which he has served.
[20] It is against that background that
each of the Applicants was required to serve at least thirteen years
eight months of his
sentence prior to being considered for placement
on parole. At the time of the hearing of this case neither the First
nor the
Second Applicant had served thirteen years eight months of
his sentence. In the premises, neither one was eligible for
consideration
for placement on parole. However, now that they have
served more than thirteen years eight months, they do qualify
provided of
course that they meet the other requirements in terms of
Section 22a(1) of Act No. 8 of 1959.
[21] The Applicants invoked Section
65(4)(a) of Act No. 8 of 1959 and placed reliance thereon for the
declaratory order that they
seek being that offenders are entitled to
be considered for placement on parole on completion of one third of
their sentences regardless
of the sentence imposed. The Respondents
contend that such reliance on the section is wrong.
[22] Section 65(4)(a) of Act No. 8 of
1959 applies in respect of determinate sentences only by providing
that an offender serving
a determinate sentence shall not be
considered for placement on parole before having served half of the
term of incarceration.
This is subject to the proviso that the date
on which consideration may be given to placement of the offender on
parole may be
brought forward by the number of credits earned. It is
common cause that the Applicants are serving an indeterminate
sentence
of life incarceration. Section 65(4)(a) cannot for that
reason apply to their situation.
[23] The Applicants’ contention
that they are entitled to be considered for placement on parole after
serving one third of
their sentences flies directly in the face of
the Van Vuren case supra in terms of which prisoners serving life
term are to be
considered for placement on parole in accordance with
the policy and guidelines that existed at the time of the imposition
of their
sentences.
[24] I completely agree with Counsel
for the Respondents that a sentence of life incarceration means
exactly what the words imply
- for the duration of the offender’s
natural life. It would not matter that the sentence is served within
a correctional
centre, or outside of a correctional centre whilst
under community corrections. Given that one does not know for how
long one
will live, section 65(4)(a) of Act 8 of 1959 (by way of
calculating half of the sentence) cannot be applied to prisoners
serving
a life term.
[25] Further to the above, a
fundamental flaw in the Applicants' contention that they are eligible
for consideration for placement
on parole after serving one third of
their sentences is to equate a sentence of life incarceration to a
sentence of twenty years
incarceration.
[26] This is completely fallacious as a
sentence of life incarceration is not a sentence of twenty years.
The correct position
is that since 1 March 1994 the period of twenty
years is the minimum detention period to be served prior to a
prisoner serving
a life term can be considered for placement on
parole. The Applicants’ contention that they are permitted to
be considered
for placement on parole after service of one third of
twenty years is therefore wrong and must be rejected.
[27] The Applicants also advanced the
argument that they have, by way of presidential granted amnesties,
earned remissions amounting
to twelve months. They argue that in
addition to their period being remitted, the presidential amnesties
entitle them to be considered
for placement on parole earlier than
was planned.
[28] It is trite that the upshot of
remission of sentence is to reduce the effective sentence by the
period of remission granted
to an offender. Accordingly, if an
offender serving a determinate sentence of incarceration is granted
remission of sentence,
his consideration date for placement on parole
will equally be brought forward.
[29] Accepting that the aforesaid is
correct, I agree with the contention of the Respondents that the
granting of remission of sentence
does not, as a matter of logic, not
advance the consideration date for placement on parole of prisoners
serving life term incarceration.
This must be so because one does
not know how long one will live. For that reason, remission of
sentence cannot naturally reduce
the effective sentence of a
prisoner serving a life term incarceration by advancing the
consideration date for his placement on
parole as in the case of an
offender serving a determinate sentence.
[30] While the Applicants have raised
further arguments in support of their early placement on parole,
there are no parallel reliefs
sought in their notice of motion.
Accordingly, the court cannot consider those as they are not before
it.
[31] In the premises, I make the
following order:
1. The Respondents are ordered to
consider the placement of the Applicants on parole in terms of
Section 22a of Act No. 8 of 1959.
2. No order as to costs.
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE APPLICANTS: In
Person
INSTRUCTED BY: In Person
COUNSEL FOR THE RESPONDENTS: ADV.
TWG Bester
INSTRUCTED BY: The State Attorney
DATE OF HEARING: 5 August 2013
DATE OF JUDGMENT: 6 February 2015