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[2010] ZAGPPHC 6
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Groenewald v Minister of Correctional Services and Others (67533/09) [2010] ZAGPPHC 6; 2011 (1) SACR 231 (GNP) (15 January 2010)
IN
THE NORTH GAUTENG HIGH COURT - PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Date:
15/01/2010
Case
number: 67533/09
THE
HONOURABLE ACTING JUSTICE R DU PLESSIS In the application of:
PIETER
HENDRIK
GROENEWALD
Applicant
and
THE
MINISTER OF CORRECTIONAL SERVICES
First Respondent
THE
PROVINCIAL COMMISSIONER OF
CORRECTIONAL
SERVICES (GAUTENG)
Third Respondent
THE
CHAIRPERSON OF THE CASE MANAGEMENT
COMMITTEE
ZONDERWATER PRISON
Fourth Respondent
THE
CHAIRPERSON OF THE PAROLE
BOARD.
ZONDERWATER MEDIUM B PRISON
Fifth Respondent
THE
HEAD OF PRISON. ZONDERWATER
CORRECTIONAL
FACILITY
Sixth Respondent
JUDGMENT
[1] This application was
brought before me on Tuesday, 24 November 2009. I let it stand down
until Wednesday, 25 November 2009 because
there was no appearance on
behalf of the respondents and I wanted to make sure that there would
be no appearance on behalf of the
respondents.
[2] The application was
properly served on all the respondents as well as the State Attorney.
A notice to oppose was filed on 12
November 2009 by the attorneys of
the respondent, being the State Attorney.
[3] However, there was no
appearance on behalf of respondents when the matter was called again
on Wednesday, 25 November 2009.
[4] Because of the fact
that freedom and liberty of persons in a democratic constitution
state is of the utmost and paramount importance,
I deemed it fit to
hear the application on an urgent basis. This application was
launched by the applicant for review of a decision
which was taken by
the first respondent not to recommend or approve the applicant's
placement on parole.
[5] The applicant is
serving a twenty year sentence, having been sentenced on 19 March
2003 on two charges of murder and ten years
imprisonment on a charge
of attempted murder, both sentences to run concurrently.
[6] In the application
the applicant sets out the legal provisions applicable to parole.
[7] Section 65 (4) of Act
8 of 1959, which was the previous Act dealing with parole issues
before the current Act, namely Act 111
of 1998 came into operation on
1 October 2004, determined that a prisoner shall not be considered
for placement on parole before
he has served one half of his term of
imprisonment. Consideration could however be given to place a
prisoner on parole earlier,
taking into account the number of credits
earned by the specific prisoner. Credits are earned in terms of
section 22A of Act 8
of 1959, by observing the rules which apply in
the prison and actively taking part in the programmes which are aimed
at his treatment,
training and rehabilitation.
[8] A person receives one
day credit for every two days imprisonment served by him. He
therefore may become eligible for consideration
for placement on
parole after serving one third of his sentence.
[9] Act 111 of 1998 is
not applicable pertaining to parole provisions, to prisoners
sentenced before l October 2004, which is the
case of the applicant.
This appears clearly from section 136 of Act 111 of 1998.
[10]
Furthermore, the previous credit system was never
abandoned and has throughout applied to prisoners who were sentenced
prior to
the coming into operation of the parole provisions of Act
111 of 1998.
[11] It follows therefore
that the applicant qualified to be considered for placement on parole
by the Parole Board after having
completed one third of his sentence,
obviously taking into account all other requirements. The applicant
was also granted six months
amnesty by the State President during May
2005 and has been classified as an A-group prisoner since September
2003. According to
the applicant's report he became eligible for
placement on parole on 9 September 2009.
[12] Furthermore, I was
referred to a police directive of 8 August 2007 in terms of which the
Commissioner of Correctional Services
issued a policy directive under
reference 1/8/B, in terms of which certain categories of prisoners
should serve minimum periods
of their respective sentences, and then
be placed on parole. This policy directive was to ensure uniformity
of Parole Board decisions
throughout the country because of a
previous lack of consistency.
[13] The applicant
appeared on 2 October 2009 before the Parole Board whereafter it was
recommended that a further profile should
be requested on 15 October
2010.
[14] The applicant states
that the Parole Board gave reasons for the decision, namely the
seriousness of the offences of which he
had been found guilty of, and
that he had just served one third of his sentence and had to serve
more time.
[15] He states that the
Parole Board did not take into account the following:
(a)
The fact that he had completed a BA
Psychology degree while in prison;
(b)
He had completed all courses available to
him in the institution;
(c)
Certain reports had to be completed within
the six months period prior to the parole hearing which were not
completed, such as the
social workers report, a psychologist report
and other reports, which were all older than six months;
The
unit manager's report was not before the Parole Board;
(d)
The application for presidential pardon was
not placed before the Parole Board.
[16] The approach of the
Parole Board apparently was simply that the applicant had to wait
longer until these reports were obtained.
There appears to have been
no regard to the right to liberty and the right to be considered for
parole of the applicant.
[17]
The applicant contends that the Parole Board did not give any
attention to his suitability for placement on
parole
with reference to his achievements and his
personal circumstances, and that the requirements of the Department
of Correctional Service's
B orders were not complied with. He
contends that there was simply not enough information placed before
it to make an informed
decision.
[18] He contends that he
did not receive a fair hearing and that as a result of the lack of
steps that had to be taken by the respondents,
he was prejudiced.
[19] The applicant
referred me to the policy directive issued by the second respondent
dated 8 August 2007 and requested that that
policy directive should
not be considered as part of my consideration of this application.
The applicant contended that that policy
does not differ
substantially from a previous policy directive, annexure "E",
which was found to be unconstitutional.
[20] The policy
directive, issued by the Commissioner for Correctional Services, S J
Kunene, states that the office deemed it necessary
torequest Case
Management Committees and Parole Boards not to recommend or allocate
parole placement dates in cases of aggressive
and sexual offences to
offenders before they have at least served a designated minimum his
or her sentence, except if compelling
evidence exists of
rehabilitation and with due consideration to the protection of the
community.
[21] It is then stated
that this is in line with the provisions of section 65 of Act 8 of
1959 in terms of which offenders in all
crime categories could be
considered for parole after one third of their sentence has been
served.
[22] In the policy
directive reliance is placed on sections 51 and 52 of the Criminal
Law Amendment Act, which came into operation
on 1 October 2004,
stating that minimum sentences for aggressive and sexual offences,
should be applied on the basis that offenders
should serve between
two thirds and 80% of their sentences.
[23] I have not been able
to find any legislative authority for interference with the rights of
the Parole Board and Case Management
Committees in this fashion. This
is in fact an instruction to the Parole Board to act in a specific
way whereas there is no legal
statutory right created in any statute
that I could find for acting in such a fashion, limiting the
discretion of the Parole Board
in such a way.
[24] The policy directive
is in fact contrary to the legal provisions applicable to parole for
offenders before 1 October 2004 and
is contradictory therewith.
[25]
I am therefore of the view that this policy is ultra vires and of no
force and effect whatsoever.
[26] I do not understand
why there should be a continuous attempt by the respondents to
interfere with the work to be done by the
Parole Board, outside the
scope of the authority of the respondents.
[26] The legal position
as set out above is also supported by an affidavit which was made by
Sarel Johannes Wilkins, apparently
in a different matter, but the
evidence is clearly evidence that I can take into account. Wilkins is
in the employ of the Department
of Correctional Services and he holds
the position of Regional Coordinator: Corrections Gauteng, being
a Deputy Director position
in the office of the Regional Commissioner
Gauteng. He states in his affidavit that he is fully acquainted with
the applicable
legislative provisions pertaining to the placement of
prisoners on parole and the policy of the Department of Correctional
Services.
[27] The applicant relies
on this expose of the law for the relief sought, and my analysis of
the law above is in accordance with
this expert witness' views,
regarding the legal provisions applicable to parole.
[28]
in his affidavit he refers to the previous policy directive of 1998
which became the subject matter of various court cases.
As a result
of the different court judgments, the policy directive was
subsequently jettisoned by the Regional Commissioner Gauteng.
[1]
[29] Wilkins states that
the instruction was that the Parole Boards were to disregard that
policy directive when considering prisoners
for placement on parole.
The new policy referred to above, attempted to achieve the same
result as the one that was jettisoned.
[30]
In respect of referral of a prisoner back to court for
reconsideration of his sentence, I follow the decision of S v Leeb
[2]
to
the effect that it is inappropriate to refer a prisoner who has
become illegible for consideration for placement on parole, back
to
the court. For this reason I am of the view that an application for
parole is the only avenue open for the applicant, and in
the light of
the aforegoing facts, that the applicant had no choice but to
approach this court for the relief sought.
[31] I find the attitude
of the respondents in this matter totally deplorable, reprehensible,
and completely unacceptable. There
is no explanation why all the
necessary information and reports were not placed before the Parole
Board. There is no explanation
before me why the applicant should
remain further incarcerated because of the fact that the respondents
clearly cannot or do not
want to do their work properly.
[32] The situation has
been exacerbated by the total lack of respect towards the court and
court procedures. The court was not even
afforded the decency and
"espect of a person appearing at court, explaining that papers
will be filed, or that papers will
not be filed, or what exactly the
approach of the respondents will be in respect of the matter. A
notice of intention to oppose
was filed and that was all.
[33] There seems to be a
complete and utter disregard by the respondents as well as by the
State Attorney for procedures set out
in statutory provisions, for
the rights of prisoners, and in particular those of the applicant,
and for the authority, status and
powers of this court.
[34] I, in the light of
the aforegoing, certainly have no hesitation to-find that the
applicant was not afforded a fair hearing,
and that the attempt to
postpone his parole application to 15 October 2010 so that the
necessary documents and reports could be
obtained, which should have
been placed before the Parole Board in the first instance, is a clear
and flagrant infringement of
the applicant's rights, and in
particular the applicant's constitutional rights, his right to
freedom, his right not to be detained
unnecessarily, and his right to
fair administrative action, as are clearly reflected in sections 12
and 33 of the Constitution,
Act 108 of 1996, and the provisions of
the
Promotion of Administrative Justice Act, No 3 of 2000
.
[35] There was no
indication before me whatsoever why the matter should be referred
back for consideration, and if all the relevant
documentation would
then be placed before the Parole Board, and if the Parole Board would
then afford the applicant a fair hearing.
[36] I have no faith in
any possibility that the respondents will procure the necessary
reports referred to in paragraph 2.3 of
the Notice of Motion, in the
light of the actions of the respondents, and their total disregard
and respect for this court.
[37]
I am therefore of the view that, to refer the matter back to the
Parole Board, would simply lead to a further extension of
the parole
application and unfair treatment of the applicant. Furthermore, if
the applicant was entitled to be granted parole before
this
application was launched, in law, such a referral would cause a
further infringement to the rights of the applicant, which
will be
unwarranted. In my view this is an exceptional case which warrants
this court's interference. Fairness dictates that the
applicant
should not wait until October 2010
3
[40] For the reasons
given above I am of the view that the matter should not be referred
back for further consideration, and that
I am in a position to grant
the relief.
[41] I have already
issued an order in this regard and the above mentioned constitutes
the reasons for the order. The order that
I had granted on 25
November 2009 was the following:
(a) The matter is
disposed of by way of urgency in terms of
rule 6
(12) and the forms
and service provided for in the rules of this court are dispensed
with;
(b) The decision of the
respondents not to recommend or approve applicant's placement on
parole is hereby reviewed, set aside and
substituted with the
following:
The
respondents are ordered to place the applicant on parole within 30
days from date of this order
subject to the
terms and conditions approved by the Correctional Supervision Parole
and Release Board.
(
c
)
The respondents are ordered to pay the costs of this application,
jointly and severally, the one paying the other to be absolved.
BY
ORDER OF COURT:
R
du plessis, AJ
REGISTRAR
Van
Heerden Suzette
From:
Hennie Joubert [
hjoubert@law.co.za
]
Sent: 10 February 2010 02:25 PM To:
Van Heerden Suzette
Subject:
Groenewald v Min. of Correctional Services and others
Beste
Suzette hiermee inh'gting soos versoek APPLICATION FOR LEAVE TO
APPEAL APPLICANTS' COUNSEL
ADV
SA NTHAI (SC)
ADV
P M LEOPENG
STATE
ATTORNEY: MR SELEKA 012 309 1500
RESPONDENT'S
COUNSEL
ADV
HP JOUBERT
ATTORNEY:
JULIAN KNIGHT AND ASSOCIATES 012 346 3853
APPLICATION
IN TERMS OF RULE 49 (11) APPLICANTS COUNSEL
AOV
HP JOUBERT
ATTORNEY:
JULIAN KNIGHT a ASSOCIATES 012 346 3853
RESPONDENTS'
COUNSEL
ADV
SA NTHAI (SC)
ADV
P M LEOPENG
STATE
ATTORNEY: MR SELEKA 012 309 1500
[1]
Combrink
and Another v Minister of Correctional Services and Others
2001
(3) SA 338D
;
Saunders
v Minister of Correctional Services and Others
unreported
judgment of the TPD, case number 14015/2000;
Mohammed
v Minister of Correctional Services and Others
2003(6)
SA 169 (SE)
[2]
1993
(1) SACR 315
(T)
3
W
C Greyiing and Erasmus (Pty) Ltd v Johannesburg Local Transportation
Board and Others
1982
(4) SA427 (A) at 449 F to H;
Ruyobeza
and Another v Minister of Home Affairs and Others
2003
(5) SA 51
(C) at 65 C to 66 B;
Livestock
and Meat Industries Control Board v
Garda1961
(1) SA 342 (A) at 349 G;
section 8
(1) (c) of the
Promotion of
Administrative Justice Act, No 3 of 2000