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[2012] ZAECPEHC 93
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Meth v Minister of Correctional Services and Another (1848/2012) [2012] ZAECPEHC 93 (18 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH)
CASE NO: 1848/2012
DATE HEARD: 29/11/2012
DATE DELIVERED:
18/12/2012
In the matter between
LUCIANO METH
..............................................................................
APPLICANT
and
THE MINISTER OF CORRECTIONAL
SERVICES
............................................................................
1
ST
RESPONDENT
THECOMMISSIONER OF CORRECTIONAL
SERVICES
............................................................................
2
ND
RESPONDENT
JUDGMENT
ROBERSON J:-
[1] The applicant was formerly a
sentenced inmate at St. Alban’s Correctional Centre, Port
Elizabeth. While still serving
his sentence, he instituted an action
in the High Court against the respondents for payment of damages
arising from (a) malicious
prosecution and (b) the unlawful
imposition of various penalties for alleged theft.
[2] Following a trial, his claim was
dismissed with costs. The court
a quo
granted him leave to
appeal to the full bench of this division. The respondents indicated
that they were not prepared to waive
security for their costs of
appeal, and these costs have been fixed by the Registrar in the sum
of R40 000.00. The applicant now
applies, in terms of Rule 49 (13),
to be released from providing security for the respondents’
costs of appeal. The respondents
opposed the application.
[3] In
Giddey NO v Barnard and
Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC), O’Regan J, in dealing with
the exercise of a court’s discretion in terms of s 13 of the
Companies Act 61 of 1973,
said the following at paragraph [30]:
“
In
my view there can be no doubt that in exercising its discretion in
terms of s 13, a court must bear in mind the provisions of
s 34
1
and
weigh them in the light of other factors laid before it. …………………………….
On one side of the scale must be weighed the potential injustice to
the plaintiff or applicant if it is prevented from pursuing
a
legitimate claim. This incorporates a recognition of the importance
of the right of access to courts. On the other side of the
scale must
be placed the potential injustice to the defendant if it succeeds in
its defence but cannot recover its costs. Relevant
considerations in
performing this balancing exercise will include the likelihood that
the effect of an order to furnish security
will be to terminate the
plaintiff’s action; the attempts the plaintiff has made to find
financial assistance from its shareholders
or creditors; the question
whether it is the conduct of the defendant that has caused the
financial difficulties of the plaintiff;
as well as the nature of the
plaintiff’s action.”
In my view, the first and fourth of
these considerations are relevant to the present matter.
[4] The applicant set out in some
detail his personal history and his present financial circumstances.
Since 1989 he has been convicted
of numerous offences and has served
a number of prison terms. In 2005 he was sentenced to 10 years’
imprisonment for theft,
and was released on parole on 31 August 2010.
Since his release he has only had casual employment, stating that
since April 2012
he is fortunate if he works two days a week, earning
R100.00 a day. He has no assets, other than personal items of no
commercial
value. He lives with his partner, their son born in 2002,
and his partner’s two brothers, one of whom has cancer and the
other is mentally disturbed. His partner is the only income earner in
the household, earning a gross salary of a little over R5
000.00. She
owns the property in which they all live. The applicant’s
attorneys have acted from the outset without financial
cover. Clearly
the applicant cannot afford to pay the required security. The
deponent to the answering affidavit seemed to suggest
that his
partner could assist him in raising the funds, because she owns
immovable property. There is no merit in this suggestion.
If the
applicant is not released from providing security, his appeal will be
terminated.
[5] The applicant is of the view that
he has a reasonable prospect of success on appeal. In dealing with
this aspect, I shall only
deal with his claim arising from the
alleged unlawful imposition of penalties.
[6] His particulars of claim in the
action were attached to his affidavit. After alleging that two
Correctional Services members
had laid a charge of theft against him
at the Kabega Park Police Station, he set out the elements of a claim
for malicious prosecution.
He went on to allege as follows:
“
12
12.1
The first and second defendants, alternatively members in the employ
of the Department of Correctional Services:
12.1.1
Acted wrongfully and unlawfully in failing to hold a disciplinary
enquiry as provided for in section 24(1) of the Act
2
read
together with section 24(2) or 24(4) of the Act; and
12.1.2
Acted wrongfully and unlawfully in sanctioning the plaintiff to
penalties, the details of which are more fully set out herebelow,
which exceeded the penalties that the defendants may have imposed as
provided for in terms of section 24(3) or in the alternative,
section
24(5) of the Act.
13
As a consequence of the criminal charge of theft being laid against
the Plaintiff, the Plaintiff;
13.1
Was not allowed contact visits for a period of four (4) months;
13.2
Was not allowed to proceed to study for a grade 12 qualification in
2009 although he had already registered to do so;
13.3
Was not allowed to participate in any sporting activity,
specifically, rugby although the Plaintiff had already been selected
to represent St. Albans management area;
13.4
Lost his duty in the St. Albans Medium B kitchen as a food handler
although he has a Diploma in Professional Catering from
Intec
College.
13.5
Was not allowed to continue to study for a further catering diploma
with Bosasa;
13.6
Forfeited the R70,00 (SEVENTY RAND) per month allowance which food
handlers are paid and any subsequent increases in those
allowanced to
which he may have become entitled.
13.7
Was demoted from A-group status to B-group status for a period of
four months;
13.8
Was moved from a cell within which kitchen staff are housed to a
communal cell with the loss of attendant privileges, inter
alia,
certain extra freedom of movement, easier access to telephone
facilities, opportunities to obtain extra food, the use of
superior
ablution facilities and being housed in a cell unit with fewer co-
offenders.”
[7] In their plea, the respondents
admitted that the charge of theft had been withdrawn against the
applicant but denied the other
allegations relating to malicious
prosecution. They admitted that the applicant was not subjected to
the internal disciplinary
procedures as provided for in s 24 of the
Correctional Services Act 111 of 1998 (the Act), for the reason that
the offence committed
by the applicant was discovered by members of
the South African Police Services, who conducted their own
investigations. In the
minutes of the Rule 37 conference it was
recorded that “The Defendants were not obliged in terms of the
Act to hold an internal
hearing.” The respondents further
admitted that all the “privileges” set out by the
applicant in his particulars
of claim had been withdrawn, because he
had committed an offence.
[8] S 24 of the Act provides as
follows:
24 Procedures and penalties
(1)
Disciplinary hearings must be fair and may be conducted either by a
disciplinary official, a Head of the Correctional Centre
or an
authorised official.
[Sub-s.
(1) substituted by
s.
12
of
Act
32 of 2001
.]
(2)
(a)
A
hearing before a Head of the Correctional Centre or the authorised
official must be conducted informally and without representation.
[Para.
(a)
substituted
by s. 18
(a)
of
Act
25 of 2008
.]
(b)
At
such hearing the inmate must be informed of the allegation against
him or her, whereupon the inmate has the right to refute the
allegation.
(c)
The
proceedings of a hearing contemplated in paragraph
(a)
must
be recorded in writing by a correctional official.
[Sub-s.
(2) substituted by
s.
12
of
Act
32 of 2001
.]
(3)
Where the hearing takes place before the Head of the Correctional
Centre or the authorised official, the following penalties
may be
imposed severally or in the alternative:
(a)
A
reprimand;
(b)
a
loss of gratuity for a period not exceeding one month;
(c)
restriction
of amenities for a period not exceeding seven days.
[Sub-s.
(3) substituted by
s.
12
of
Act
32 of 2001
.]
(4)
At a hearing before a disciplinary official an inmate-
(a)
must
be informed of the allegation in writing;
(b)
has
the right to be present throughout the hearing, but the disciplinary
official may order that the accused inmate
be removed and that the
hearing continue in his or her absence if, during the hearing, the
accused inmate acts in such a way as
to make the continuation of the
hearing in his or her presence impracticable;
(c)
has
the right to be heard, to cross-examine and to call witnesses;
(d)
has
the right to be represented by a legal practitioner of his or her
choice at his or her own expense, unless
a request to be represented
by a particular legal practitioner would cause an unreasonable delay
in the finalisation of the hearing
in which case the inmate may be
instructed to obtain the services of another legal practitioner; and
(e)
has
the right to be given reasons for the decision.
[Sub-s.
(4) substituted by
s.
12
of
Act
32 of 2001
and
amended by s.
18
(b)
of
Act
25 of 2008
.]
(5)
Where the hearing takes place before a disciplinary official, the
following penalties may be imposed severally or in the alternative:
(a)
a
reprimand;
(b)
a
loss of gratuity for a period not exceeding two months;
(c)
restriction
of amenities not exceeding 42 days;
(d)
in
the case of serious or repeated infringements, segregation in order
to undergo specific programmes aimed at correcting his or
her
behaviour, with a loss of gratuity and restriction of amenities as
contemplated in paragraphs
(b)
and
(c)
.
[Para.
(d)
substituted
by s. 18
(c)
of
Act
25 of 2008
.]
(6)
The penalties referred to in subsections (3) and (5) may be suspended
for such period and on such conditions as the presiding
official
deems fit.
(7)
(a)
At
the request of the inmate proceedings resulting in any penalty other
than a penalty contemplated in subsection 5
(d)
must
be referred for review to the National Commissioner.
(b)
The
National Commissioner may confirm or set aside the penalty and
substitute an appropriate order for it.
[Sub-s.
(7) substituted by s. 18
(d)
of
Act
25 of 2008
.]
[9] The court a
quo
found that
an informal disciplinary enquiry as envisaged in s 24 (2) of the Act
had been held. In support of this finding it relied
on the evidence
of the respondents’ witnesses that the applicant had been
called into the office of the acting head of the
correctional centre,
had been questioned about the alleged theft, had admitted guilt, and
had apologised.
[10] It appears that this finding was
contrary to what was pleaded by the respondents, namely that no
disciplinary enquiry had been
held. In my view, there is a reasonable
prospect that a court of appeal might decide that there was never an
intention to hold
a disciplinary enquiry and that therefore no
enquiry was in fact held. It would follow that, if no enquiry was
held, the imposition
of penalties was unlawful.
[11] With regard to the penalties
which were imposed, the court
a quo
said the following:
“
The
provisions of section 24(3) are clear and unambiguous. The head of
prison has a discretion in imposing a penalty. The penalty
imposed in
this case was to remove the plaintiff, as a security measure, from
the kitchen to a communal cell. The other losses
are either a
consequence of this penalty or they apply as a result of the fact
that the plaintiff was found to have a further charge.
The decision
of the defendants’ officials was that the plaintiff could not
remain in the kitchen; he had a further charge
and it would have been
a security risk to have him continue staying and working in the
kitchen. I do not hold the view that the
said decision of the head of
prison was not justified. There is no evidence that the penalty
itself was improper and disproportionate.
The plaintiff’s
contention is that the head of prison should have limited himself to
the penalties provided in the Act. I
cannot find that the head of
prison exercised his discretion unreasonably in the circumstances.”
[12] It appears from this passage that
the court
a quo
accepted that penalties had been imposed in
terms of s 24 (3) of the Act. In my view, there is a reasonable
prospect that a court
of appeal would find that s 24 (3) does not
authorise an official to impose penalties beyond those which are
prescribed.
[13] In addition to the prospect of
success on appeal, I have had regard to the nature of the applicant’s
action. It involves
an organ of state and the manner in which inmates
are subjected to procedures which materially affect their conditions
while serving
their sentences. There is therefore a public interest
element in the action, which is a factor I may take into account.
(See
Alam v Minister of Home Affairs
2012 (5) SA 626
(ECP) at
633E-F.) In my view this public interest element is critically
highlighted by certain views expressed by the deponent
to the
respondents’ answering affidavit. She is a Deputy Director in
the Legal Services section of the Department of Correctional
Services. With regard to the penalties imposed on the applicant, she
stated the following:
“
In
addition, in relation to the claim by the Applicant, that the
punishment that was metered (sic) out to him was in excess to (sic)
that prescribed in the Act, it is clear from the reading of Section
24, that the Section allows for punishment in excess to that
which is
allowed in the Act. Accordingly the applicant suffered no prejudice
in relation to the conduct of the officials of the
Respondents.”
And further:
“
I
would like to further state that despite the fact that no formal
proceedings were held in terms of Section 24, from the evidence
and
from what is pleaded by the Respondent, there was compliance with the
requirements of the said Section, and in respect of the
withdrawal of
privileges, it is important to note that
Section 24
(3) of the
Correctional Services Act 1998
, Act 111 of 1998 is permissive of a
sanction more than the sanction that is listed in that Section. The
Head of Correctional Center
has a discretion to impose the sanctions
that are listed in the Section, or even more depending on the
circumstances of the case.”
[14] If the above is her
interpretation of s 24 (3) of the Act, and she represents the view of
the respondents, then there is cause
for concern. While s 24 (3)
gives an official a discretion as to which of the prescribed
penalties he or she may impose, and in
what combination, it does not
permit an official to exceed the limits of the prescribed penal
jurisdiction. To exceed those limits
would be illegal. Implementation
of the deponent’s (and apparently the respondents’)
interpretation would result in
a serious infringement of inmates’
rights.
[15] I am aware that in the event of
the appeal being unsuccessful, the respondents will not be able to
recover their costs. This
is an important consideration which must be
weighed together with all the other circumstances. However, having
weighed all the
relevant factors, I am of the view that the applicant
should not be denied his opportunity to have his dispute further
determined
by a court.
[16] The applicant submitted that he
should be awarded his costs in the event of the application
succeeding. I prefer to order that
the costs of the application
should be costs in the appeal.
[17] The following order is made:
[17.1] The applicant is released from
furnishing security for the respondents’ costs of an appeal to
be prosecuted by the
applicant to the Eastern Cape High Court,
Grahamstown, under case number CA 68/2012.
[17.2] The costs of the application
are to be costs in the appeal.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Adv A Rawjee,
instructed by James Philipson Attorneys, Port Elizabeth.
For the Defendant: Adv Adv M
Nobatana, instructed by State Attorney, Port Elizabeth
1
S
34
of the Constitution which provides: “Everyone
has the right to have any dispute that can be resolved by the
application
of law decided in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal or
forum.”
2
Correctional
Services Act 111 of 1998