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[2016] ZAGPJHC 159
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Mawelele v Minister of Correctional Services and Others (34747/2015) [2016] ZAGPJHC 159 (10 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 34747/2015
DATE:
10 JUNE 2016
In the matter
between:
ABEL
MAWELELE
.................................................................................................................
Applicant
And
THE
MINISTER OF CORRECTIONAL
SERVICES
.............................................
First
Respondent
THE
CHAIRPERSON CMC LEEUWKOP MEDIUM
C
....................................
Second
Respondent
THE DIRECTOR PUBLIC
PROSECUTIONS
JOHANNESBURG
.....................................................................................................
Third
Respondent
J U D G M E N T
Summary:
Criminal
law
–
Parole
– statutory regime governing placement on parole –
sentenced inmate (applicant) seeking order for placement on parole
–
applicant relying on Correctional Services Act 8/1959 (old Act)
– old Act governing the release of prisoners
who
committed offences before enactment of Correctional Services Act 111
of 1998 (new Act) – applicant contending he
qualifies for
placement on parole after serving one third of sentence under the
Rules and Regulations of old Act – applicant
charged and
sentence for offences in 2004 – he also relies on s35(3)(n) of
Constitution – authorities show date of
sentencing is operative
date for determining eligibility for placement on parole –
applicant’s assertions that he is
entitled to be considered for
placement on parole after serving one third of sentence under Old Act
therefore misplaced –
application dismissed.
MOSHIDI, J
:
INTRODUCTION
[1]
This judgment need not to be elaborate in the light of the
concessions made by the applicant in closing argument. As a
sentenced inmate at the Leeuwkop Medium C Correctional Centre, he is
seeking an order declaring that he qualifies to be considered
to be
placed on parole under the provisions of the Correctional Services
Act 8 of 1959 (“
the Old Act
”).
In addition, the applicant seeks an order declaring the respondents
to apply the provisions of sec 35(3)(n) of the
Constitution when
dealing with the release of prisoners who committed crimes before the
enactment of the Correctional Services
Act 111 of 1998 (“
the
1998 Act
”).
[2]
These are the facts: the applicant was arrested during July 2004 and
charged with certain serious charges, including attempted
murder,
robbery with aggravating circumstances and offences of unlawful
possession of firearms and ammunition. On 25 October
2004, he
was duly convicted and sentenced to an effective prison term of 20
years. According to the Department of Correctional
Services
documents attached to the founding papers, his release date is 13
February 2032; he shall have served half of his sentence
by 5 August
2017; he served a third of his sentence by 2 May 2013; he shall have
completed 15 years imprisonment by 25 October
2029; and his profile
for parole will be submitted by 5 February 2017. The applicant
contended that he qualifies for placement
on parole after serving one
third of his sentence under the Rules and Regulations framed under
the Old Act. The application
was opposed by the respondents.
[3]
The central issues raised in this application, concern the
interpretation of the relevant provisions of the Old Act, and the
1998 Act, as well as the respective regulations framed thereunder.
These issues, coupled with the provisions of sec 35(3)(n) of
the
Constitution, and being prevalent in the motion courts, have been
raised in several case law, and fully ventilated. For
example,
Makaba v The Minister of Correctional
Services and Others
, Case No 5369/2011,
Free State High Court;
Tony Phakiso
Seganoe v Minister of Correctional Services and Others
,
Case No 33432/2012, South Gauteng High Court, Johannesburg; and
Ernest Ramonetha v The Chairperson of
Case Management Committee (Leeuwkop Medium C)
,
Case No 32914/2015, Gauteng Local Division, Johannesburg, with
various results.
[4]
However, more recently, the Supreme Court of Appeal (SCA), in
Minister of Correctional Services and
Others v Seganoe
, (20507/2014)
[2015]
ZASCA 148
(01 October 2015) (
supra
),
resolved the issue for now. The SCA in para [1] of the judgment,
formulated the issue on appeal as follows:
“
The
crisp question in this appeal in which statutory regime governs the
eligibility of placement on parole of sentenced offenders
convicted
of offences committed during the existence and operation of the
Correctional Services Act 8 of 1959 (the 1959 Act)
but
sentenced after the commencement of the
Correctional Services Act 111
of 1998
which repealed it. The Gauteng Local Division,
Johannesburg (the high court) held that it is the statutory regime in
force
at the time of the commission of the offences that is
applicable. The Minister of Correctional Services (the
Minister) appeals
against that judgment with the leave of this
court.
”
In
the process of upholding the appeal, the SCA at para [5] of the
judgment, said:
“
The
high court agreed with the respondent, in contrast to previous high
court decisions which held
that
in terms of the law, the date of sentencing was the operative date
for purposes of determining eligibility for placement on
parole
…”
(underlining
added)
See
also paras [8] to [11] of the judgment.
[5]
Based on the above it is more than plain that the applicant’s
assertions in the present matter, that he is entitled to
be
considered for placement on parole after serving one third of his
sentence, and in terms of the provisions of the Old Act and
the
regulations framed thereunder, were misplaced. The applicant
conceded this much during closing argument. He however,
urged
the Court to show mercy and come to his rescue in any event.
This was not feasible legally speaking.
[6] The inevitable conclusion is that the application ought to fail
as it was brought clearly prematurely. In the exercise
of my
discretion, there should be no order as to costs in matters of this
nature.
ORDER
[7] In the result the following order is made:
7.1
The
application is dismissed.
7.2
There
shall be no order as to costs.
7.3
The
state attorneys office shall hand a copy of this judgment to the
applicant if he is not present during the handing down of this
judgment.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT IN PERSON
COUNSEL
FOR THE RESPONDENTS MR R T POOE
INSTRUCTED
BY THE STATE ATTORNEY
JOHANNESBURG
DATE
OF HEARING 23 MAY 2016
DATE
OF JUDGMENT 10 JUNE 2016