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[2020] ZAECPEHC 46
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Hewitt v Minister , Department of Correctional Services and Others (343/2020) [2020] ZAECPEHC 46 (1 December 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case
No: 343/2020
Date Heard: 19
November 2020
Date Delivered: 1
December 2020
In the matter between:
ROBERT
ANTHONY JOHN HEWITT
APPLICANT
and
THE MINISTER,
DEPARTMENT OF
CORRECTIONAL
SERVICES
FIRST
RESPONDENT
THE
NATIONAL COMMISSIONER, DEPARTMENT OF
SECOND
RESPONDENT
CORRECTIONAL SERVICES
CORRECTIONAL
SUPERVISION AND PAROLE BOARD
ST
ALBANS CORRECTIONAL CENTRE
THIRD
RESPONDENT
JUDGMENT
MULLINS
AJ:
[1]
The Applicant in this matter,
Robert Anthony John Hewitt, was charged with and convicted
of various
counts of rape and sexual assault.
[1]
He was sentenced to six years imprisonment and at the time of the
launching of this application he was still incarcerated in St
Albans
Prison.
[2]
The three Respondents are the
Minister of Justice and Correctional Supervision, the National
Commissioner of the same department and the Parole Board, St Albans
Correctional Centre. (Unless it is necessary to identify a
specific
Respondent, for the sake of convenience the Respondents will be
referred to collectively as “the Department”).
[3]
On 7 February 2020 the Applicant launched an application for urgent
relief, which may be
paraphrased as follows:
(a)
That the Parole Board consider the Applicant for release and
placement under community corrections
with immediate effect;
Alternatively:
(b)
Declaring the Department’s failure to take appropriate steps to
consider him for parole
an administrative action in accordance with
the Promotion of Administrative Justice Act, 3 of 2000 (PAJA);
(c)
Declaring the Department’s failure to take the relevant
administrative action reviewable
and set aside accordingly,
alternatively declared unlawful;
(d)
Directing the Department to convene a Parole Board hearing in
accordance with section 75 of the
Correctional Services Act, 111 of
1998 (“the Act”) within seven days of service of the
Court Order and to consider
his application for parole;
(e)
Ensuring that the Case Management Committee forthwith produce a
report in terms of s42 of the
Act for the Parole Board’s
consideration;
(f)
Ensuring that the
complainants
[2]
are advised of
the hearing so that they may make representations and/or attend the
hearing;
(g)
Informing the Applicant’s attorney of the date of the Parole
Board’s hearing to enable
him to prepare and make
representations;
(h)
Ensuring that the Parole Board
convenes urgently in order to consider the Applicant’s release
on parole and to furnish the Applicant with written reasons for any
decision adverse to him.
[4]
The Applicant prayed for costs
against the First Respondent only.
[5]
The Department was given until
3:00 p.m. on 14 February 2020 to deliver answering affidavits,
if
any. On behalf of the Respondent an answering affidavit was
filed on 18 February 2020 by an official of the First Respondent,
being the date of the hearing.
[3]
By agreement the matter was postponed to 25 February 2020, costs
reserved.
[6]
On 24 February 2020, that is, a
day before the hearing, the Applicant filed his replying
affidavit.
[7]
On 25 February 2020 the matter was settled by agreement in the
following terms:
“
1.
The Respondents are
directed to take such administrative or other steps as may be
necessary, to cause the relevant Correctional Supervision and Parole
Board to convene on a date fixed, no later than 40 days from
the date
of this order, to consider the Applicant’s placement on parole
under community corrections in terms of section 75
of the
Correctional Services Act, 111 of 1998 (“the Act”), such
steps to include:
1.1.
ensuring
that the Case Management Committee produce forthwith the necessary
report in terms of section 42 of the Act, for the Correctional
Supervision and Parole Board’s consideration;
1.2.
ensuring
that the National Commissioner has informed the Correctional
Supervision and Parole Board immediately thereafter, so as
to enable
the latter to immediately inform the complainant’s when and to
whom they may make representations and when and
where the
Correctional Supervision and Parole Board meeting will take place, in
terms of section 75 (4) of the said Act;
1.3.
ensuring
that the Correctional Supervision and Parole Board as is a matter of
urgency, informed (sic) the complainant of such rights
as may vest in
them in terms of section 75 (4) of the said Act, to make
representations or to attend the relevant Correctional
Supervision
and Parole Board meeting;
1.4.
informing
the Applicant’s attorney of record forthwith of the date
allocated for the Correctional Supervision and Parole Board
meeting,
to enable him to prepare for appropriate representation of the
Applicant thereat; and
1.5.
ensuring
that the Correctional Supervision and Parole Board convenes urgently
(within the period set out in paragraph 1 herein above)
in order to
consider the Applicant’s release on parole under community
corrections and in doing so, furnish the Applicant
with written
reasons for any decision adverse to the Applicant.
2.
The
cost of the application are reserved.”
[8]
Although it does not appear from
the papers, I was advised from the bar that the Parole
Board hearing
duly took place and that the outcome thereof was in his favour and
Applicant has been released on parole.
[9]
The matter comes before me in
respect of the costs only. The Applicant contends that he
is entitled
to the costs of the application, whereas the Department contends that
each party should pay their own costs.
[10]
In order to decide the question of costs it
is necessary to deal with the merits of the matter, which
were fully
argued before me, Ms
Bands
appearing on behalf of the Applicant and Ms
Pango
on behalf of the Department. I am indebted to counsel for their
assistance in the matter.
[11]
The chronology of events leading up to the launching of the
application is of vital importance. According
to the Applicant the
matter unfolded as follows:
(a)
On 20 September 2016 the Applicant was sentenced to 6 years
imprisonment;
(b)
Strictly speaking, after having served one-third of his sentence the
Applicant was eligible
for parole, but the Department apparently
overlooked this and only considered him after he had served one-half
of is his sentence;
[4]
(c)
During August 2019 the Parole Board duly considered the Applicant’s
case and
approved his release on parole, effective from 23 September
2019;
(d)
However, the complainants had not been advised of the hearing, nor of
their right to make
representations (s 75 (4) of the Act) and when
they heard that the Applicant was to be released on parole, they
apparently raised
objections;
(e)
The First Respondent referred the matter to the Parole Review Board
and the Applicant’s
release on parole was put on hold;
(f)
As a result of this development,
on 22 September 2019, and again on 26 September 2019,
a family
friend, one Adv J Engelbrecht SC,
[5]
wrote to the Department requesting copies of the complainant’s
representations. He received no reply;
(g)
On 2 October 2019 Engelbrecht again wrote to the Department,
inter
alia
, complaining of the lack of co-operation;
(h)
The Department responded on 11 October to 2019, inter alia,
explaining why the Applicant’s
parole had been suspended and
that the complainants had been given until 21 October 2019 to make
submissions, whereafter the Applicant
would be given seven days in
which to reply;
(i)
On 21 October 2019 the Department sent the complainants’
representations to
Engelbrecht under cover of an email (which
Engelbrecht claims he never received) and inviting the Applicant to
make representations
for the review, which was to be held on 30
October 2019;
(j)
On the same day Engelbrecht received another email from the
Department to the effect
that the review was to be held on 25 October
2019;
(k)
Needless to say Engelbrecht was very unhappy with this state of
affairs and despite a lengthy
written objection as to the change of
date, which, it was alleged, was to the prejudice of the Applicant,
the review went ahead
on 25 October 2019, the decision of the Review
Board being as follows:
“
At
its meeting held on 25 October 2019 the Correctional Supervision and
Parole Review Board (CSPRB) decided as follows:
1.
The
decision of the Correctional Supervision and Parole Board (CSPB) to
place the offender on parole is reviewed and set aside.
2.
The
Department is to take immediate steps to pursue Victim Offender
Dialogue (VOD).
[6]
In the event of a victim being out of the country, the dialogue
should take place per Skype or any other means possible, if the
victim so wishes.
3.
Due
notice must be given to the victims or their representatives so that
the victims be afforded a proper opportunity to participate
in the
restorative justice process as the law requires.
4.
The
Department must pursue individual psychotherapy for the offender to
gain insight into his offences.
5.
This
decision must be communicated forthwith to all the relevant parties.”
(l)
On 27 November 2019, and apparently at the instigation of the
Applicant’s wife,
the Applicant’s legal representative
(an attorneys firm) berated the Department’s inaction and
demanded a parole hearing
by 10 December 2019;
(m)
On 8 December 2019 the Applicant’s legal representative wrote
to the Department recommending
that the VOD process be conducted via
Skype and again complaining that the delay was prejudicing the
Applicant;
(n)
This was followed by a further email, dated 18 December 2019, once
again complaining of the lack
of action by the Department;
(o)
The Department replied on 19 December 2019 to the effect that one Rev
Faleni had advised that
the Applicant was finally willing to attend
the VOD process, together with his legal representative, and
furthermore inviting the
Applicant’s legal representative to
contact Faleni;
(p)
On 2 January 2020, and again on 9 January 2020, Engelbrecht wrote to
the Department yet again
complaining of the lack of progress;
(q)
On 15 January 2020 the Applicant’s wife, who had apparently
been making regular telephone
calls to the Department, wrote to the
Department complaining of the delay;
(r)
When there was no response from
the Department (to any of the above queries), on 7 February
2020 the
Applicant launched this application on an urgent basis.
[12]
The above chronology of events is gleaned
from the Applicant’s founding affidavit. The Department
does
not take issue with the sequence of events, but adds certain
developments of its own which, it submits, puts a different slant
on
the matter.
[13]
In the answering affidavit the Area Commissioner of the First
Respondent, representing all the Respondents,
states as follows:
(a)
At the initial parole hearing the complainants were not consulted
because at a previous
hearing to convert the Applicant’s
sentence from custody to house arrest they had shown no interest;
(b)
Shortly after the Parole Review Board’s decision the Department
“commenced”
the VOD process with the assistance of its
spiritual adviser, Rev Faleni;
(c)
As the Applicant had persisted in denying the commission of the
offences further therapeutic
sessions with the Applicant were deemed
necessary in order to protect the complainants and prepare the
Applicant for the VOD process.
A report from a psychologist as to the
outcome of the sessions is dated 25 November 2019 (the same day that
the Parole Review Board
handed down its decision);
(d)
Rev Faleni had meetings with the Applicant, who had apparently
initially refused to agree to
participate in the VOD process, as a
result of which he, Faleni, sought the co-operation of the family
priest and the Applicant’s
family;
(e)
During December 2019 the Applicant’s
family managed to convince him to take part in the
VOD process.
However, the Applicant insisted that all the complainants had to be
present in person,
[7]
which was
at odds with paragraph 2 of the Parole Review Board’s decision;
(f)
Once the Applicant had finally agreed to participate in the VOD
process the Department’s
legal services was notified (for what
reason is not explained);
(g)
On 24 January 2020 the Department addressed a letter to an attorneys
firm representing the complainants,
inviting them to participate in
the VOD process. There does not appear to have been a reply;
(h)
On 7 February 2020 the Department received a letter from another
attorneys firm stating that
it represented two of the complainants.
Accordingly, on the same day a letter in similar terms as the one
referred to above, was
sent to this firm;
(i)
Before any response could be received from either firm of attorneys,
on 10 February
2020 the Applicant launched the urgent application;
(j)
Despite this development,
on 14 February 2020 the State Attorney sent both of the
attorneys
firms an email putting them on terms with respect to the VOD process.
They were advised that should they not respond
within seven days the
parole process would be finalised in their absence. There does not
appear to have been any response from
either firm.
[14]
In his replying affidavit the Applicant states that:
(a)
The VOD process is, in effect, a red-herring in that it is not a
prerequisite for the holding
of a parole hearing;
(b)
Any concession made with respect to the VOD process should not have
been construed as an abandonment
of his constitutional rights, nor a
consent to the relaxation of section 75 of the Act;
(c)
Although he did agree to the VOD
process, he was not in agreement with the Skype meeting
because he
feared that the proceedings would be splashed across social media
platforms, which had happened before.
[15]
So much for the history of the matter.
[16]
A word about the VOD process. This procedure
is not provided for in any legislation and it appears
to be an
informal, voluntary procedure which has been introduced by the
Department, presumably as a means of hopefully reconciling
the
perpetrator and the victim of a crime, or at least helping them come
to terms therewith. The only legislative procedure involving
victim
participation (that I was referred to) is contained in section 75 (4)
of the Act, which allows the victim and/or family
of a victim to make
representations and to attend a Parole Board hearing, if so advised.
[17]
In any event, the Court Order dated 25
February 2020, which was made by agreement, abandoned the VOD
process. Whether or not the complainants made representations and/or
appeared at the Parole Board hearing is not known and is,
in any
event, irrelevant for present purposes.
[18]
I turn now to consider the legal position. When it comes to an award
of costs the
basic rule
was formulated by Innes CJ in
Kruger
Bros & Wasserman v Ruskin
1918 AD 63
at 69:
“
The
rule of law is that all costs – unless expressly otherwise
enacted – are in the discretion of the Judge. His discretion
must be judicially exercised, but it cannot be challenged, taken
alone and apart from the main order, without his permission.”
[19]
The
general
rule
is that costs follow the event, that is, in the absence of special
circumstances the successful party
should
be awarded the costs occasioned by having had to approach a court for
relief. This is trite law. See
Kathrada
v Arbitration Tribunal and Another
1975 (2) SA 673
(AD).
[20]
The general rule is subject to the overriding principle embodied in
the basic rule, namely the court’s
discretion, judicially
exercised, is the final say on the matter. Dealing with the question
of costs (in respect of an application
for an amendment) the
following was stated in
Cganga v AA Mutual Insurance Association
Ltd
1979 (3) SA 320
(E) at 330D:
“
Each
case in my view must depend on its own merits and the discretion of
the Court to make an order which is fair in all the circumstances
must remain unfettered.”
[21]
Notwithstanding the pre-eminence of the basic rule, it has been held
that the general rule should
not be departed from without good
grounds. This issue was aptly summed up (albeit on appeal) in
Letsitele Stores (Pty) Ltd v Roets
1959 (4) SA 579
(T) at 579H
580B:
“
In
an appeal of this nature the general principles should be observed.
The first is that the Court of first instance has a judicial
discretion in regard to costs and this Court cannot interfere unless
it is satisfied that the discretion was not exercised judicially.
The
second is that the successful party should as a general rule, have
his costs. This is a rule which should not be departed from
without
the existence of good grounds for doing so. Where a successful party
has been deprived of his costs, an appeal Court will
enquire whether
there would be any grounds for this departure from the general rule,
and if there are no such grounds, then ordinarily
it will interfere.
Any grounds here means any grounds on which a reasonable person could
come to the conclusion arrived at. (Merber
v Merber
1948 (1) SA 446
(A.D.) at pp 452 – 453 and the cases there cited.)
The
discretion of the Court a quo is therefore not unlimited and this
court should interfere if it can be shown, for example, that
the
Court a quo has exercised its discretion capriciously or upon a wrong
principle, that it has not brought an unbiased judgment
to bear on
the question or has not acted for substantial reason.”
[8]
[22]
I turn now to the present matter. If one has
reference to the founding affidavit, on the face of it
a case is
definitely made out for the relief sought. All the indications are
that the Department was dragging its feet, if not
being obstructive.
The Applicant goes even further. He alleges that the
complainants’ objections, particularly their
posts on social
media, “…
demonstrates
[their]
vindictive
motive which appears to have mesmerised the Parole Board into doing
nothing.”
[23]
However, the Department’s answering affidavit paints a somewhat
different picture.
Not only was the Department dealing with the
matter, the Applicant was fully aware thereof, albeit not at a pace
to satisfy him.
[24]
The date on which the Applicant was to be
released on parole was 23 September 2019; the date on which
the
urgent application was launched was 10 February 2020: a period of
approximately 5 ½ months. Can it be said that this
was an
unreasonable delay in the circumstances?
[25]
Given that the Parole Review Board hearing
had to take place and thereafter the rulings of this body
complied
with, the lapse of time does not strike me as unreasonable,
particularly as the Christmas holiday period fell in the middle
(when
even Engelbrecht fell silent for a while).
[26]
The Applicant was also partly responsible for the delay.
Although there is some dispute
in this regard, initially he refused
to take part in the VOD process. He states that it was only a
Skype meeting that he
objected to. Whatever the reason, some of
the delay can be attributed to him.
[27]
The matter must be viewed holistically, that is, on the papers as a
whole. While the Applicant’s
founding papers make out a
case for urgent relief, the Department’s answering papers place
the matter in context. The
correspondence indicates that it was
dealing with the matter and it was not dragging its feet unduly.
On the other hand,
the Applicant’s expectations were too high.
He was impatient, which is understandable in the circumstances from
his,
and his family’s, point of view, but not dispositive of
the matter.
[28]
Ms
Bands
argued that the Court Order that was made by agreement on 25 February
2020 amounts to a victory for the Applicant, or at the very
least
substantial success. Ms
Bands
points out that, but for the 40 day period in which to hold the
hearing (seven days in the notice of motion) the agreement coincides
exactly with prayers 2.5 to 2.9 of the notice of motion.
[9]
[29]
On behalf of the Department Ms
Pango
argued that the agreement merely reflects what the Department was in
law obliged to do, and was in any event already in the process
of
doing.
[30]
There is merit in both arguments.
[31]
It was put it to Ms
Pango
that the fact that the Department’s
case was that each party should pay its own costs was an
acknowledgement by it that it
had been remiss to a certain extent.
Her response was that she had no instructions to make this
concession. I am, however, of the
view that this is precisely the
position, and refer to what is stated below.
[32]
I am mindful of the Applicant’s constitutional rights,
particularly section 12(1)(a) of
the Constitution, which provides:
“
(1)
Everyone has the right to freedom and security of the person, that
includes the right-
(a)
Not
to be deprived of freedom arbitrarily or without
just cause; …”
[33]
In addition, section 33 of the Constitution, read with PAJA, provides
that everyone is entitled
to administrative action which is lawful,
reasonable and procedurally fair.
[34]
Can it be said that the Applicant’s continued incarceration was
arbitrary and without just
cause? I do not believe so. He
was not entitled to parole as of right. He merely had the right
to be considered
for parole. Section 75(1) of the Act states:
“
(1)
A Correctional Supervision and Parole Board, having considered the
report on any sentenced offender
serving a determinate sentence of
more than 24 months submitted to it by the Case Management Committee
in terms of section 42 and
in the light of any other information or
argument,
may-
(a)
Subject
to the provisions of paragraphs (b) and (c) and subsection (1A)
[10]
place a sentenced offender under correctional supervision or day
parole or grant parole or medical parole and, subject to the
provisions of section 52,
[11]
set the conditions of community corrections imposed on the sentenced
offender;
…”
(my
emphasis)
[35]
Thus, the Applicant’s rights in terms
of section 12 of the Constitution were contingent on the
outcome of
the Parole Board hearing. His incarceration was accordingly not
arbitrary and without just cause. It was
dependant on the
Parole Board finding that he should be released on parole.
[36]
Can it be said that the Applicant was subjected to administrative
action which was unlawful,
unreasonable and procedurally unfair?
Section 3 of PAJA provides as follows:
“
(1)
Administrative action which materially and adversely affects the
rights or legitimate expectations
of any person must be procedurally
fair.
(2)(a) A fair
administrative procedure depends on the circumstances of each case.
(b)
In order to give effect to the right to procedurally fair
administrative action, an administrator, subject to subsection
(4)
[12]
,
must give the person referred to in subsection (1)-
(i)
adequate notice of the nature and purpose of the proposed
administrative action;
(ii)
a reasonable opportunity to make representations;
(iii)
a clear statement of the administrative action;
(iv)
adequate notice of any right of review on appeal, where applicable;
and
(v)
adequate notice of the right to request reasons in terms of section
5.”
[37]
The Applicant was fully aware of his rights and pursued them
aggressively. His complaint
that the Department had been
mesmerised into doing nothing is without merit. The only basis
upon which he might have reason
to complain is that the process was
taking too long.
[38]
Bearing section 3(2)(a) of PAJA in mind, I do not believe that the
process was taking an unreasonably
long time. In one respect
the Department acted with extreme haste and in this regard I refer to
the Parole Review Board’s
hearing, which was commenced with too
much haste for the Applicant’s liking. And, as I have
already alluded to, given
the inertia that inevitably occurs at
Christmas time, a certain amount of delay is understandable.
[39]
Where the Department was at fault was its failure at the initial
Parole Board hearing to notify
the complainants in accordance to
section 75(4) of the Act. But this omission is explained.
It was a
bona
fide
error,
in my view. There was certainly no wilful disregard for the
law.
[40]
Insofar as substantial success is concerned, it is so that the relief
agreed to embodies some
of the terms of the original notice of
motion. But what it does not contain is a declaration that the
Department’s
failure to act was an administrative act which
stood to be reviewed and set aside
[13]
.
There is thus some merit in Ms
Pango’s
submission that what the Department agreed to was what it was in any
event obliged to do – and was in the process of doing.
[41]
In the circumstances, applying the basic rule, read with the general
rule, in the exercise of
my discretion I make the following order:
Each
party is ordered to pay their own costs.
N J MULLINS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For Applicant:
Adv I Bands instructed by Nolands Law, Port Elizabeth
For
Respondents: Adv M Pango instructed by the State
Attorney, Port Elizabeth
[1]
The
details of which are not relevant for present purposes
[2]
The
Applicant's victims, there being three of them
[3]
The
failure to comply with the stipulated time limit does not appear to
be an issue
[4]
The
Applicant does not make an issue of this, as it would appear that at
the time there was some doubt as to when he qualified
for parole.
[5]
Although
he is described as a family friend, for all intents and purposes he
acted as a legal representative.
[6]
The
VOD process is dealt with below.
[7]
One
of the complainants lives in New Zealand.
[8]
Although
decided on appeal, the principles are applicable to the present
matter.
[9]
Paraphrased
in paragraphs [7] above
[10]
These
provisos do not apply.
[11]
This
section provides for conditions under which parole may be granted.
[12]
Which
does not apply.
[13]
Paraphrased
in paragraphs 3(b) and (c) above.