Smith v Minister of Justice and Correctional Services and Others (35658/2021) [2021] ZAGPJHC 556 (30 September 2021)

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[2021] ZAGPJHC 556
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Smith v Minister of Justice and Correctional Services and Others (35658/2021) [2021] ZAGPJHC 556 (30 September 2021)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER:
35658/2021
DELETE
WHICHEVER IS NOT APPLICABLE
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED: NO
In
the matter between:
ERWIN
SMITH
Applicant
and
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
1
st
Respondent
NATIONAL
COMMISSIONER FOR THE DEPARTMENT
OF
CORRECTIONAL
SERVICES
2
nd
Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
GAUTENG
MANAGEMENT AREA, REGIONAL
MANAGER
3
rd
Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
KRUGERSDORP
CORRECTIONAL CENTRE
HEAD
OF
PRISON
4
th
Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
LEEUWKOP
CORRECTIONAL CENTRE HEAD OF PRISON
5
th
Respondent
JUDGMENT
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal representatives
by e-mail. The date and time for
hand-down is deemed to be 14h00 on
the 30th of September 2021.
DIPPENAAR
J
:
[1]
This an opposed urgent application, conducted via a virtual
hearing,
in which the applicant, Mr Smith, presently incarcerated at the
Leeuwkop Correctional Centre, seeks orders: (i) declaring
and
confirming that the applicant qualifies for the Covid-19 special
remission of sentence and (ii) granting the respondents one
month to
complete the parole release process of the applicant.
[2]
The matter was first enrolled for hearing on 17 September 2021,
at
which time the respondents sought a postponement of the application
as their legal representatives had been instructed late and
had no
opportunity to deliver answering papers. Pursuant to argument from
the parties an order was granted, inter alia setting time
periods for
the delivery of affidavits and heads of argument, requiring an
explanation for the delay and directing the provision
of certain
documents considered at the time a decision was made that the
applicant did not qualify for the special remission of sentence.
[3]
In terms of the explanatory affidavit, the regrettable and
inexcusable
delay and the respondents’ failure to comply with the
directives set by the Judge President and this court, was occasioned
by the
negligent conduct of the acting deputy state attorney, who had
delayed in appointing the present attorney of record of the
respondents
and administrative delays in obtaining the necessary
authority to instruct counsel due to “human error”.  I
return to this
issue later in considering an appropriate order for
costs.
[4]
A
measure of latitude must be afforded to the applicant who is not
legally trained and did not have the benefit of legal representation.
In essence his application amounted to a review of the decision that
the applicant did not qualify for a special parole dispensation
granted by President Ramaphosa under s84(2)(j) of the Constitution
pursuant to the National State of Disaster and the Covid 19 pandemic
(“the special parole dispensation”). It was not clear from the
founding affidavit which aspects fell under the auspices of the
Promotion of Administrative Justice Act
[1]
.
[5]
The
central issues which arise for determination are: first, whether the
applicant had launched a valid application under the Promotion
of
Access to Information Act
[2]
(“PAIA”), for access to the confidential memorandum pertaining to
the special parole dispensation in which confidentiality was
claimed
and to which no response was provided; and second, whether the
applicant qualifies under the special parole dispensation
and is
entitled to the relief sought in his notice of motion.
[6]
The
first issue can be disposed of succinctly. Although the applicant may
have been under the impression that his former legal representatives
had launched an appropriate application under PAIA to obtain access
to the confidential memorandum indicating the criteria for
eligibility
for the special parole dispensation, the purported
application was fatally defective. I agree with the respondents that
the application
for access to the memorandum did not comply with the
peremptory
[3]
procedural
requirements envisaged in s18 as read with s11(1)(a) of PAIA and was
also defective in various additional respects. It
is not for present
purposes necessary to set out all the defects in the application as
the issue has become moot and the documentation
sought by the
applicant has been provided by the respondents.
[7]
Two documents, the one styled “Circular 13 of 2019/20 Granting
of
Special Remission of Sentence (Amnesty)” and the other styled
“Branch Incarceration and Corrections Circular 10 of 2020/2021
(“the circular”) were produced in the respondents’ answering
papers and reliance was placed on their contents in support of
their
contention that the applicant did not meet the eligibility criteria
set out therein. Suffice it to state that it cannot be
concluded that
the respondents ignored the applicant’s PAIA application and
disregarded the applicant’s rights in relation to
this issue as it
was fatally defective.
[8]
The central focus of the parties’ respective arguments at
the
hearing pertained to whether the applicant qualified for the special
parole dispensation and met the relevant eligibility criteria.
The
point of departure between the parties was how the relevant time
periods should be calculated to determine the applicant’s
eligibility.
[9]
It was
common cause that the applicant was serving sentences under two
different warrants. The first, a period of fifteen years under
four
different counts of fraud under s 280(2) of the Criminal Procedure
Act
[4]
, in terms of a warrant
dated 31 January 2018. In terms of that warrant, certain of the
sentences were to run concurrently
[5]
,
with an effective incarceration period of fifteen years. The second,
a period of three years in terms of s276(1)(i) of the CPA in
terms of
a warrant dated 6 December 2018. It was common cause that the
applicant is thus serving a total of eighteen years imprisonment
before the remission of sentence of twenty four months received by
the applicant during 2019.
[10]
The circular authorised the placing on parole of qualifying sentenced
offenders in
terms of the certain criteria mentioned therein, who are
or who would have been incarcerated on 27 April 2020, subject to such
conditions
as may be approved by the head of a correctional centre or
a correctional supervision and parole board under whose jurisdiction
such
sentenced offenders may fall. In terms of the circular,
considered in context, a final determination on the eligibility of
the applicant
to be released on parole is to be made by the parole
board.
[11]
Under paragraph 2.1 of the circular:
“
The following
category of low risk sentenced offenders would qualify for the
presidential placement on parole, subject to the exclusions
in
paragraph 3:
2.1.1 sentenced
offenders who have or have reached their minimum detention periods
within a period of 60 months from the 27
th
of April 2020”.
[12]
Under paragraph 4.2 of the circular:
“
This means
that sentenced offenders who have served their minimum detention
period and those who have reached their minimum detention
on or
before 26 April 2025 may qualify to be placed on parole”.
[13]
The respondents’ case was that at the time he was considered, the
applicant’s profile
indicated that his minimum detention date was
30 January 2026 and he was thus disqualified from the dispensation as
he did not reach
his minimum detention period by 26 April 2025 as the
warrants indicated that he was effectively serving an eighteen year
sentence.
On the other hand, the applicant’s case was that he was
left with four years, ten months and three days, being less than five
years
to his eligible parole date as at 27 April 2020 and thus that
he qualified for the special parole dispensation.
[14]
Prior to the hearing of the application and on 27 September 2021, the
case management
committee again considered the applicant’s
eligibility and concluded that he did not meet the requisite
threshold date of 26 April
2025, as he would only be eligible on 30
September 2026.
[15]
The
case management committee found
[6]
:
“
3 Calculation
Offender must
serve half of 15 years sentence as the remission cannot be deducted
from warrant 1 (see explanation of Mr Twala attached)
which makes his
minimum detention period for warrant 1 2025-07-30. When the twenty
four months special remission is deducted from
the three (3) years
the offender is left with one (1) year which he must only serve two
(2) months of. Adding it to first sentence
takes his minimum
detention period to 2025-09-30.
Recommendation
The offender is
currently serving fifteen (15) years imprisonment for 4x counts of
fraud and three (3) years imprisonment for fraud
into (sic) section
276(i) (sic). His minimum detention period is 2025/09/30. For an
offender to qualify for Special Parole Dispensation
his minimum
detention period must be before 26 April 2025. Therefore the
offenders (sic) does not qualify to be considered for parole”.
[16]
The applicant only became aware of this information and the
recommendation of
the case management committee shortly before the
hearing of the application on 29 September 2021. He confirmed that he
had not had
the opportunity to make submissions to the case
management committee.
[17]
In terms of s73(1)(a) of the CSA, subject to the provisions of that
act, a sentenced
offender remains in a correctional centre for the
full period of sentence. S 73(6)(a) and s73(7)(a) of the CSA
prescribes the minimum
periods of incarceration before a sentenced
offender may be placed on parole, being in the applicant’s case one
half of the fifteen
year sentence and one sixth of the 3 year
sentence.
[18]
As
envisaged by s42(2)(c) and (d) of the Correctional Services Act
[7]
(“CSA”), the case management committee must make preliminary
arrangements, in consultation with the head of community corrections
for possible placements of a sentenced offender under community
corrections. The case management committee must further submit a
report, together with the relevant documents, to the correctional
supervision and parole board traversing various requirements.
[19]
In terms of s42(3) of the CSA,:
“
A sentenced
offender must be informed of the contents of the report submitted by
the Case Management Committee to the Correctional
Supervision and
Parole Board or the National Commissioner and be afforded the
opportunity to submit written representations to the
Correctional
Supervision and Parole Board or National Commissioner, as the case
may be.
[20]
The subsequent events have in my view to a large extent superceded
the state of affairs
at the time the application was launched. As
matters presently stand, it is unclear whether the applicant has been
furnished with
the entire report of the case management committee as
envisaged by s42(3) of the Act. The applicant has further not been
afforded
an opportunity to make any submissions to the case
management committee.
[21]
At present there are also certain discrepancies between the
applicant’s SAPS 69 and
the actual position as explained by the
applicant during the hearing, which requires clarification. During
the hearing, the applicant
indicated that he had no pending trial
matters, whereas the SAPS 69 document indicated various matters
outstanding.
[22]
Under those circumstances it is not appropriate at this stage to
consider whether the
decision of the case management committee should
stand or whether the applicant is entitled to the relief sought,
which would amount
to a substitution of the determination whether the
applicant is eligible for the special parole dispensation. The
applicant must
further still be assessed and considered by the
correctional supervision and parole board and consideration must be
given to the
relevant provisions of the Act including those in s75
and the mechanisms provided therein. These procedures must be
followed prior
to the consideration of any review proceedings.
[23]
The
applicant urged me to now make a decision regarding his eligibility
for the special parole dispensation. I decline to do so for
the
following reasons. First, it would be premature for the reasons
already advanced. The applicant has not been furnished with the
report as envisaged by s42(2) (d) of the Act, he is still to be
afforded an opportunity to make submissions under s42(3) of the Act
and the matter is to receive attention from the parole board. As such
any review proceedings are premature and not ripe for hearing.
Second, the applicant has not in his papers made out any clear case
for exceptional circumstances, applying the principles enunciated
by
the Constitutional Court in
Trencon
Construction v Industrial Development Corporation of South Africa
(Pty) Ltd
[8]
.
[24]
In my view it would be appropriate to order a remittal to the case
management committee
so that the relevant procedures envisaged by the
CSA can be pursued. Considering the substantial delays which have
occurred in the
matter it would be appropriate to set reasonable
timelines so that any further delays can be avoided.
[25]
The applicant sought a costs order against the respondents based on
what he termed
their “mala fide conduct” in relation to the
matter. Although the respondents’ conduct can be characterised as
negligent and
remiss, specifically in relation to this application, I
am not persuaded that the conduct was mala fide. There is however
merit in
the applicant’s contention that the matter was only
progressed once he approached court for relief. Had the applicant
been legally
represented, the granting of a punitive costs order
against the respondents would have been warranted. However, as the
applicant
appeared in person and was not legally represented, I am
not persuaded that such an order would be appropriate and I shall
make no
order as to costs.
[26]
I grant the following order:
[1] The matter is
remitted back to the case management committee for the consideration
of any submissions to be made by the applicant,
Mr Smith, pertaining
to the recommendation made by the case management committee on 27
September 2021, contained in “MM19” of
the papers;
[2] The report
envisaged by
s42(2)(d)
of the
Correctional Services Act 111 of 1998
is to be provided to the applicant, Mr Smith, within 10 days of its
compilation and in any event no later than 20 days from date
of this
order;
[3] The applicant,
Mr Smith, is to make his submissions within 10 days of date of
receipt of the report in [2] above;
[4] The case
management committee is to consider any submissions made by the
applicant, Mr Smith, and is directed to make its determination
within
30 days of date of receipt of Mr Smith’s submissions and to provide
him with such determination, together with reasons,
in writing within
five days of the determination;
[5] The case
management committee is directed to refer the matter to the relevant
correctional supervision and parole board within
five days of making
its determination and providing the applicant, Mr Smith, with its
determination and written reasons;
[6] The correctional
supervision and parole board must consider the applicant, Mr Smith,
and assess whether or not he qualifies for
the special dispensation
parole release within fifteen days of referral of the matter to it
and must provide the applicant, Mr Smith
with its written decision,
together with reasons, within five days of making the decision.
[7] If the
applicant, Mr Smith is dissatisfied with the determination, he is
authorised to approach the court on the same papers,
duly
supplemented, for appropriate relief.
[8] A copy of this
judgment and order must be served forthwith on the applicant, Mr
Smith, by (i) personal delivery to him at the
Leeuwkop Correctional
Centre and (ii) via email to sashley884@gmail.com.
EF
DIPPENAAR
JUDGE OF THE HIGH
COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
17 and 29 September 2021
DATE
OF JUDGMENT
:
30 September 2021
APPLICANT’S
COUNSEL
: In person
RESPONDENT’S
COUNSEL
: Adv. M. Sekhethela
RESPONDENT’S
ATTORNEYS
: State attorney
Mr
T Masete
[1]
3 of 2000
[2]
4 of 2000
[3]
President of the Republic of South Africa v M&G Media Ltd
2012
(2) SA 50
(CC) para [9]
[4]
51
o
f
1977
[5]
The 15 years imposed under counts 2 and 4 ran concurrently with the
15 year sentence imposed in count 1 and a suspended sentence
was
imposed in count 3
[6]
The document is erroneously dated 27 09 2020
[7]
111 of 1998
[8]
2015 (5) SA 245
(CC) paras [47]-[55]