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[2016] ZAGPPHC 1068
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Bogoshi v Minister of Correctional Services and Another (62118/2014) [2016] ZAGPPHC 1068 (13 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No.: 62118/2014
13/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
LESOLANG
JOHANNES
BOGOSHI
Applicant
and
THE
MINISTER OF CORRECTIONAL
SERVICES
1
st
Respondent
COMMISSIONER
OF THE NATIONAL COUNCIL
FOR
CORRECTIONAL
SERVICES
2
nd
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant seeks an order on the following
terms:
1.1
that the decision of the first respondent of 16
January 2014 refusing applicant's application for parole be
reviewed
and set aside; or
1.2
that the respondents be ordered to release the
applicant on day parole; and
1.3
costs.
[2]
The
applicant, Mr Lesolang Johannes Bogoshi ("Mr Bogoshi") was
charged and convicted of robbery with aggravating circumstances,
kidnapping, murder, attempted murder, and unlawful possession of a
firearm and ammunition. On 08 July 1999, Mr Bogoshi was effectively
sentenced to life imprisonment
[1]
.
Mr Bogoshi is currently incarcerated at the Kgosi Mampuru II
Correctional Centre.
[3]
At the time
Mr Bogoshi was sentenced. his imprisonment fell under the purview of
the Correctional Services Act
[2]
("the 1959 Act"). In 1998 the 1959 Act was repealed and
replaced by the Correctional Services Act
[3]
("the 1998 Act"). However, Chapters IV, VI and VII of the
1998 Act only came into effect in 2004.
[4]
On 18
September 2013 the local Parole Board recommended that Mr Bogoshi be
placed on day parole. At the time Mr Bogoshi had already
served a
period of 14 years and two months of his life sentence
[4]
.
On 22 November 2013, second respondent, the National Council for
Correctional Services ("the NCCS") resolved not to
recommend Mr Bogoshi for placement on parole. Instead the NCCS
decided that Mr Bogoshi's application for parole should be postponed
and be reconsidered in 24 months. The reasons provided by the NCCS
for not recommending Mr Bogoshi for placement on parole were
that Mr
Bogoshi requires to be involved in
further rehabilitation programmes and
psychological interventions as may be prescribed by a social worker
and a psychologist
[5]
. Further,
the NCCS intimated that it was not satisfied that 'sufficient steps
had been taken to further restorative justice'.
[5]
On 16
January 2014, the first respondent, the Minister of Correctional
Services ("the Minister'') exercised his discretion
in terms of
section 136(3)(c)
[6]
of the 1998
Act read with sections 65(5)
[7]
and 65(6)
[8]
of the 1959 Act not
to place Mr Bogoshi either on day parole or on parole. The exercise
of public power must be exercised lawfully
and is reviewable.
[6]
Mr Bogoshi seeks the reviewing and setting aside
of the respondents' decision not to release him on parole and for the
respondents
to be ordered to release him on parole on the following
grounds:
6.1
that the respondents failed to calculate his
credits in order to advance his date of placement on parole;
6.2
that he has met the requirements for placement on
parole and should be released on parole;
6.3
that since the policy dealing with restorative
justice only applied from 2004, restorative justice does not apply to
him.
[7]
It was
contended on behalf of Mr Bogoshi that since he has completed his
minimum detention period and has undergone various rehabilitation
programmes, including obtaining some educational qualifications
[9]
,
he has satisfied all the requirements set out in the Act and
qualifies to be released on parole.
[8]
It was further submitted that the NCSS's reasons
that Mr Bogoshi should first undergo restorative justice was unfair.
It was contended
that under the 1959 Act restorative justice was not
required and that even if it was required, the respondents took no
steps to
institute the restorative justice process or assist in that
regard. Further, it was argued that Mr Bogoshi's behaviour and
adaptation
while in prison had not been taken into consideration.
[9]
It was argued on behalf of Mr Bogoshi that the
NCSS's reasons for refusing to recommend him for parole were
objectively irrational
and unreasonable in that it does not state
what further rehabilitative training Mr Bogoshi still needs to
undergo. That the only
inference to be drawn is that the respondents
have failed to properly apply their mind to the matter.
[10]
On behalf
of the respondents it was submitted that even if Mr Bogoshi had
served the minimum detention period, he did not have the
right to be
released on parole. It was submitted that in terms of section 136(3)
Mr Bogoshi was to be considered for release only
when the has
satisfied the requirements considered for releasing an imprisoned
offender in terms of the standing policy and guidelines
applicable to
the parole regime under the 1959 Act. It was further contended that
with regard to whether Mr Bogoshi has completed
the necessary
rehabilitation programmes the
Plascon-Evans
rule
[10]
should be applied and the court should accept the respondents'
version on this issue.
[11]
On the
issue of whether the court should order the release of Mr Bogoshi on
parole, it was submitted, with reference to the matter
of
Von
Abo v President of the Republic of South Africa
[11]
,
that
the primary responsibility for the ex1cution of a department rests
with the Minister to whom the executive powers and functions
concerning that department have been assigned.
[12]
It was further submitted that in terms of the
doctrine of separation of powers a clear distinction is made between
the powers of
the judiciary, the legislature and the executive. That
it is imperative for the courts not interfere with the power and
processes
of the other and therefore that the decision made by the
Minister was not reviewable.
[13]
It is
common cause at the time Mr Bogoshi was considered for parole he had
served almost 15 years of his sentence and that he had
attended some
rehabilitation programmes available in prison and other training.
From the argument on behalf of Mr Bogoshi it appears
that Mr Bogoshi
had an expectation to be released on parole once the credits he had
accumulated had been factored in. As appears
from the respondents'
answering affidavit, the credits
[12]
which Mr Bogoshi acquired, were, as required by section 22A,
[13]
of the 1998 Act taken into account when he was considered by the NCCS
for parole.
[14]
The question whether the rehabilitation
programmes Mr Bogoshi underwent while in prison are sufficient to
justify a conclusion by
the correctional services personnel that he
is ready to be released on parole, can only be made by the experts
trained to draw
such conclusions. This court, although it would not
necessarily be obliged to make a decision as recommended by experts,
needs
guidance from such experts. In the absence of such evidence and
in the light of this court lacking the skills to determine the parole
readiness of any prisoner, it has no choice but to defer to the
decision of those capable of reaching such a conclusion.
[15]
Mr Bogoshi's expectation that once he has served
the minimum period of detention and has participated in
rehabilitation programmes
he has a right to be placed on parole,
appears to be misplaced. All what Mr Bogoshi could have legitimately
expected is that, having
reached the required years to qualify for
parole, he would be considered for parole and not that he would be
released on parole
merely based on the passage of time. It is within
the Minister's discretion, after considering the recommendation by
the NCCS,
whether to grant or refuse him parole.
[16]
In
Winckler
and Others v Minister of Correctional Services and Another
[14]
the
court held that:
"Applicants, when
they were admitted to prison, could not have had a legitimate
expectation that they would qualify for release
once they had served
half of their sentence less the credits. The only legitimate
expectation they could have had was that their
case would be fairly
considered and decided in accordance with whatever lawful policy was
in place at the time when their case
fell to be decided".
[17]
In
considering whether a prisoner should be placed on parole, the
relevant information, including, inter alia, whether the prisoner
has
rehabilitated and will not re-offend are taken into account. In terms
of section 299A of the Criminal Procedure Act
[15]
(as amended) when a court sentences a person to
imprisonment for,
inter
alia,
murder,
it shall inform any immediate relative of the deceased, if he or she
is present, that he or she has a right to make representations
when
placement of the prisoner on parole is considered. According to
the NCCS, there is a need for Mr Bogoshi to go
through the
restorative justice process as part of his rehabilitation. I am of
the view that the restorative justice process may
assist Mr Bogoshi
in accepting responsibility for offences he has committed. This
process could also brig some form of healing
to his victims and/or
relatives. Mr Bogoshi's assertion that the process would not help as
the victims live in an area other that
which he would live, is of no
consequence.
[18]
Mr Bogoshi is also seeking an order to compel the
correctional services authorities to release him on parole. As
indicated in paragraph
5 above, the Minister is vested with the
discretion to authorise the placement of a prisoner on parole subject
to any conditions
he may determine. However, this discretion is not
unfettered in that in its exercise, all relevant factors and
circumstances have
to be taken into account. Consideration of
irrelevant factors and disregarding of relevant ones could render the
decision reviewable.
[19]
In
Gauteng Gambling Board v Silverstar Development Ltd and Others
[16]
where
the court stated that:
"The power of a
court on review to substitute or vary administrative action or
correct a defect arising from such action depends
upon a
determination that a case is 'exceptional':
s8(1)(c)(ii)(aa)
of the
Promotion of Administrative Justice Act 3 of 2000
. Since the normal
rule of common law is that an administrative organ on which a power
is conferred is the appropriate entity to
exercise that power, a case
is exceptional when, upon a proper consideration of all the relevant
facts, a court is persuaded that
a decision to exercise a power
should not be left to the designated functionary. How that conclusion
is to be reached is not statutorily
ordained and will depend on
established principles informed by the constitutional imperative that
administrative action must be
lawful, reasonable and procedurally
fair".
[20]
Furthermore,
in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[17]
the
Constitutional Court stated that:
"In treating the
decisions of administrative agencies with the appropriate respect, a
court is recognising the proper role
of the Executive within the
Constitution. In doing so a Court should be careful not to attribute
to itself superior wisdom in relation
to matters entrusted to other
branches of government. 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 on 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 the power will
identify goal to be achieved, but
we do not dictate which will vote
should be followed to achieve that goal. In such circumstances it
can't should page you respect
to the root 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, of which is not
reasonably supported on the facts of not a reasonable in the light of
the reasons
given for it, a court may not review that decision.
Import should not rubberstamp an unreasonable decision simply because
of the
complexity of the decision or the identity of the
decision-maker."
[21]
The issue
is whether, looking at the reasons given by the respondents for not
placing Mr Bogoshi on any form of parole, objectively
speaking, it
can be said that the decision was rationally related to the purpose
for which the power was given and that an order
be granted ordering
the respondents to release Mr Bogoshi on parole. In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
[18]
the
court in dealing with the test to be applied in determining whether
for exceptional circumstances exist justifying the substitution
of an
administrator's decision with an order of court, stated that:
"[47]
To my mind, given the doctrine of separation of powers, in &onducting
this enquiry there are certain factors that
should inadvertently hold
greater weight. The first is whether a court is in as good a position
as the administrator to make the
decision. The second is whether the
decision of the administrator is a foregone conclusion. These two
factors must be considered
cumulatively. Thereafter, a court should
still consider other relevant factors. These may include delay, bias
or the incompetence
of an administrator. The ultimate consideration
is whether a substitution order is just and equitable. This will
involve a consideration
of fairness to all implicated parties. It is
prudent to emphasise that the exceptional circumstances enquiry
requires an examination
of each matter on a case-by-case basis that
accounts for all relevant facts and circumstances".
[22]
I am of the view that no exceptional
circumstances exist for this court to substitute the respondents'
decision not to place Mr
Bogoshi on parole. I am of the view that the
first respondent's decision to refuse Mr Bogoshi's parole was
objectively rational
and reasonable leading to the conclusion that
she had applied her mind when she took account of all the relevant
facts and circumstances
and it appears that the decision taken was
taken in good faith. It does not appear that the first respondent was
influenced by
any external factors. The first respondent has given an
explanation for the decision taken and there appears to be
justification
for it. Whether Mr Bogoshi would re-offend after his
release was a pertinent to her in the interests of the public, the
victim
and Mr Bogoshi himself. The first respondent was justified to
choose to err on the side of caution if there is a possibility of
recidivism on the part of Mr Bogoshi.
[23]
I am satisfied that the respondents' decision to
refuse the applicant's parole was objectively rational and reasonable
leading to
the conclusion that the Minister had applied his mind when
he took account of all the relevant facts and circumstances and it
appears
that the decision taken was taken in good faith. One has to
bear in mind that the Minister exercises his discretion to place an
offender on parole on the recommendation of the NCCS. In this case
the NCSS did not recommend Mr Bogoshi for placement on parole.
On a
perusal of the record of his application for parole, it appears that
the psychologist who assessed Mr Bogoshi rated his potential
to
re-offend with that to violent crime as low but medium to high for
general crime. The NCCS has given an explanation for the
decision
taken and there appears to be justification for it. Whether Mr
Bogoshi would re-offend after his release was a pertinent
to the
Minister in the interests of the public, the victims and the
applicant himself. Since Mr Bogoshi appears to have an element
of
recidivism, the respondents in not placing him on parole must have
acted out of caution.
[24]
On the issue of costs, even though the
respondents are substantially successful, I am of the view that it
would be in the interests
of justice not to make a cost order. Mr
Bogoshi was merely pursuing what he considered to be a legitimate
right and should not
be punished for doing so.
[25]
In the result the following order is granted:
'The application is
dismissed'.
___________________________
NP
MNGQIBISA-THUSI J
Judge
of the High Court
Appearances:
For
Applicant: Adv L Butow-Dutoit
Instructed
by: Pretoria Justice Centre
For
Respondents: Adv MTK Moerane SC assisted Adv EB Ndebele
Instructed
by: State Attorney
[1]
In effect Mr Bogoshi was sentenced as follows: Robbery with
aggravating circumstances (25 years); kidnapping (15 years); murder
(life imprisonment); attempted murder (10 years); unlawful
possession of a firearm (three years) and unlawful possession of
ammunition (1 year). The court further recommended that Mr Bogoshi
should not be consideced for parole until he has served a period
of
50 years of his sentence.
[2]
Act 8 of 1959.
[3]
111 of 1998.
[4]
The minimum period of imprisonment for lifers to qualify to be
considered for placement on parole is 13 years and four months.
[5]
In its report, the psychologist has alluded to the fact that it does
not appear that Mr Bogoshi has accepted full responsibility
for the
harm his actions have caused to his victims in that he still blames
others even though he associated himself with the
actions of the
group he was involved with after the killing.
[6]
Section 136(3) of the 1998 Act reads as follows: "(a) Any
sentenced offender serving a sentence of life incarceration
immediately before the commencement of Chapters IV, VI and VII is
entitled to be considered for day parole and parole after he
or she
has served 20 years of the sentence. (b) The case of a sentenced
offender contemplated in paragraph (a) must be submitted
to the
National Council which must make a recommendation to the Minister
regarding the placement of the sentenced offender under
day parole
or parole. (c) If the recommendation of the National Council is
favourable, the Minister may order that the sentenced
offender be
placed under day parole or parole, as the case may be'.
[7]
Section 65(5) of the 1959 Act reads as follows: 'Upon receipt of a
report from a parole board regarding a prisoner who has been
sentenced to life imprisonment, the Minister shall refer the matter
to the National Advisory Council, which, after considering
the
report of the parole board, and having regard to the interests of
the community, shall make a recommendation to the Minister
regarding
the placement of the prisoner on parole'.
[8]
Section 65(6) of the 1959 Act reads as follows:
"The Minister may, after considering such recommendation,
authorise the placement of the prisoner on parole subject to any
conditions he may determine and as from a date determined by
him up
to the date of such prisoners'.
[9]
As appears from Mr Bogoshi's founding affidavit, he has attended the
following rehabilitation programmes:
[10]
Plascon -Evans Paints Ltd v Van Riebeck Paints (Ply) Ltd
[1984] ZASCA 51
;
[1984] 2
All SA 366
(A). In terms of the Plascon-Evans rule, where in
motion proceedings disputes of fact arise on the affidavits, a final
order can be granted only if the facts averred in the applicant's
affidavits, which have been admitted by the respondent, together
with the facts alleged by the respondent, justify such order.
[11]
2009 (5) SA 345 (C).
[12]
As set out in the answering (which is not disputed), Mr Bogoshi was
allocated the maximum number of credits (six years and eight
months)
and six months in terms of a Presidential amnesty.
[13]
This section read as follows: (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".
[14]
2001(2) SA 747 (C) at 756G.
[15]
Act 51 of 1977.
[16]
2005 (4) SA 67
(SCA) at [28].
[17]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 48.
[18]
2015 (5) SA 245
(CC) at [47].