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[2016] ZAFSHC 176
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September v Minister of Correctional Services and Others (1484/2016) [2016] ZAFSHC 176 (13 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 1484/2016
In
the matter between:
JOHANNES
SEPTEMBER
Applicant
and
THE
MINISTER OF CORRECTIONAL SERVICES
1
st
Respondent
THE
NATIONAL COUNCIL OF CORRECTIONAL
SERVICES
2
nd
Respondent
THE
NATIONAL COMMISSIONER OF
CORRECTIONAL
SERVICES
3
rd
Respondent
JUDGEMENT
BY:
MBHELE,
J
HEARD
ON:
04
AUGUST 2016
DELIVERED
ON:
13
OCTOBER 2016
[1]
Applicant is an inmate serving a sentence of life imprisonment at
Grootvlei Prison for murder and attempted murder. He
was
convicted and sentenced in 2001.
[2]
First respondent is the Minister of Correctional Services according
to the papers.
[3] Second Respondent is
the National Council of Correctional Services.
[4]
Third respondent is the National Commissioner of Correctional
Services.
[5]
Applicant approached this court on motion for an order compelling the
second and third respondent to properly consider the applicant’s
suitability for day parole or parole and to make necessary
recommendations and placement of the applicant on day parole or
parole.
[6]
The applicant drafted and filed his papers on his own without
assistance from a legal practitioner. This is evident from
the
clumsy manner in which the content is presented on the papers and the
incorrect citing of the parties. I am grateful
to Mr.
Snellenburg for assisting the applicant to prepare heads of argument
and presenting oral argument on his behalf
pro
bono
.
[7]
The applicant’s matter served before the case management
committee and parole board at Grootvlei prison which recommended
the
applicant for possible placement on day parole or parole.
[8]
The recommendation was sent to the second respondent on 26 January
2016.
[9]
The second respondent has on the date of hearing of the application
not considered the applicant’s suitability for placement
either
on parole or day parole.
[10]
The parties are in agreement that the applicant completed all
rehabilitation programmes and has reached out to the family of
the
victims related to the crimes he was convicted of.
[11]
The respondents effectively contend that the application is premature
as 180 days had not passed when the applicant approached
the court
on motion. Mr Bomela, on behalf of the respondents, further
contended that the court lacks jurisdiction to
hear the matter as the
respondents’
domicillium
falls outside the jurisdiction
of this court.
[12]
Mr Snellenburg, on behalf of the applicant, argued that this court
may assume jurisdiction even if it lacks same on the basis
of
convenience. He submitted that the fact that the applicant is
incarcerated at Grootvlei correctional services, which is
situated in
Bloemfontein, makes it difficult for him to freely approach courts
outside his area of jurisdiction as his movement
is restricted.
[13] Section 21(1) of the
Superior Court Act 10 of 2013 provides as follows:
“
A
Division has jurisdiction over all persons residing or being in, and
in relation to all causes arising and all offences triable
within its
area of jurisdiction and all other matters of which it may according
to law take cognisance,…”
[14]
Applicant is serving his sentence at a prison situated in the area of
jurisdiction of this court. As a prisoner his freedom
of
movement is limited. He prepared his papers on his own without legal
representation. Owing to the applicant’s limited
knowledge of
the law, circumstances surrounding his current status and lack
of resources at his disposal, I
am of the view that
the applicant’s access to justice can be realised without
putting him travelling to
Pretoria to have his
matter enrolled at North Gauteng High Court.
[15]
None of the respondents will suffer prejudice or inconvenience by
this court adjudicating the matter.
[16]
Having considered all issues surrounding this matter, common sense
and convenience dictate that this court should adjudicate
this
matter. In the circumstances, the respondents’ objection
to jurisdiction falls to be rejected.
[17]
Respondents have submitted that the reasonable period within which
the second respondent has to consider the recommendation
by the
Grootvlei case management committee is 180 days. On the date of
hearing this application the 180 days had lapsed and
the second
respondent had advanced no reasons for the delay.
Administrative
action
[18]
Section 1 of the Promotion of Administrative Justice Act, defines
administrative action as follows:
“
administrative
action”
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; or
(b)
a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms
of
an empowering provision, which adversely affects the rights of any
person and which has a direct, external legal effect, …”
[19]
Second respondent got seized with the applicant’s request on 26
January 2016 and six months later no decision has been
taken. It was
submitted on behalf of the respondents that the applicant must give
reasons why his matter must jump queue and get
preference over other
two matters that were submitted on the same day as his. The above
argument is misplaced. The applicant cannot
be prohibited from
exercising his rights just because other people are doing nothing to
enforce theirs.
[20]
The PAJA came into effect as a direct consequence of section 33 of
the Constitution which provides that everyone has a right
to an
administrative action that is lawful, reasonable and procedurally
fair. It cannot be said that the applicant’s right
as stated
above was observed to the letter owing to the fact that long
period it took for the second respondent to take a
decision on his
request.
[21]
It is for the above reasons that I believe that the applicant’s
request is not unreasonable.
[22]
There is no need for a cost order.
[23]
When all is considered, I make the following order:
ORDER
i
The second respondent is directed to consider and make
recommendation to
the first respondent on the suitability of
the applicant to be placed on day parole or parole within 30
days of the
granting of this order.
ii
The first respondent to consider the recommendations by the second
respondent within
8 weeks of receipt of such recommendations.
iii
No order as to costs.
_______________
N.
M. MBHELE, J
On
behalf of the applicant:
Adv. N. Snellenburg
Instructed
by:
Kramer
Weihmann & Joubert Inc
BLOEMFONTEIN
On
behalf of the Respondents: Adv. L.
Bomela
Instructed
by:
State
Attorney
BLOEMFONTEIN
/EB