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[2010] ZAGPPHC 566
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Selepe and Another v Minister of Correctional Services and Others (31001/2009) [2010] ZAGPPHC 566 (5 May 2010)
REPUBLIC
OF SOUTH AFRICA
GAUTENG NORTH,
HIGH COURT PRETORIA
CASE NO:
31001/2009
DATE: 5 MAY 2010
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
PRETTYBOY
SELEPE
..............................................................................................................
First
Applicant
ADELAIDE
LETSOKU
.........................................................................................................
Second
Applicant
and
MINISTER
OF CORRECTIONAL
SERVICES
..................................................................
First
Respondent
CHAIRPERSON
OF CSPB PRETORIA
CC
...................................................................
Second
Respondent
CHAIRPERSON
OF CSPB PTA FEMALE
CC
.................................................................
Third
Respondent
CHAIRMAN,
CMC PRETORIA CENTRAL
CC
.............................................................
Fourth
Respondent
JUDGMENT
MAKGOKA.
J
:
[1] The applicants,
two convicted prisoners serving long term jail terms, seek to review
decisions or recommendations taken by the
second respondent on 26
November 2008 and 19 March 2009, respectively, to the effect that
their applications to be released on
parole were deferred. In respect
of the first applicant, such application was deferred for two years,
and to 12 to December 2010
in respect of the second applicant.
[2] The first
applicant was found guilty in 1999 of attempted murder, unlawful
possession of fire-arms and ammunition, theft, impersonating,
malicious damage to property and escaping from lawful custody. On 14
May 1999, he was sentenced to an effective 27 years imprisonment.
At
the time of his application to be considered for release on parole,
he had served almost 9 years 7 months of his sentence.
[3] The second
applicant was found guilty of murder and sentenced to 30 years
imprisonment on 11 May 1999. She, at the time she
appeared before the
second respondent, had served a period of about 9 years 9 months of
her sentence.
[4] Both applicants
prepared their own papers (though clearly with assistance of a person
with some legal knowledge). They appeared
in person. As a result,
their papers are not entirely technically correct. For the mere
reason that, due to their circumstances,
the applicants do not always
access the benefit of legal representation, I decided to hear their
application, despite the shortcomings
in their papers.
[5] The legislative
framework that governs the release of prisoners on parole, is set out
in sections 42, (read with section 38)
and 75 of the Correctional
Services Act 111 of 1998 (“the Act”). Prior to 1 October
2004, prisoners serving a period
of 12 months or more, qualified to
be considered for release on parole after serving one third of their
sentence. The present regime,
which applies to prisoners sentenced
after 1 October 2004, requires that such prisoners must serve at
least half their sentences
before they may be considered for release
on parole.
[6] The applicants,
having been convicted and sentenced before 1 October 2004, are thus
governed by the old regime, and thus qualify
for consideration to be
released on parole after having served at least a third of their
sentences.
[7] What is
immediately frustrating about the application is the paucity of
information placed before court. First, I do not have
the record of
proceedings before the second respondent, during which the
applicants, respectively, appeared. Secondly, and a direct
result of
the absence of the record, I do not have an indication as to the
information placed before the second respondent, for
the latter to
have arrived at the recommendation to defer the applicants’
applications to be considered for release on parole.
[8] What the second
applicant has to consider, is provided for in section 42 (read with s
38) and s 75 of the Correctional Services
Act 111 of 1998 (“the
Act”). The relevant provisions of section 42 of the Act read as
follows:
"Case
Management Committee
(1) At each
prison there must be one more Case management Committees composed of
correctional officials, as prescribed by regulation.
(2) The Case
Management Committee must-
(a) ensure that
each sentenced prisoner has been assessed, and that for the prisoners
serving more than 12 months, there is a plan
specified in section
38(2);
(b) interview, at
regular intervals, each prisoner sentenced to more than 12 months,
review the plan for such prisoners and the
progress made and, if
necessary, amend such plan;
(c) make
preliminary arrangements, in consultation with the Head of Community
Corrections for possible placement of a prisoner under
community
corrections;
(d) submit a
report, together with the relevant documents, to the Correctional
Supervision and Parole Board regarding-
(i) the offence
or offences for which the sentenced prisoner is serving a term of
imprisonment together with the judgment on the
merits and any remarks
made by the court in question at the time of the imposition of
sentence if made available to the Department;
(ii) the previous
criminal record of such prisoner;
(iii) the
conduct, disciplinary record adaptation, training, aptitude,
industry, physical and mental state of such prisoner;
(iv) the
likelihood of a relapse into crime the risk posed to the community
and the manner in which this risk can be reduced;
(v)...
(vi)...
(vii) the
possible placement of such prisoner on day parole or on parole, and
the conditions for such placement; and
(viii) such other
matter as the Correctional Supervision and Parole Board may request;
(e) at the
request of the Area Manager, submit a report contemplated paragraph
(d) to him or her in respect of any prisoner sentenced
to 12 months’
(3) A prisoner
must be informed that the contents of the report submitted by the
Case Management Committee to the Correctional Supervision
and Parole
Board of the Area Manager and he afforded the opportunity to submit
written representation to the Correctional Supervision
and Parole
Board or Area Manager, as the case maybe."
[9] Section 38 of
the Act, which must be read together with section 42, provides-
“
Assessment,
(1) As soon as
possible after admission as a sentenced prisoner, such prisoner must
be assessed to determine his or her-
(a) security
classification for purposes of safe custody;
(b) health needs;
(c) educational
needs;
(d) social and
psychological needs;
(e) religious
development programme needs;
(f) specific
development programme needs;
(g) work
allocation;
(h) allocation to
a specific prison;
(i) needs
regarding reintegration into the community.
(2) In the case
of a sentence of imprisonment of twelve months or more, the manner in
which the sentence should be served, must
be planned in the light of
this assessment and any comment by the sentencing court. ’’
[10] The relevant
provisions of Section 75 of the Act, which deal with the powers,
functions and duties of Correctional Supervision
and Parole Board,
read as follows-
“
(1)
A Correctional Supervision and parole Board, having considered the
report on any prisoner serving a determinate sentence exceeding
twelve months submitted to it by Case Management Committee in terms
of section 42 and in the light of any other information or
argument,
may-
(a) subject to
the provisions of paragraphs (b) and (c) subsection 1 (A) place under
correctional supervision or day parole or grant
parole and, subject
to the provisions of section 52, set the condition of community
corrections imposed on a prisoner. ’’
[11] These
provisions are clearly peremptory. Of importance is a report which
must be prepared by the second respondent in terms
of section 42.
Such a report has to be a comprehensive report and will contain the
information necessary for a proper consideration
of the applicants’
application to be considered for release on parole. Other documents
that must be considered are the social
worker’s report, the
psychological report, the education report and the religious work
report.
[12] Without the
record, I am unable to make a determination as to whether the above
information was placed before, and was considered,
by the second
respondent. Put differently, I am unable to determine whether there
was compliance with the provisions of the Act.
A further difficulty
is that the applicants were also not furnished with reports on which
they could make comment.
[13] As indicated in
the introduction to the judgment, the crimes of which the applicants
were convicted, are very serious indeed,
inherently violent in their
nature. As a result, careful adherence to the Act and the applicable
regulations is necessary, to ensure
that the decision arrived at,
does not bring the system of parole into disrepute so as to undermine
the community’s confidence
in the system. In addition to all
the provisions of the Act, the judgments of the courts which
convicted the applicants, as well
as the reasons for sentences
imposed, are of equal importance.
[12] The net effect
of this lack of information, is that there is nothing to review. All
I can do is order the second respondent
to transmit the record of the
proceedings, in respect of each applicant, to the Registrar of this
court, for a proper consideration
of its decision to defer the
applicants’ application for release on parole.
[13] I therefore
make the following order:
1.
The application is postponed
sine
die.
2. The second
respondent is ordered to transmit to the Registrar of this Court,
within 10 days hereof, the respective records of
proceedings before
him on 26 November 2008 and 19 March 2009, wherein the decisions to
defer the applicants’ applications
for release on parole, were
taken.
3. The second
respondent shall immediately on so transmitting the records, inform
the applicants in writing.
T M MAKGOKA
JUDGE OF THE HIGH
COURT