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[2021] ZASCA 151
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Nandi Jacobs v The Minister of Justice and Correctional Services (431/2020) [2021] ZASCA 151; 2022 (2) SACR 569 (SCA) (27 October 2021)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 431/2020
In
the matter between:
NANDI
JACOBS APPELLANT
and
THE MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES RESPONDENT
Neutral
citation:
Nandi Jacobs v The Minister of Justice and
Correctional Services (
431/2020)
[2021] ZASCA 151
(27 October
2021)
Coram:
MATHOPO,
VAN DER MERWE, MOLEMELA, and MOTHLE JJA and UNTERHALTER AJA
Heard
: 10
September 2021
Delivered
: This
judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on
the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand down is deemed to be 10h00 on 27 October
2021.
Summary:
Practice – absolution from the instance – claim that
responsible Minister liable in delict for the decision by the Parole
Board to release a prisoner on parole who later attempts to sexually
assault the plaintiff – whether the evidence led at
trial could
sustain the claim – whether the test for absolution from the
instance correctly applied.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria
(Mavundla J, sitting as court of first instance):
1 The
appeal is upheld, with costs.
2 The
order of the high court is set aside, and substituted with the
following order:
‘
The application
for absolution from the instance is dismissed with costs.’
JUDGMENT
Unterhalter AJA (Mathopo,
Van der Merwe, Molemela and Mothle JJA concurring)
Introduction
[1] The
appellant, Ms Jacobs, instituted an action against the respondent,
the Minister of Justice and Correctional
Services (The Minister). Ms
Jacob claimed R 2 040 000 from the Minister for pain and suffering.
Ms Jacobs alleged that on 1 April
2012, Ivan Botha had attacked her
and attempted to assault, rape and rob her. Mr Botha was a convicted
criminal who had committed,
among other offences, rape and indecent
assault. Mr Botha was placed on parole on 1 November 2010. The attack
took place during
the period of Mr Botha’s parole. Ms Jacobs’
cause of action was predicated upon the failure by the Minister to
discharge
his duty to protect Ms Jacobs. Ms Jacobs’ case rested
upon two central claims. First, given Mr Botha’s criminal
record
and the information that served before the Parole Board, he
should not have been released on parole. Second, Mr Botha violated
his parole conditions, but was not returned to prison. This left Mr
Botha at large to attack Ms Jacobs. The Department of Correctional
Services should, in the circumstances, have foreseen that by
permitting Mr Botha to be released on parole, the public may be
endangered.
That risk materialised when Mr Botha attacked Ms Jacobs.
As a result, the Minister was liable for the pain and suffering
caused
to Ms Jacobs.
[2] The
Minister defended the action. The trial proceeded before Mavundla J
in the Gauteng Division of the High
Court, Pretoria (the high court).
Ms Jacobs testified. After which, she closed her case. The Minister
applied for absolution from
the instance. The high court granted
absolution from the instance, together with the costs of two counsel.
With the leave of the
high court, Ms Jacobs appeals to this Court.
[3]
The
issue before us is whether absolution from the instance was correctly
granted by the high court. The standard that is of application
to
decide whether the trial court should grant absolution from the
instance is
‘whether
a court, applying its mind reasonably to the evidence, could or might
(not should or ought to)’ find for the
plaintiff.
[1]
The high court correctly formulated the standard. The question before
us is whether the high court correctly applied this standard
to the
evidence before it.
The evidence
[4] A
number of pleaded averments in the particulars of claim were admitted
by the Minister at the pre-trial conference,
and other matters were
common ground as between the parties. Prior to his release on parole,
Mr Botha was convicted of various
offences in the period 1996-2011.
These offences included indecent assault and rape. He was sentenced
to periods of imprisonment.
On 1 November 2010, he was placed on
parole, following a decision by the Parole Board dated 24 November
2009. In the period 24
February 2011 - 28 August 2011, Mr Botha
violated the conditions of his parole. He was given verbal warnings
for these breaches.
On 1 April 2012, in Oudtshoorn, Mr Botha
attempted to assault, rape and rob Ms Jacobs. Mr Botha was, as a
result, prosecuted and
convicted of robbery, and conspiracy and
enticement to commit a sexual offence.
[5] In
her evidence, Ms Jacobs described the attack upon her and its effect
upon her personally and at work. Ms
Jacobs was taken, in her evidence
in chief, to the documents that were served before the Parole Board
in respect of Mr Botha’s
applications to be placed on parole.
The documents were admitted without objection. Ms Jacobs was referred
to various passages
in this documentary record. To what end, is not
entirely apparent, save to emphasise those passages which would
warrant caution
in any parole decision. The cross-examination of Ms
Jacobs was largely taken up with an exercise to show that the
documents before
the Parole Board did not indicate that Mr Botha was
likely to commit the crime that he did, and that his violations of
his conditions
of parole permitted of the discretionary sanction of
warnings. Here too, the relevance of seeking Ms Jacobs’
responses to
these lines of enquiry is not apparent.
Absolution from the
instance
[6] Mavundla
J granted absolution from the instance. He did so on the following
basis. The decision to place a
prisoner on parole rests upon a
discretion to be exercised by the Parole Board. The decision is
ultimately a value judgment. Ms
Jacobs did not testify as an expert.
Her opinions were of no assistance. The high court considered there
to be no evidence that
demonstrated that the decision to place Mr
Botha on parole was tainted or flawed. That being so, there was no
evidence before the
high court that there was negligence attributable
to the Parole Board. And hence, there was no evidence upon which the
high court
could find for Ms Jacobs.
[7] The
high court cannot be faulted for its estimation that the opinions of
Ms Jacobs as to whether the Parole
Board had properly carried out its
statutory function bore little, if any, weight. Ms Jacobs was not
called as an expert witness
and did not claim to have expertise as to
the decision to place Mr Botha on parole. But, by parity of
reasoning, the reliance that
counsel for the Minister placed upon the
apparent concessions of Ms Jacobs, in her testimony, that there was
no way of knowing
in advance whether Mr Botha would commit the
offences that he did, whilst on parole, is equally unavailing.
[8] The
issue before the high court was whether, applying its mind reasonably
to the evidence before it, could
the high court find for Ms Jacobs.
Mavundla J recognised that the Parole Board enjoyed a discretion, and
concluded that unless
there was evidence that could show that the
exercise of that discretion was flawed, Ms Jacobs could not prevail.
[9] This
conclusion of the high court fails to recognise the complexity of the
issues that arise from the pleaded
case of Ms Jacobs. Ms Jacobs
relies upon the constitutional duty of the Minister to protect the
public and to protect women from
violent crimes. Her particulars of
claim also allege that the Minister failed to adhere to the
objectives of the Correctional Services
Act 111 of 1998 (the Act), by
not giving effect to the Bill of Rights and not adequately regulating
the release of inmates and
the system of community corrections. The
Parole Board exercises its powers under the Act. If, as Ms Jacobs
alleges, the Parole
Board has failed to regulate the release of
inmates in terms of the Act, it has breached its statutory duty.
However, this postulate
raises questions of importance and some
complexity. It is by no means axiomatic that a breach of statutory
duty by the Parole Board
in the exercise of its powers under s 75 of
the Act gives rise to a delictual claim for damages.
[10]
In
Steenkamp
N O v Provincial Tender Board, Eastern Cape
,
(
Steenkamp
N O),
[2]
this
Court, in a case concerning pure economic loss following upon an
award by a tender board that was set aside, explained that
where a
breach of statutory duty gives rise to a claim for damages, a common
law duty cannot arise. Where the breach of the statute
excludes such
a claim, there can be no common law duty. And where the statute is
unclear as to whether statutory breach permits
a claim for damages,
policy
may
weigh against the recognition of a common law duty. The decision of
the
Constitutional Court, on appeal in
Steenkamp
N O
,
[3]
came to a similar conclusion: nothing in the statutory scheme
contemplated that an improper
but honest
exercise of discretion must attract a delictual action in favour of
the
disappointed tenderer.
[11]
An
issue that arises on the pleaded case of Ms Jacobs is whether, even
if the Parole Board failed to discharge its statutory functions,
does
the
Correctional
Services Act confer
or exclude a claim for damages against the
Minister? If the statute does neither, does the common law
nevertheless found a cause
of action? And in answering this question,
how is the reasoning in
Carmichelle
v Minister of Safety and Security and Another (Carmichelle)
[4]
, which
recognised that a delictual action may lie against a
police
officer and prosecutors who failed in their duty to protect the
plaintiff from attack, to be reconciled with the precautionary
dicta
in the
Steenkamp
N O
appeals?
[12] Counsel
for the Minister invited us to consider these issues in deciding this
appeal. That invitation is to
be declined, and for these reasons.
First, while certain of these issues may have been usefully
considered had an exception been
taken at the outset, it is of less
utility to do so when some of the evidence at trial has been heard.
Second, should the enquiry
reach the question of unlawfulness at
common law, this is an issue of public policy that may yet be
elucidated by evidence that
the Minister would wish to call, in the
event that the appeal succeeds and absolution is not granted. Third,
the parties did not
address full argument to this Court as to the
correct interpretation of the
Correctional Services Act and
whether a
common law delictual claim is supportable. Fourth, no reconciliation
has been attempted in explanation of the Minister’s
recognition
at the pre-trial conference of Ms Jacobs’ constitutional
rights, as pleaded, but the denial of the Minister’s
duty to
act and protect Ms Jacobs.
[13]
In
my view, therefore, it would be unwise for us to address the
important but wider issue as to whether Ms Jacobs enjoys a claim
for
damages by reason of a failure by the Parole Board, lawfully, to
exercise their powers. Rather, the issue of law as to whether
a cause
of action is cognisable on the basis of a duty by the Parole Board to
protect Ms Jacobs should have provided the high court
with a
compelling basis to decline the
application
for absolution from the instance. In
Carmichelle
,
[5]
the Constitutional Court recognised that where a substantial issue of
law arises
the
interests of justice ought to incline a trial court to refuse
absolution. That is the position here. Whether Ms Jacobs enjoys
a
cause of action, and
if she
does, its basis, are matters of some difficulty. They are best dealt
with once all the evidence has been heard. For this
reason, in my
view, the
high court
should not have granted absolution from the instance.
[14] But
even assuming that a breach of duty by the Parole Board can found a
cause of action for damages, was the
high court correct that the
evidence before it could not sustain the claim that the Parole Board
had failed lawfully to exercise
its powers?
[15] I
have already observed that the evidence of Ms Jacobs as to what the
Parole Board should have done is of
little assistance and doubtful
relevance. But her testimony does not exhaust the evidence placed
before the high court. Together
with the matters that were common
cause following the pre-trial conference, and summarised above,
documentary evidence was received
by the high court that bears upon
the decision taken by the Parole Board to place Mr Botha on parole,
as well as Mr Botha’s
record of compliance with his conditions
of parole. It is to this evidence that I now turn.
[16] It
is common ground that Mr Botha was convicted of various offences, and
in 2003 he was convicted on two counts
of indecent assault and rape.
Mr Botha was sentenced to imprisonment for a period of 15 years. Mr
Botha was not granted parole
in 2007. The case management committee,
on 22 October 2007, recommended that Mr Botha should be seen by a
psychologist to look
into his sexual behaviour. When Mr Botha again
applied to be placed on parole in 2009, the information placed before
the Parole
Board indicated that his conduct whilst in prison was
good. Mr Botha had attended various rehabilitative programmes,
including
restorative justice, conflict handling and aggression, and,
perhaps of most importance, certain modules of a sexual offences
rehabilitation
programme (SORP). The report of a social worker, Ms
Cronje, dated 14 August 2009, indicates that Mr Botha had attended
two modules
of the SORP from 26 August 2008, and it was planned that
he would undertake modules 3-5 until October 2009. Whether he did so
is
unclear, though the profile report contains the ambiguous notation
‘Modules 2-5 was done by soc. workers’. Elsewhere
in the
documents reference is made to programmes completed including ‘SORP
up to module 4’.
[17] The
report of Ms Cronje commended Mr Botha’s progress. The report
reflected that Mr Botha recognised
his wrongdoing, gave cooperation,
and was starting ‘to learn from social intervention to change
his thoughts and behaviour’.
Ms Cronje’s view was that Mr
Botha showed remorse for his actions, and wanted ‘to change his
lifestyle to refrain from
criminal behaviour’.
[18] The
report of Ms Cronje, taken together with Mr Botha’s conduct in
prison, the programmes he had completed,
his cooperation and remorse
appear to have persuaded the Parole Board to place Mr Botha on
parole. The documents also show that
Mr Botha enjoyed support from
his family and would stay with his mother if parole was approved. He
had also been ‘crime free’
for 5 years and 4 months and
had committed no disciplinary infractions. The Parole Board approved
Mr Botha’s parole. The
chairperson of the case management
committee noted that phase 1 of the parole was to be monitored very
strictly.
[19] Once
placed on parole, Mr Botha was made subject to monitoring. In the
period from 12 December 2010 until
21 May 2013, Mr Botha is recorded
as having been visited at his home, at the office and before a
supervision committee for the
purpose of monitoring. These visits
were frequent, and in some months are recorded to have occurred
weekly. Mr Botha is also reflected
as having kept appointments for
compulsory office visitation and before the supervision committee. On
five occasions, the records
show that Mr Botha violated his parole
conditions. He was given four verbal warnings and on one occasion he
was placed under parole
supervision.
[20] The
case of Ms Jacobs rested on the following propositions. First, given
Mr Botha’s criminal record,
including convictions for rape and
indecent assault, the Parole Board should not have placed Mr Botha on
parole. By doing so, the
Board failed to carry out its duties under
the
Correctional Services Act and
failed to protect Ms Jacobs, as the
Parole Board was bound to do, to give effect to the Bill of Rights.
Mr Botha’s violations
of his parole conditions should have been
sanctioned by re-incarceration, rather than merely giving warnings.
This too, it is claimed,
amounted to a failure to protect Ms Jacobs.
These failures were wrongful.
[21] Second,
the Parole Board was negligent. It should have foreseen the
reasonable possibility that releasing
Mr Botha on parole may have led
to his committing another sexual assault. This indeed occurred. The
Parole Board should have taken
reasonable steps to avoid this outcome
by refusing Mr Botha parole in the first place, and sending him back
to prison, upon his
violation of his parole conditions.
[22] Finally,
but for the wrongful and negligent conduct of the Parole Board, the
attack on Ms Jacobs would not
have taken place. Factual causation is
thus satisfied. The causal relationship between the conduct of the
Parole Board and the
attack on Ms Jacobs was sufficiently proximate
to meet the requirement of legal causation. Hence, the Minister,
being liable for
the impugned conduct of the Parole Board, must pay
damages to Ms Jacobs for the pain and suffering suffered by her as a
result
of the attack upon her by Mr Botha.
[23] I
have already made it plain that for purposes of determining whether
the high court correctly granted absolution
from the instance, I will
assume, without deciding, that the decision of the Parole Board to
release Mr Botha on parole, and thereafter
its failure to send him
back to prison upon the violation of his parole conditions, may give
rise to a common law claim in delict.
The key issue is then whether
the high court, reasonably applying its mind to the evidence,
correctly granted absolution from the
instance because it could not
find for Ms Jacobs.
[24] As
my recitation of the evidence makes plain, there was much in what
served before the Parole Board to indicate
that Mr Botha was a
suitable applicant for parole. His conduct in prison was considered
good; he had completed numbers of rehabilitative
courses; he was
reported to have shown remorse for his crimes and to evince a desire
to act differently; his family was supportive
of him; he had a home
to go to with his mother; and the social worker’s report was
favourable.
[25] As
against these promising indications, no report appeared in the record
from a psychologist that had considered
Mr Botha’s sexual
behaviour, as recommended by the case management committee in 2007
when Mr Botha’s application for
parole was turned down. There
is a reference in the record to a report by a psychologist that is
marked as attached. But it does
not appear in the documentary record,
and it is not clear whether, if it was compiled, it served before the
Parole Board. If the
report exists, nothing is known of its contents.
The absence of any evidence in the documentary record that a
psychologist report
was compiled and provided to the Parole Board,
before it came to its decision, is a matter of some importance. So
too, the profile
report compiled by the case management committee,
dated 24 September 2009, recommended that a further profile report be
submitted
for reconsideration and that Mr Botha should attend more
programmes. How the Parole Board came to its decision in the face of
this
recommendation requires some explanation.
[26] Mr
Botha was a repeat sexual offender. Although some time had elapsed
since his conviction for these crimes,
his imprisonment limited the
evidence available as to how Mr Botha would act in the world outside
prison. Although this is no doubt
a problem intrinsic to all parole
decisions, there is reason to exercise particular care when a person
has shown a propensity,
repeatedly, to commit a particular type of
crime. This is all the more so if, as in the case of Mr Botha, his
abuse of alcohol
was linked to sexual violence.
[27] On
the documentary evidence produced at the trial as to what served
before the Parole Board, there is a case
to be made that the Parole
Board should have flagged the risks attendant upon the release on
parole of a prisoner with an apparent
propensity to commit acts of
sexual violence. There is certainly a case to answer as to why the
Parole Board considered that it
should proceed to release Mr Botha on
parole, without the benefit of a report from a psychologist.
[28] There
is of course much danger in reasoning that proceeds on the basis that
because Mr Botha attempted a sexual
assault upon Ms Jacobs, it must
have been self-evident that high risk attached to the grant of his
parole. The very essence of
parole decisions concerns calculated
risks. Parliament has constituted the Parole Board to make difficult
decisions that entail
risk. But if the Parole Board exercises its
powers without due regard to the risks that arise from releasing a
prisoner on parole
then, provided that a cause of action in delict is
cognisable, its conduct may be judged wrongful and negligent.
[29] In
my view, on the documentary evidence placed before the high court, a
court could find that the Parole Board
acted wrongfully and
negligently in releasing Mr Botha on parole. Convicted of three
sexual offences, the superficial commentary
offered in the social
worker’s report, the vagueness of what was said by the case
management committee, and the lack of a
psychologist’s report,
make out a case on the basis of which it could be said that the
Parole Board decided to release Mr
Botha on parole when there was
significant risk attached to their decision. Until such time as those
who made the parole decision
come to give evidence and explain what
they did, there is sufficient evidence that could permit of a finding
that the Parole Board
acted wrongfully and negligently. Once that is
so, the evidence could also suffice to establish causation, since a
proper appreciation
of the risk could have led to a denial of parole
and the continued imprisonment of Mr Botha.
[30] The
high court found that there was no discernible error in the exercise
by the Parole Board of its discretion.
That finding cannot stand. On
the evidence before the high court, there was reason for the Parole
Board to proceed with caution.
This, again on the evidence, the
Parole failed to do. Whatever margin of appreciation should be
allowed to the Parole Board, there
was reason to require more than
the unsubstantiated claims made in the documents that served before
it. But under the deferential
standard applicable to an application
for absolution, there was evidence before the high court that could
permit of the finding
that the discretion of the Parole Board was not
lawfully exercised.
[31] There
was a further aspect of the evidence to which the high court did not
have proper regard. Mr Botha, once
released on parole, was subject to
supervision. Those responsible for his supervision categorised Mr
Botha as ‘high risk’,
having been convicted of rape and
indecent assault. Yet his violations of his parole conditions
resulted in verbal warnings. Whether
that was a defensible sanction
was a further matter that could permit of a finding that there was a
failure on the part of the
Supervision Committee to recommend that
appropriate action be taken against Mr Botha.
[32] For
these reasons the high court was in error in granting absolution from
the instance.
[33] The
appeal must accordingly succeed with costs.
[34] The
following order is made:
1 The
appeal is upheld, with costs.
2 The
order of the high court is set aside and substituted with the
following order:
‘
The application
for absolution from the instance is dismissed with costs.’
DAVID
UNTERHALTER
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: B
Bergenthuin
Instructed
by: Hurter Spies Inc,
Centurion
Hendre
Conradie Inc, Bloemfontein
For
respondent: S Mphahlele SC (with him Adv
Shiba)
Instructed
by: State
Attorney, Pretoria
State
Attorney, Bloemfontein
[1]
Carmichelle
v Minister of Safety and Security and Another
2
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001
(10) BCLR 995
(CC) para 26
(Carmichelle)
.
[2]
Steenkamp
N O v Provincial Tender Board, Eastern Cape
[2005]
ZASCA 120
;
[2006] 1 All SA 478
(SCA);
2006 (3) SA 151
(SCA) para 22.
[3]
Steenkamp
N O v Provincial Tender Board, Eastern Cape
[2006]
ZACC 16
;
2007 (3) SA 121
(CC);
2007
(3) BCLR 300
(CC) para 47.
[4]
Carmichelle
supra.
[5]
Carmichelle
supra
at
paras 78 -81