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[2015] ZAECMHC 46
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Bhalithafa v Minister of Correctional Services (1166/2013) [2015] ZAECMHC 46 (9 April 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, MTHATHA)
Case
No. 1166/2013
DATE:
09 APRIL 2015
In the matter
between:
WILLIAM
BHALITHAFA
.................................................................................................
PLAINTIFF
And
MINISTER OF CORRECTIONAL
SERVICES
...........................................................
DEFENDANT
JUDGMENT
PAKADE
J:-
[1] The crisp
issue in this matter is whether a person serving sentence in a prison
has a cause of action for damages if he is re-arrested
without a
warrant or a court order consequent upon his erroneous release on
parole.
[2]
The plaintiff was convicted in the Mthatha High Court for culpable
homicide and murder. On 9 April 2003 he was sentenced
to
undergo ten years imprisonment for culpable homicide and twenty years
imprisonment
for murder. Half of the sentence
imposed for culpable homicide was ordered to run concurrently with
the sentence imposed f
or
murder and to
serve a total of twenty five years imprisonment.
[3] On 10
March 2012, while still serving his term of imprisonment, the
Correctional Services Parole Board considered him for placement
on
parole from 24 April 2012 to 8 October 2027. The decision placing him
on parole was provisional and subject to the outcome of
a restorative
justice program he had to be subjected to by the defendant's
officers, the report on which had to be submitted to
the Board
together with the plaintiff on 23 March 2012. The restorative justice
program entails that the victims of the crimes
committed by the
plaintiff and for which he was serving twenty five years imprisonment
should be informed of his release on parole.
[4]
However, there was no report submitted to the Board that the
requirement of restorative justice had been complied with and the
plaintiff was not returned to the Board. He was instead
released without the confirmation of the Board that restorative
justice requirement had been complied with. The Board was not
even informed of his release. This gave rise to problems as
the
victims of the crimes committed by the plaintiff had to launch a
complaint with the defendant upon seeing the plaintiff loitering
about and not serving his sentence of twenty five years imprisonment.
The Board cancelled his provisional release and plaintiff
was
re-arrested on 15 May 2012 and detained up to 2 January 2013 when he
was again
thereafter
released on parole.
[5] The
plaintiff claims damages amounting to one million six hundred and
fourteen thousand rand for unlawful arrest and detention
from 15 May
2012 up to 2 January 2013. The wrongful arrest is founded on the
absence of a warrant or court order justifying the
arrest. The cause
of action for unlawful detention has not been made clear in the
pleadings and in evidence the plaintiff relies
on the fact that he
was not given prison uniform nor admission card and was in civilian
attire for five months.
[6]
Essentially the defendant’s plea raises a
de
fence
of non-compliance with the restorative justice process before the
release of plaintiff and the fact that he was not presented
to the
Board for his release on 24 April 2012. This was supported by
evidence given by the chairperson of the Board, Mr Maraqana
and the
head of the centre which keeps sentenced and awaiting trial
prisoners, Ms Nozipho
Ethel
Msongelo. I
will
revert to
their evidence
.
[7]
The Correctional Services Act , No. 111 of 1998 came into operation
on different dates , some sections came into operation on
31 July
2004 and others on 19 February 1999 and
first
October
2004 ( section 138) respectively . The Correctional Act, No.8 of 1959
was wholly repealed by Act 111 of 1998. Mr Bloem ,
together with Mr
Mphahlwa ,counsel for the plaintiff submitted that the repealed Act ,
and not the current Act applies to the plaintiff
. I agree with them
that section 136 of the current Act is explicit that "any person
serving a sentence of incarceration immediately
before the
commencement of Chapters IV, VI and VII is subject to the provisions
of the Correctional Services Act , 1959 ( Act No
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". The plaintiff commenced
serving a sentence of twenty five years imprisonment
on 9
April 2003. In 2003 the applicable provisions of Act no.8 of 1959 to
prisoners for the release on parole were those of section
65 which
read as follows:
“
Release
of prisoners and placement of prisoners on parole.
65
(1) A prisoner shall be released upon the expiration of the term of
imprisonment imposed upon him.
(2)
A prisoner may, in accordance with the provisions of this section
after the report submitted by the parole board in terms of
section 63
has been studied, be placed on parole before the expiration of his
term of imprisonment if he accepts the conditions
of such placement.
(3)
(a) A placement contemplated in sub-section (2) shall be subject to
the conditions mentioned in the warrant for such placement
and shall
extend for the period between the date of such placement and the
expiration of the term of imprisonment".
Section
63 provides for a report which has to be submitted by the parole
board to the Commissioner or to the Minister to sanction
the release
of a prisoner on parole. It reads as follows:
"
63 (1) A parole board shall , in respect of each prisoner under its
jurisdiction serving .......a sentence of imprisonment
in excess of
six month
s
......
(a)
submit a report to the Commissioner or to the Minister as the
case may be , with regard , inter alia to the conduct ,
adaptation ,
training , aptitude , industry and physical and mental state of
such prisoner and the possibility of his relapse
into crime ;
(b)
together with the report on each prisoner submitted in terms of
paragraph (a), make recommendations to the Commissioner
regarding-
(i)
................
(ii) the
placement of such prisoner on parole in terms of section 65 ....and
the period for which , the supervision under which
and the conditions
on which such prisoner should be so placed ; and
(c)
exercise such other powers and perform such other functions and
duties as may be prescribed by regulation ".
[8]
The parole board dealt with plaintiff ' s parole under the new
Correctional Services Act , 1998 whereas it should have dealt
with it
under the old Correctional Services Act, 1959 section 63 of which
requires a report and recommendations of the parole board
to be
submitted to the Commissioner or the Minister. Thereafter the
prisoner is released on parole after the Commissioner or the
Minister
has
read the report and recommendations
of
the board. No such report and recommendations were
submitted to the Commissioner or the Minister. The chairperson of the
board merely
compiled a document on the basis of which he released
the plaintiff provisionally subject to compliance with the
restorative justice
program. The provisional release of the plaintiff
by the board subject to compliance with restorative justice is not
provided for
in the regulations issued under the 1959 Act. The board
may
, in terms of section 63 add a condition
of release but that condition must be the one stipulated in the
regulations .The document
marked " Motivation of the Parole
Board " in the bundle of documents is not the report envisaged
in section 63(1) (a)
of the 1959 Act because it is silent on the
matters to be reported on set out in this section. It says nothing
about the conduct,
adaptation, training, aptitude, industry and
physical and mental state of the plaintiff. It does not deal with the
substance but
states
peripheral aspects
such as the sentence, six weeks pre-release program, placement on
parole from 24 April 2012 to 8 October 2027.
It also recommends that
the plaintiff be assisted by the defendants' officials in restorative
justice program and that he should
be returned to the parole board
together with that report. No such report was submitted nor was
plaintiff returned to the board.
[9]
It is, in my view implicit in section 63 and 65 that a prisoner may
be released on parole by the Commissioner or the Minister
upon being
presented with a report and recommendations by the board. The
plaintiff was not released by the Commissioner or the
Minister but by
the officials of the defendant without a report from the board and
recommendations having been submitted to the
Commissioner or the
Minister. That was not a lawful release by an authorised person. The
plaintiff had therefore to be re- arrested
to continue serving his
sentence until the due process of the law is carried out in his
release. This is distinguishable from the
case
of
Kommissaris Van Korrektiewe
Dienste v Malaza
[1]
in
which the plaintiff had been released by an authorised person
( the President )
notwithstanding
that the procedural requirements of his release had not been complied
with. I would have been bound to follow the
route of Malaza if the
plaintiff in casu was released by an authorised person
notwithstanding non compliance with the procedural requirements of
the release.
[10]
Further, the condition stipulated by the board for the plaintiff’s
release relating to restorative justice program had
not been complied
with. According to the testimony of Ms Nozipho Ethel Msongelo
of the Department of Correctional Services
who took part in the
release of the plaintiff, she became satisfied subsequent to the
release that the restorative justice program
had not been done
although the documents presented to her reflected that it had been
done. The victims of the crime had not been
consulted as they should
have been. This surfaced on the complaint of the victims to the
higher authorities of the Department.
Ms Msongelo conceded that
she had made a mistake in releasing the plaintiff without complying
with the condition pertaining to
restorative justice. Therefore, the
premature release of the plaintiff was wrong on two aspects, first,
that he was not released
by an authorised person and second, that one
of the conditions of his release was not complied with.
[11]
The plaintiff was not a free man until he finished serving sentence
on 8 October 2027 and had to be arrested to complete the
term of his
imprisonment as he had not appealed against his conviction and
sentence. As long as the plaintiff had not completed
serving his term
of imprisonment he had to be confined within the premises of
Correctional services until properly and lawfully
released either by
expiry of his term of imprisonment or on parole . His re-arrest
cannot, in my view be construed as illegal as
he could not be a free
man even if his placement
o
n parole had not
been made by mistake. He would be a free man after 10 October 2027
and not before as long as his sentence had not
been tampered with by
the appeal court. His being out of the prison premises without the
due process of the law was unlawful and
he
had
to be brought back to prison. He could be lawfully arrested without a
warrant (s.42 (1)(a) of the Criminal Procedure Act,51
of 1977) for
having been convicted for a Schedule 1 offence . Murder and Culpable
Homicide are mentioned in Schedule 1 to the
Criminal Procedure Act,
1977
.
[12] In my
view, the plaintiff has not established a cause of action and the
following order is hereby made:
Order:
That
the
plaintiff’s action is dismissed with
costs, such costs to include the costs occasioned by the employment
of two counsel
.
L.P.Pakade
JUDGE OF THE HIGH COURT
For
the Plaintiff : Adv Bloem SC
with Adv
Mpahlwa
Instructed
by : Ximbi Ncolo
IncAttorneys
Mthatha
For
the Defendant : Adv Mbenenge SC with
Adv
Ntsaluba
Instructed
by: State Attorney
Mthatha
Dates
heard :
31 July;
01
August and
19
August 2014
Date
delivered : 09 April 2015
[1]
1996
(1) SA 1143
(WPA)