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[2011] ZAGPPHC 54
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Freddie v Minister of Correctional Services and Others (19293/2006) [2011] ZAGPPHC 54 (6 April 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 19293/2006
DATE:
06/04/2011
In
the matter between:
CITY
BAFANA
FREDDIE
.......................................................................................
APPLICANT
and
MINISTER
OF CORRECTIONAL
SERVICES
..............................................
1st
RESPONDENT
THE
PROVINCIAL COMMISSIONER OF
CORRECTIONAL
SERVICES
.....................................................................
2nd
RESPONDENT
THE
HEAD OF MEDIUM PRISON
(PRETORIA)
........................................
3rd
RESPONDENT
THE
CHAIRPERSON OF PAROLE BOARD
(PRETORIA
MEDIUM PRISON)
…...............................................................
4th
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
Due to circumstances beyond my control, it has taken rather too long
for me to have this judgment delivered. The delay has indeed,
most
regrettably, caused the applicant great deal of inconvenience. I can
do no better than to apologize to the applicant. The
cause of the
delay is a subject of another forum and shall therefore not further
address that aspect.
[2]
On the 28th February 2006 the fifth respondent recommended that the
applicant was not suitable for parole placement. It further
decided
that the applicant be reconsidered on 28 February 2008 whether he is
suited for parole. The applicant sought to have this
decision
reviewed, corrected and set aside. He also sought ancillary relief.
The matter came before me on 8 February 2007. I reserved
the
judgment.
[3]
It is common cause that the applicant was serving 23 years
imprisonment terms for multiple crimes of housebreaking with intent
to rob and robbery, robbery with aggravating circumstance, attempted
murder and possession of a firearm and ammunition. The applicant
was
sentenced on 21 August 1997. His sentence was prior to 1 October
2004. The consideration of his parole status falls to be determined
in terms of the provisions of section 65(4)(a) of Act 8 of 1959.
[4]
The appellant appeared before the fifth respondent at a correctional
supervision and parole board hearing on 28 February 2006.
The fifth
respondent decided that the applicant should be further profiled on
28 February 2008. The relevant date has come and
gone. In my view,
this decision, for whatever it is worth, is now academic.
[5]
The applicant's discontent with the fifth respondent is, according to
him, that the fifth respondent misdirected himself in
the following
respect: by failing to meaningfully consider his placement on parole,
alternatively failing to properly apply his
mind to the matter at
hand, having prejudged the outcome of the said hearing applying
incorrect or irrelevant criteria. He further
contends that the fifth
respondent did not ask him the circumstances surrounding his offence
by merely reading from the print out
and informing him the nature of
his crime, the length of his sentence, the seriousness of the crime
and interest of the community.
He further contended that there were
no other issues discussed with him as required in terms of section 63
of the Act. The fifth
respondent had regard to documents which the
applicant was not informed of.
[6]
The applicant further contends that the fifth respondent did not take
into account the fact that he had completed the following
courses
while in prison:
Higher
Diploma in Electrical Studies - Unisa (current studies); Life Skills
Course - 2005; HIV/AIDS Awareness Program -2005; N1
to N6 Engineering
Studies-2001 to 2005; Electrical Appliance Repair Course, Investment
in Excellence Course; Umalusi Senior Certificate-2002;
Soldiers of
Peace - Criminon 2002; Soldier of Peace - Criminon 2002; The way to
peace -Criminon 2001 and ICDL Computer Course for
Beginners. He
further complains about the duration of 15 minutes the entire hearing
took before the Correctional Supervision and
Parole Board.
[7]
The respondents concede that the applicant's consideration of parole
placement is subject to the provisions of Act 8 of 1959.
The fifth
respondent had regard to the nature of the offences the appellant was
convicted for and the sentence of 23 years he was
serving. He further
had regard to the following: "The Correctional Supervision and
Parole Board acknowledge the certificates
and testimonials attached
like the N6 theory in Engineering Studies. His address is positive.
However, the Correctional Supervision
and Parole Board have taken
into account the seriousness of the crimes, the length of the
sentence and the interest of the community.
He must therefore serve
more of his sentence in order to be exposed to case intervention team
for therapeutic intervention."
[8]
In the matter of Van Gund v Minister of Correctional Services
2011
(1) SACR 16
at 20f-h the Court stated that: "[11] It is trite
law that a prisoner has no right to be released on parole. 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 a 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 1996,
provides that: 'Everyone has the right to a fair 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 an irrelevant consideration
must
therefore be rejected."
[9]
The sentence imposed on the applicant is of long duration. The
offences the applicant was sentenced for are indeed serious and
need
no further proof to show their gravity. The very fact that the
sentence is 23 years imprisonment emphasis the seriousness
thereof.
There is no substance in contention that the fifth respondent
misdirected himself in concluding that the offences were
serious
without hearing the appellant in that regard.
[10]
I deem it not necessary to consider the rest of the issues that
raised the applicant's chagrin regarding the decision of the
fifth 6
respondent. I am of the view that there is no merit in the
application for review and it stands to be dismissed. I shall
not
order costs against the applicant because these would in any event
not be recovered by the respondent.
[11]
In the result the application is dismissed and no order as to costs
is made.
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
APPLICANT'S
ATT : KRUGER AND PRINSLOO INC
APPLICANT'S
ADV : MR C SNOYMAN
2nd
RESPONDENT'S ATT : STATE ATTORNEYS
2nd
RESPONDENT'S ADV : MR J ROUX
JUDGMENT
DELIVERED : 6 APRIL 2011.