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[2016] ZAECPEHC 48
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Silatha v Minister of Correctional Services (3509/2012) [2016] ZAECPEHC 48 (1 September 2016)
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 3509/2012
Date
Heard: 15/08/2016
Date
Delivered: 1/09/2016
In
the matter between:
ANDILE
SILATHA
Plaintiff
and
MINISTER
OF CORRECTIONAL
SERVICES
Defendant
JUDGMENT
ERASMUS
AJ
Introduction
[1]
In accordance to an agreement which was reached between the parties
on the day of the hearing, a specific point in issue was
argued for
determination prior to the commencement of the trial.
Point
in Issue
[2]
Whether the fact that the decision in terms of which the plaintiff
was placed in segregated detention in a single cell has not
been set
aside, is a bar to the plaintiff contending, in an action for
damages, that his detention as such according to the implementation
of the decision was unlawful and wrongful and is as such a complete
defence. The plaintiff denies this.
Background
Facts
[3]
On 29 November 2006 the plaintiff and two others commit the following
offences in
one day
.
3.1
Eight robberies with aggravating circumstances (in four of the
robberies the victims are South African Police Officers).
3.2
One murder (Police Officer)
3.3
Illegal possession of firearms and ammunition.
3. On 17 January 2008 the
plaintiff escapes from custody and commits two robberies with
aggravating circumstances.
On 14 March 2008 the
plaintiff is found guilty of the offences in one above and sentenced
as set out in the warrant (annexure A)
to the particulars of claim.
4. On 14 March 2008 the
plaintiff is incarcerated at St Albans Maximum Security Facility.
A correctional Sentence Plan (annexure
D1 – D11 to the
defendant’s plea) is completed and signed by the plaintiff.
He is classed as an escape risk and
housing in single cell
accommodation is suggested.
5. On 15 March 2008 the
Head of St Albans Security Facility approves the classification in
terms of section 30(1)(e) of the Correctional
Services Act 111 of
1998 (hereafter called the Act) and the plaintiff is placed in
segregated detention in a single cell until
24 March 2012.
[4]
The plaintiff is suing the defendant for damages in the amount of
R4 400 00.00 as per prayers (a) to (e) of the particulars
of
claim.
[5]
The cause of action is set out in paragraphs 8 to 11 of the
particulars of claim.
[6]
On or about 14 March 2008, and at St Albans Correctional Facility,
Port Elizabeth, the plaintiff was
unlawfully and wrongfully
placed, by various officials of the Department, who names and further
particulars are to the plaintiff unknown, in segregated detention
in
a single cell.
[7]
The plaintiff was unlawfully kept in segregated detention and
incarcerated in a single cell for the period
14 March 2008 until
24 March 2012
.
[8]
Furthermore, for the period 14 March 2008 until 24 March 2012, the
plaintiff was unlawfully and wrongfully restricted from various
amenities, which had previously been available to the plaintiff, by
various officials of the Department whose names and further
particularly are unknown to the plaintiff.
[9]
The aforesaid treatment of the plaintiff, by the officials of the
Department, constituted torture and/or cruel, and/or degrading
treatment to the plaintiff.
[10]
The defendant in support of his defence pleads in the further amended
plea in paragraph 2.8 to paragraph 2.10 as set out:
“
2.8 The decision
of the Head of St Albans to house the plaintiff in single cell
accommodation, constituted “administrative
action” as
defined in the Promotion of Administrative Justice Act, Act 53 of
2002 (PAJA).
2.9 The plaintiff was
advised of the said decision on 14
th
March 2008.
2.10 The said decision
has not been reviewed or set aside and consequently, the plaintiff is
precluded from averring that housing
him in single cell accommodation
was wrongful and unlawful”.
Common
Cause Facts
[11]
The defendant detained the plaintiff, in either segregated and/or
single cell detention, in terms of an application:
“Accommodation
in special care unit” annexed to the defendant’s heads of
argument.
[12]
The plaintiff conceded that the decision according to which the
plaintiff was placed in segregated detention constitutes
a decision
in terms of PAJA for purposes of the argument of the separate issue.
(The plaintiff initially denied this).
[13]
“Administrative action” in this Act, unless the context
indicates otherwise means any decision taken, or
any failure to take
a decision by –
“
(a) an organ of
state, when –
(i)
exercising a power in terms of the Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation, which conversely affects the rights
of any person
and which has a direct, external legal effect . . . . .”
[14]
It is for purposes of this argument also accepted that section
30(1)(e) of the Act was invoked by the Head of St Albans
Correctional
Facility when he decided to place the plaintiff in segregated and or
single cell detention.
[15]
When the plaintiff was admitted to St Albans Correctional Facility on
14 March 2008, a Correctional Sentence Plan (Annexure
D1 to D11 to
the Plea), was completed the plaintiff concurred in the plan and
signed it. Plaintiff was classified as a security
risk inmate
on account of the fact that he previously escaped from detention.
Single or segregated cell housing was recommended.
[16]
On the same day application was made to the Head of St Albans
Correctional Facility for approval of the said recommendation
and it
was approved by the Head on 15 March 2008. (See sections
7(2)(C), 26(3)).
[17]
This decision being an administrative action as defined in PAJA, has
not been reviewed or set aside and consequently
stands and is valid.
Submissions
[18]
Counsel for the defendant submitted that the only way to reverse a
decision which constituted an administrative action
is to have it
reviewed and or set aside by a court of law. The decision maker
cannot revoke same. This was decided
in the matter of
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye and Lazer Institute
.
[1]
The respondent in the case (
Kirland
)
applied for a Hospital Licence and the MEC decided to grant same.
The decision was incorrectly taken by the authorised person
and
subsequently revoked. The Constitutional Court held that this
could not be done and that the previous decision was valid
until set
aside by a court of law.
[19]
Counsel for the plaintiff contends that a
valid
administrative
action does not exclude a plaintiff from claiming damages on the
ground of segregated detention being unlawful and
wrongful.
[20]
The defendant further contends that the valid decision cannot be
valid on the one hand and invalid on the other hand,
acting lawfully
and unlawfully at the same time.
[21]
A valid and binding administrative decision to house the plaintiff in
segregatory circumstances was made on grounds amongst
others, that he
was a security risk because he escaped from detention previously and
committed further offences before being re-arrested.
This was
conveyed to the plaintiff.
[22]
The plaintiff in the pleadings simply denies that he is an escape
risk. No attempt was made to show any grounds
which the
plaintiff relies upon to show that the decision (to house the
plaintiff in segregated circumstances) was invalid on the
ground that
he was not an escape risk.
[23]
The decision being made was never challenged by means of an attempt
to have it judicially reviewed or set aside because
the detention
following the decision was unlawful. That being the case, the
decision and its implementation stand, according
to the document.
[24]
The question poses whether having the decision reviewed eight years
later will be of any consequence.
[25]
Should the decision not be adhered to by the defendant’s
subordinates disciplinary consequences are sure to follow.
[26]
Counsel for the plaintiff submits that because the plaintiff was
roomed in segregated circumstances his Constitutional
rights were
severely being infringed upon as per paragraph 12 of the particulars
of claim.
[27]
Counsel for the plaintiff contends that he is entitled to claim
delictual damages even if the decision to house him in the
aforementioned fashion was not set aside.
Conclusion
[28]
It is evident that the “administrative action” was
capable of being set aside by a court of law.
[29]
The decision was not set aside and therefore stands as such and
remains valid until further direction. The said detention
in
terms of the decision is thus not unlawful or wrongful until further
determination.
[30]
For purposes of this judgment I have not dealt with the variety of
other issues mentioned by counsel for the plaintiff as it
is their
prerogative to continue or deal with the remainder of the claim as
they see fit.
[31]
For purposes of this judgment I have not dealt with the time periods
and the submission made in this regard either as it either
do not
form part of the point in dispute that had to be determined.
[32]
In the result the plaintiff’s claim is dismissed with costs.
_________________
R
ERASMUS
Acting
Judge of the High Court
Counsel
for the plaintiff Adv AC Moorhouse, instructed by Egon A Oswald
Attorneys c/o Brown Braude & Vlok
Counsel
for the respondent Adv RP van Rooyen (SC) & Adv RB Laher
instructed by State Attorneys Port Elizabeth
Date
Heard: 15
August 2016
Date
Delivered: 01
September 2016
[1]
2014(3) SA 481 (CC)