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[2010] ZAWCHC 579
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Goodwin v Minister of Justice and Another (22537/10) [2010] ZAWCHC 579 (26 November 2010)
Republic
of South Africa
In
the Western Cape High Court of South Africa
(Cape
of Good Hope Provincial Division)
Case
No: 22537/10
In
the matter between:
S.
W. Goodwin
…..........................................................................................
First
Applicant
Versus
The
Minister of Justice
…..........................................................................
First
Respondent
The
Minister of Correctional Services
…..............................................
Second
Respondent
Judgment
delivered: 26
th
November
2010
LOUW
J
[1]
This matter came before me in the fast lane of the motion court.
[2]
The applicant is presently serving an effective sentence of 10 years
of imprisonment imposed on 20 April 2009 by this court
after he had
pleaded guilty in terms of a plea and sentence agreement under
section 105 A of Act 51 of 1977, to one count of
fraud, two counts
of corruption and 32 counts of money laundering. It was recorded as
part of his sentence that the period of
9 month'-the applicant had
spent incarcerated in the Unites States of America, would be
subtracted
from the effective term of imprisonment.
[3]
It is common cause that the full period of the applicant's sentence
will expire on 6 April 2018, that the earliest date upon
which he can
be considered for parole is 6 April 2013 and that the applicant
completed one quarter of his effective term of imprisonment
on 6
October 2010.
[4]
The applicant seeks as a matter of urgency, in an application
launched on 11 October 2010, an order declaring that the applicant
is
suitable to be placed under correctional supervision as contemplated
by the provisions of
section 73
(7) (c) (i) of the
Correctional
Services Act, 111 of 1998
.
[5]
The charges against the applicant arose from the manner in which the
affairs of the Fidentia group of companies had been conducted.
In
pleading guilty, the applicant admitted that he had received R32m as
his share and profit from the various schemes perpetrated
by the
persons involved in the management of Fidentia. He further admitted
that he laundered approximately R93m. The applicant
has undertaken to
co-operate with the criminal investigation and the efforts of the
Curators of Fidentia to recover the Fidentia
funds and that he will
testify against his co-accused.
[6]
Sec 73
(c) (i) of the
Correctional Services Act provides
as follows:
(c)
If a person has been sentenced to incarceration for
(i)
a definite period under
section 276
(1) (b) of the criminal procedure
act, ...
the
person shall serve at least a quarter of the effective sentence
imposed or the non-parole period, if any, whichever is the longer
before being considered for placement under correctional supervision,
unless the court has directed otherwise.
[7]
This application is premature. The applicant had hardly become (5
days earlier) eligible for consideration to be placed under
correctional supervision, before the application was launched.
Section 276
A (3) of the Criminal Procedure Act, which appears to be
the applicable provision (See section 73 (3) (d) of Act 111 of 1998),
lays down the process to be followed, namely, that the Commissioner
of Correctional Services or a parole board
'may,
if he or it is of the opinion that such a person is fit to be
subjected to correctional supervision, apply to the clerk or
registrar of the court, (namely the court which had previously
sentenced the person to a period of imprisonment) as the case may
be,
to have that person appear before
the
court a quo to reconsider the said sentence.'
- -
[8]
Such court may then re-consider the sentence and, as one of the
sentence options, convert the sentence to correctional supervision.
[9]
This court is not at present in a position to consider a decision of
the Commissioner or parole board. In the time which had
elapsed since
6 October 2010, no decision has been taken on whether the applicant,
now that he has become eligible for consideration,
is a person who is
fit to be subjected to correctional supervision.
[10]
Once the Commissioner or the parole board has taken a decision in
this regard, the matter may be open for review by the court.
This
court cannot at this stage consider whether it should substitute its
decision for that of the Commissioner or the parole board.
[11]
The answering papers filed on behalf of the second respondent show
that the applicant's position is under consideration by
correctional
services. In my view, that process must run its course. If the
process of evaluation or if completed, the decision
taken is, in the
view of the applicant flawed, he may, depending on the circumstances,
be entitled to bring the matter on review.
I put it no higher than
that.
[12]
It follows that the relief sought cannot be granted at present. I
would, however, in view of the papers already filed on both
sides hot
dismiss the application but rather postpone the application sine die
with leave to the parties to applify the papers
in due course and to
set the matter down once the application is ripe for hearing. Costs
must also stand over for later determination.
I
make the following order:
The
application is postponed sine die;
The
parties may in due course applify their papers in line with the
tenor of this judgment and either party may set the matter
down
again for an order reviewing a decision by the respondents or for
the dismissal of the application, as the case may be;
Costs
will stand over for later determination.
W.J. LOUW J
Judge
of the High Court