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[2020] ZAGPJHC 266
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Porritt v Head of JHB Medium Correctional Facility and Others; In Re: S v Porritt and Another (2019/41462) [2020] ZAGPJHC 266 (30 January 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/41462
In
the matter between:
GARY
PATRICK PORRITT
Applicant
and
HEAD
OF JHB MEDIUM A CORRECTIONAL FACILITY
First
Respondent
AREA
COMMISSIONER, JOHANNESBURG AREA, DEPARTMENT OF CORRECTIONAL
SREVICES
Second
Respondent
NATIONAL
COMMISSIONER OF CORRECTIONAL SERVICES
Third
Respondent
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
Fourth
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS, GAUTENG LOCAL DIVISION
Fifth
Respondent
SUSAN
HILARY BENNETT
Sixth
Respondent
In
re:
Criminal
Case No. SS 40/06
THE
STATE
and
GARY
PATRICK PORRITT
Accused
No 1
SUSAN
HILARY BENNETT
Accused
No 2
JUDGMENT
SIWENDU
J
[1]
This urgent
application served before me on 10 December 2019. The applicant is
incarcerated at the Johannesburg Medium A Correctional
Facility while
awaiting the continuation of the trial. The substance of the relief
he sought against the first, second, third and
fourth respondent was
in the following terms:
[1.1] The first, alternatively the
second, alternatively the third, alternatively the fourth respondent
or any of them jointly with
another, permit the sixth respondent (Ms
Susan Bennett), to consult with the applicant at the Medium A
Facility in the same manner,
and under the same conditions, and in
the same physical area as is allowed for legal visits by legal
representatives in respect
of criminal case number SS 40/06.
[1.2] Alternatively, the above prayer
operates as an interim interdict pending the finalisation of the
procedure prescribed in
Section 21
of the
Correctional Services Act
112 of 1998
.
[1.3] If at the end of the
section 21
process, the matter is not resolved in the applicant’s favour,
the applicant shall be entitled to amplify its papers in support
of
the relief sought.
[2]
On 13
December 2019, I granted the applicant the order below with reasons
to follow:
“
[1.1] that the matter be
heard as one of urgency and granted condonation for any
non-compliance with the rules pertaining to service
and the periods
prescribed in
Rule 6(12).
[1.2] that the first, alternatively
the second, alternatively third alternatively the fourth respondent
jointly with another make
reasonable accommodation within the
available resources to permit the consultation between the Applicant
and the Sixth Respondent
at the Johannesburg Medium A Correctional
Centre/ Facility.
[1.3] the first, second, third and
fourth respondents are ordered to pay the costs of two counsel as
well as the wasted costs of
one junior counsel for 13 December 2019.”
[3]
The order
in paragraph [1.2] above varies the relief sought in the Notice of
Motion. I undertook and provide herein the reasons
for the order.
[4]
The
applicant and the sixth respondent (‘Bennett’) are
co-accused charged on approximately 3 000 counts of investor
fraud and tax evasion, amongst others. The case which commenced in
2016 is ongoing and pending before Spilg J. They are not legally
represented, therefore conduct their own defence.
[5]
The
applicant asserts he relies entirely on Bennett to fairly represent
and conduct his defence. Bennett keeps some of the documents
pertaining to the conduct of the trial and has hands on knowledge of
the order of the information, some of which is stored on her
computer. According to the applicant, approximately 150 arch lever
files comprising evidence of two state witnesses in the criminal
case
before Spilg J necessitate that he consults with Bennett. The
criminal trial which commenced in 2016 was adjourned for two
months
and is due to resume at the end of January 2020.
[6]
From the
papers, it appears the trial has been mired by interlocutory
applications and appeals, including an application for Spilg
J’s
recusal. In view of the length of the trial and to obviate further
delays, on 29 October 2019, Spilg J attempted
to gain agreement
from Correctional Services to ensure that the applicant consults with
the sixth respondent at the facility, without
success. On 31 October
2019, Spilg J directed that the applicant and Bennett consult with
one another to go through trial documents,
and if necessary, bring an
application to enable the consultation. That direction gave rise to
this application.
[7]
The
applicant previously claimed that the officers permitted consultation
with Bennett in the area set aside for legal representatives
on three
occasions in 2018. She consulted with him as if she were his ‘legal
representative’. It seems in most of these
instances, the
visits were in respect of certain pending appeals but not the trial.
Bennett was accompanied by her legal representatives.
It appears
certain inconsistent statements about the applicant’s ability
to consult with Bennett were made, to wit that she
can and has
permission to consult with the applicant. He was refused permission
notwithstanding.
[8]
The
applicant claims his rights to a fair trial, accorded to him in terms
of s 35 of the Constitution, will be negatively affected
if
meaningful consultation with the sixth respondent is not permitted.
His ability to cross examine certain expert witnesses will
be
impaired. He claims that consulting with Bennett during the hours
allocated for visitors is not conducive or adequate for meaningful
consultation. Consultations during court adjournments or at the
facility within the confines of visiting hours is insufficient
for
the purpose of the trial. It is not disputed there are voluminous
documents to go through.
[9]
The thrust
of the legal opposition by the first to fourth respondents is
premised on the novel legal question the case raises –
that
neither the
Correctional Services Act, the
Regulations, nor the
Policy of the Department of Correctional Services permits a
co-accused to step in the shoes of a legal practitioner
and assume
that role. The sixth respondent is a co-accused, a civilian, and not
a legal practitioner within the prescripts of the
legislation. It has
not been contended that the applicant engineered this situation for
ulterior motive or gain – it emanates
from a direction by the
court.
[10]
On the
facts, the respondents claim constraints in capacity. The relief
cannot be implemented because there is limited space, and
the area
designated for legal visits at the facility is small. There are
approximately 5 140 inmates awaiting trial whose
needs must be
taken account of. The applicant cannot be singled out for
preferential treatment. Visit duration is between 30 to
45 minutes
per visit. Ordinary visitation rules must apply. The respondents are
obliged to treat all the prisoners equally. The
applicant’s
case is not unique as made out in the papers.
[11]
The
respondents claim the applicant has been accommodated. After lodging
a complaint about room for the voluminous files, he was
allocated a
single cell which he refused. His files have been placed in the
communal cell he occupies, and he is given the opportunities
to
peruse the documents. Storage space has been allocated to house the
other documents. Granting the relief would set a precedent
where
privileges accruing to a legal practitioner would be transferred to a
civilian or a co-accused.
[12]
The case
centres on the interpretation and application of
s 17(4)
of the
Correctional Services Act, Regulation
12 and s 35 of the
Constitution. The contention is that the sixth respondent is not a
legal practitioner but a co-accused
and civilian. She cannot be
afforded rights accruing to legal practitioners. Section 17 of the
Correctional Services Act provides:
(1) Every inmate is entitled to
consult on any legal matter with a legal practitioner of his or her
choice at his or her own expense.
(2) The Minister may, by
regulation, impose restrictions on the manner in which such
consultations are conducted if such restrictions
are necessary for
the safe custody of inmates, but legal confidentiality must be
respected.
(3) The Head of the Correctional
Centre must take reasonable steps to enable inmates to exercise the
substantive rights referred
to in section 6 (3).
(4) Remand detainees must be
provided with the opportunities and facilities to prepare their
defence.
[13]
Section
46(1)
of the
Correctional Services Act states
that:
(1) Remand detainees may be
subjected only to those restrictions necessary for the maintenance of
security and good order in the
remand detention facility and must,
where practicable, be allowed all the amenities to which they could
have access outside the
remand detention facility.
[14]
Correctional
Service Regulation 12, promulgated under
s 17(2)
of the
Correctional Services Act, deals
with access to legal advice as
follows:
(1)
An inmate may consult
with his or her legal practitioner in connection with legal matters
subject to the conditions determined by
the National Commissioner.
(2)
A consultation
contemplated in subregulation (1) is subject to the following:
(a)
A legal practitioner
must lodge proof of his or her identity and status as legal
practitioner at the request of the Head of the
Correctional Centre;
(b)
Such a consultation must
take place only between 08h00 and 15h30 unless the Head of the
Correctional Centre, due to the existence
of urgent or exceptional
circumstances has given his or her prior permission;
(c)
The consultation must
take place in sight but out of earshot of a correctional official;
(d)
The legal practitioner
may be allowed to utilise his or her own interpreter, secretary or
typist; and
(e)
If a particular legal
practitioner is refused access to the inmate the inmate may request
to consult with another legal practitioner.
[15]
It is
common cause that the sixth respondent does not meet the
classification or qualifications in the Act. In my view, the argument
that the sixth respondent is not a ‘legal practitioner’
and therefore has no rights in terms of the legislation misses
the
mark. Even though in the relief, the applicant seeks is to have the
sixth respondent dealt with as if she was a legal representative
–
the application is not founded on the rights accruing to the sixth
respondent. The application is not premised on the qualification
or
identity of the sixth respondent. It is founded on the need to
facilitate the applicant’s right to a fair trial under
s 35
of the Constitution.
Section 17(4)
of the
Correctional Services Act
affords
the applicant the right contended in the broad sense.
[16]
The
respondents do not dispute Spilg J’s direction or present facts
to argue that it is incorrect misdirected and/or erroneous.
Therefore, I depart from the premise that the consultation is
essential and necessary to bring the trial to finality. Other than
the argument that the applicant must be treated equally with other
prisoners, there is no indication from the papers that the
respondents have considered or sought to balance the requirements of
the applicant with any of the conflicting rights and/or interests
claimed. In my view, the right to a fair trial which the applicant
asserts simultaneously evokes the realisation of another
interconnected
right, namely, the right to a speedy trial.
[17]
The
argument about limited resources at the facility, while not disputed,
is not explained. The argument fails to account for the
positive
steps the state is enjoined under s 7 of the Constitution to
promote, protect and fulfil, thereby facilitating the
realisation of
the constitutionally protected rights. To arrive at the conclusion
that the applicant must fail, the respondents
must, at the minimum,
set out the facts considered to accommodate the applicant within the
available resources as well as relevant
facts which render it
impossible to do so.
[18]
In granting
the order, I have carefully considered the parameters for judicial
intervention in the context of the doctrine of separation
of powers.
I
n
Glenister v
President of the Republic of SA,
Langa CJ held that:
‘
In
our constitutional democracy, the courts are the ultimate guardians
of the Constitution. They not only have the right to intervene
in
order to prevent the violation of the Constitution, they also have
the duty to do so. It is in the performance of this role
that courts
are more likely to confront the question of whether to venture into
the domain of other branches of government and
the extent of such
intervention. It is a necessary component of the doctrine of
separation of powers that courts have a constitutional
obligation to
ensure that the exercise of power by other branches of government
occurs within constitutional bounds. But even in
these circumstances,
courts must observe the limits of their powers
.’
1
[19]
I am
further minded that in
De
Lange v Smuts NO and Others
,
Ackermann J repeated that there is no universal model of separation
of powers. He continued with the following remarks:
‘
I
have no doubt that over time our courts will develop a distinctively
South African model of separation of powers, one that fits
the
particular system of government provided for in the Constitution and
that reflects a delicate balancing, informed both by South
Africa’s
history and its new dispensation, between the need, on the one hand,
to control government by separating powers
and enforcing checks and
balances, and, on the other, to avoid diffusing power so completely
that the government is unable to take
timely measures in the public
interest
.’
2
[20]
Given
that the Constitution reigns supreme, and there is no other effective
remedy, I deemed the order granted appropriate.
_______________________
T
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing: 10-12 December 2019
Date
of order: 13 December 2019
Date
of reasons: 30 January 2020
Appearances:
Counsel
for the Applicant: Adv. Johan Du Toit SC
Adv.
Jeremy Raizon
Instructing
Attorneys: FJ Cohen Attorneys
Counsel
for the 1
st
- 4
th
Respondents: Adv. Naseera
Ali
Instructing
Attorneys: State Attorney
1
Glenister v President of the
Republic of South Africa and Others
[2008] ZACC 19
;
2009 (1) SA 287
(CC) para 33.
2
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
para 60.