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[2016] ZAGPJHC 120
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Ramonetha v Chairperson of Case Management Committe (Leeuwkop Med C) and Others (2015/32914) [2016] ZAGPJHC 120 (13 May 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION,
JOHANNESBURG)
Case no 2015/32914
DATE: 13 MAY 2016
In the matter between:
Ernest
Ramonetha
.....................................................................................................................
Applicant
And
The Chairperson of Case Management
Committee (Leeuwkop Med C)
....................
1
st
Respondent
The Chairperson of the Parole
Board
...........................................................................
2
nd
Respondent
The
Prison Director (Leeuwkop Med
C)
.......................................................................
3
rd
Respondent
The
Minister of Justice and Correctional
Services
.......................................................
4
th
Respondent
JUDGMENT
Van
der Linde, J
:
Introduction
[1]
In
this matter I heard argument during the motion court week ending 11
March 2016, and on 18 March 2016 gave a reasoned judgment
concluding
with an order joining the Minister as fourth respondent. Provision
was also made for answering affidavits to be filed,
but Mr. Pooe of
the State Attorney, who again appeared earlier this week for the
respondents and now also the fourth respondent,
advised that there
would be no opposition to the relief claimed. A notice of intention
to abide was handed up on behalf of the
Minister.
[2]
The
background to the matter, and the issue that it raises, were set out
in the judgment that I gave on 18 March 2016; it is not
required to
be fully repeated here. Some mention of it is unavoidable to provide
context for the conclusion to which I have come.
[3]
In
a nutshell, the department had treated two six months Presidential
remissions of sentence for lifers disparately. It reasoned
that the
first Presidential remission, that of 30 May 2005, may not be taken
into account to reduce the minimum detention period
of a lifer in the
position of the applicant; but that the second Presidential
remission, that of 27 April 2012, may in fact be
taken into account.
[4]
In
the applicant’s case this meant that the department reckoned
his parole eligibility date as 22 January 2017, whereas if
he were
right, it should be six months earlier, on 22 July 2016. The issue
was thus whether the differentiated treatment was legitimate.
Background
[5]
In
the discussion of the background in the earlier judgment, I referred
to the fact that the applicant was sentenced on 23 March
2004 to two
terms of life imprisonment for two murders he had committed. Then
applicable legislation regulating his parole prospects
then was the
Correctional Services Act 8 of 1959. That Act was repealed with
effect from 1 October 2004 by the currently operational
Correctional
Services Act 111 of 1998
.
[6]
Under the old Act there was no minimum
detention period that a lifer had to have served before s/he could be
taken into account
for parole. However, the department applied a
policy whereby after having served 20 years, a lifer could be
considered for parole.
Since the applicant’s two life sentences
were to run concurrently, the applicant would have been eligible for
parole on 22
March 2024.
[7]
S.73(6)(b)(iv) of the new Act provides
that a person who has been sentenced to life incarceration may not be
placed on parole until
s/he has served at least 25 years of the
sentence. There are also transitional provisions that are important.
By virtue of s.136(3)
of these, the applicant’s minimum
detention period therefore remained 20 years.
[8]
After the new Act came into effect, on 30
May 2005, the President, acting under the powers conferred by
s.84(2)(j) of the Constitution,
granted the first special remission
of sentences to indicated categories of prisoners who would have been
serving sentences on
30 May 2005. The first period of remission was a
six months’ remission to all prisoners serving sentences on 30
May 2005
for, inter alia, murder.
[9]
On
25 July 2011 Hiemstra, AJ in the North Gauteng High Court, delivered
a judgment in Van Wyk v Minister of Correctional Services
and others,
Case no. 40915/10, the effect of which was that the new Act could not
be applied to prejudice lifers. They were entitled
to have the date
on which they may be considered for parole advanced by credits that
were earned in terms of s.22A of the old Act,
and in terms of the
policy of the department which applied at the date of the commission
of the crimes for which they were serving
life sentence.
[10]On 5 August 2011 the
department notified all lifers that in view of the Van Wyk judgment
the department had decided that all
lifers sentenced before 1 October
2004 would be granted the maximum credits that a lifer could have
earned under s.22A of the old
Act. The effect of this decision was
that the minimum detention dates for all lifers sentenced before 1
October 2004 would be calculated
as 13 years and 4 months. Leaving
aside for now the effect of the two Presidential special remissions,
this reduced the applicant’s
minimum detention period to 13
years and 4 months, meaning that he was eligible for parole on 22
July 2017.
[11]On 27 April 2012 the
President, acting under s.84(2)(j) of the Constitution, again granted
a special remission of sentence,
including a six months’
special remission of sentences to all offenders, irrespective of the
crimes committed.
[12]I propose now to deal with
the treatment of the two six months’ remissions by the
department, and refer thereafter to
the other points taken by them in
March 2016.
The department’s treatment of the two six months’
remissions
[13]As
stated earlier, the department’s treatment of the two
remissions has been inconsistent. It reasoned that the first
six
months’ remission may not be taken into account to reduce the
applicant’s minimum detention period, but the second
six
months’ remission period may in fact be taken into account.
Accordingly, whereas the applicant argues that his parole
eligibility
date is 22 July 2016, some four months down the line, the department
argued that in fact his parole eligibility date
is six months later,
being 22 January 2017.
[1]
The difference between the parties was thus crisply whether or not
the first six months’ remission period may be taken into
account.
[14]The opposing submissions were
these. The applicant argued that on the ordinary grammatical meaning
of the first remission, it
applied to all offenders, including
lifers, sentenced by 1 October 2004. Since he was sentenced
before that date, on 23 March
2004, he qualified. The only exceptions
were the two categories mentioned, and he does not resort under them.
[15]Implicit, if not expressed,
in this argument was that a remission of sentence applied both to
prisoners serving a sentence which
had a sentence expiry date, as
well as to prisoners who served a sentence which had no such date,
i.e. lifers. In this latter category,
the remission is simply not
applied to the sentence expiry date, since there is none, but to
reduce the minimum detention period.
[16]The respondents’
argument was that since a lifer’s sentence had no sentence
expiry date, the six months’ remission
could not be applied to
those prisoners. The respondents’ position was captured in a
circular by the Chief Deputy Commissioner
of Correctional Services,
acting on behalf of the Commissioner, dated 30 may 2005.
[17]In the accompanying directive
he wrote: “
With regard to
prisoners serving life imprisonment and those who were declared as
dangerous criminals in terms of Section 286B of
the Criminal
Procedure Act, 1977 (Act No 51 of 1977), the applicable period
special remission of sentence must be reflected on
the warrant and
official documents. However whilst such prisoners are serving
imprisonment for an indefinite period, it will have
no effect on
their release dates.”
[18]The applicant’s warrant
was, to be true, endorsed at the foot of the first page: “
Benefitted
special remission of sentence: 30 May 2005 (06 – months).”
The respondents were however not able to say what effect or benefit
this endorsement had, given paragraph 2.5 of the directive
just
quoted.
[19]The department’s
treatment of the subsequent six months’ remission is reflected
in a document headed, “
SPEAKER’S
NOTES ON THE GRANTING OF THE SPECIAL REMISSION OF SENTENCE BY THE
PRESIDENT ON 27 APRIL 2012.”
In
the body of the document paragraph 2.1.1, appearing under the heading
“
WHO WILL QUALIFY?”
,
reads: “
Maximum of six (6) months
special remission of sentence to all offenders, probationers,
parolees and day parolees irrespective of
crime committed.”
Nothing further of relevance appears.
Suggested approach
[20]In view of the respondents’
present attitude, I state the reasons for my conclusion very briefly.
The President plainly
has the prerogative under s.84(2)(j) of the
Constitution to remit sentences; no-one argues otherwise. When he
exercises that prerogative,
no arm of government, particularly the
executive and its administration, has the power to curtail the
exercise of that prerogative.
[21]Since
ours is a constitutional democracy and the law rules, not
Presidential decree, the exercise of the prerogative is subject
to
the rationality test: the exercise of the prerogative in a given
instance must be rationally connected to the objective sought
to be
achieved in that specific instance.
[2]
In this case that issue does not arise because as will appear below,
in my view the administration, in the guise of the department,
did
not give appropriate effect to the exercise of the prerogative.
[22]Precisely
what the exercise of the prerogative actually entailed is a factual
enquiry. In this case the exercise of the power
was contained in the
Presidential minutes. Since these are documents, they are to be
interpreted like any other document, including
a statute or contract.
That means that the starting point is ordinary grammatical meaning,
but one moves from there to context,
purpose, and constitutional
compatibility.
[3]
[23]
The
2005 Presidential special remission contains no words of limitation
in the manner suggested by the respondents’ submissions,
nor by
the directive quoted above. The context suggests rather that where
the President intended a limitation, he expressed it:
this applies to
the two special categories quoted above, neither of which applies to
lifers. The context further suggests that
the President had wished to
benefit all who were not expressly excluded.
[24]After all, the President
included the crimes of robbery and murder, where he must have known
that life sentences were a real
consequence, and yet he did not
differentiate in those crimes between those who had been sentenced to
life imprisonment, and those
who received sentences with sentence
expiry dates.
[25]Finally the spirit, purport
and objects of the Bill of Rights, and the express equality
provisions of s.9(1) of the Constitution,
proclaiming as it does that
everyone has the right to equal benefit of the law, rather favours an
interpretation that the generic
six months’ remission was
intended by the President to apply also to lifers.
[26]It follows that in my view
the department does not have the power to exclude lifers that fall
within the category of the applicant
from the benefit of the six
months’ special remission dated 30 May 2005 and, just as in the
case of the six months’
special remission of 27 April 2012,
that period of six months must serve to reduce the applicant’s
minimum detention period.
His parole eligibility date of 22 July 2017
should accordingly be advanced not by six months, but by twice six
months, to 22 July
2016.
The two points
in limine
[27]
The
first was the substandard nature of the applicants’ papers, and
the second was that such “decision” as has
been taken, is
not reviewable under PAJA for being non-final.
[28]If the conclusion that I have
reached on the merits is correct, then the steps to procure the
appropriate consideration of the
applicant’s parole must be set
in motion presently. Against that background, the point
in
limine
which attacks the substandard
state of the applicant’s papers does lose some importance.
There is another consideration in
this regard.
[29]If the view of the legal
position that I have expressed is correct, then more lifers than just
the applicant may be affected.
Assuming that no
reviewable decision has yet been taken, it seem plain from these
papers that the respondents had all
taken the position that the first
six months’ Presidential special remission may not be taken
into account.
[30]On that basis, the attitude
of the second respondent would have precluded the applicant from
enjoying the benefit of those six
months. Moreover, the fact that the
first respondent and the third respondent shared that attitude, at
least initially, meant that
the steps required to prepare the
appropriate consideration of the applicant’s parole application
would not have been set
in motion.
Conclusion
[31]As appears from the above
reasoning, I have come to the conclusion that it should be declared
that the six months’ Presidential
special remission of sentence
dated 30 May 2005 must be applied to advance the applicant’s
parole eligibility date by that
period. Consequential relief should
follow.
[32]In the result I make the
following order:
(a)
It
is declared that the Presidential special remission of sentence dated
30 May 2005 must be applied to advance the applicant’s
parole
eligibility date by six months, to 22 July 2016.
(b)
The
Department of Correctional Services must take appropriate steps to
ensure that the applicant’s parole eligibility date
of 22 July
2016 is implemented.
(c)
In
order to give effect to paragraph (b) above, the Department of
Correctional Services must ensure that any internal prerequisites,
including evaluations and assessments of the applicant so as
timeously to complete his required profile submission, will take
place in sufficient time for the applicant’s eligibility date
of 22 July 2016 not to be prejudiced in any respect.
WHG van der
Linde
Judge, High
Court
Johannesburg
Applicant:
in person
For the
Respondents: Mr TR Pooe
The State
Attorney
12
th
Floor, North State Building
95 Albertina
Sisulu Street
Cnr Kruis
Street
Johannesburg
Tel:
001-3307685
Ref:
7609/15/P6/CN
Date argued:
9 May, 2016
Date
judgment: 13 May, 2016
[1]
The department actually argues 23 January 2017,
but since the sentencing date was 23 March 2004, the calendar
months’ calculation
determines the period on the end of the
previous day.
[2]
Albutt v Centre for the Study of Violence and
Reconciliation, and Others,
2010 (3) SA 293
(CC).
[3]
Cool Ideas 1186 CC v Hubbard and Another, 2014(4)
SA 474 (CC) at paragraph [28].