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[2010] ZAGPPHC 65
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Van Gund v Minister of Correctional Services and Others (10334/10) [2010] ZAGPPHC 65; 2011 (1) SACR 16 (GNP) (14 July 2010)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 10334/10
DATE:
14/07/2010
In
the matter between:
JACOBUS
VAN GUND Applicant
And
THE
MINISTER OF CORRECTIONAL
SERVICES
First Respondent
THE
NATIONAL COMMISSIONER
CORRECTIONAL
SERVICES Second Respondent
THE
HEAD OF PRETORIA
CENTRAL
CORRECTIONAL CENTRE Third Respondent
THE
CASE MANAGEMENT COMMITTEE PRETORIA CORRECTIONAL
CENTRE
Fourth Respondent
THE
CORRECTIONAL SUPERVISION AND PAROLE BOARD: PRETORIA
CORRECTIONAL
CENTRE Fifth Respondent
JUDGMENT
TOKOTA
AJ
[1]
The applicant is a sentenced prisoner serving a sentence of 18 years
imprisonment at Pretoria Central Prison after he was convicted
of
murder (count 1), attempted murder (count 2), and attempting to
defeat the ends of justice (count 3). He was sentenced on 18
September 2003 before the commencement of the
Correctional Services
Act No. 111 of 1998
.
[2]
Having served a
1
/
3
of
his sentence, on 3 September 2009 he appeared before the Parole Board
("the Board") for consideration for possible
placement on
parole. His application for parole was considered but it was decided
that a further profile be placed before the Board
on 3 September
2011. In coming to its decision the Board took into account the
nature of the crimes he was convicted of; the length
of period of
imprisonment he had to serve; the interests of the community and
those of the victims.
[3]
After the above decision was communicated to the applicant he
immediately brought an application, on an urgent basis, on 14
September 2009 for the review and setting aside of the Board's
decision. On 6 November 2009 this Court, per Tuchten AJ, as he then
was, reviewed and set aside the Board's decision and ordered that it
should reconsider its decision.
[4]
Pursuant to the decision of this Court on 6 November 2009 the Board
sat on 4 February 2010 and the applicant was again considered
for
placement on parole. Once again the Board decided that his profile
should again be presented on 30 November 2011. This decision
was
again taken on the basis that the applicant was convicted of serious
offences and it was not in the interests of the community
that he
should be released soon. This time the Board also took into account
the fact that he was not co-operative with the Case
Management
Committee in that he refused to sign its report when it appeared that
the Committee was not recommending his placement
on parole. It was
further decided that he should attend more anger programmes.
[5]
When considering the application for placement on parole the Board
reasoned as follows:
"He
is serving 18 years for Aggressive crimes of murder Attempted murder
and defeating the ends of justice. He has served 6
years 4 months and
26 days of his sentence to date. He has attended some programmes.
However the CSPB
("referring
to the Board
has
taken the seriousness of the crimes, length of sentence and interests
of the community and victim into consideration. The crimes
committed
by the offender are common in our communities and as such communities
and victims need to be protected. It is stated
in the court judgment
that the offender's case was postponed until 2011-09-03. That is not
the case. On 2009-09-03 the offender
appeared for a full hearing
before the CSPB. Further profile was approved for 2011-09-03. What it
means that (sic) the CSPB came
to a decision on 2009-090-03 and that
the offender should not be placed on parole at that stage. He also
maintains that since he
was sentenced before 1
st
October 2004 he should be released after serving a
1
/
3
of
his sentence. The fact is that he must be considered for placement
However consideration does not necessarily mean placement
on parole.
The CSPB also take (sic) into account factors mentioned above i.e
seriousness of crime, length of sentence and community
and victims
interests. On 2010-01-08 he appeared before the CMC. He refused to
acknowledge the recommendations of the CMC by refusing
to sign for
that The CSPB thus doubt (sic) his level of rehabilitation. He must
do more Anger Management Related Programmes. Further
Profile is
approved for 2011-11-30."
[6]
This application is a sequel to the above decision by the Board.
On 17 February 2010 the applicant filed this application
on an urgent
basis and set it down for hearing on 9 March 2010. He sought an
order:
6.1
condoning non-compliance with the rules of the this court and that
the matter be heard on an urgent basis;
6.2
that the decision of the fifth respondent for the further profile to
be placed before it on 11 September 2011 be reviewed and
set aside;
6.3
that the decision of the fifth respondent be replaced with the order
that the applicant be and is hereby placed on parole;
6.4
Costs of the application.
I
was informed by Counsel from the bar that on 9 March 2010 the matter
was struck off the roll on the basis that it was not urgent.
Although
urgency is no longer an issue I nonetheless deem it expedient to deal
with it later in this judgment since this is the
general trend that
is followed by the prisoners in this division.
[7]
It was argued on behalf of the applicant that the approval of further
profile for 11 September 2011 (the correct date seems
to be the 30
th
of November 2011) is basically the same result that was arrived at on
3 September 2009 except for the change of date. The nub of
the
argument was that despite the ruling by this Court on 16 November
2009 that the applicant be considered for parole this was
not done
but the application was effectively postponed to November 2011. It
was further argued that;
(a)
the refusal by the Case Management Committee to recommend the
placement on parole before the applicant has served half of his
sentence was the application of the previous policies and was
therefore an infringement of the applicant's constitutional rights.
(b)
the fifth respondent took into account irrelevant considerations. It
was submitted that the length of the period of sentence
is irrelevant
when considering placement on parole. What is relevant is whether the
applicant has served a
1
/
3
of his sentence in terms of the policy.
(c)
the Board committed an error in that it laboured under the impression
that the applicant had not completed some of the programmes
whereas
in fact he had completed all the programmes he had to undergo.
(d)
no reference was made to the recommendations by Professor Van der
Hoven. The prime factor which was taken into consideration
was the
seriousness of the offence.
(e)
the Board was biased.
(f)
the seriousness of the offence was a factor which was already taken
into account by a court of law when it imposed the sentence.
(g)
the Social Worker's report dated 3 December 2009 which indicated that
the applicant has completed the anger management was not
taken into
account.
(h)
the Board failed to take into account the report by Dr Verster which
was to the effect that the applicant was a model prisoner
and was
extremely repentant and therefore a fit candidate for parole.
[8]
Before dealing with the above argument it is expedient to set out
very briefly the events that led to the conviction and sentence
of
the applicant as found by the trial court. The applicant was a
policeman. On 24 December 2001 he arrived at the scene of crime
where
he found the deceased and the complainant already handcuffed. He
ordered them to get up and flee and when they did so he
shot at both
of them whilst they were still handcuffed. One of the victims was
killed and one was injured. The applicant influenced
the State
witnesses not to tell the truth about what happened. He was
accordingly convicted and sentenced to effectively 18 years.
[9]
The determination of the length of the period of detention in prison
after conviction is the function of the trial Court taking
into
account all relevant factors including the seriousness of the
offence. The prison authority's function is to manage the sentence
bearing in mind the remarks, if any, of the trial court during the
sentence stage. When considering the possibility of placement
on
parole the Board is not altering the sentence of the offender. The
offender is expected to serve his full term of his sentence
subject
to the privileges accorded to him by the prison authorities.
1
These privileges include the award of credits to prisoners sentenced
to determinate sentences.
[10]
in terms of section 136(1) of the Correctional Services Act No. 111
of 1998
"(1)
Any person serving a sentence of incarceration immediately before the
commencement of Chapters IV, VI and VII is subject
to the provisions
of the Correctional Services Act, 1959 (Act 8 of 1959), relating to
his or her placement under community corrections,
and is to be
considered for such release and placement by the Correctional
Supervision and Parole Board in terms of the policy
and guidelines
applied by the former
Parole
Boards prior to the commencement of those Chapters."
At
the time when the applicant was sentenced the policy applicable to
him was that he should serve at least a of his sentence before
he can
be considered for placement on parole. On 3 September 2009 he
therefore qualified to be considered for placement on parole.
[11]
It is trite law that a prisoner has no right to be released on
parole.
2
He, however, has a right to be considered. Furthermore once an
offender has been lawfully sentenced by a court of law he or she
has
no right to liberty. That right to liberty is deprived by process of
law after he/she has been sentenced. The right to be considered
for
parole should not be equated to the right to be freed from prison.
That right only arises once the Board decides to grant parole.
The
right to be considered for parole is an administrative action and
consequently a prisoner is entitled to a fair procedure.
Section 33
of the Constitution of the Republic of South Africa Act No. 108 of
1996 provides that
"Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair"
[12]
When considering the merits of the application for placement on
parole the Board is entitled to take into account the seriousness
of
the offence. The argument that this is irrelevant consideration must
therefore be rejected. The Board is not misdirecting itself
when it
considers murder as a serious offence which warrants detention for a
longer period otherwise this would make a mockery
of the justice
system. When a court of law decides to sentence a person to 18 years
it is expected that that person will stay for
longer period in
prison. The prison authorities from time to time formulate policies
regarding management of sentences. They do
so in order to set their
own guidelines. It does not follow that a person who qualifies for
consideration must be released as matter
of course without further
ado.
[13]
It is now a well established principle that, in controlling the
exercise of administrative actions by functionaries of the
government, Courts must always respect the separation of powers. If
in the opinion of the Board the prisoner does measure up with
its
standards to be released on parole, it is not for this Court to
substitute that decision simply because in its view it would
not have
done so. The function of this Court is to control, by way of judicial
review, an abuse of power where a decision is,
inter
alia,
so unreasonable that no reasonable person would have taken it in the
circumstances. The Court should take care not to usurp the
functions
of administrative agencies.
3
[14]
If one has regard to the reasons of the Board as set out in paragraph
5 above it is clear that the Board applied its mind to
the matter.
The fact that it failed to state each and every aspect that it
considered is no justification that its decision was
unreasonable or
bias. Although there were recommendations such as those of Professor
Van der Hoven and Dr Verster they remain recommendations.
They are
not binding on the Board. The Board must still apply its mind in the
fulfilment of its statutory mandate. It is expected
of those who are
entrusted with the duty to protect the society to do the best they
can to ensure, as far as is practically possible,
that the justice
system is not rendered a mockery by their conduct. If the Board
decides that for violent crimes it will enforce
the will of the
sentencing Courts to keep offenders away from the society this Court
should be loath to interfere.
[15]
It was argued that the Board made an error by deciding that the
applicant needed more Anger Management Related
Programmes.
I do not agree. The fact that the applicant has undergone this anger
management programme is no bar to the Board deciding
that he should
do it again if it did not achieve the desired effect. It is up to the
applicant to obey the authorities or stay
longer in prison. The
choice is his. This Court will be inundated with urgent applications
for the release of prisoners on parole
if it were to easily usurp
this power of the parole Board. Courts ought to adopt a "hands
off" attitude to matters reserved
for other arms of the
government and only intervene when circumstances warrant such
intervention. In my view this is not such a
case.
[16]
The notice of motion has been formulated in such a manner as to give
an impression that the applicant is of the view that his
application
for placement on parole was simply postponed to 2011. The reading
thereof implies that this Court should review the
decision to
postpone the consideration of placement on parole. However during
oral argument we debated this aspect with Counsel
for all parties.
Counsel for the applicant stated that it was unfortunate the way the
prayer was couched. It was intended to include
a prayer that the
decision not to place the applicant on parole be reviewed and set
aside. He applied for amendment to the prayer
to put this as an
alternative prayer. Although Mr Sithole SC, who appeared for the
respondents, objected to this I see no prejudice
in this regard and I
grant the amendment.
[17]
Lastly l want to comment on the manner in which these applications
are brought to this Court. Prisoners invariably, and in
almost all
their cases, bring their matters in an urgent court, in some cases
the prisoners have been sentenced to life imprisonment.
The argument
is often advanced that cases involving prisoners are urgent in that
they involve their liberty. They argue that they
have a right to
freedom of security in terms of section 12 of the Constitution. In my
view there is a fallacy in this argument.
It loses sight of the fact
that once a prisoner has been lawfully sentenced by a court of law
his/her right to freedom is limited
to prison grounds. This
limitation is justifiable in an open democratic society. A prisoner
has no right to be released before
he has served his sentence in
full. For this reason I see no reason why they should be treated
differently from ordinary litigants.
They, like all litigants, must
comply with the well established principles relating to urgent
applications. In particular if a
prisoner claims urgency, such
urgency must be shown and grounds thereof be clearly stated on the
papers. The right to liberty is
not per se a ground constituting
urgency. Something more is required. It is now well settled that in
the absence of the grounds
for urgency these cases ought to be struck
off the roll. The right to freedom can only arise once the prisoner
has served his full
sentence or has been granted parole. Lest i be
interpreted as saying that prisoners cannot bring their cases to
court on an urgent
basis, this is not so. Each case will have to be
determined on its own merit.
[18]
In view of all of the above I am not persuaded that the applicant has
made out a case for the review and setting aside of the
decision of
the fifth respondent. There is no reason why costs should not follow
the event. In the result I make the following
order.
The
application is dismissed with costs.
B
R TOKOTA
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 10 June 2010 Date of judgment:
Appearances
for the applicant Adv H P Joubert Instructed by Brewis Attorneys
For
the respondents: Adv M N S Sithole SC
Adv
S Mphahiele Instructed by the State Attorney Pretoria
1
See
section 73 of the Correctional Services Act I ! 1 of 1998.
2
Combrinck
v Minister of Correctional Services
2001 (3) SA 338
(D
)at
341
3
Bato
Star Fishing (Ply) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4)
SA 490
{CO at 513 para 45-46