About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 646
|
|
Zondo v Minister of Justice and Correctional Services and Others (97778/2015) [2016] ZAGPPHC 646 (15 July 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
15
July 2016
Not
reportable
Not
of interest to other Judges
CASE
NO: 97778/2015
In
the matter between:
ABEDNIGO
THEMBA
ZONDO
Applicant
and
MINISTER
OF JUSTICE & CORRECTIONAL SERVICES
First
Respondent
AREA
COMMISSIONER OF CORRECTIONAL SERVICES
Second
Respondent
HEAD
OF
GROENPUNT CORRECTIONAL
CENTRE
Third
Respondent
CHAIRMAN
OF
THE
PAROLE
BOARD
Fourth
Respondent
CHAIRPERSON
OF
THE
CMC
Fifth
Respondent
JUDGMENT
MAKGOKA,
J
[1]
The applicant, Mr Abednigo Themba Zondo (Mr Zondo) who appeared in
person, seeks, in the main, a declaratory order that he is
eligible
to be considered for parole or day parole in terms of s 65(4)(a) of
the Correctional Services Act 8 of 1959 (the 1959
Act) and not in
terms of the Correctional Services Act 111 of 1998 (the 1998 Act).
[2]
He also seeks ancillary, wide-ranging relief against the respondents,
which is set out in the notice of motion as follows:
1. That normal rules
pertaining to the application be dispensed with and that the
application be disposed in accordance with the
provisions of the
above Honourable Court;
2. That non-compliance
with the provision of the rules [sic] pertaining to service be
condoned;
3. That the respondents
be called upon to appear and show cause, if any, to the above
Honourable Court why prayers 4,5,5,7,8,9 and
11 should not be granted
and made an order of this Honourable Court;
4. That the respondents
be ordered to consider that the Correctional Services Act 8 of 1959
as the principle Act [sic] applicable
to the applicant's application;
5. That the respondents
be ordered to consider the applicant on parole or day parole in
accordance with section 22A(1)(a) and section
65(4)(a) of the
Correctional Services Act 8 of 1959;
6. That the respondents
be ordered to consider that the applicant has served 13 (thirteen)
years and 4 (four) months of his sentence,
due to the fact that the
applicant was supposed to be on parole or day parole in terms of the
Correctional Services Act 8 of 1959;
7. The respondents be
ordered to consider the applicant on parole or day parole within 14
(fourteen) days;
8. That the respondents
be ordered to consider that the applicant has earned maximum number
of credits in terms of section 22A of
the Correctional Services Act 8
of 1959;
9. That the respondents
be ordered to consider that the number of days and months earned by
the applicant as credit may be taken
into account in determining the
date of the applicant on parole or day parole;
10. That the respondents
be ordered to consider the applicant's remission in terms of section
66 and 70;
11. That the respondent
be ordered to restore the applicant rights [sic] to just
administrative action forth with [sic];
12. That the declaratory
order be made declaring the meaning of the concept for placement on
parole or day parole;
13. Declaring that the
respondents should pay the costs of this application and severally
[sic] only in the event of this being
opposed;
14. Such further and/or
alternative relief as the Honourable Court deem [sic] fit.
[3]
Mr Zondo avers in his founding affidavit that the application has
been served on all the respondents through the office of State
Attorney. The return of service states that the application was
served in terms of rule 4(9) on the State Attorney, who 'accepted
service on behalf of the Minister of Justice and Correctional
Services'. In this regard I bear in mind the provisions of rule 4(9)
of the Uniform Rules of Court, which read as follows:
'In
every proceeding in which the State, the administration of a province
or Minister, Deputy Minister or administrator in his official
capacity is the defendant or respondent, the summons or notice
instituting such proceeding may be served at the office of State
Attorney situated in the area of jurisdiction of the court from which
such summons or notice has been issued.'
[4]
Ordinarily, therefore, in terms of the above rule, the only
respondent who can competently be served through the office of the
State Attorney is the first respondent, the Minister of Justice and
Correctional Services. Technically, therefore, there has not
been
proper service on the rest of the respondents, although such
respondents would ultimately be represented by the State Attorney
where proceedings had been served on them in the normal course. I
also take into account that essentially, the respondent is generally
the department of Justice and Correctional Services, although in
these matters, the applicants always cite all the authorities
involved and associated with the department, in particular the
correctional services side of it. On these considerations, I am
satisfied that there has been proper service.
[5]
Mr Zondo is an inmate at Groenpunt Maximum Correctional Centre in
Vereeniging, where he is serving a sentence of imprisonment
for life
and other prison terms, imposed on him on 23 March 2001 by the Free
State High Court, after being convicted of murder,
fraud, forgery and
defeating the ends of justice. As stated earlier, Mr Zondo appeared
in person, and the papers were apparently
drawn by him. As can be
expected, the papers are not drafted with the clarity and lucidity
expected of a legal practitioner.
[6]
The striking feature of the founding affidavit, which comprises
effectively two pages, is the paucity of facts giving rise to
the
application. The only facts which appear from the founding affidavit
are contained in paragraph 5, in which Mr Zondo states
that he is
currently serving a sentence of life imprisonment and other prison
sentences for the offences referred to earlier. From
there onwards,
the affidavit is replete with elaborate reference to the provisions
of the Correctional Services Act 8 of 1959 (the
1959 Act) and the
Correctional Services Act 111of 1998 (the 1998 Act).
[7]
The thrust of such reference is this: in terms of s 65(4) of the 1959
Act, he, as a prisoner serving a sentence of life imprisonment,
is
eligible to be considered for placement on parole or day parole after
having served 13 (thirteen) years and 4 (four months)
of his or her
term of imprisonment. He says that his parole consideration should
not be in terms of the 1998 Act, in terms of which
he would have to
serve at least 20 years of his term before he becomes eligible for
parole consideration.
[8]
Section 65(4)(a) of the 1959 Act entitled inmates serving a
determinate sentence to be considered for placement on parole when
they have served half of their terms of imprisonment. It, however,
makes provision for acceleration of the date on which such inmates
may be considered for parole on the basis of the credits earned by
them. The 1998 Act repealed the 1959 Act in whole with effect
from
the 1 October 2004. The 1998 Act, however, subjects inmates serving
custodial sentences as at the 1 October 2004, to the parole
regime of
the 1959 Act. Section 136(1) of the 1998 Act, which makes provision
for transitional periods, reads as follows:
'Any
person serving a sentence of incarceration immediately before the
commencement of Chapters IV, VI and VII is subject to the
provisions
of the Correctional Services Act, 1959 (Act 8 of 1959), relating to
his or her placement under community corrections,
and is to be
considered for such release and placement by the Correctional
Supervision and Parole Board in terms of the policy
and guidelines
applied by the former Parole Boards prior to the commencement of
those Chapters.'
[9]
In
Van Vuren v Minister of Correctional
Services and
others
2012 (1) SACR 103
(CC) the Constitutional Court held that
s 136(1) refers to any person serving a term of imprisonment,
including that serving life
imprisonment.
[10]
Section 136(2) provides that when considering the release and
placement of a prisoner serving a sentence of imprisonment as
contemplated in subsection (1), such prisoner must be allocated the
maximum number of credits in terms of section 22A of the Correctional
Services Act, 1959 (Act 8 of 1959). Section 22A created a
system for the allocation of credits to offenders for their
compliance with the rules of the correctional institution and their
active participation in programmes aimed at their treatment,
training
and rehabilitation. It provided:
'(1) A prisoner may earn
credits to be awarded by an institutional committee, by observing the
rules which apply in the prison and
by actively taking part in the
programmes which are aimed at his treatment, training and
rehabilitation. Provided that
(a) a prisoner may not
earn credits amounting to more than half of the period of
imprisonment which he has served;
(2) The number of days
and months earned by a prisoner as credits may be taken into account
in determining the date on which a parole
board may consider the
placement of such a prisoner on parole.
[11]
Section 22 (and various provisions of the 1959 Act) was, however,
repealed by the
Parole and Correctional Supervision Amendment Act 87
of 1997
which came into force on 1 October 2004. The 1998 Act created
a new system for the early release of offenders in Chapters IV, VI
and VII. In terms of the new dispensation, 'a sentenced offender
serving a determinate sentence or cumulative sentences of more
than
24 months may not be placed on day parole or parole until such
sentenced offender has served either the stipulated
non-parole period, or if no non-parole period was stipulated, half of
the sentence' (s 73(6)(a) of the 1998 Act). There is no provision
for
any kind of a credit system except in s 136, referred to above.
[10]
In
Minister of Correctional Services and others v Seganoe
2016
(1) SACR 221
(SCA) the Supreme Court of Appeal neatly summed up
the position thus at para 13:
'The
position of sentenced offenders serving determinate sentences at the
commencement of Chapter VI I of the 1998 Act, ie on 1
October 2004,
is clear from a plain reading of the above provisions. In
Van
Vuren,
the Constitutional Court held that the phrase 'any person'
in s 136(1) refers to any person serving a sentence of incarceration
and that the provisions relate 'to an offender's placement under
community corrections and his or her consideration for such release
and placement in terms of the policy and guidelines applied by the
former parole boards prior to 2004'. Section 136(1) therefore
preserves the parole policy and guidelines that applied before the
commencement of the 1998 Act, in 2004, in relation to this particular
class of offenders. Their eligibility for placement on parole must,
therefore, be assessed in terms of the 1959 Act. They are entitled
to
receive the maximum number of credits in terms of s 22A thereof.
Obviously, the legislature's intention was to obviate prejudice
to
offenders sentenced under the old dispensation by the retrospective
application of the new provisions which take away the credit
system
available when they were sentenced.'
(footnotes
omitted)
[12]
In
Van Wyk v Minister of Correctional Services
&
Others
2012 (1) SACR 159
(GNP), this court held that offenders who were
serving sentences of life incarceration immediately before 1 October
2004 are entitled
to have the date on which they may be considered
for parole advanced by credits earned in terms of section 22A of the
Correctional
Services Act 8 of 1959, subject to the applicable
criteria for the allocation of credits.
[13]
Following
Van Wyk,
the then Department of Correctional
Services adopted an implementation plan in terms of which prisoners
serving life term sentenced
before 1 October 2004 are granted maximum
credits under section 22A of Act No. 8 of 1959. In terms of the
implementation plan,
the minimum detention period for prisoners
serving life imprisonment sentenced before 1 October 2004 is
accordingly thirteen years
and eight months. This accords with the
provision in Section 22A of Act No. 8 of 1959 that an offender may
not earn credits amounting
to more than half of the period of
incarceration, which he has served.
[14]
Mr Zondo was sentenced on 23 March 2001. As at the date of the
application on 5 January 2016, he had served at least over 14
(fourteen years) of his term, and thus qualifies for consideration to
be released on parole. That, of course, is subject to the
other
requirements of the respondents. It does not appear from the papers,
however, that Mr Zondo ever made an application to be
released on
parole in terms of the provisions of s 65(4) of the 1959 Act, read
with s 22A of that Act. For that reason, I am only
inclined to make a
declaratory order that the applicable legislation in terms of which
his parole application is to be considered,
is the 1959 Act, together
with an order facilitating such parole consideration.
[15]
In the result the following order is made:
1. It is declared that
the Correctional Services Act 8 of 1959 is the principal Act
applicable to the applicant's consideration
for placement on parole
or day parole;
2. Subject to any other
requirements, procedures and policy considerations of the first,
fourth and fifth respondents, the respondents
are ordered to consider
the placement of the applicant on parole in terms of section 65(4)(a)
of the Correctional Services Act
8 of 1969, read together with
section 22A(1)(a) of the same Act.
______________________
T.
M. Makgoka
Judge
of the High Court