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[2011] ZAGPPHC 196
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Mbonani v Minister of Correctional Services and Others (15991/2011) [2011] ZAGPPHC 196 (5 October 2011)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 15991/2011
DATE:05/10/2011
In
the matter between:
EBEL ZANELE
MBONANI
............................................................................................
Applicant
And
THE
MINISTER OF CORRECTIONAL
SERVICES
...........................................
1st Respondent
THE
COMMISSIONER OF
CORRECTIONAL
..................................................
2nd
Respondent
SERVICES
THE
HEAD OF THE CORRECTIONAL
CENTRE:
.............................................
3rd
Respondent
ZONDERWATER
MEDIUM CORRECTIONAL
FACILITY
CORRECTIONAL
SUPERVISION AND
PAROLE
..............................................
4th
Respondent
BOARD:
ZONDERWATER MEDIUM CORRECTIONAL FACILITY
JUDGMENT
MATOJANE
J
[1]
This is an application to review and set aside the decision of the
fourth respondent (Correctional Supervision and Parole Board)
dated
17
February 2011 to place applicant on parole but postpone his release
for one year to 17 February 2012. The applicant seeks a further
order
that fourth respondent's decision to postpone applicant's release,
should be set aside and replaced with a decision that
the applicant
is to be released immediately on the normal parole conditions.
[2]
On 15 September 1998 the applicant was found guilty of murder,
unlawful possession of a firearm and ammunition. He was sentenced
to
an effective sentence of 35 years imprisonment.
[3]
On 16 March 2010 applicant appeared before the Correctional
Supervision and Parole Board (the parole board) for Zonderwater
Medium Correctional Centre, for consideration of his release on
parole. Applicant was not placed on parole and his further parole
consideration was remanded to 16 March 2012.
[4]
Applicant obtained an order of this court reviewing and setting aside
the decision of the fourth respondent taken on 16 March
2010. The
court ordered the case management committee of the respondent to
prepare the applicant's profile including a psychologists
report,
within 60 days from the date of the order and to reconsider the
applicant for parole by 7 January 2011.
[5]
The applicant was only called to appear before the fourth respondent
on 27 January 2011 but the hearing was postponed to 2 February
2011,
then to 3 February and finally to 9 February 2011 when the hearing
was again postponed by the fourth respondent, purportedly,
in order
for the victim's family to attend the hearing.
[6]
The fourth respondent only considered the applicant for parole on 17
February 2011 after the applicant through its attorney
had sent a
letter of demand to the fourth respondent on 10 February 2011
demanding compliance with the court order of 16 March
2010. The
chairman of the case management committee and fourth respondent told
the applicant that the board was satisfied with
applicant's profile
and with his rehabilitation and he will be placed on parole but the
implementation date will be deferred to
17 February 2012 because a
"victim mediation programme" was still outstanding.
[7]
The applicant takes the view that once a decision was taken by the
fourth respondent to place applicant on parole, he obtained
a right
to be released, the deferring of such release for a year is
consequently unlawful and in breach of his right to a fair
administrative action that is lawful, reasonable and procedurally
fair.
[8]
Section 73(l)(a) of the Correctional Services Act No. Ill of 1998
provides that subject to the provisions of the Act a sentenced
prisoner remains in prison for the full period of the sentence, and
section 73(3) provides that a sentenced prisoner must be released
from prison, and from any form of community corrections imposed in
lieu of part of a sentence of imprisonment, when the term of
imprisonment imposed has expired. Section 73(4) permits the release
of a prisoner on correctional supervision or day parole or
parole
before the expiration of the term of imprisonment. Section
73(5)(a)(i) provides:
"Subject
to the conditions of community corrections set by such Board or
court:
(i)
a prisoner must be placed under correctional supervision or on day
parole or on parole on a date determined by the Correctional
Supervision and Parole Board."
[9]
Section 73(5)(a)(i) peremptorily authorises the release of a prisoner
out on parole on the date determined by the parole board.
When viewed
against the provisions of section 12(l)(a) of the Constitution which
stipulates that everyone has the right to freedom
and security of
person, which includes a right not to be deprived of freedom
arbitrarily or without just cause, it follows that
the date of
release to be determined by the parole board must be as soon as
reasonably possible. It follows that any deferment
of the release of
the prisoner must be lawful, reasonable and procedurally fair.
[10]
In my view, the further incarceration of the applicant after a
decision was taken on 17 February 2011 that he qualifies to
be
released on parole is unreasonable and unlawful. The fourth
respondent states its reasons as follows:
"The
offender challenged the CSPB's decision and was given an order to be
seen within three months. He initially appeared at
the end of January
2011 but for purposes of victim involvement he was postponed (sic)
for two weeks which he also challenged through
legal attorney who
threatened us with contempt of court."
"CSPB
was not yet satisfied that the sentence served was properly accounted
for as the victim involvement process was cut short.
CSPB will
however approve for placement on parole on 17.02.2012 until
14.03.2033."
[11]
After he was informed by the chairman of the fourth respondent that
the parole board has a mandate to consider the views of
the victims
with regards to the offender's placement on parole, applicant gave
the chairman of the fourth respondent the telephone
numbers of the
victims' neighbour to contact them so that he could subject himself
to the restorative justice program. To date,
nearly six months since
the parole hearing, neither of the respondents has contacted
applicant about meeting the victim's family,
nor has any official
contacted him about the so-called victim mediation program or have
made any effort to assist him in completing
such a program. No
evidence was placed before the court about what the "victim
program" entailed, when it must be done
and how long does it
take. It must be mentioned that section 73(5)(a)(l) makes no
reference to "victim program" as a
prerequisite for a
prisoner to be released on parole. It follows, in my view, that the
decision to delay applicant's release on
parole is irrational,
capricious and arbitrary and is accordingly reviewable in terms of
Rule 53 of the rules of court and also
in terms of
section 6(2)
of
the
Promotion of Administrative Justice Act, 3 of 2000
.
[12]
Organs of state are not free to act as they please. It is expected of
organs of state that they treat people with whom they
deal with, with
dignity, honesty, openly and fairly. This is particularly so in the
case of the applicant, a prisoner who is in
a position of weakness in
relation to the respondents. It is evident that the fourth respondent
would not have held a parole hearing,
if it had not been for the
pressure placed on them by the applicant's attorney.
[13]
I agree with counsel for the applicant that applicant was entitled to
be released from prison once a decision was taken by
the fourth
respondent that he should be released on parole.
[14]
In the result the applicant has established that he was entitled to
be released on parole immediately under the conditions
as approved by
fourth respondent on 17 February 2011. The respondents are ordered to
pay costs.
[15]
Accordingly the following order shall issue:
1.
It is ordered that the applicant be released on parole immediately
under the conditions as approved by the parole board on 17
February
2011.
2.
The respondents are ordered to pay the costs of this application.
K
E MATOJANE
JUDGE
OF THE HIGH COURT