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[2014] ZAGPPHC 67
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Van Vuuren v Minister of Correctional Services (30318/2012) [2014] ZAGPPHC 67; 2014 (2) SACR 227 (GP) (7 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA (REPUBLIC OF SOUTH AFRICA)
PRETORIA
CASE
NO: 30318/2012
DATE:
07 FEBRUARY 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In the matter
between:
PAUL FRANCIOUS
VAN
VUUREN
............................................................
APPLICANT
AND
MINISTER OF
CORRECTIONAL SEVICES
.......................................
RESPONDENT
JUDGMENT
MSIMEKIJ:
[1] This is an
application by the Applicant seeking an order:
“a. That this
application is enrolled as an urgent application.
b. That due to the
urgency the requirements regarding forms and service are dispensed
with in terms of Rule 6 (12).
c. That the decision
by the respondent issued on 19 April 2012 refusing to release
applicant on parole is reviewed and set aside.
d. That the decision
of the respondent is replaced with an order to release applicant on
parole on or before 14 July 2012.
e. Further and/or
alternative relief.
f. costs of this
application.
[2] The matter came
before my brothers Preller J and Ranchord J. Preller J, under case
number 48132/2011 on 16 February 2012 made
the following order:
“1. That the
first respondent must consider the applicant for release and
placement on parole by the end of April 2012.
2. That the profile
of the applicant should be submitted to the first respondent
including a fully motivated, psychiatric report
as requested by the
first respondent in her discussion on 6 April 2011, dealing with the
(sic) Dr Venter evidence.
3. No order to cost
is made”.
The order appears on
page 17 (Annexure "V V 02”) of the paginated papers. On 10
July 2012, Ranchord J, under case number
30318/2012 made the
following order:
“ 1. The
respondent is ordered to allow a private psychiatrist, appointed by
the applicant, to conduct a full clinical assessment
and evaluation
of the applicant before 30 July 2012.
2. The private
psychiatrist’s report must be served on the respondent and
filed on the court file on or before 10 August 2012.
3. A full
psychiatrist report of the applicant, dealing inter alia with the
evidence Of Dr Verster who testified at the initial
trial, compiled
on request of the Respondent and a copy of the applicant’s
profile and all relevant reports which served
before the respondent
on 19 April 2012, must be served on the
Applicant’s
attorneys of record and filed on the court file on or before 20 July
2012.
4. The applicant
will have the right to amend and supplement this application After
receipt of the reports as set out in paragraphs
2 and 3 and to
approach this honourable Court on the same papers.
5. The application
is postponed sine die.
6. (Which is
erroneously numbered as 3 instead of 6). Costs to be costs in the
application. The order comprises pages 48-49 of the
paginated papers
and is marked “X” ”,
On 8 August 2012
Preller J, under case number 30318/2012 made the following order:
“ 1. That the
matter be and is hereby postponed to 10 September 2012;
2. That this order
as well as order by Judge Ranchod and order made by me on 16 February
2012 (Case Number 48132/11) must be served
on State Attorney and on
Dr Reuben Mbuli the head of legal services in the Department of
Correctional Services;
3. That Dr.Mbuli
will be held personally liable for compliance with these orders;
4. That Mr.Chowe of
State Attorney’s office was present in court and will see that
these services be effected”.
The order forms page
377 of the paginated papers as annexure “MNIO”.
The matter then
served before me. 1 heard the matter but could unfortunately not
timeously give the judgment due to different ailments
over a long
period of time.
BRIEF FACTS
[3] On 13 November
1992, the Applicant was convicted of, inter alia, murder and robbery
with aggravating circumstances. He was sentenced
to death on each of
the two charges. The Applicant was alleged to have robbed a 19 year
old British tourist of the money which
he had received after he sold
his motorcycle. The Applicant was alleged to have demanded the money
at gun point. He shot the deceased
in the stomach and twice in the
head. On 6 June 1995 the death penalty was declared unconstitutional.
On 20 September 2000 the
death penalties imposed on the Applicant
were commuted to sentences of life imprisonment and antedated to 13
November 1992, the
date on which the Applicant was convicted. In
terms of the policy of the Department of Correctional Services which
was applicable
on 13 November 1992 the Applicant was required to be
incarcerated for 10 years prior to consideration for parole. The
Applicant
in terms of the policy, and only in exceptional cases,
could be placed on parole before serving 15 years of his sentence.
Offenders
sentenced to life imprisonment, with effect from 1 March
1994 are required to serve 20 years of their sentences before they
can
be considered for parole. This is evident from annexure “MN1”
to the Respondent’s Answering Affidavit at page
327. The
Applicant approached court asking to be released on parole but the
court held that he first had to serve 20 years of his
sentence before
he could be considered for release and placement on parole. His case
proceeded up to the Constitutional Court which
on 30 September 2010
found that he was entitled to be considered for placement on parole
in terms of the policy which applied on
13 November 1992. (See Van
Vuuren v Minister of Correctional Services
2010 (2) BCLR 1233
(CC).
On 6 April 2011 the Respondent declined to approve the placement of
the Applicant on parole. The Applicant, according to
the Respondent,
had to be assessed by a psychiatrist to determine whether he still
displayed “symptoms that led the High
Court on appeal to
conclude that the offender is a psychopath and suffers from an (sic)
anti-social personality disorder, which
led the court to conclude
that the chances of rehabilitation are zero”. The Applicant, in
terms of the Respondent’s
decision of 6 April 2011, was seen by
Dr Lawrence who found that the Applicant still suffered from
anti-social personality disorder
and that he would not predict the
Applicant’s behaviour in the future and that there was reason
to be concerned about it.
This is evident from annexure “MN6”
to the Respondent’s Answering Affidavit which is page 368 of
the paginated
papers. On 16 April 2012, subsequent to the procurement
of Dr Lawrence’s report, and to be able to recommend to the
Respondent,
the Correctional Supervision and Parole Board (CSPB)
considered the Applicant for placement on parole. Having had regard
to Dr
Lawrence’s report the CSPB recommended that the Applicant
had to “serve more of his sentence and undergo further
psychiatric
intervention. “(See annexure “MN7” at
page 372 of the paginated papers. On 19 April 2012 the Respondent
having
had regard to the CSPB’s recommendation and Dr
Lawrence’s report, decided against placing the Applicant on
parole stating
that the Applicant had to be “enrolled in
appropriate programmes to address the behavioural traits identified
by the psychiatrist
in order to lower the risk of re-offending”.
(Annexure “MN8” at page 374 of the paginated papers.
THE ISSUES
[4] As the Applicant
seeks an order that the decision of the Respondent issued on 19 April
2012 refusing to release the Applicant
on parole be reviewed and set
aside and that such decision be replaced with an order releasing the
Applicant on parole,
the question that
springs to mind is whether the Applicant has made out a case to be
entitled to such an order. The Respondent opposed
the granting of the
relief sought.
[5] I must at the
very outset thank Advocate MTK ivioerane SC and Advocate T W G
Bester, counsel for the Respondent, as well as
Advocate Janse Van
Rensburg counsel for the Applicant for their valuable assistance in
this matter.
[6] I have to
determine if the decision of the Respondent deserves to be reviewed
and set aside. Also I need to determine if it
will be appropriate for
the court to substitute the decision of the Respondent with its own
decision.
PRINCIPLES
[7] Before I deal
with the issues I need to refer to the case of Bel Porto School
Governing Body v Premier Western Cape
[2002] ZACC 2
;
2002 (3) SA 265
(CC).
Chaskalson C.J (as he then was) at pages 91-92 paragraphs 85-89 said:
“[85] For good
reasons, judicial review of administrative action has always
distinguished between procedural fairness and
substantive fairness.
Whilst procedural fairness and audi principle is strictly upheld,
substantive fairness is treated differently.
As Corbett CJ said in Du
Preez and Another v Truth and Reconciliation Commission 1997 (3) S/A
204 (A) at 231 G. ‘The audi
principle is but one facet, albeit
an important one, of the general requirement of natural justice that
in the circumstances postulated
the public official or body concerned
must act fairly... The duty to act fairly, however, is concerned
only with the matter
in which the decisions are taken: it does not relate to whether the
decision itself is fair or not
[86] The unfairness
of a decision in itself has never been a ground for review. Something
more is required. The unfairness has to
be of such a degree that an
inference can be drawn from it that the person who made the decision
had erred in a respect that would
provide grounds for review. That
inference is not easily drawn.
[87] The role of the
Courts has always been to ensure that the administrative process is
conducted fairly and that decisions are
taken in accordance with the
law and consistently with the requirements of the controlling
legislation. If these requirements are
met, and if the decision is
one that a reasonable authority could make, Courts would not
interfere with the decision.
[88] I do not
consider that item 23 (2) (b) of Schedule 6 has changed this and
introduced substantive fairness into law as a criterion
for judging
whether administrative action is valid or not The setting of such a
standard would drag Courts into matters which,
according to the
separation of powers, should be dealt with at a political or
administrative level and not at a judicial level.
This is of
particular importance in cases such as the present, in which the
issue relates to difficult and complex policies adopted
in order to
promote an equitable transformation of apartheid structures and a
reversal of policies that were grossly unequal”.
[89] What they
require for a decision to be justifiable, is that it should be a
rational decision taken lawfully and directed to
a proper purpose”.
In Pharmaceutical
Manufactures of SA In Re: Ex Parte Application of Pres of RSA
[2000] ZACC 1
;
2000
(3) BCLR 241
(CC) at page 272 paragraph [85] and paragraph ,[90]
Chaskalson P ( as he then was) said:
“[85] It is a
requirement of the rule of law that the exercise of public power by
the executive and other functionaries should
not be arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public
power by the executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of
the standards demanded by our
Constitution for such action.
[90] Rationality in
this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the
executive and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirement of our Constitution,
and therefore
unlawful. The setting of this standard does not mean that the courts
can or should substitute their opinions as to
what is appropriate,
for the opinions of those in whom the power has been vested. As long
as the purpose sought to be achieved
by the exercise of public power
is within the authority of the functionary, and as long as the
functionary’s decision, viewed
objectively, is rational, a
court cannot interfere with the decision simply because it disagrees
with it, or considers that the
power was exercised inappropriately. A
decision that is objectively irrational is likely to be made only
rarely but if this does
occur, a court has the power to intervene and
set aside the
irrational
decision”.
In Trinity
Broadcasting (CISKEI) v ICA OF SA
2004 (3) SA 346
(SCA) Howie P at
page 353 paragraph [20] said:
“ In requiring
reasonable administrative action, the Constitution does not, in my
view, intend that such action must, in review
proceedings, be tested
against the reasonableness of the merits of the action in the same
way as in an appeal. In other words,
it is not required that the
action must be substantively reasonable, in that sense, in order to
withstand review. Apart from that
being too high a threshold, it
would mean that all administrative action would be liable to
correction on review if objectively
assessed as substantively
unreasonable
[8] Reverting to the
matter in casu Mr Van Rensburg pointed out that the Respondent’s
Answering Affidavit was late. The Applicant,
however, did not deem
that as an issue as it was not even necessary for them to reply. They
were ready to proceed with the matter.
Mr Moerane agreed. Mr Van
Rensburg submitted that they had not seen Dr Lawrence’s report
as the Respondent’s papers
had been filed late.
[9] Mr Van Rensburg
submitted that Preller J’s order had not been complied with as
there was no fully motivated psychiatrist’s
report dealing with
Dr Verster’s testimony
as well as the
diagnosis of the three psychiatric doctors who observed the Applicant
for a period of 30 days in the course of his
criminal trial. Mr Van
Rensburg further submitted that the Respondent had not considered the
reports that had been favourable to
the Applicant.
[10] Mr Van Rensburg
contended that the Respondent had failed to comply with the court
order and that referring the matter back
would not assist as the
Respondent would never comply with the order. He, as a result,
submitted that it would be in the interest
of justice that the court
steps into the shoes of the Respondent and order the release of the
Applicant on parole.
[11] On 10 July
2012, Ranchod J ordered that the Applicant be allowed to be
clinically assessed and evaluated by a private psychiatrist
of his
own choice. Dr L.L Mashayamombe, a specialist psychiatrist chosen by
the Applicant, assessed and evaluated him. His report
is annexure
“W07” appearing from page 58 to 78 of the paginated
papers. The report is at variance with the report of
Dr Lawrence.
[12] To support his
submission, Mr Van Rensburg referred the court to the case of
Witwatesrand Local Division (now South Gauteng
High Court) case
number 2007/15110 which is the case of:
Plank Dean Lloyd and
Van Wyk Cornelius JOHANNES, the first and the second Applicants
respectfully V The Minister of Correctional
Services and 2 Others.
The case served before Marais J. This case, however is, as Mr Moerane
and Mr Bester correctly pointed out,
distinguishable from the case in
casu. The case dealt with the question whether the applicable policy
in the case had been the
policy that applied in the current case or
the amended policy where lifers first have to serve 20 years of their
sentence before
they can be considered for release and placement on
parole. The issue is indeed different in the case in casu.
[13] The existence
of two conflicting reports that of Dr Lawrence and that of Dr
Mashayamombe abundantly demonstrates the problem
which deserves
proper « * attention. It became evident as the matter
progressed that a joint report by the psychiatrists
would be of
tremendous significance in resolving the matter.
[14] Mr Moerane
submitted that the Respondent, when considering the release and
placement of the Applicant on parole, duly applied
her mind to the
relevant aspects. These are, inter alia, the nature and seriousness
of the crimes committed by the Applicant; the
remarks made by the
trial court at the time of the imposition of the sentences of life
imprisonment on the Applicant; the diagnosis
of the three
psychiatrists who observed the Applicant for a period of 30 days in
the course of the criminal trial where their conclusion
had been that
he had been suffering from anti¬social personality disorder; the
evidence of Dr Verster where he said that the
Applicant’s crime
prognosis was poor and that his prospects of rehabilitation had been
nil; Dr Lawrence’s report annexure
“MN6” as well as
the risk of the Applicant re-offending having been diagnosed as a
psychopath with anti-social personality
disorder. Mr Moerane
contended that the Respondent, when arriving at the decisions that
the placement of the Applicant on parole
not be approved, had
considered the factors favourable to the Applicant such as the
Applicant’s participation in programmes
within the correctional
centre aimed at addressing his offending trait; his behaviour and
adjustment during his incarceration;
his scholastic achievements; the
social worker’s and the psychologist’s interventions
aimed at assisting the Applicant
as well as the support systems
available to the Applicant outside the prison once released. Against
these, the Respondent also
took the aggravating circumstance into
account.
[15] Mr Moerane
contended that the Respondent’s decision not to place the
Applicant on parole at the time had been justifiable;
was not tainted
by bias; could not be regarded as arbitrary or capricious and was the
kind of a decision that a reasonable authority
could make. I agree.
[16] Having regard
to the principle that the decisions of the executive and other
functionaries must be rationally related to the
purpose for which the
power was given and considering what the Respondent did in this case
I fail to see how the decision can be
regarded as irrational. Viewed
objectively, in my view, the Respondent’s decision was rational
and is the kind of decision
that a reasonable authority could make.
The decision, in my view, does not deserve to be reviewed and set
aside.
[17] Coming to the
issue whether the court ought to substitute the decision of the
Respondent with its own, it must be borne in
mind that courts are
reluctant to usurp the powers of the authorities vested with the
exercise of decisions. Courts, however, when
exercising their
discretions judicially, may in certain instances, interfere with the
decisions of functionaries, (see University
of the Western Cape and
others V Member of Executive Committee for Health and Social Services
and others
1998 (3) SA 124
at page 131D-H).
[18] Having regard
to the facts of the current matter, I find that this is not one of
those cases which require the court, in the
exercise of its
discretion, to interfere with the decision of the Respondent.
[19] The court has
at its disposal two*conflicting reports of two psychiatrists namely
Dr* Lawrence and Dr Mashayamombe. The 3 doctors
who observed the
Applicant as shown above found that the Applicant suffered from
anti-social personality disorder. Twenty years
down the line Dr
Mashayamombe states that that condition no longer exists while Dr
Lawrence states that it does. As the parties’
counsel conceded
it is my view that the need, because of the seriousness of the
matter, is even greater that a joint report on
the Applicant by the
two doctors be procured to enable the Respondent to produce a well
informed decision. I inquired from counsel
as to who would be
responsible for paying the doctors. On 19 September 2012 State
Attorney
I Chowe advised my
registrar that instructions had been received from the Minister of
Correctional Services that in the event that
the court ordered that a
joint report be procured relating to whether or not the Applicant
still suffers from anti-social personality
disorder, the Department
of Correctional Services would bear the costs of obtaining such a
joint report. The costs, in that event,
would also cover the costs of
any report compiled by a psychiatrist other than Dr Lawrence. My
registrar was also informed that
the legal representatives of the
Applicant did not revert to the State Attorney regarding the aspect.
I am thankful for such a
gesture from the Department.
[20] I have had due
regard to the facts of this matter and have come to the conclusion
that it will be in the interest of justice
simply to give the
Respondent a chance to properly deal with the matter. All the
relevant documents and reports need to be
given to the
Respondents for that purpose. A well motivated report should be
procured from Drs Lawrence and Mashayamombe.
[21] After
considering all the aspects of this matter I am of the view that the
decision of the Respondent does not deserve to be
reviewed and set
aside.
The court will also
not replace the decision of the Respondent with an order to release
the Applicant as prayed for as the Applicant
has clearly failed to
make out a case for such a relief.
[22] The following
order is therefore made:
1. That the
Respondent is ordered within 30 (thirty) days of the date of this
order to consider the Applicant for placement on parole.
2. That for purposes
of paragraph 1 above, the Case Management Committee for Pretoria
Central Correctional Centre shall within 10
(ten) days of the date of
this order submit an updated profile report (G 326) to the
Correctional Supervision and Parole Board
for purposes of its
recommendation to the Respondent regarding the placement of the
Applicant on Parole .
3. That the
Correctional Supervision and Parole Board shall make its
recommendation referred to in paragraph 2 above to the Respondent
within 20 days of the date of this order.
4. That for purposes
of the recommendation of the Correctional Supervision and Parole
Board to the Respondent and the decision of
the Respondent regarding
the placement of the Applicant on parole, a joint report be
furnished by the
psychiatrists Dr Lawrence and Dr Mashayamombe in the light of their
inconsistent findings contained in their respective
reports.
5. That the costs of
obtaining the joint report shall be borne by the Department of
Correctional Services.
6. That there shall
be no order as to costs.
M.W MSIMEKI
JUDGE OF THE
NORTH
GAUTENG HIGH
COURT, PRETORIA
COUNSEL FOR THE
APPLICANT: Adv. Janse Van Rensburg
INSTRUCTED BY:
COUNSEL FOR THE
RESPONDENT: M. T. K Moerane SC
Adv. T. W. G
Bester
INSTRUCTED
BY: State Attorney
DATE OF HEARING:
DATE OF JUDGMENT:
07 FEBRUARY 2014