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[2015] ZAGPPHC 661
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Derby-Lewis v Minister of Justice and Correctional Services (17889/15) [2015] ZAGPPHC 661; 2015 (2) SACR 412 (GP) (29 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: 17889/15
29/5/2015
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
29/5/2015
DATE
SIGNATURE
In
the matter between:
CLIVE
JOHN
DERBY-LEWIS
Applicant
and
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
First Respondent
THE
CHAIRPERSON, NATIONAL COUNCIL
FOR
CORRECTIONAL
SERVICES
Second Respondent
THE
SOUTH AFRICAN
COMMUNIST
PARTY
Third Respondent
MRS
LIMPHO
HANI
Fourth Respondent
MEDICAL
PAROLE ADVISORY
BOARD
Fifth Respondent
JUDGMENT
Baqwa
J
Prison
-
Prisoner
-
Life
imprisonment
-
Application
to
be
released
in
terms
of
section
79
of
the
Correctional
Services
Act
Ill
of
1998
-
Minister
empowered
to order placement
of
prisoner
on medical parole
-
Courts empowerment
to
substitute decision
in
appropriate cases.
Summary
The
applicant was serving a life sentence for murder imposed on him in
1993 and it had been recommended by the Medical Parole Advisory
Board
(MPAB) that he be released on medical parole after having served 21
years and 6 months of his sentence. It was common cause
that the
applicant was terminally ill with lung cancer. Despite that
recommendation he was not placed on medical parole as the
MPAB had
staged the cancer at stage lllB and not stage IV as required by the
Act. The first respondent had on that basis refused
the placement of
the applicant on medical parole. The applicant approached the High
Court for a review of first respondent's decision.
Held,
that the
first respondent had followed a process which was flawed in terms of
section 6(2)(b) and
section 6(2)(e)(iii)
of the
Promotion of
Administrative Justice Act 3 of 2000
and that his decision had to be
set aside.
Held,
that because
of the urgency of the matter and the imminent death of the applicant
(as per medical evidence), and in order to prevent
possible prejudice
to the applicant, the Court could deal with the matter and substitute
its own decision in terms of
section 8
of the
Promotion of
Administrative Justice Act 3 of 2000
.
Held,
further,
that the applicant be released on medical parole, the conditions of
which were to be set by the Parole Board of the Kgosi
Mampuru II
Prison where the applicant was held.
Annotations:
Unreported
Cases
Robert Wayne Parker v The
Minister of Correctional Services and 5 Others case number 04/9191
WLD page 44 at para [63]
Reported
cases
Goldberg and Others v
Minister of Prisons and Others
1979 (1) SA 12
(A)
S v Makwanyane
[1995] ZACC 3
;
1995 (3)
SA 391
page 500 at para 307 - 308
Maharaj v Chairman,
Liquor Board
1997 (1) SA 273
(N)
University of the Western
Cape and Others v Member of Executive Committee for Health and Social
Services and Others
1998 (3) SA 124
CPD at 131D-G
Minister of Correctional
Services v Kwalewa and another
2002 4 SA 455
(SCA) at 467 G to 468 H
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 593
SCA
Foreign/
International Cases
Charles Sobhraj v
Superintendent Central Jail, Tihar, New Delhi
(1979) 1 SCR 512
(SC,
India)
Rhodes v Chapman
[1981] USSC 144
;
452 US
337
(1981)
Conjwayo v Minister of
Justice. Legal and Parliamentary Affairs and Others
1992 (2) SA 56
(ZS) at 60G-61A
Rodriguez v British
Columbia (Attorney General) [1993)
3 SCR 519
, 1993 ConL II 75 (SCC)
Statutes
Correctional Services Act
8 of 1959
Correctional Services Act
111 of 1998
Promotion for Administrative Justice Act
Constitution of the
Republic of South Africa, 1996
The Parties
[1] The Applicant is an
adult male sentenced prisoner, incarcerated at Kgosi Mampuru II
Prison (Formerly Pretoria Central Prison),
aged 79 years. The First
Respondent is the Minister of Justice and Correctional Services. The
Second Respondent is the Chairperson
National Council for
Correctional Services. The Third Respondent is the South African
Communist Party (SACP). The Fourth Respondent
is Mrs Limpho Hani. The
Fifth Respondent is the Medical Parole Advisory Board (MPAB).
The
Application
[2]
This is an application brought on an urgent basis for an order that-
2.1. The decision of the
first respondent taken on 30 January 2015 in terms of which the
applicant was not granted medical parole
be reviewed and set aside.
2.2. The applicant must
be placed on medical parole with immediate effect in terms of section
69 of the Correctional Services Act
8 of 1959, alternatively
section
79
of the
Correctional Services Act 111 of 1998
.
[3] The first respondent
opposes the application and prays that it be dismissed with costs.
[4] By agreement between
the parties the matter proceeds only in respect of the relief claimed
by the applicant for his placement
on medical parole. Even though
canvassed in the papers filed by the applicant, the relief sought for
his placement on ordinary
parole does not, in the circumstances, fall
to be determined at this hearing.
[5] It is common cause
that the urgency of the matter is not disputed with regard to the
relief claimed by the applicant in respect
of medical parole.
Applicable
Law
[6]
Notwithstanding it having been contended in the founding affidavit
that the applicant is to be considered for medical parole
in terms of
the provisions of
section 69
of Act 8 of 1959, it appears to be
conceded without this having been expressly abandoned that the
provisions of section 79 of Act
111 of 1998 finds application for the
consideration of placement of the applicant on medical parole.
[7] Section 79(1)(a)-(c)
of the Correctional Services Act 111 of 1998 (the Act) provides that
a sentenced offender may be considered
for placement on medical
parole if:
“
(a)
such
offender
is
suffering
from
a
terminal
disease
or
condition
or
if
such offender is rendered physically
incapacitated
as
a result of injury, disease
or
illness
so
as
to
severely
limit
daily
activity
or
inmate
self-care;
(b) the risk of
re-offending is low; and
(c) there are
appropriate arrangements for the inmate's supervision, care and
treatment within the community to which the inmate
is to be
released."
[8] In terms of section
79(2)(a) an application shall not be considered by the first
respondent if such application is not supported
by a written medical
report recommending placement on medical parole. An independent
medical report must be provided in terms of
section 79(3).
[9] Section 79(5)
provides that when the MPAB makes a determination as contemplated in
subsection 1(b) the following factors amongst
others may be
considered;
"(a) Whether, at
the time of sentencing, the presiding officer was aware of
the
medical condition for which medical parole is sought in terms of this
section;
(b) Any sentencing
remarks of the trial judge or magistrate;
(c) The type of
offence and the length of the sentence outstanding;
(d) The previous
criminal records of such offender; or
(e) Any of the factors
listed in section 42(2)(d)."
[10] The applicant
submits that he has complied with all the jurisdictional requirements
to be placed on medical parole as set out
in section 79. He further
submits that there is no further requirement in section 79 pertaining
to any of the aspects raised by
the third and fourth respondents with
reference to apologies, political affiliations, alleged non-full
disclosure of facts, and
any of the other issues that have been
raised by the third and fourth respondent.
[11] As required by the
Act when receiving an application for medical parole, the MPAB, must
make a recommendation to the Minister.
Regulation 29A(5) lays down
what the MPAB must consider in the assessment, whether the offender
is suffering from certain infectious
and non-infectious conditions.
[12] Regulation 29A(5)
provides that in the assessment by the Medical Parole Advisory Board,
the Board must consider whether the
offender is suffering from:
"(a)
…
(b)
Non-infectious conditions
-
(i) Malignant cancer
stage IV with metastasis being inoperable or with
both
radiotherapy and
chemotherapy failure..."
[13] Regulation 29A(6)
provides that the Medical Parole Advisory Board consider any other
conditions not listed in sub regulation
(5)(a) and (b) if it complies
with the principles contained in section 79 of the Act.
[14] Regulation 29A(7)
provides that the Medical Parole Advisory Board must make a
recommendation to the Minister, on the appropriateness
to grant
medical parole in accordance with section 79(1)(a) of the Act. If the
recommendation of the Medical Advisory Board is
positive then the
Minister, must consider whether the conditions stipulated in section
79(1)(b) and (c) are present.
Background
Facts
[15] The applicant was
born on 22 January 1936 and is currently 79 years old. He was
sentenced to death on 15 October 1993 and that
sentence was
subsequently commuted to life imprisonment in the year 2000, he has
currently served 21 years and 6 months of that
sentence.
[16] The applicant
submitted an application for medical parole to the Department of
Correctional Services on 2 May 2014. The application
was supplemented
by the report of Dr L.S Fourie.
[17] According to the
medical reports submitted in support of his application for medical
parole, the applicant had been diagnosed
as suffering from lung
cancer, heart failure and hypertension. Upon receipt of the
application for medical parole, the Chairperson
of the Medical Parole
Advisory Board ("the MPAB") assigned two members of the
MPAB (namely Dr Coetzee and Dr Solombela)
to perform a medical
assessment of the applicant.
[18] The matter was
deliberated upon by the MPAB at its meeting on 9 July 2014 in light
of the medical reports submitted by the
applicant, the reports of
Doctors Coetzee and Solombela and the representations submitted by
the applicant. The MPAB came to the
following conclusions:
18.1.
"Mr
Clive
Derby-Lewis has Stage IIIB Carcinoma of
the
Lung, which
is
inoperable but with no distal spread
or metastasis. He is receiving chemotherapy and radiotherapy from
Eugene Marais
private hospital where
he is currently
admitted.
18.2.
He is
halfway through his treatment, which he is tolerating well.
18.3.
He is
clinically
well and
able
to perform
his
daily activities
and inmate self-care.
18.4.
The
Act is
specific on
the
staging
of
cancers to
be
considered
for medical parole
(Stage IV
with metastases).
And
as matters
stand
this patient (Stage
IIIB)
does not
satisfy those
criteria stipulated in
the
Act.
18.5.
There is
no sufficient reliable information
on the treatment aims of
this patient.
Neither
is
there
an
unequivocal
and
unbiased
assessment
of
the
prognosis of this individual patient.
[19] The MPAB at its
meeting of 9 July 2014 resolved that an independent team of
specialists (consisting of an Oncologist, Pulmonologist
and
Pathologist) should examine the applicant. Dr Wadee (Specialist
Physician/Medical Oncologist), Professor Lalloo (Specialist
Pulmonologist/ Physician) and Professor Sathekge (Nuclear Medicine,
University of Pretoria) were appointed to examine the applicant.
[20] On 23 October 2014
the applicant brought an application pertaining to ordinary parole
which was subsequently converted to an
application for placement on
medical parole.
[21] On 2 December 2014
Louw J, granted an order that the third and fourth respondents'
representations be filed and that the decision
of the first
respondent regarding medical parole be made on 31 January 2015.
[22] The representations
of the third and fourth respondents were filed with the first
respondent on 9 January 2015 but they were
not presented or served on
the applicant's legal representatives before 31 January 2015.
[23] At a further meeting
of the MPAB held on 14 January 2015 the independent specialists and
Dr Fourie (as the applicant's treating
medical practitioner)
presented their reports and responded to questions by members of the
MPAB with regard to their findings (in
particular, the staging of the
applicant's lung cancer).
[24] In their respective
reports submitted to the MPAB, Dr Wadee and Professor Lalloo
diagnosed the applicant as suffering from
Stage IV cancer on the
basis of the spread of cancer to the left adrenal gland. That
diagnosis was based on the PET scan performed
on the applicant.
[25] The opinion of
Professor Sathekge was that the hypermetabolism of the left adrenal
gland was not indicative of distal spread
of the cancer by way of
adrenal metastasis (given that the results of the PET scan were
inconclusive, and that the hilar lymph
nodes had not been biopsied).
[26] In view of the
difference of opinions between the independent specialists the MPAB
concluded that the applicant's cancer could
be staged at least at
stage IIIB with a probable but inconclusive spread to the left
adrenal gland. The MPAB recommended to the
first respondent that the
applicant be placed on medical parole on the strength of that
conclusion.
[27] On 30 January 2015,
the first respondent decided not to approve the recommendation of the
MPAB for the placement of the applicant
on medical parole.
Application of the Law
to the facts
[28] The reasoning for
the refusal to place the applicant on medical parole by the first
respondent is briefly as follows:
28.1. In its
recommendation, the Board states that Mr Derby-Lewis is suffering
from stage lllB lung cancer and this serves largely
as a basis upon
which it recommends his placement on medical parole. This finding and
recommendation appears to be oblivious of
the fact that in terms of
the Act, read with relevant Regulations, it is an inmate with
malignant cancer stage IV with metastasis
being inoperable or with
both radiotherapy and chemotherapy failure that qualifies for
placement on medical parole. It is therefore
inconceivable how the
Board came to its conclusion.
28.2. The applicant was
found by the first respondent not to have been rendered physically
incapacitated so as to severely limit
his daily activity or
self-care.
28.3. There were no
indications to whether the offender had "showed any remorse for
the crimes committed."
28.4. The first
respondent has since disavowed reference to the use of pseudonyms
used at the hospital by applicant and I therefore
make no reference
to that issue.
[29] It is notable that
first respondent did not deal specifically with the risk of re
offending in his reasons, he only referred
to section 79(1)(b) with
reference to "remorse" even though this could be surmised
to be an oblique reference to a possible
propensity to re-offend.
Review
of the Decision
[30]
The grounds for judicial review were elucidated in a Constitutional
Court decision in
Bato Star
Fishing
(Pty)
Ltd
v
Minister of
Environmental
Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
, it was held by O'Regan J as follows:
"[22]
In Pharmaceutical
Manufacturers
Association
of
SA and Another:
In re
Ex parte President of the Republic of South Africa and Others, the
question of the relationship between common-law grounds
of review and
the Constitution was
considered
by
this
Court.
A
unanimous
Court
held
that
under
our
new Constitutional
order
the
control
of
public
power
is
always
a
constitutional
matter.
There
are not two systems of law
regulating administrative action - the common
law
and
the
Constitution
-
but
only
one
system
of law
grounded
in the Constitution.
The Courts' power
to
review administrative
action
no longer flows
directly
from
the
common
law
but
from
Promotion
of
Administrative Justice
Act
(PAJA
)
and
the
Constitution
itself.
The grundnorm
of
administrative
law
is now
to
be
found
in
the
first place
not
in
the
doctrine
of ultra
vires, nor in the doctrine of
parliamentary
sovereignty, nor in the common
law
itself,
but
in
the principles
of
our
Constitution.
The common
law
informs the provisions
of
PAJA
and
the
Constitution,
and
derives
its
force
from
the latter.
The
extent to which the common law remains relevant to administrative
review will
have
to
be
developed on
a
case-by-case basis
as
the
Courts
interpret and apply the
provisions
of PAJA and the Constitution.....
[25]
The
provisions
of
s
6
divulge
a
clear
purpose
to
codify
the
grounds
of
judicial
review
of
administrative action
as
defined
in
PAJA. The
cause
of action
for the
judicial
review of administrative action now
ordinarily arises from PAJA, not from the common law as in the past.
And
the authority
of PAJA to ground
such
causes
of
action
rests
squarely on
the
Constitution.
It
is
not necessary
to
consider here causes of
action for
judicial
review of administrative
action that do not fall within the
scope of PAJA. As PAJA gives effect
to
s
33
of
the
Constitution,
matters
relating
to
the
interpretation
and application of PAJA
will of course be constitutional matters.
[26] In these
circumstances it is clear that PAJA is of application to this case
and the case cannot be decided without reference
to it. To the
extent, therefore, that neither the High Court not the SCA
considered the claims made by the applicant
in the
context of PAJA, they erred. Although the applicant did not directly
rely on the provisions of PAJA in its notice of motion
or founding
affidavit, it has in its further written argument identified the
provisions of PAJA upon which it now relies."
[31] O' Regan J further
held in paragraph [27] that the failure to identify with precision
the provisions of PAJA upon which a litigant
relies is not fatal to
the cause of action.
[32]
In
casu,
the relevant provisions of PAJA are the
following:
"
6.
Judicial review of Administrative
Action
(2)
A the court or tribunal has the power to judicially review an
administrative action if-
(a) The administrator
who took it-
(i)
..
............
(ii)
was biased
or reasonably
suspected
of bias,
(b) A mandatory and
material procedure or condition prescribed by an empowering
provision was not
complied
with
(c)
..........
(d)
...........
(e)
The action
was taken-
(i)...
(ii)...
(iii)
because
irrelevant
considerations
were taken
into
account
or relevant
considerations
were not
considered"
[33] On 17 March 2009 the
Full Bench of this division ordered that the third and fourth
respondent have a right to make representations
pertaining to the
applicant's parole.
[34] On 2 December 2014
Louw J granted an order that third and fourth respondents'
representations should be filed and that the
decision of the first
respondent regarding the medical parole should be made by 31 January
2015.
[35] It is common cause
that on 9 January 2015 the representations of the third and fourth
respondents were served on the first
respondent but that they were
never served on the applicant prior 31 January 2015.
[36] It is needless to
state that the representations by the third and fourth respondents
have been considered to form a critical
component of the hearing.
That much is evident not only from the history of applicant's
incarceration but also from the court orders
referred to above.
A
fortiori
the significance and impact of those representations
would even be more significant to the interests more particularly of
the applicant,
the third and the fourth respondents. That much would
be obvious even to the third and fourth respondents yet for some
unknown
reason the applicant was not served with their
representations.
[37] Upon reading the
reasons given by the first respondent for his decision, more
particularly with reference to this issue of
"remorse", it
becomes patently clear that he took the third and fourth respondents'
representations into account in reaching
his decision. This was done
without him being in possession of the applicant's response thereto.
[38]
The decision of the first respondent is in contravention of section
6(2)(e)(iii) of PAJA in that where he deals with remorse
in so far as
it may have been relevant to the question of re-offending, he failed
to take into consideration the evidence presented
by the Department
of Correctional Services which recorded the applicant's expression of
remorse on several occasions. The reasons
given by the first
respondent in justification of his decision are clearly at variance
with the said evidence.
[39] This non-service of
what has been referenced to as "victim statements" on the
applicant is exacerbated when one reads
the opening paragraph of
Supplementary Victim Representations dated 20 January 2015 by
Thaanyane Attorneys on behalf of Mrs Hani
and the SACP which reads as
follows: "These supplementary admissions are made pursuant to
the receipt of the Medical Parole
Advisory Board's ("MPAB")
report ("The report") to the Minister recommending medical
parole to Mr Derby-Lewis
dated 19 January 2015." This MPAB
report had not been served upon the applicant yet it was furnished to
the third and fourth
respondents.
[40] It appears that, a
line of communication and exchange of documents had been established
between the first, third and fourth
respondents to the exclusion of
the applicant. The documents exchanged would be relied on by the
first respondent in reaching his
decision to the detriment of the
applicant without him having been given an opportunity to respond.
[41] In my view it
becomes patently clear that the respondents have fallen foul of the
provisions of section 6(2)(b) of PAJA. Service
of the representations
and any other document which the first respondent was in possession
of on the applicant was mandatory in
the circumstances outlined
herein. Failure to do so cannot but constitute a serious
irregularity.
[42] The respondents'
Counsel submit, that the applicant's attorneys were well aware of the
order granted on 2 December 2014 notwithstanding
which no request was
made that the applicant be furnished with a copy of the
representations. The
"audi alteram
partem"
principle, over and above the provisions of PAJA is a basic tenet of
our law. It is trite that any document served on the presiding
administrative authority and/or tribunal must be furnished to the
other party. Blame for failure to adhere to this basic procedure
cannot be passed on to the party who was not served. A decision
reached without affording the other party the right to reply can
only
lead to a process which is not only flawed but procedurally unfair.
See
Maharaj v
Chairman, Liquor
Board
1997 (1)
SA
273
(N).
[43] Counsel for the
first respondent have tried to justify non-service on applicant by
suggesting that the applicant was in any
event aware of the stance
taken by Mrs Hani from documents which had been served upon him in
previous applications. This submission
is totally devoid of merit
when one considers that, for example, there was no MPAB report
considered by Mrs Hani previously with
regard to the medical
condition of applicant. Whilst the applicant was not enjoined in law
to anticipate what other parties would
allege in their opposition to
his application without service of the relevant documents, the
proposition that he could do so when
new issues were being raised
against his application becomes ridiculous in the extreme.
[44] In the circumstances
I have come to the conclusion that the flawed nature of the process
adopted by the first respondent cannot
be cured.
Substitution
of Decision
[45] The respondents
submit that this court ought not to substitute its decision even if
it considers the first respondent's decision
reviewable whilst, the
applicant argues to the contrary.
[46] Section 8(2) of PAJA
provides that the court hearing an application for judicial review
may grant any order that is just and
equitable. It is however,
accepted by both parties herein that it is settled law that the court
will substitute its decision for
that of the administrator in
exceptional cases only.
[47] I have considered
the circumstances of the present application. I considered in
particular the fact that it has been brought
on an urgent basis and
the fact that urgency has not been contested by any of the parties.
The facts in this case do pertain to
a matter of life and death, the
latter having been forecast as a possibility in the not too distant
future. The interests involved
therefore are real and immediate.
Moreover this court is enjoined not to make orders that are of
academic interest only. A conspectus
of these factors therefore leads
me to the inescapable conclusion that the adjudication of this matter
cannot be delayed any further
due to the existence of exceptional
circumstances.
[48] I find that the
remarks in the dissenting judgement of the honourable Mr Justice Cory
in the Canadian case of
Rodriguez
v
British Columbia
(Attorney General)
[1993] 3 SCR 519
, 1993 Conl II 75 (SCC) at
page 51 of equal relevance to the present application.
"
Cory
J (dissenting)
-
I
have
read
the
excellent reasons of
the
Chief Justice
and
Justices
Sopinka
and
McLachlin.
I
am
in
agreement
with
the disposition of
this
appeal
proposed by
the
Chief
Justice,
substantially for
the reasons
put
forward
both
by
the
Chief Justice
and
McLachlin
J.
The bases
for my
conclusion
can briefly
be stated.
At the outset I would
observe that all parties to this debate take the same basic position,
namely that human life is fundamentally
important to our democratic
society. Those opposed to the relief sought by Sue Rodriguez seek to
uphold the impugned provisions
of the Criminal Code on the grounds
that it assists society to preserve human life. Those supporting her
position recognize the
importance of preserving the essential dignity
of human life, which includes the right of Sue Rodriguez to die with
dignity.
Section
7
of
the
Canadian
Charter of Rights
and
Freedoms
has granted the constitutional
right
to
Canadians to life,
liberty
and the security
of
the
person.
It is a position
which emphasizes
the innate
dignity
of human
existence. This
Court in
considering
s.
7
of the
Charter
has
frequently
recognized
the importance
of
human
dignity
in our society. See, for example,
Re
B.
C.
Motor
Vehicle Act, 1985 CanLll
81 (SCC),
[1985)
2 S.C.R.
486
,
at p.
512, and
R.
v.
Morgentaler, 1988 CanLll
90 (SCC), [1988)
1
S.C.R.
30
,
at p.
166, per
Wilson
J.
The life of an
individual
must
include
dying.
Dying
is
the final act in
the drama of life.
If, as
I believe,
dying is an integral part
of living,
then as part
of life it is entitled
to the
constitutional protection
provided
by s.
7.
It
follows
that
the right
to die with dignity
should be
as
well protected
as is any
other aspect
of the right
to life.
State
prohibitions
that
would force
a
dreadful,
painful
death on
a
rational
but
incapacitated
terminally
ill patient
are an
affront
to human
dignity"
Our Constitution consists
of similar provisions to the Canadian constitution and more
pertinently the right to life which was dealt
with in the Makwanyane
decision. That decision finds resonance not only in the sentiments
expressed by the Honourable Justice Cory
but also in sections 10 and
11 of the Constitution which deals with the right to human dignity
and the right to life.
[49] The approach which I
have to adopt in considering the appropriate relief was summarised
succinctly in the unreported Judgement
of
Robert Wayne
Parker
v
The
Minister of Correctional
Services
and
5 Others
case
number
04/9191 WLD
page
44 at
para
[63]
delivered on 6 September 2005 when
Claasen J said the following:
"[63] The
question
then arises,
what relief
should be
afforded
the applicant?
It would be wise to adhere
to the principle
set out in
Minister
of
Correctional
Services v Kwalewa and another
2002
4 SA 455
(SCA) at 467
G
to 468 H:
"[24] In
addressing
the merits
of this appeal
it is
useful
to bear
in mind
what was said by
Gubbay CJ in
Conjwayo v Minister of
Justice.
Legal and Parliamentary Affairs and Others
1992 (2) SA 56
(ZS) at
60G-61A:
'Traditionally,
Courts in many jurisdictions have
adopted
a broad
"hands off'
attitude
towards
matters
of
prison
administration. This stems
from
a healthy
sense
of realism
that prison
administrators
are responsible
for
securing
their
institutions
against
escape
or unauthorised
entry,
for the preservation
of internal
order
and discipline,
and
for rehabilitating,
as
far as is humanly
possible,
the inmates
placed
in
their
custody. The proper
discharge
of
these
duties is
often
beset
with
obstacles.
It requires
expertise,
comprehensive
planning
and
commitment
of resources,
all
of
which
are peculiarly within the province
of
the legislative
and
executive
branches
of
government. Courts recognise
that
they
are
ill-equipped
to deal
with
such problems. But a
policy
of
judicial restraint
cannot
encompass
any failure
to take cognisance
of a
valid
claim
that
a prison
regulation
of practice
offends
a
fundamental
constitutional
protection.
Fortunately the view
no longer obtains that in consequence of his crime a prisoner
forfeits not only his liberty but all his personal
rights, except
those which the law in its humanity grants him.
For while prison
officials must be accorded latitude and understanding in the
administration of prison affairs, and prisoners are
necessarily
subject to appropriate rules and regulations, it remains the
continuing responsibility of Courts to enforce the constitutional
rights of all persons, prisoners included."
The learned Chief
Justice went on to refer to two decisions of the Supreme Court of
India and the decision of the Supreme Court
of the United States of
America in
Rhodes
v
Chapman
[1981] USSC 144
;
452 US 337
(1981) in
which this approach is followed. It is an approach that I endorse and
intend to follow.
[25] In the
Conjwayo
case (at 62C-D) Gubbay CJ referred with approval to the dissenting
judgment of Corbett JA in
Goldberg and Others
v Minister
of Prisons
and
Others
1979 (1) SA 12
(A) which
was decided at a time when the Legislature was supreme and where the
transgression of human rights was not susceptible
to constitutional
challenge. In the
Goldberg
case (at 39C-D) the following
appears:
'It seems
to me
that
fundamentally
a convicted
and sentenced
prisoner
retains
all the basic
rights
and
liberties .
.
..of an ordinary citizen
except
those taken
away
from
him
by law,
expressly
or by
implication, or those necessarily
inconsistent with
the circumstances in which he, as a
prisoner, is placed.
'
This
dictum
has
become known as the
residuum
principle and has been endorsed
in subsequent decisions of this and other Courts.
[26] The case of
Charles Sobhraj
v Superintendent
Central Jail,
Tihar, New
Delhi
(1979) 1 SCR 512
(SC, India) is one of
the cases cited by Gubbay CJ in the
Conjwayo
case
supra.
In the
Sobhraj
case, although it is asserted that courts
cannot take over the running of prisons, the following appears at
518-19:
'Whatever
fundamental rights are flouted or
legislative protection
ignored, to any prisoner's prejudice, this Court's writ will run,
breaking
through stone walls and iron bars, to right the wrong
and restore the
rule of law.
'
[27] In
Chaskalson,
Kentridge
et al
Constitutional
Law
of
South Africa
the learned authors state the following at 28-24:
'A key
requirement
of the principle
of legality
is that even those
rights of prisoners
which are restricted
as
a
necessary
consequence
of incarceration
may
only
be limited
if this is done by
legislation,
either expressly
or by
necessary
implication.
The Jaws regulating prisons
in South Africa
must
therefore
be
scrutinised
to see
whether
they provide the necessary
authority
for the
restriction
of prisoners'
rights.
The
restrictions
must,
in
addition,
be
formulated
sufficiently
narrowly
to ensure
that prisoners
are
not
exposed
to
overbroad
discretionary powers
which deny
them
protection
of
the law.
'
[64] In section 8 of
PAJA, the remedies in proceedings for judicial review are set out. It
states as follows:
"8(1)
The
court
or
tribunal, in
proceedings for
judicial review
in
terms
of
section
6(1),
may
grant
any
order
that
is
just and
equitable,
including
orders
-
(a) directing
the
administrator
-
(i) to give reasons;
or
(ii) to act
in
the manner
the court
or
tribunal
requires;
(b)
prohibiting the administrator from acting in a
particular
manner;
(c)
setting
aside
the
administrative
action
and
–
(i)
remitting
the matter
for reconsideration
by the administrator,
with or without directions; or
(ii) in exceptional
cases
-
(aa) substituting or
varying the administrative action or correcting a defect resulting
from the administrative action; or
(bb) directing the
administrator or any other party to the proceedings to
pay
compensation;
(d) declaring
the
rights
of
the parties
in
respect
of
any
matter
to
which
the
administrative action
relates;
(e)
granting a temporary interdict or other temporary relief,·
or
(f)
as to costs,'"'
[50] In
casu,
I
have already made reference to the events which took place when the
applicant's application for medical parole served before
the MPAB. A
team of specialists consisting of an Oncologist, a Pulmonologist and
a Pathologist, on a majority decision of 2 to
1 came to the
conclusion that applicant is suffering from stage IV cancer on the
basis of the spread of cancer to the left adrenal
gland, such
diagnosis being based on the PET scan performed on the applicant.
[51] In light of the
difference of opinion between the independent specialists, the MPAB
concluded that the applicant's cancer could
be staged at least as
stage 111B with a probable inconclusive spread to the left adrenal
gland. The MPAB which was constituted
by 10 medical specialists and
practitioners recommended the placement of the applicant on medical
parole on the strength of such
a conclusion.
[52] The recommendation
of the MPAB has to be considered with other factors or
co-morbidities:
52.1. In December 2014,
independent specialists Dr Wadee and Professor Lalloo had both given
the applicant approximately 6 months
to live.
52.2. The applicant is 79
years old and has served a term of 21 and a half years imprisonment.
52.3. In the documents
which served before the first respondent, the Department of
Correctional Services furnished several reports
to the effect that
the applicant had expressed remorse on not one but several occasions.
Similarly in this application the applicant
expresses remorse,
absence of political ambition, regret at having committed the crimes
of which he was convicted and sentenced
of and that he subscribes to
the rule of law and the Constitution of the Republic of South Africa.
52.4. Besides being
terminally ill with lung cancer which is inoperable, he has poor
prognosis in respect of the histology of the
tumour. He has co-
morbidities, namely; hypertension, congestive cardiac failure,
prostate cancer and skin cancer.
52.5. According to Dr
Fourie, due to co-morbidities, the applicant is now on maintenance
chemotherapy after which no other treatment
is planned. His prognosis
is very poor.
The
Constitution
[53] Section 12(1)(e) of
the Constitution of the Republic of South Africa, 1996 provides:
"(1) Everyone
has
the
right
to
freedom
and
security
of the
person,
which
includes
the
right-
(a)
.........
(b)
.........
(c)
.............
(d)
.............
.
(e) Not
to be
treated
or
punished
in
a cruel,
inhuman
or
degrading way."
[54] The applicant is
terminally ill and two independent specialists have given him 6
months to live from December 2014.
[55] The provisions of
any statute ought to be interpreted as far as is possible in a manner
that upholds basic tenets of our law
which are entrenched in the
supreme law of the land, our Constitution. One of the principles
entrenched in the Constitution is
the principle of
Ubuntu
which
recognises the inherent dignity in every human being and enjoins
people of South Africa to treat one another in a humane manner.
[56] In the
S v
Makwanyane
[1995] ZACC 3
;
1995
(3) SA 391
page 500 at para 307 - 308
the principle of Ubuntu was captured by Mokgoro J as follows:
"[307]
In interpreting
the
Bill of Fundamental
Rights
and Freedoms,
as
already mentioned,
an
all-inclusive
value
system,
or
common
values
in
South
Africa, can form
a
basis
upon which to
develop
a South
African
human
rights jurisprudence. Although
South Africans
have
a history
of
deep divisions characterised
by
strife and conflict, one shared
value
and ideal that runs like a golden
thread
across
cultural
lines, is
the
value
of
ubuntu
-
a
notion
now coming
to
be generally
articulated
in
this
country.
It
is
well
accepted
that
the transitional Constitution is
a culmination of a negotiated political settlement. It is a bridge
between a history of gross violations
of human rights and
humanitarian principles,
and
a future of reconstruction
and
reconciliation.
The
post-amble
of
the
Constitution
expressly
provides,
“…
there
is a need for understanding but not for vengeance, a need for
reparation but not for retaliation, a need for ubuntu but not
for
victimisation..."
Not only is the notion
of ubuntu expressly provided for in the epilogue of the Constitution,
the underlying idea and its accompanying
values are also expressed in
the preamble. These values underlie, first and foremost, the whole
idea of adopting a Bill of Fundamental
Rights and Freedoms in a new
legal order. They are central to the coherence of all the rights
entrenched in Chapter 3 - where the
right to life and the right to
respect for and protection of human dignity are embodied in Sections
9 and 10 respectively.
[308] Generally,
ubuntu translates as humaneness. In its most fundamental sense, it
translates as personhood and morality. Metaphorically,
it expresses
itself in umuntu ngumuntu ngabantu, describing the significance of
group solidarity on survival issues so central
to the survival of
communities. While it envelops the key values of group solidarity,
compassion, respect, human dignity, conformity
to basic norms and
collective unity, in its fundamental sense it denotes humanity and
morality. Its spirit emphasises respect for
human dignity, marking a
shift from confrontation to conciliation In South Africa ubuntu has
become a notion with particular resonance
in the building of a
democracy. It is part of our "rainbow" heritage, though it
might have operated and still operates
differently in diverse
community settings. In the Western cultural heritage, respect and the
value for life, manifested in the
all-embracing concepts of humanity
and menswaardigheid are also highly priced. It is values like these
that Section 35 requires
to be promoted. They give meaning and
texture to the principles of a society based on freedom and
equality."
[57] Wallis JA (with whom
Cachalia, Farlam, Leach and Van Heerden JJA concurred) held in
Natal
Joint
Municipal
Pension
Fund
v
Endumeni Municipality
2012 (4) SA 593
SCA that the modern
approach to interpreting statutes, is to consider context and
language together, with neither predominating
over the other, i.e. to
approach the matter holistically, he said the following in paragraph
...[18]:
"Interpretation
is the process of attributing meaning to the words in a document, be
i.e. legislation... or contract. Having
regard to the context
provided by reading the particular provision or provisions in the
light of the document as a whole and the
circumstances attendant upon
its coming into existence. Whatever the nature of the document,
consideration must be given to the
language used in the light of the
ordinary rules of grammar and syntax; the context in which it
appears; the apparent purpose to
which it is directed and the
material known to those responsible for its production. Where more
than one meaning is possible each
possibility must be weighed in the
light of all those factors....
A sensible meaning is
to be preferred to one that leads to insensible or unbusiness-like
results or undermines the apparent purpose
of the document... The
"inevitable point of departure is the language of the provision
itself', read in context and having
regard to the purpose of the
provision and the background to the preparation and production of the
document."
[58] This would seem to
me to be the approach to be applied in interpreting the provisions of
section 79 of the Act. The provisions
ought not to be applied in a
rigid manner or be read like a mathematical equation. It would
further seem to me that this was the
approach adopted by the MPAB in
making the recommendation as they did to the first respondent to
grant the applicant medical parole.
It would certainly not seem that
all ten medical specialists were "oblivious" to the
provisions of section 79 as the
first respondent would have us
believe.
[59] The
Bato
Star
decision approach is one that would therefore make it possible not
only to have regard to the purpose of the provisions in the
Act but
also to uphold the principles enunciated in the
grundnorm,
the
Constitution of the Republic of South Africa and the Makwanyane
decision which is a decision of the Constitutional Court.
[60] Regarding the
referral of the matter back to the administrator it is instructive to
refer to the case of
University
of the
Western
Cape
and
Others
v
Member of
Executive
Committee
for
Health
and
Social
Services
and
Others
1998(3) SA 124
CPD at 1310-G:
"Over the years
South African Courts have recognised that in exceptional
circumstances the Court will substitute its own decision
for that of
a functionary who has a discretion under the Act.
Where the end result
is in any event a foregone conclusion and it would merely be a waste
of time to order the tribunal or functionary
to reconsider the
matter, the Courts have not hesitated to substitute their own
decision for that of the functionary... The Courts
have also not
hesitated to substitute their own decision for that of a functionary
where further delay would cause unjustifiable
prejudice to the
applicant.... Our Courts have further recognised that they will
substitute a decision of a functionary where the
functionary or
tribunal has exhibited bias or incompetence to such a degree that it
would be unfair to require the applicant to
submit to the same
jurisdiction again.... It would also seem that our Courts are willing
to interfere, thereby substituting their
own decision for that of a
functionary, where the Court is in as good a position to make the
decision itself "
[61] Without suggesting
that referral of the matter back for further consideration because
the end result would be a foregone conclusion,
I am of the view that
further delay by referring the matter back to the administrator would
cause unjustifiable prejudice to the
applicant whose life is already
precariously poised according to the medical evidence presented in
this application.
[62] I have read the
Parole Manual which also referred to in paragraph 18-19 of the Parker
decision
(supra).
The following is stated therein:
"PLACEMENT ON
PAROLE
(a) Parole is
a
form of conditional placement
which is granted after
a
prisoner has served
a
certain period of his sentence. It
pre-supposes careful selection, adequate preparation for
placement and a certain degree of supervision while in the
community for a
period of time.
(b) The philosophy
of parole
is that:
- The
prisoner
has
the opportunity
to serve
the rest of his
sentence
in the community;
-
It is one phase
of the treatment process;
- It is an
internationally
accepted
method
of placement;
- It is
a
legal
method
of conditional placement;
-
It is an aid to the social control of an offender;
- It is an aid to the
social re-integration
of the prisoner;
- It is based
on
supervision
and control
-
It is based
on compassion;
and
-
It has
a
good prognosis
as
basis.
(c) Parole
does
not imply
the following:
-
Acquittal
of
a
sentence;
-
Mitigation,
equation
or reviewal
of sentence;
- A
method
of controlling/administrating
prisons;
(Emptying
prisons)
- A reward;
- A right;
-
A proof
of rehabilitation."
[63] Taking into account
all the evidence and all the information that served before the first
respondent, the victim representations
and the responses thereto by
the applicant, the submissions by counsel and also taking into
account the parole philosophy I have
just referred to, I have come to
the conclusion that the applicant has made out a case for placement
on medical parole.
[64] The conditions under
which he shall be released on medical parole will be determined by
the first respondent and the Parole
Board. Control and supervision
are inherently part of parole conditions to monitor a person's
adjustment outside the prison walls
and to combat any tendency to
contravene those conditions.
Costs
[65] The applicant has
asked for a cost order against the respondents who oppose this
application. I have not found any reason to
prevent me from allowing
the costs order to follow the result in this application.
[66]
In the premises I make the following order:
66.1. The decision of the
first respondent dated 31 January 2015 whereby the applicant was
refused medical parole is reviewed and
set aside.
66.2. The applicant is
placed on medical parole with immediate effect. His release is
subject to the Parole Board determining his
conditions of parole.
66.3. The conditions
under which the applicant is to be released on medical parole are to
be set by the Parole Board of the Kgosi
Mampuru II Prison by no later
than Friday, 5 June 2015.
66.4. In the event of the
respondents failing to comply with the order in 66.2 and 66.3 above,
applicant is granted leave to supplement
his papers and place the
matter on the roll again.
66.5. The respondents are
ordered to pay the costs of this application jointly and severally to
the extent that the applicant is
able to obtain a taxation order in
his favour.
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
on:
25 May 2015
Delivered
on:
29 May 2015
For
the Applicant:
Adv. R du Plessis SC;
Adv.
C Kellermann
Instructed
by:
Julian Knight and Associates Inc.
For
the First Respondent:
Adv. M T K Moerane SC;
Adv.
T W G Bester
Instructed
by:
The State Attorney
Date
of Judgment:
29 May 2015