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[2017] ZANCHC 27
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Dippenaar v Minister of Correctional Service and Others (569/2015) [2017] ZANCHC 27 (31 March 2017)
IN
THE HIG H COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number :
596/
2015
Datum
aangehoor / Date heard:
01
I
02
I
2017
Datum
beskikbaar/Date available:
31
I
03
I
2017
In
the matter between:
MARTIN
DIPPENAAR
Applicant
and
THE
MINISTER OF CORRECTIONAL
SERVICES
1
st
Respondent
THE
PROVINCIAL COM MISSIONER:
2
nd
Respondent
CORRECTIONAL
SERVICES:
FREE
STATE & NORTH
ERN
CAPE
THE
AREA COM MISSIONER:
3
rd
Respondent
CORRECTIONAL
SERVICE:
UPINGTON
THE
H
EAD OF TH
E
CENTRE:
4
th
Respondent
CORRECTIONAL
SERVICE: UPINGTON
THE
CHAIRPERSON:
CASE
MANAGEMENT
5
th
Respondent
COMM
ITTE
E:
CORRECTIONAL SERVICES: U
PINGTON
Coram:
Lever AJ et Snyders AJ
J
UDGM
ENT
SNYDERS,AJ
[1]
This is a review lodged by the Applicant in terms of the Promotion of
Administrative Justice Act, Act 3 of 2000 (PAJA) for the
review and
setting aside of the decision by the Respondents to transfer the
Applicant from the Correctional Centre: Upington to
the
Correctional Centre: Tswelopele.
[2]
It was not disputed that PAJA is applicable and that the application
had been timeously lodged in terms thereof.
[3]
The Applicant is Martin Dippenaar who is currently a sentenced
prisoner incarcerated at the Correctional Services
in Upington after being sentenced to a 20
year prison sentence. The Respondents are the Minster of Correctional
Services, the Provincial Commissioner of Correctional Services for
the Free State & Northern Cape, the Area Commissioner of
Correctional Services for Upington, the Head of the Centre for
Correctional Services for Upington and the Chairperson of the Case
Management Committee for Correctional Services for Upington.
[4]
The Applicant approached the court on an urgent basis on
27
February 2015 for interim relief interdicting the Appellant's
transfer pending the outcome of this review application.
[5]
The crisp issue in the present review is whether the decision by the
respondents to transfer the applicant from the Correctional
Services
Centre in Upington to Tswelopele Correctional Services in Kimberley
was procedurally and substantively unfair.
[6]
The applicant was first incarcerated in the Correctional Services
Centre in Kuruman before being transferred to the Correctional
Services Centre in Upington in 2010. There is a dispute between the
applicant and respondent as to the reason for the transfer.
However,
based on the surrounding circumstances that will be highlighted
below, I am of the view that nothing turns on this.
[7]
The applicant was informed during February 2015 of the impending
transfer by "word of mouth". The respondent avers
that the
decision was relayed to applicant on 5 or 6 February 2015. The
applicant submits the decision was received on 12 February
2015. The
documents provided by the applicant, in particular the letter by his
attorneys to the respondent dated 12 February 2015,
tends to support
the applicant's version. The evidence on this aspect put up by the
respondents is neither persuasive nor convincing.
[8]
As stated, the applicant's attorneys address a letter to 3
rd
and 4
th
respondents on 12 February 2015 and indicate
that that applicant had received information on that day that he is
to be transferred
the following day . They further advance reasons as
to why Applicant should not be transferred, inter alia,
8.1
To enable applicant to complete his studies;
8.2
To be closer to his family,
namely his aged parents who reside in Springbok;
8.3
The availability of an architectural mentor in the private
sector in
or around Kimberley, as opposed to the current mentor who was
assisting him in Upington Correctional Services;
8.4
applicant's position as study leader in the training
centre in
Upington (this point was abandoned as it was not raised in these
proceedings);
8.5
He is a
member
of the Latter Rain
Mission International Church and receives
pastoral visits and
support.
[9]
After no feedback was received from either 3
rd
or
4
th
Respondent, the applicant himself addresses a letter
to the 4th Respondent dated 20 February 2015 wherein he reiterates
the points
above and for the first time alleges the reason under
point 8.5 above. I have included same above for the sake of
convenience.
Respondents deny having received this letter.
[10]
However, unbeknownst to the Applicant, the Regional Commissioner:
Free State and Northern Cape Region addressed a letter to
the Area
Commissioners: Upington; Kimberley on 13 February 2015. The letter
provides the
approval
for the transfer of the
identified offenders, 150 of which are to be transferred from
Correctional Services Upington to Correctional
Services: Tswelopele.
[11]
On 23 & 24 February 2015, the Judicial Inspectorate for
Correctional Services (JICS) sent e-mails to applicant's attorney
which contained e-mails from the JICS to 3rd respondent. The jist of
the e-mails were that a complaint had been lodged at their
offices
regarding the transfer of applicant and another inmate after no
satisfactory feedback was received from the 3rd or 4th
respondents.
Applicant's reasons for not wanting to transfer are reiterated and an
invitation extended to the 3rd and 4th respondent
to provide
feedback, responses or comments to the formal complaint lodged with
3rd & 4th respondents.
[12]
The JICS further requests an indication as to whether the transfer
was voluntary, and if not if consideration was given to
the potential
jeopardy of applicant's rehabilitation programmes, contact with
family and legal representatives, sentence plan and
studies.
[13]
Most importantly, the JICS requested an indication whether the
transfers comply with section 43 of the Correctional Services
Act 111
of 1998 ('the Act'), read together with regulation 25 of the
regulations thereto ('the regulations') and the provisions
of B order
1chapter 2. Compliance with the regulation 25 requirement of a
medical examination to be done before the transfer is
also
questioned. These issues form part of the procedural requirements for
the transfer of a sentenced offender.
[14]
On 24 February 2015, the Regional Coordinator: Legal Services
responded to applicant' attorneys and responded as follows to
applicant's representations:
14.1
1 That the applicant will be in a position to
continue his studies at any centre as he is studying
via
distance learning. The Tswelopele Correctional Centre will in
fact be beneficial for applicant's studies as there
is a
computer room whilst at Upington
Correctional Centre laptops are no longer allowed in cells
due to
security risks;
14.2
2 The applicant will be in a position to find a new mentor as
there are 8 architect firms in Kimberley;
14.3
The Upington Correctional Centre has exceeded 100°/o capacity and
must address the issue of overcrowding. This reason
is captured under
the sub-title 'travelling costs and challenges '. No mention is
made that applicant's concern regarding
travel by his elderly parents
was considered;
14.4
It is indicated that there is currently a skills development
programme running at the relevant centre.
[15]
Respondent's argue that this was the date upon which the decision to
transfer the applicant was made and applicant's representations
were
considered.
[16]
The respondents are of the view in opposing papers that applicant is
not prevented from having contact and noncontact
visits with
family and friends. The applicant lists his sister residing in
Kuruman as the next-of-kin, which the Respondent argues
is closer to
Kimberley. The applicant states that his elderly parents live in
Springbok and travel some 400 kilometres from Springbok
to Upington
and 400 kilometres home again. His transfer to Tswelopele
Correctional Services will double the distance his parents
will have
to travel.
[17]
On 23 March 2015, the JICS released a ruling on the complaint of
applicant and Strauss on the proposed transfer. The
pertinent
findings in terms thereof are:
17.1
Only applicant and Strauss provided representations;
17.2
These representations yielded no positive results. The 3
rd
and 4
th
respondent had no opportunity to entertain the
representations and that said respondents were constrained to carry
out the instructions
of their seniors or be seen as being
insurbordinate;
17.3
The representations must of necessity have been dealt
with by the decision makers, in this
case either the Regional or
National offices, but was regrettably left to the Management
Areas and the respective correctional
centres to deal with the
complaints resulting from the decision taken;
17.4
Third and Fourth Respondents' response to compliance with section 43
and regulation 25 of the Act and
compliance with B Order 1 Chapter 2
were so vague that it cannot be determined if individual attention
was given to the applicant's
personal circumstances;
17.5
That despite applicant's written representations, 3
rd
and
4
th
respondents failed to adhere to the
audi
alteram
partem
rule as they were
obliged to do;
17.6
The provisions of section 43 and regulation 25 and B order 1 Chapter
2 were not complied with;
17.7
That in future the respondents are required to adhere to legislative
provisions and the
audi
alteram
partem
rule when receiving written representations.
[18]
The respondents were granted leave to file a further answering
affidavit to respond to the findings by the JICS. In a nutshell,
this
further affidavit seeks to nullify the binding effect of the JICS
report on the respondents and further proceeds to criticise
the
report due to the apparent lack of information by the JICS which was
necessary to make any sort of finding.
[
19] The questions that arise from the evidence are when the decision
was taken, by whom the decision was taken, whether the applicant
had
the right to be heard before a decision was taken, if the statutory
and policy provisions were followed, whether the applicant's
representation were properly considered and whether the JICS finding
is binding on the respondents.
[20]
Section 43 of the Act reads as follows:
"43.
Location and transfer of sentenced offenders.
-
(1)
A
sentenced
offender
must
be
housed
at
the correctional centre closest to the
place
where he or she is to reside after release,
with
due regard
to the availability of
accommodation
and
facilities
to
meet
his
or
her security requirments
and with
reference to the availability of
programmes.
(2)
The transfer
of
a
sentenced
offender
is
subject
to
the same
consideration.
(3)
A
sentenced
offender
must
be
examined
by
the
registered
nurse
or
correctional
medical
office
before
his
or
her
transfer...
'
[21]
Regulation 25 (1) (a) determines the following:
"25.
Location
and
transfer
of
inmates
-
1
(a)
When
an
inmate
is
transferred
the
Head
of
the
Correctional Centre
or
a
correctional
official
authorised
by
him
or
her must,
subject
to paragraph
(b) convey the reason
for
the
proposed
transfer
to
the
inmate
and
allow the
inmate
to make
a
representation in
this
regard,
which
must
be
recorded
in
writing,
where
after
the
Head
of
the
Correctional Centre
or
the
authorised
official
may take
a decision
on
the proposed
transfer.'
[22]
Regulation 25 (b) is not applicable to this matter. Both parties are
ad
idem
that the plain meaning of
Regulation 25 (1) (a) should be accepted in that only the sentenced
prisoner's representation must be
in writing and not the disclosure
of the reason for the transfer, nor the right to make representations
thereon . This is a practical
and acceptable interpretation based on
the specific wording of the regulation.
[23
] B order 1 Chapter 2 determines that the competency to transfer
sentenced prisoners is delegated to Heads of Prisons and Provincial
Commissioners depending on the circumstances. No specific delegation
is given for a transfer due to overcrowding. Section 4.1.3
deals with
principles applicable when transferring by reason of deconcentration,
viz:
23
.1 as far as possible
prisoners are to be transferred within the same province;
23.2
prisoners must also be informed of the transfer beforehand;
23
.3 the transfer may never
take place if it is to the detriment of the prisoner and
factors such
as relations / family ties, language, culture, training and safe
custodial classification should be borne in mind;
23.4
prisoners should not be transferred to an
alternate
prison, which already has a high percentage of occupation.
[24]
Regulation 25 and B order 1 Chapter 2 both seek to regulate the
common law principle of
audi
alteram
partem.
[25]
The only certain date the court has is the final approval that was
granted on 13 February 2015. The court accepted applicant's
version
of being informed on 12 February 2015.It is then evident that
applicant was: not informed of the reason for the transfer
before the
decision was taken, was not granted an opportunity to make
representations before the decision was taken; and said
representations were not considered before the decision was taken.
[26]
The Respondent argues that the
audi
alteram
partem
rule is flexible and based
on the
Janse
Van
Rensburg
&
Another
v
Minster
of
Trade
&
Industry
and
Another NNO
2001
(1)
SA
29
(CC)
matter at paragraph 24, the
question as to whether such decision was both fair and just
should be determined
according to the circumstances present.
[27]
The Respondent further argues that the court should be slow to impose
obligations upon government which will inhibit its ability
to make
and implement policy effectively.
[28]
Nortje
&
ander
v
Minister
van
Korrektiewe
Dienste
&
andere
[2001] 2
All SA
623
(A)
at
628
indicates
that the way in which the
audi
alteram
partem
rule is applied is flexible, it is preferable that the rule
be applied before the decision is taken, since
a
person who is only heard after a decision is taken is worse off than
the person heard before the decision is taken.
At 479 C -
F, the learned Judge held that it does not by necessity mean that
each prisoner must be given a hearing as of a right
but the
audi
alteram
partem
rule is applicable w
here an administrative decision can prejudice a prisoner to such
extent that, in accordance with that prisoner's
legitimate
expectation, the decision should not be taken until he is heard.
[29]
Applying the above case law, the applicant was entitled to be heard
before a decision was taken. It is also clear that applicant
was not
afforded an opportunity to make formal or informal submissions before
the decision was taken. The respondent views the
date of the decision
as 24 February 2015. This is the date upon which feedback was given
to applicant's representations. This statement
cannot be correct, is
disingenuous and stands to be rejected. This is substantiated by the
fact that the final approval was granted
on 13 February 2015.
[30]
This final approval was for the transfer of 150 identified inmates,
applicant having been previously identified for transfer.
The
applicant's representations dated 12 February 2015 were not
considered at the level where such decision was taken before the
decision was taken.
[31]
Far be it from the court to inhibit the respondent, as an organ of
state, from effectively implementing policy. However, a
line will be
drawn as to how far the respondent may stretch the flexibility of the
audi alteram
partem
rule. Added to this,
regulation 25 and the policy document, B order 1 Chapter 2 are both
prescriptive in how this maxim should be
applied. There are no
unusual circumstances which would permit respondent the degree of
flexibility they claim in applying the
rule. It is clear, in
the present circumstances, that the respondent failed to follow
the
audi
alteram
partem
rule
in a proper manner.
[32]
Section 43 states that a medical examination before the transfer of a
prisoner is a pre-requisite. The respondent attaches
a letter from
the Operational Manager: Department of Correctional Services
(Upington) to the Area Commissioner: Upington Management
Area dated 6
March 2015. This letter confirms that 148 prisoners had been
medically screened before transfer. As the applicant
was initially to
be transferred on 13 February 2015, it is unclear whether he forms
part of this 148 prisoners. The fact that 150
prisoners were to be
transferred and 2 lodged an objection, leaving 148 to be medically
screened is suggestive but still does not
provide clarity. The
respondent is unable to assist in this regard and in the absence of
documentation from the respondent, for
example the applicant's
medical file, or the G335 form, it can be accepted that the applicant
was not medically screened before
he was to be transferred. This is a
procedural irregularity.
[33]
No assistance was forthcoming from the respondent as to whom the
official was who took the decision. As stated, the only certainty
arises from the document dated 13 February 2015 which
provides final approval for the
transfer by the Regional Commissioner. It appears from this that the
final decision rested with said Regional Commissioner. The
applicant's representation was responded to by the Office of the
Regional Coordinator: Legal Services. It is not clear whether
the
final decision maker was party to such responses. Ultimately, the
decision maker must consider such representations. This cannot
be the
case here as such final approval pre-dates the responses furnished
and there is no indication that the final decision maker
rejected the
applicant's representations at the time he/she took the final
decision for the reasons set out in the said correspondence.
[34]
The JICS made a finding that the officials involved in the transfer
attended to the transfer based on instructions from their
seniors.
Consequently, we hereby find that the respondents did not properly
apply their mind to the applicant's representations
and that the
decision was taken due to the unwarranted or unauthorised dictates of
another.
[35]
The decision to transfer is also substantively unfair as found by the
JICS, consideration was not given to the personal circumstances
of
the applicant. The respondent also dealt with the representations
piecemeal. Some responses were contained
in their letter dated 24
February 2015 and the rest were only dealt with the opposing
affidavit, most notably the contact visits with
his elderly parents which was not addressed at all in their
above
correspondence . Clearly, a relevant consideration was ignored when
taking the decision.
[36]
Concerning the JICS report, which the respondents criticised, this
court is compelled to find that the report is binding on
the
respondents. The JICS is a statutory body formed in terms of the Act
and the findings are done in terms of section 90 of the
Act. The
respondents did not seek to have such findings set aside and in light
thereof, the respondents are bound to those findings.
[37]
On the papers it is clear that the decision to transfer applicant was
both procedurally and substantively unfair.
We
therefore make the following order:
1.
THE DECISION TO TRANSFER THE APPLICANT FROM TH E
CORRECTIONAL CENTRE:
UPINGTON TO THE CORRECTIONAL CENTRE: TSWELOPELE
IS HEREBY SET ASIDE;
2.
THE MATTERS REMITTED BACK TO 2
nd
TO 4
th
RESPONDENTS FOR RECONS
DERATION.
3.
COSTS OF THE APPL CATION ARE AWARDED AGAINST THE RESPONDENTS JOINTLY
AND SEVERALLY,
THE ONE TO PAY, THE OTHERS TO BE ABSOLVED.
_______________________
JA
SNDYERS
ACTING
JUDGE
I
concur
_______________________
L
LEVER
ACTING
JUDGE
On
behalf of Applicant:
Adv AD Olovier (Instructed by: KBVS Attorneys)
On
behalf of Respondent:
Adv MC Modisa (State Attorney)