About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 215
|
|
Ex parte: Kabi; In re: Groenpunt Correctional Supervision and Parole Board v S and Others (476/2015) [2015] ZAFSHC 215 (30 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 476/2015
In
the application of:
IN
THE EX PARTE APPLICATION OF
RICHARD
KABI
Applicant
In
re:
Case
no: 476/2015
In
the matter between:
GROENPUNT
CORRECTI ONAL SUPERVI SION
AND
PAROLE
BOARD
Applicant
And
THE
STATE
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
1
ST
INTERVENING RESPONDENT
NATIONAL
COMMISSIONER OF
CORRECTIONAL
SERVICES
2
ND
INTERVENING RESPONDENT
REGIONAL
COMMISSIONER OF
CORRECTIONAL
SERVICE 3
RD
INTERVENING
RESPONDENT
AREA
COMMISSIONER, GROENPUNT
CORRECTIONAL
SERVICES
4
TH
INTERVENING RESPONDENT
HEAD
GROENPUNT MEDIUM
CORRECTIONAL
FACILITY
5
TH
INTERVENING RESPONDENT
CORAM:
MOLOI
J
HEARD
ON:
15 OCTOBER
2015
DELIVERED
ON:
30 OCTOBER 2015
[1]
This is an application for amendment of an order given by Boonzaaier,
AJ on 30 April 2015 granting a convicted prisoner conversion
of his
imprisonment term to correctional supervision. The application is
made by the Groenpunt Correction Supervision and Parole
Board and was
against the State. The Minister of Justice and Correctional Services,
the National Commissioner of Correctional and
Others applied to
intervene in the proceedings as they were not parties and had
interest in the matter on various grounds. They
also filed a
Counter-application seeking to set aside the order granted by
Boonzaaier, AJ mentioned above. The said order read
as follows:
i.
That, the remaining term and/or terms of imprisonment in respect of
the
sentence and/or sentences imposed by the above Honourable Court to
the offender on or about 2008 August 19, be combined as one
sentence
for the purposes of conversion, and that the remaining terms and/or
terms of imprisonment be converted as such, into Correctional
Supervision in terms of
Section 276(1)(h)
of the
Criminal Procedure
Act, No: 51 of 1977
as amended.
a)
that, once the said remaining term and/or terms of imprisonment is
combined, and converted
into Correctional Supervision as such, in
terms of the provisions of the above mentioned act, the offender be
considered for possible
placement on Correctional Supervision by the
above Honourable Court, since he has already served the required
"one
fourth "
(114) of the total sentence and/or
sentences.
b)
that, the offender must be considered, and placed on Correctional
Supervision and as such,
be released from custody on Correctional
Supervision.
BY
ORDER OF THIS COURT
[2]
On the date of hearing it was decided that the application for
intervention be heard first. It was not possible to argue the
application for intervention without
reference to the
main
application to amend the order as well as the counter-application. It
needs to be mentioned that the order did not make
reference to the
convicted and sentenced prisoner, RICHARD KASI, and the amendment was
sought for that purpose. The interests of
the intervening parties are
self-evident as they are all concerned with the administration and
proper running of Correctional Services
and must ensure that the
facilities are not abused and prisoners are dealt with within the
law.
AUTHORITY
OF RESPONDENTS DEPONENT NAUDE
[3]
The opposition to the intervening was based on the fact that the
section under which the application was brought
(
Section
276A(3)
(a)
(ii) of
the
Criminal
Procedure
Act)
made
reference to the prosecution services only and not the
intervening parties and, secondly, the deponent of the answering
affidavit,
one Christiaan Petrus Naude was not authorised to do so on
behalf of the Minister and the intervening parties had no proof of
such
authorisation nor alleged despite the fact that in paragraph 1.1
of his affidavit he stated "
I
have
been
duly
authorised
to
depose
to
this
affidavit
on
behalf
of the First
to the Fifth
Intervening
Respondents."
Mr Naude is
an Assistant Director in the Department of Correctional Services
stationed at Groenpunt Maximum Correctional Centre
and also a
chairperson of the Case Management Committee at the Maximum
Correctional Services Centre, Groenpunt, Management Area.
[4]
It is clear from the above that Naude is an employee of the First
Intervening party and can be expected to have a better understanding
of the procedures and
processes involved in Correctional
Services than the Minister. As an employee he cannot be expected to
prove his authority on the same basis as that of an agent who
is
acting on behalf of a principal. Moreover there is no evidence
gainsaying what Naude stated at the beginning of his affidavit
quoted
above in paragraph 1.1 thereof. More than that a party challenging
the authority of a deponent can only do so by taking
steps that are
envisaged in
Rule 7
(1) or the Uniform Rules of Court and not only be
argued from the bar. The issue of authority was settled in
Unlawful
Occupiers,
School
Site
v
Citv
of
J
ohannesburg.
2005
(4)
SA
199
(SCA)
at
206
par.
14
where the following was stated:
"At
the hearing of the appeal, Counsel for the Appellants conceded that
she could not support this ground of appeal. I think
the concession
was fairly made. The issue raised had been decided conclusively in
the judgment of Flemming DJP in
Eskom
v
Soweto
City
Council
1992
(2) SA
703
(W),
which was
referred to with approval by this court in
Ganes
and
another
v
Telecom
Namibia
Ltd
2004 (3)
SA
615
(SCA)
at
6241-625A.
The import of the judgment in Eskom (supra) is that the remedy of
a respondent who wishes to challenge the authority of a person
allegedly acting on behalf of the purported applicant, is provided
for in rule 7(1). The ratio
decidendi
appears from the
following dicta (at 7050-H):
"The
care
displayed
in
the past
about
proof
of authority was
rational. It
was
inspired by the
fear that
a
person
may
deny
that
he
was
party to
litigation carried on
in
his
name.
His
signature to the
process, or
when
that
does
not
eventuate, formal
proof
of
authority
would
avoid
undue
risk
to
the opposite party, to the
administration of justice and sometimes even to his own
attorney ..."
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level. If the attorney is
authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant.
There
is
no
need
that
any
other
person.
whether he
be
a
witness
or
someone who
becomes involved
especially
in the
context
of
authority.
should additionally
be authorised.
It
is therefore sufficient to know whether or not the attorney acts with
authority."
(My
emphasis)
The
State Attorney acts on behalf of all the National Department
ex
lege.
He derives his authority from the
State
Attorneys
Act
No
56 of
1957.
Naude's affidavit is compiled and served by
the State Attorney. Naude, therefore, does
not
require any additional
authority
to depose his affidavit.
APPLICATION
IN
TERMS
OF SECTION
276A
(3) (a)(ii)
[5]
An application for conversion of the imprisonment to correctional
supervision of a convicted and sentenced person is regulated
by
Section
276A
(3)
of
the
Criminal
Procedure
Act
No.51
of
1977
as amended. The
section provides as follows:
"(3)
(a) Where a person has been sentenced by a
court to imprisonment for a period:
(i)
not exceeding five years; or (ii) exceeding five years,
but his date of release in terms of the
provisions of the the
regulations made thereunder is not more than five years in the
future.
and
such a person has already been admitted to a prison, the Commissioner
or a parole board may, if he or it is of the opinion that
such a
person is fit to be subjected to correctional supervision, apply to
the clerk or registrar of the court, as
the case may be,
to have that person appear before the court a
quo
in order to
reconsider the said sentence.
(b)
On receipt of any application referred to in paragraph (a) the clerk
or registrar of the court, as the case may be, shall, after
consultation with the prosecutor, set the matter down for a specific
date on the roll of the court concerned.
(c)
(d)
Whenever a court reconsiders a sentence in terms of this subsection,
it shall have
the same powers as if it were considering sentence
after conviction of a person and the procedure adopted at such
proceedings shall
apply
mutatis
mutandis
during such reconsideration: Provided that if the person
concerned concurs thereto in writing, the proceedings contemplated in
this
subsection may be concluded in his absence: Provided further
that he may nevertheless be represented at such proceedings or cause
to submit written representations to the court.
(e)
After a court has reconsidered a sentence in terms of this
subsection, it may:
(i)
confirm the sentence or order of the court a
quo;
(ii) convert
the sentence into correctional supervision on the conditions
it may deem fit; or (iii) impose any
other proper sentence:"
[6]
The first to be noted is that the applicant should not have a period
exceeding five years to serve. He must be admitted to a
prison. The
Commissioner or the Parole Board should be of opinion that such a
person qualifies to be subjected to Correctional
Supervision. Such
person may thereupon apply to the Clerk of the Court or the Registrar
to let the person appear in a court that
convicted and sentenced him
in order that the court can reconsider the sentence it imposed. Upon
receipt of the application the
Clerk of the Court or the Registrar
must consult with the prosecutor and decide on the date on which the
application for conversion
of the imprisonment sentence may be
reconsidered for correctional supervision. On the day the court
reconsiders the sentence it
shall have the
"same
powers
as
if
it
were
considering
sentence
after
conviction
of
a
person
and
the procedure
adopted
at
such
proceedings shall apply
mutatis mutandis during
such
reconsideration,"
subsection (d). What
this means is that the court must consider evidence placed before it
in mitigation and aggravation of the sentence
and arguments placed
before it by the prosecution and the convicted person's legal
representative or the convicted person himself/herself,
take into
account the gravity and seriousness of the offence committed and also
take into account the interests of the society,
the so-called triad
of sentencing in addition to the recommendations of the
Commissioner or Parole Board. These factors must,
in addition, be
balanced the one against the others without over/or under-emphasizing
the one against the others:
S v
Rabie,
1975
(4) SA 855
(A) at 866 A-C. The person concerned, i.e. the sentenced
person must be present during this process of reconsideration except
if
he, in writing, agreed to be excused. Such person may be legally
represented or cause written representations be submitted to the
court on his behalf.
[7]
Before this process takes place, the Clerk
of the Court or the Registrar
shall
for purposes of reconsideration of the
sentence within a reasonable time submit the case
record to the
judicial officer who imposed the sentence or, if he is not available,
another judicial officer of the same court.
Where evidence was
mechanically recorded only certain parts of the record may be
indicated as necessary for transcription. The
Clerk of the Court or
the Registrar must inform the Commissioner or the Parole Board
concerned in writing of the date of the hearing
and request him/her
or the Parole Board to submit written motivated recommendation to be
placed before the judicial officer and
submit such recommendations to
the judicial officer:
Section 276A
(3)(c)(i)(ii) and
(iii)
of
the
CDA.
After reconsidering the sentence as provided for the court
concerned has the powers to (i) confirm the sentence or order of the
court a
quo
i.e. the trial court, (ii) convert the sentence
into correctional supervision on the conditions it may deem fit, or
(iii) impose
any other proper sentence.
[8]
In this matter, the impugned application sought to be amended
deviated from the prescribed procedures and processes materially
in
several respects. I have pointed out above that three applications
were before me, namely, the application for amendment
of the
court order granted by Boonzaaier, AJ on 30 April 2015 seeking to
make reference to a sentenced offender, Richard Kabi (the
main
application), the application by the five respondents seeking to
intervene, by being joined as parties to the application
(the
Intervention application) and the application to set aside the order
granted by Boonzaaier, AJ (the Counter application).
I have also
pointed out that it was agreed and expedient to commence with the
hearing of the Intervention application otherwise
the five
respondents would not have
locus standi.
Most
importantly I pointed out that the lntervention/Joinder application
could not be argued without reference to the main application
and the
counter application. In effect all the three applications were so
intertwined that they were in fact, argued all at the
same time.
[9]
The shortcomings of the main application are numerous and material.
The application was not brought by the affected person,
Richard Kabi,
but by the Groenpunt Correctional Supervision and Parole Board, the
body that could only make recommendations to
the court hearing the
conversion to correctional supervision of the imprisonment sentence
of Richard Kabi. The premise on which
the applicant based the
application was a disputed parole board meeting. I do not intent to
deal with that dispute as it will not
take the matter further. The
essence of the dispute is that, on the one hand, the chairperson of
the Parole Board, one Hlaoli Litsoane,
contends the Board had taken
the decision to have Mr Kabi's sentence converted into correctional
supervision. He, however, does
not state when and where the meeting
was held nor does he produce the minutes and/or resolution taken. On
the other hand, the secretary
of the Board, one Tsediso Petrus
Tekane, being a person that keeps the records and must be present at
such meetings, does not know
anything about the decision to convert
Mr Kabi's sentence.
[10]
It is, however, strange to note that the chairperson of the parole
board was the main deponent to the application to convert
Kabi's
sentence to correctional supervision. He describes himself as
"Applicant" in his founding affidavit.
The
locus
standi
and
the objectivity of the boards' chairperson, Hlaoli Litsoane,
immediately comes into question. The application was brought
ex
parte
and only after being granted, served on the
Directorate of Public Prosecutions. No basis was laid for the
granting of the application
without notice. An
ex parte
application is brought without notice to anyone (contrast this
with the provisions of
Section
276A
(3)
(b)
requiring a consultation by the Clerk of the Court or
the Registrar as to the set down of the matter with the prosecutor);
an
ex
parte
application can be brought when the
applicant is the only person who is interested in the relief sought.
This cannot be the case
in this matter as the Department of
Correctional Service and the parties seeking to intervene have direct
and statutory interest
and obligations in all the sentenced offenders
under their care. An
ex parte
application can be
brought if the nature of the relief sought is such that the giving of
the notice may defeat the purpose of the
application.
Mynhardt v
Mynhardt,
1986 (1) SA 456
(T) at 458 H-J. This cannot be
said of this application. Nowhere in the papers does it seem the
person concerned, Mr Kabi, appeared
before the court or waived in
writing his right so to appear or filed written representations as
contemplated in sub section (3)(d).
[11]
The powers of the Court after reconsidering the sentence in terms of
Section 276A
(3)(e)
are only to (a)
confirm
the
sentence
or order made
by
the
court
a
quo;
(b)
convert
the
sentence
into correctional supervision
on
conditions
it
may
deem
fit
or (c)
impose
any
other
proper
sentence.
Clearly in this matter the
court did not do any of the only things it was empowered to do but
simply made an order in terms of the
notice of motion with the result
that the orders make no sense at all and do not relate to any
sentenced offender, hence the application
to amend that very order.
Furthermore, the order made relates to combination of sentences into
one which cannot be done under
Section
276A
(3)(a)(ii).
Nowhere does the section refer to such
combination.
[12]
It is abundantly clear from the above that the orders given by
Boonzaaier, AJ are abortive and therefore are a nullity having
been
obtained illegally and in contrast to the clear directives contained
in
Section
276A
(3)(a)(ii) of the
Criminal
Procedure Act.
Abortive
proceedings cannot be amended nor
even be set aside as they constitute a nullity
ab
initio:
R
v
Mhlanga
1959 (2) SA 220(T)
at 222. In
S
v
De
K
oker,
1978 (1) SA 659
(0) at 66 H the
following was stated:
"Volgens
die regspraak bring onmoontlikheid daarvan om met die
verhoor voort te gaan wees onbeskikbaarheid van
die landros mee dat
die verrigtinge sonder meer as abortief beskou word en
verval
sonder
die
noodsaak
van
enige
tersydestelling
deur
'n Hoer H
of." (My emphasis).
It
is fortunate in the interest of justice that the intervening parties
stood up and prevented one of the worst failures of the
administration of justice taking place. The involvement of Hlaoli
Litsoane warrants a further investigation.
[13]
Since the Groenpunt Correctional Supervision and parole
Board had no record of the meeting where the
decision was
taken to launch the application before Boonzaaier,AJ and Hlaoli
Litsoane describes himself as the applicant, it will
be unfair to
order costs against the Groenpunt Correctional Supervision and Parole
Board as it may deny that it was a
party to the
application: Unlawful
Occupiers. School Site. Supra.
Par 14.
[14]
In the result HLAOLI LITSOANE is ordered to pay the costs of the
Intervening parties in respect of the application to intervene.
K.J
MOLOI. J
On
behalf of the applicant:
Mr N W Phalatsi: N W Phalatsi & Partners
Bloemfontein
On
behalf of the state
Adv Murray: State Attorney
Bloemfontein