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[2010] ZAGPPHC 67
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Sebokoe v Minister of Correctional Services and Others (37111/2008) [2010] ZAGPPHC 67 (21 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
Case
No: 37111/2008
Date:
21/07/2010
In
the matter between:
SEBOKOE
BOBBY MARTIN APPLICANT
And
MINISTER
OF CORRECTIONAL SERVICES 1
st
RESPONDENT
CHAIRMAN:
CSPB PRETORIA CENTRAL CC 2
nd
RESPONDENT
CHAIRMAN:
CMC PRETORIA CENTRAL CC 3
rd
RESPONDENT
JUDGMENT
MAVUNDLA,
AJ.
[1]
The Appellant brought on urgent basis this application seeking to
have the decision by the second respondent issued on 4 March
2008 not
to grant him parole reviewed and set aside. He further sought an
order that the respondent be ordered to have him released
on parole
within 30 calendar days of the order.
[2]
The applicant was convicted of robbery with aggravating circumstances
as defined in s1 of Act 51 of 1977 on 10 May 2001 and
sentenced on 8
August 2003 to an effective 15 (fifteen) years imprisonment under
section 276(1)
(b) of the
Criminal Procedure Act, No. 51 of 1977
. He
has received a six months general Presidential amnesties resulting in
an effective sentence of 14 years. He has since served,
at the time
of the application, 5 years of his sentence.
[3]
It is common cause that applicant has completed various
rehabilitative courses and programmes, namely successful anger
management
programs, live skill programmes, HIV/Aids awareness
programme, a business orientation course, a course in public speaking
and motivation.
He has also received positive reports from the
Workshop Manager and Religious Care worker.
[4]
It is also common cause that the applicant had served at least one
third of his sentence and that he qualifies to be considered
to be
released on parole. It is also common cause that he
appeared
before the second respondent on 4 March 2008 for consideration
whether he should be placed on parole. The second respondent
decided
that he should not be placed on parole but rather a further profile
for reconsideration of possible placement on parole
be submitted on 4
March 2010.
[5]
The applicant's chagrin with the decision of the second respondent is
that:
(1)
he qualifies for a possible placement on parole on completion of a
third of his sentence in terms of the previous Correctional
Services
Act;
(2)
he was not furnished with a report as contemplated by section 42 of
Act 111;
(3)
he was not afforded an opportunity to submit a written representation
as required by section 42(3) of the Act;
(4)
the second respondent did not seriously consider the positive reports
as indication of his readiness for placement on parole;
(5)
the respondent did not seriously apply its mind to the credits he has
since earned, not withstanding the fact that
he
qualified for placement on parole after completing one third of his
sentence;
(6)
the respondent has failed to comply with the provisions of section
65(4)(a) of Act 8 which is peremptory;
(7)
the respondent failed to consider placing him on day parole.
[6]
The applicant contends further that there is no rational basis for
the decision of the respondent in not placing him on parole.
[7]
With regard to urgency the respondent contended that the application
was initially removed from the urgent roll by the applicant'
legal
representative as it was not urgent. Indeed once a matter is removed
by the applicant from the urgent roll, it invariably
losses its
urgency.
[8]
The respondent denies that it did not apply its mind to all the
aspects complained of. According to the second respondent, in
arriving at the decision complained of, it had taken into account the
rehabilitation programmes the applicant had successfully
attended,
the seriousness of the crime, and the length of the sentence and the
interest of the community.
[9]
It needs mention that from the record provided by the second
respondent as annexure "A", it is stated that the applicant
"is a B group. He must also provide the CSPB with sentence
remarks so that the Parole Board can come to an informed decision.
Assessment Tool, Pre-release Programmes and address are outstanding.
Further profile approved for 2010-03-04".
[10]
In
casu
it
has been submitted on behalf of the applicant that the second
respondent, in taking its decision, was mindful of the 3 main
functions of the correctional system in South Africa, namely
rehabilitative function, punitive function and retributive function.
On the basis thereof and the other factors referred to herein above
it was decided not to place the applicant on parole.
[11]
It is further submitted on behalf of the respondents that the second
respondent made a just and equitable decision taking into
account the
positive and negative factors before coming into its decision.
[12]
It has been submitted on behalf of the applicant,
inter
alia,
that
the applicant was not informed of the contents of the report that the
third respondent submitted to the second respondent nor
was he given
an opportunity to submit written representation to the second
respondent, as required in terms of s42 (3)
1
of
the Correctional Service Act. It is further contended that the
aforesaid failure rendered the proceedings procedurally unfair
in
terms of section 6(2)(c) of
PAJA.
[13]
It is further submitted that the second respondent acknowledged that
the appellant qualifies to be considered to be released
on parole.
However the reason given for the refusal is indicative that it is not
rationally connected to the information that was
before the second
respondent nor rationally connected to the purposes of the empowering
provision.
In the
regard
reliance
is made on s6(2)(f)(ii)(bb) of
PAJA.
[14]
It has
finally
been
submitted that the application should succeed with costs.
[15]
I deem it not necessary to address the issue of urgency since it is
now academic. Besides the
matter
was
fully ventilated on the merits.
[16]
In review proceedings, the applicant must satisfy the
Court
that
the tribunal whose decision is sought to be reviewed,
failed
to
discharge its duties honestly and impartially and did so
capriciously; vide
Turner
v Jockey Club of South Africa
2
.
[17]
In the matter of
Lebotsa
v Minister of Correctional Services
3
it
was held
that
the
provisions of s42 are peremptory and the
Parole
Board
must furnish the prisoner with the
report
of
the CMC and
afford
him
an opportunity to make written representation. In that case the
Parole Board made an adverse
decision
against the prisoners, namely, refusing to place them on parole,
without having afforded them the report of the CMC nor
inviting them
to furnish written submissions thereon. The decision of the Parole
Board was found to have been taken capriciously
and was set aside.
[18]
The respondent, besides denying that it had not complied with the
provisions of section 42(3) has not demonstrated in what
manner it so
complied. A bare denial without any substantiation is taken as an
admission in motion proceedings. The applicant states
that he was not
provided with such report nor invited to make written submissions
against any such report, if ever same was available.
Annexure A which
is supposed to be relevant record of the Parole Board does not reveal
that the applicant was furnished with the
report of the Case
Management Committee (CMC), and invited to comment thereon in
writing. I am therefore not satisfied that the
provisions of s42(3)
were complied with by the second respondent.
[19]
The respondent has further submitted that it took into consideration;
inter
alia,
rehabilitative
function, punitive function and retributive function of the
correctional system.
[20]
The provisions of s42 read as follows,
inter
alia;
"Case
Management Committee
(1)
At
each prison there must be one or more Case Management Committee
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
prisoner serving more than twelve months there is a plan
specified in
section 38(2);
(b)
interview, at regular intervals, each prisoner sentenced to more than
twelve 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 imposition of sentence if made available to the
Department;
(ii)
the
previous record of such prisoner;
(iii)
the conduct, disciplinary record, adaptation, training, aptitude,
industry, physical and mental state of such prisoner;
(iv)
the likelihood of 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 parole, and
the conditions for such placement; and
(viii)
such other matters as the Correctional Supervision and Parole Board
may request; and
(e)
at the request of Area manager, submit a report contemplated in
paragraph (d) to him or her in respect of any prisoner sentenced
to
12
months
imprisonment."
[21]
It is common cause that the applicant has attended rehabilitative
programmes. I do accept that the respondent took these into
account.
However, it is not clear from the record what value did the second
respondent place on such factors. The very fact that
the applicant
has been
sentenced to a long term imprisonment for the serious offence he was
convicted for is factual. The purpose of sentencing is not
only
retributive and punitive, but also rehabilitative. For instance the
respondent does not indicate what view it formed regarding
the
rehabilitation prospect of the applicant. Neither does it opinionate
on his likelihood of relapse. The second respondent, in
my view, must
demonstrate how these factors had interplayed against one another
when it applied its mind thereon.
A
lip
service that it took them into consideration, is in my mind not
satisfactory, to refute the contention of the applicant that
the
respondent did not apply its mind. In the absence of any indication
that the second respondent was furnished with a report
that complies
with section 42(2) it is hard to envisage how it applied its mind to
these three sentencing factors.
[22]
The second respondent expects of the applicant to furnish it with the
sentencing remarks. I am of the view that this contention
is ill
founded. It can hardly be expected of the applicant to satisfy this
requirement when he is under the control of the second
respondent.
Besides, the second respondent is in a better position to obtain such
information. This clearly demonstrates that the
second respondent did
not judiciously apply its mind. It was the duty of the second
respondent to obtain the sentencing remarks
but it failed to acquit
itself thereof.
[23]
In the circumstances I find that the second respondents failed to
discharge its duties honestly and impartially and arrived
at its
decision capriciously. In the result the decision of the second
respondent not to place applicant for possible consideration
on
parole stands to be set aside.
[24]
In the result I make the following order;
1.
The decision of the Correctional Services Parole Board Pretoria
Central taken in respect of the applicant on 4 March 2008 is
reviewed
and set aside.
2.
The Case Management Committee Pretoria Central is ordered to
immediately prepare the report contemplated
in
section 42 of Act 111 of 1998 in respect of the applicant, and submit
the report to the applicant for written representation,
as required
by section 42(3) of Act 111 of 1998, so that same can be available
for a sitting of the Parole Board Pretoria Central
not later than 30
days of this order.
3.
The Correctional Services Parole Board Pretoria Central is ordered to
convene and consider the applicant's release on parole,
as required
by section 75(1) of Act 111 of 1998, read with s42 of Act 111 of
1998, not later than 30 days from date of this order.
4.
The respondents are ordered to pay the costs of this application.
N
M MAVUNDLA
JUDGE
OF THE
THE HIGH COURT
Date
of delivery: 21 July 2010
APPLICANTS
ATT : MOHAMED SEEDAT ATTORNEYS
APPLICANTS
ADV : ADV P W SPRINGVELDT
RESPONDANT'S
ATT : STATE ATTORNEYS
DEFENDANTS
ADV : ADV CGVO SEVENSTER
1
This
subsection reads as follows:
"(3)
A prisoner must be informed of the contents of the report submitted
by the Case Management Committee to the Correctional
Supervision and
Parole Board or Area Manager and be afforded the opportunity to
submit written representations to the Correctional
Supervision and
Parole Board or Area Manager, as the case may be.;,
2
1974
(3) SA 633
(A) at 646H
3
2010
(1) SACR 379
(GNP at 385d-387