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[2016] ZAGPPHC 260
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Walus v Minister of Correctional Services and Others (41828/2015) [2016] ZAGPPHC 260 (14 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
14/4/2016
CASE
NUMBER: 41828/2015
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
JANUSZ
JAKUB
WALUS
Applicant
and
MINISTER
OF CORRECTIONAL
SERVICES
First
Respondent
CHAIRPERSON,
NATIONAL COUNCIL FOR
CORRECTIONAL
SERVICES
Second
Respondent
THE
SOUTH AFRICAN COMMUNIST
PARTY
Third
Respondent
MRS
LIMPHO
HANI
Fourth
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The first respondent seeks leave to appeal to the Full Bench of this
court against the whole of the judgment and the order of
costs
granted by this court on 10 March 2016.
[2]
Section 17(1)
of the
Superior Courts Act, 10 of 2013
, provides that a
judge may only grant leave to appeal if he/she is of the opinion that
the requirements set out in subsection (a)
to (c) have been met.
These requirements are:
"(a) (i) the
appeal would have a reasonable prospect of success; or
(ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;"
(b)
the
decision sought on appeal does not fall within the ambit of section
16(2)(a)
; and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to
a
just and prompt
resolution of the real issues between the parties. "
[3]
Section 16(2)(a)
provides that an appeal in which a decision on the
issues will have no practical effect or result, may, at the hearing,
be dismissed
on this ground alone. The matter under consideration
does not fall within the ambit of
section 16(2)(a)
and consequently
the first respondent meets the requirement contained in
section
17(1)(b).
[4]
The appeal, should leave be granted, will dispose of all the issues
between the parties and as a result the requirement in
section
17(1)(c)
has also been met.
[5]
The remaining two requirements contained in
section 17(1)(a)
,
however, requires further scrutiny.
REASONABLE
PROSPECT OF SUCCESS
[6]
This requirement has been the bench mark in applications for leave to
appeal for many years and decisions dealing with this
requirement,
prior to the enactment of the Act, still apply.
[7]
A useful expose of the requirement appears in
S v Sikosana
1980
(4) SA 559
AD at 562 D - F:
" .......,and it
must be said once
more
that the application should not be
granted if it appears to the learned Judge that there is no
reasonable prospect of success.
The trial Judge is
faced with no easy task, he must exercise his power judicially.
"The mere
possibility that another Court might come to a different
conclusion is not sufficient to justify the grant of leave to appeal"
(per Miller JA in S v
Ceaser
1977 (2)
SA
348
A at 350). Nor, as it was pointed out
by Centlivres JA in Baloi's case supra, is it enough that the case is
'fairly arguable."
Grounds
of appeal
[8]
In support of the contention that the first respondent's application
meets the requirement of reasonable prospect of success,
the first
respondent has advanced various grounds of appeal. The grounds are
considered
infra.
i. Failure to have proper
regard to the remarks made by the trial court and the Supreme Court
of Appeal at the time of the imposition
of the sentence.
[9]
The sentencing remarks made by the trial court and the Supreme Court
of Appeal at the time of the imposition of sentence, were
properly
considered as appears more fully from para [10] and [22] of the
judgment.
[10]
In the premises, this ground does not meet the requirement of
reasonable prospect of success.
ii. Erred in finding that
the decision by the first respondent not to place the applicant on
parole was not reasonable or rational
[11]
The additional grounds relied upon by the first respondent for this
conclusion, are that the court erred in:
i. having conflated the
principles between appeal and review;
ii. having substituted
its value judgment for that of the first respondent; and
iii. having infringed the
doctrine of separation of powers.
[12]
During argument, Mr Moerane SC, counsel for the first respondent,
accepted that, in terms of section 6(2)(h) of the Promotion
of
Administrative Justice Act, 3 of 2000 (PAJA), the reasonableness of a
decision is a ground for review.
[13]
In respect of the submission that the court erred in finding that the
first respondent's decision was unreasonable, it is helpful
to have
regard to the principle of reasonableness as succinctly summarised by
O'Reagan J in
Bato
Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
CC at 512 H -
513 A,
"In determining
the proper meaning of s 6(2)(h) of PAJA in the light of the overall
constitutional obligation upon administrative
decision-making to act
'reasonably', the approach of Lord Cooke provides sound guidance.
Even if it
may be thought that the language of s 6(2)(h), if
taken literally, might set
a
standard such that a decision
would rarely if ever be found unreasonable, that is not the proper
constitutional meaning which should
be attached to the subsection.
The subsection must be construed consistently with the Constitution
and in particular
s
33 which requires administrative action to
be 'reasonable'. Section 6(2)(h) should then be understand to require
a simple test,
namely that
an administrative decision will
be reviewable if, in Lord
Cooke's words, it is one that
a reasonable decision-maker could not reach."
(own
emphasis)
[14]
The reasonableness of a decision is informed by the empowering
provision. These provisions were dealt with in the judgment
at para
[7J to [9].
[15]
The facts upon which the power authorised by the empowering
provisions should be exercised are contained in the judgment. [para
[10]]
[16]
Under the heading discussion, the decision of the first respondent is
discussed with reference to the empowering provision
and the facts.
This approach accords with the following extract from the
Bato
Star Fishing
- judgment:
"A Court should
thus give due weight to findings of fact and policy decisions made by
those with special expertise and experience
in the field. The extent
to which
a
Court should give weight to these considerations
will depend upon the character of the decision itself, as well
as
the identity of the decision maker. A decision that requires
an equilibrium to be struck between
a
range of competing
interests or considerations and which is to be taken by a person or
institution with specific expertise in that area must be shown
respect by the Courts. Often a power will identify
a
goal to
be achieved, but will not dictate which route should be followed to
achieve that goal. In such circumstances a Court should
pay due
respect to the route selected by the decision-maker.
This
does not mean, however, that where the decision is one which will not
reasonably result In the achievement of the goal, or
which is not
reasonably supported on the facts or not reasonable in the light of
the reasons given for it, a Court may not review
that decision."
[514 G-515 B] (own emphasis) .
[17]
In the premises, the principles applicable to this ground of review
were properly considered and applied.
[18]
Rationality as a ground of review is contained in section 6(2)(f)(ii)
of PAJA and is defined by Hoexter
Administrative Law in South
Africa,
2
nd
Edition at p340 as follows:
"This means in
essence that a decision must be supported by the
evidence
and information
before the administrator
as well
as the reasons given for it
. It must be
objectively
capable of furthering the purpose for which the power was given and
for which the decision was purportedly taken. The question
to be
asked is the following: 'Is there a
rational objective
basis
justifying the conclusion made by the administrative
decision-maker between
the material property available to him
and the conclusion he or she eventually
arrived at?"
[19]
The judgment deals with the evidence and information before the first
respondent, the one reason given for the decision and
the purpose of
parole.
[20]
It is therefore clear that:
i. the decision of the
first respondent was duly reviewed in terms of the appropriate
statutory provisions;
ii. consequently, the
principles applicable to the appeal and review processes were not
conflated;
iii. the finding that the
decision of the first respondent was unreasonable and irrational is
an objective finding on the facts
and not a value judgment;
iv. a court does not
infringe on the doctrine of separation of powers when reviewing the
decision of an administrator in terms of
the provisions of section 33
of the Constitution read with section 6 of PAJA.
[21]
As a result, this ground of appeal has no reasonable prospect of
success.
iii. misdirecting
itself in the finding that the first respondent did not discuss the
positive factors in favour of placing the
applicant on parole and
that it was difficult to determine whether all factors were duly
considered.
[22]
Having regard to the judgment as a whole, this aspect was taken Into
consideration when examining the rational objective basis
for the
conclusion drawn by the first respondent that the applicant does not
qualify for parole.
[23]
The finding was one step in the process and does not in itself lead
to the end result. The requirement of reasonable success
on appeal is
therefore not met.
iv. misdirecting
itself in holding that the first respondent attached too much weight
to the issue of restorative justice
[24]
Save for the concession by Mr Moerane SC that the remarks in respect
of restorative justice was obiter, one should bear in
mind that the
remarks were made when considering an appropriate remedy. The first
respondent does not seek leave to appeal against
the court's finding
in respect of an appropriate remedy and consequently this ground is
not relevant to the application under consideration.
v. misdirecting itself
in holding that the second respondent recommended the applicant's
application for parole
[25]
It appears that, due to several amendments to the applicable
legislation, the parole board and not the second respondent decided
to recommend the applicant's application for parole to the first
respondent. The fact, however, remains that the applicant's
application
was recommended by the body clothed with the necessary
expertise to consider parole applications.
CONFLICTING
JUDGMENT
[26]
According to the first respondent, the judgment
in casu
is
incompatible with the judgment of the Gauteng Division, Pretoria of
the High Court in the matter of
Barnard v Minister of Justice,
Constitutional Development and Correctional Services
delivered on
14 September 2015.
[27]
Mr Moerane SC, when invited to indicate in which respects the
judgment
in casu
is incompatible with the
Barnard
judgment,
could not give a satisfactory answer and did not persist with this
ground of appeal.
CONCLUSION
[28]
I am of the opinion that the first respondent's application does not
meet the requirements contained in section 17(1)(a) and
stands to be
dismissed.
ORDER
In
the premises, I make the following order:
1. The first respondent's
application for leave to appeal is dismissed.
2. The first respondent
is ordered to pay the costs of the application, which costs include
the costs of two counsels.
___________________________
JANSE
VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances
Counsel
for the Appellant :
Advocate R Du Plessis SC
and
:
Advocate Kellerman
Instructed
by :
Julian Knight and Associates Inc.
Counsel
for the State :
Advocate M T A
Moerane SC
and
:
Advocate T W G Bester SC
Instructed
by :
The State Attorney