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[2015] ZAGPPHC 55
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Nobatana and Another v Head of Rooigrond Correctional Centre and Others (72348/2012) [2015] ZAGPPHC 55 (6 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
72348/2012
DATE: 6 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
PRINCEDOM
MABANDLA
NOBATANA
..........................................................................
1
st
Applicant
SYLVANUS
MOREOTSILE
MADIBE
..............................................................................
2
nd
Applicant
and
THE
HEAD OF ROOIGROND CORRECTIONAL
CENTRE
......................................
1
st
Respondent
THE DEPUTY HEAD
OF ROOIGROND CORRECTIONAL
CENTRE
...............................................................................................................................
2
nd
Respondent
THE
CHAIRPERSON OF THE PAROLE
BOARD
........................................................
3
rd
Respondent
CHAIRPERSON
OF THE CASE MANAGEMENT
COMMITTEE
.......................................................................................................................
4
th
Respondent
THE
MINISTER OF CORRECTIONAL
SERVICES
.....................................................
5
th
Respondent
JUDGMENT
MASH1LE,
J
:
[1] This is an
application by two inmates currently serving their imprisonment term
at the Rooigrond Correctional Centre in Mafikeng,
North West
Province. They approached this court seeking relief that:
1.1 They forthwith
be considered for placement on parole;
1.2 They be awarded
maximum credits under section 22A of the Correctional Services Act
No. 8 of 1959 (hereinafter “Act 8 of
1959”);
1.3 It be declared
that notwithstanding the sentence imposed, all offenders are
qualified to be placed on parole on completion of
one third of their
sentences.
[2] The Respondents
made it plain that they oppose the granting of the relief sought in
paragraphs 1.1 and 1.3 above. Equally the
Respondents made it clear
that they do not oppose the granting of the relief that the
Applicants be awarded maximum credits under
section 22A of Act No. 8
of 1959.
[3] The First
Applicant has been in custody since 25 June 1999 and was convicted on
two counts of murder and one of attempted robbery.
On 2 February
2001, the court imposed a sentence of two life terms and fifteen
years direct imprisonment respectively. The sentence
were ordered to
run concurrently. At the time of the hearing of this matter on 5
August 2013, the First Applicant had accordingly
served 12 years 5
months of his sentence.
[4] The Second
Applicant was arrested on 18 October 1998 and was convicted and
sentenced on 28 September 2000 to life imprisonment
for one count of
murder and a further 20 years for one count of robbery. Like in the
case of the First Applicant, his sentences
were decreed to run
parallel. The Second Applicant had, by the time this matter was heard
on 5 August 2013, therefore served 12
years 9 months of his sentence.
[5]
For their contention that they be considered for placement on parole
forthwith as they have served ten years of their sentences,
the
Applicants rely on
Van
Vuuren v Minister of Correctional Services & Others
2010
(12) BCLR 1233
(CC).
In
this regard, the Applicants aver that:
5.1
“
the court
found that under the old Correctional Services Act, Act No 8 of 1959,
Van Vuren and other inmates who were sentenced to
life imprisonment
before the 1
st
October 2004 qualified for consideration for placement on parole
after
serving ten years imprisonment on their sentences”;
5.2
“a
Court
Order was issued ordering the minister to consider, with immediate
effect all inmates who had already served ten years of
their
sentences and who were sentenced before 1 October 2004 to life
imprisonment, for possible placement on parole”.
[6] The Respondents
assert that the Applicants’ approach on the Van Vuuren case
SUPRA is completely misguided. A proper perspective
of the facts in
Van Vuuren is that Van Vuren was sentenced to death on 13 November
1992. After the death penalty was declared unconstitutional,
his
death sentence was converted in September 2000 to life imprisonment
which was antedated to the date of his original sentence,
13 November
1992.
[7] The policy which
applied on 13 November 1992 (to which date Van Vuuren’s
sentence of life incarceration was backdated)
was that offenders
serving life sentences were required to serve ten years of their
sentence prior to consideration for placement
on parole but that
placement on parole would occur only in exceptional cases before
fifteen years of the sentence had been served.
[8] Van Vuuren who
fell under section 136(1) of the Correctional Services Act No. 111 of
1998 (hereinafter “Act No. 111 of
1998”), argued that he
was entitled to be considered for parole in terms of the policies and
guidelines which applied at
the date of his original sentencing on 13
November 1992 and the court agreed.
[9] The Respondents
concession that they are prepared to entertain the Applicants on the
issue of the award of maximum points leaves
only two questions to be
determined by this court. Those issues are that:
9.1 That the
Applicants at once be considered for placement on parole; and
9.2 It be declared
that notwithstanding the sentence imposed, all offenders are
qualified to be placed on parole on completion of
one third of their
sentences.
[10] The legal
position regarding the above two issues is regulated by Section
136(1) of Act No. 111 of 1998 (hereinafter “Act
No. 111 of
1998"), which provides as follows:
“
136.
Transitional provisions -
(1) Any person
serving a sentence of imprisonment 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."
[11] Chapter IV of
Act 111 of 1998 came into operation on 31 July 2004 whilst Chapters
VI and VII came into operation on 1 October
2004. The operative date
for purposes of section 136(1) of Act No. 111 of 1998 is therefore 1
October 2004. Offenders who were
sentenced before this date are
considered for placement on parole in terms of the policy and
guidelines applied by the former Parole
Boards.
[12] The policy
applied by Parole Boards with regard to the consideration of
offenders who are serving life imprisonment for placement
on parole
has been inconsistent. Thus, the applicable policy at the time of the
sentencing of each of the Applicants required inmates
serving life
sentence to serve twenty years imprisonment prior to consideration
for placement on parole subject to certain specified
exceptions,
which do not apply in this case.
[13] When one
contrasts the above with that which applied in the Van Vuuren case
which required a period of ten years to have been
served, it is
apparent that in consequence of the different policies that applied
at various stages, not all prisoners who fell
under Act No. 111 of
1998 would qualify without exception. The ultimate determining factor
is the policy that found application
at that pertinent period hence
the distinction between 1992 on the one hand and 2000 and 2001 on the
other. The error the Applicants
make is to apply the Act
indiscriminately without any reference to the relevant policies and
guidelines.
[14] The
constitutional court held in van Vuuren case supra that Section
136(1):
14.1 Refers to any
person serving a term of incarceration, including lifers;
14.2
the phrase
“
prior
to”
in
section 136(1) (in the context of an offender being considered for
placement on parole in terms of the policy and guidelines
applied
“
prior to”
1
October 2004) encompasses the policies and guidelines in existence at
any time before 1 October 2004 (by way of preserving all
the policies
and guidelines that applied before 1 October 2004);
14.3 the argument
(as argued by the Department of Correctional Services) that Van
Vuuren could only be considered for parole after
having served 20
years of his sentence would render the policy and guidelines that
applied at the time of his having been sentenced
retrospective in
effect;
14.4 deprivation of
a person’s liberty in the retrospective application of a change
in parole policy does not conform to the
principles of the rule of
law;
14.5 given that his
sentence of life incarceration had been antedated to 13 November
1992, Van Vuren was eligible to be considered
for placement on parole
in terms of the policy and guidelines that existed on 13 November
1992.
[15]
A proper application of what the Constitutional Court held in the Van
Vuuren case
supra
is
that one must consider the policy and guidelines that applied at the
time of the sentencing when about to place inmates on parole.
To say that the
Applicants in this case have served a third of their life
imprisonment term or more than half would be importing
a policy that
does not apply to their particular situation at all. According to the
policy that was applicable at the time when
each of them was
sentenced, each must serve twenty years before he can be considered
for placement on parole.
[16] While the
Respondents have made it clear that they do not oppose the crediting
of maximum points to the Applicants that applies
under Act 8 of 1959,
I deem it necessary for the sake of completion to discuss it anyway.
The need to do so comes to the fore as
a result of this judgment
being handed down well after the Applicants have served a period of
thirteen years and eight months,
which appears to be the required
number of years that they were suppose to serve prior to
consideration for placement on parole.
The ‘credits system’
which applies in terms of section 22A of Act No. 8 of 1959 provides
that:
“
22A.
Allocation of credits
(1) A prisoner
may earn credits, , 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 further that -
(a) a prisoner
may not earn credits amounting to more than half of the period of
imprisonment which he has served;
(b) ...
(c) ...
(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 prisoner on parole."
[17]
It was held in the case of
Van
Wyk v Minister of Correctional Services & Others
2012 (1)
SACR 159
(gnp),
that
prisoners serving life imprisonment term before 1 October 2004 were
at liberty to have the date on which they may be considered
for
parole brought forward by credits. This could be done by way of
Correctional Services Order BVI (1A)(22)(d), which subsequent
to the
amendment thereof did away with the awarding of credits to prisoners
serving a life term, being declared inconsistent with
the
Constitution as it involved the retrospective application of a change
in parole policy which had previously applied to life
term prisoners.
[18]
To give effect to the
Van
Wyk
case
supra,
the
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.
[19] The minimum
detention period for prisoners serving life term sentenced after 1
March 1994 when the twenty year policy was introduced,
and 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.
[20] It is against
that background that each of the Applicants was required to serve at
least thirteen years eight months of his
sentence prior to being
considered for placement on parole. At the time of the hearing of
this case neither the First nor the Second
Applicant had served
thirteen years eight months of his sentence. In the premises, neither
one was eligible for consideration for
placement on parole. However,
now that they have served more than thirteen years eight months, they
do qualify provided of course
that they meet the other requirements
in terms of Section 22a(1) of Act No. 8 of 1959.
[21] The Applicants
invoked Section 65(4)(a) of Act No. 8 of 1959 and placed reliance
thereon for the declaratory order that they
seek being that offenders
are entitled to be considered for placement on parole on completion
of one third of their sentences regardless
of the sentence imposed.
The Respondents contend that such reliance on the section is wrong.
[22] Section
65(4)(a) of Act No. 8 of 1959 applies in respect of determinate
sentences only by providing that an offender serving
a determinate
sentence shall not be considered for placement on parole before
having served half of the term of incarceration.
This is subject to
the proviso that the date on which consideration may be given to
placement of the offender on parole may be
brought forward by the
number of credits earned. It is common cause that the Applicants are
serving an indeterminate sentence of
life incarceration. Section
65(4)(a) cannot for that reason apply to their situation.
[23] The Applicants’
contention that they are entitled to be considered for placement on
parole after serving one third of
their sentences flies directly in
the face of the Van Vuren case supra in terms of which prisoners
serving life term are to be
considered for placement on parole in
accordance with the policy and guidelines that existed at the time of
the imposition of their
sentences.
[24] I completely
agree with Counsel for the Respondents that a sentence of life
incarceration means exactly what the words imply
- for the duration
of the offender’s natural life. It would not matter that the
sentence is served within a correctional
centre, or outside of a
correctional centre whilst under community corrections. Given that
one does not know for how long one will
live, section 65(4)(a) of Act
8 of 1959 (by way of calculating half of the sentence) cannot be
applied to prisoners serving a life
term.
[25] Further to the
above, a fundamental flaw in the Applicants' contention that they are
eligible for consideration for placement
on parole after serving one
third of their sentences is to equate a sentence of life
incarceration to a sentence of twenty years
incarceration.
[26] This is
completely fallacious as a sentence of life incarceration is not a
sentence of twenty years. The correct position is
that since 1 March
1994 the period of twenty years is the minimum detention period to be
served prior to a prisoner serving a life
term can be considered for
placement on parole. The Applicants’ contention that they are
permitted to be considered for placement
on parole after service of
one third of twenty years is therefore wrong and must be rejected.
[27] The Applicants
also advanced the argument that they have, by way of presidential
granted amnesties, earned remissions amounting
to twelve months. They
argue that in addition to their period being remitted, the
presidential amnesties entitle them to be considered
for placement on
parole earlier than was planned.
[28] It is trite
that the upshot of remission of sentence is to reduce the effective
sentence by the period of remission granted
to an offender.
Accordingly, if an offender serving a determinate sentence of
incarceration is granted remission of sentence, his
consideration
date for placement on parole will equally be brought forward.
[29] Accepting that
the aforesaid is correct, I agree with the contention of the
Respondents that the granting of remission of sentence
does not, as a
matter of logic, not advance the consideration date for placement on
parole of prisoners serving life term incarceration.
This must be so
because one does not know how long one will live. For that reason,
remission of sentence cannot naturally reduce
the effective sentence
of a prisoner serving a life term incarceration by advancing the
consideration date for his placement on
parole as in the case of an
offender serving a determinate sentence.
[30] While the
Applicants have raised further arguments in support of their early
placement on parole, there are no parallel reliefs
sought in their
notice of motion. Accordingly, the court cannot consider those as
they are not before it.
[31] In the
premises, I make the following order:
1. The Respondents
are ordered to consider the placement of the Applicants on parole in
terms of Section 22a of Act No. 8 of 1959.
2. No order as to
costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR THE
APPLICANTS: In Person
INSTRUCTED BY: In
Person
COUNSEL FOR THE
RESPONDENTS: ADV. TWG Bester
INSTRUCTED BY: The
State Attorney
DATE OF HEARING: 5
August 2013
DATE OF JUDGMENT: 6
February 2015