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[2013] ZAGPPHC 103
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Masilela and Others v Bouwers and Others (63532/2012, 16995/2013) [2013] ZAGPPHC 103; 2013 (2) SACR 350 (GNP) (16 April 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG PROVINCIAL DIVISION
Case No.: 63532/2012
Case No.: 16995/2013
DATE:16/04/2013
In
the matter between:
LEE
BESSIE
MASILELA
............................................................................
First
Applicant
THULANI
TSEWANE
...................................................................................
Second
Applicant
BONGANI
ZIKALALA
..................................................................................
Third
Applicant
SEITH
RADITAPOLE
..................................................................................
Fourth
Applicant
And
in the matter between
TEBOGO
STEVEN
BOUWERS
................................................................
First
Applicant
MZWANDILE
MAGAXAKA
........................................................................
Second
Applicant
AYANDA
NENE
............................................................................................
Third
applicant
versus
MINISTER OF CORRECTIONAL SERVICES &
OTHERS
….................
Respondents
JUDGMENT
1.
The applicants in these two applications are long term prisoners who
have been convicted of very serious offences, including
armed robbery
and murder. With two exceptions, they are all classified as ‘high
risk' offenders who, according to the respondents,
require maximum
security incarceration because of the serious and violent nature of
their crimes.
2.
They are being held at Kutama Sinthumule Correctional Centre, Makhado
in Limpopo, at Thohyandou in Venda and in Zonderwater Maximum
Security at Cullinan in Gauteng respectively.
3.
All of them wish to be transferred to a correctional centre in
Johannesburg. On the papers the request was motivated on the
grounds
that they wished to be closer to their families. During argument they
added that they wished to further their studies at
the Johannesburg
correctional centre, as the coursesthat were offered there are not
presented at the facilities in which they are
housed at present and
they have completed the courses that were available.
4.
They approached the court by way of urgency for an appropriate
mandamus.
5.
The respondents, the Minister of Correctional Services, the
Commissioner of Correctional Services and other senior officials
of
the Department of Correctional Services, opposed both the merits and
the enrolment of the matters in the urgent court.
6.
It is necessary to consider the legal arguments presented by the
parties against the background of the Constitution and the applicable
legislation before the alleged urgency and the merits of the matters
can be considered.
7.
The Constitution guarantees in section 35 thereof the minimum rights
of sentenced prisoners:
‘
(2)
Everyone who is detained, including every sentenced prisoner, has the
right—
(a)
to be informed promptly of the reason for being detained;
b)
to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c)
to have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;
(d)
to challenge the lawfulness of the detention in person before a court
and, if the detention is unlawful, to be released;
(e)
to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense,
of
adequate accommodation, nutrition, reading material and medical
treatment; and
(f)
to communicate with, and be visited by, that person’s—
(i)
spouse or partner;
(ii)
next of kin;
(iii)
chosen religious counsellor; and
(iv)
chosen medical practitioner. ’
8.
The fundamental rights are not unlimited and incarceration of an
accused or a sentenced prisoner Is not unconstitutional. Section
12
of the Constitution provides in subsection 1 (a) that nobody may be
deprived of freedom ‘..arbitrarily or without just
cause’.
Conversely, incarceration consequent upon a fair trial resulting in a
conviction after the evidence established the
accused’s guilt
beyond a reasonable doubt, and the imposition of an appropriate
sentence constitutes a justifiable limitation
of the right. See S v
Dladla & Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC).
9.
Convicted offenders who have been sentenced to direct imprisonment
without the option of a fine are the responsibility of the
Department
of Correctional Services. Their detention and the powers and duties
of the Department are determined by the
Correctional Services Act 111
of 1998
as amended.
10.
The relevant sections of this Act are the following:
’
4.
Approach to safe custody.—(1) Every inmate is required to
accept the authority and to obey the lawful instructions of the
National Commissioner and correctional officials of the Department
and custody officials.
(2)
(a) The Department must take such steps as are necessary to ensure
the safe custody of every inmate and to maintain security
and good
order in every correctional centre.
(b)
The duties and restrictions imposed on inmates to ensure safe custody
by maintaining security and good order must be applied
in a manner
that conforms with their purpose and which does not affect the
inmates to a greater degree or for a longer period than
necessary.
(c)
The minimum rights of inmates entrenched in this Act must not be
violated or restricted for disciplinary or any other purpose,
but the
National Commissioner may restrict, suspend or revise amenities for
inmates of different categories. ’
'13.
Contact with community.—(1) The Department must encourage
inmates to maintain contact with the community and enable them
to
stay abreast of current affairs.
(2)
The Department must give inmates the opportunity, under such
supervision as may be necessary, of communicating with and being
visited by at least their spouses or partners, next of kin, chosen
religious counsellors and chosen medical practitioners.
(3)
In all circumstances, a minimum of one hour must be allowed for
visits each month.
(4)
If an inmate is not able to receive visits from his or her spouse,
partner or next of kin, the inmate is entitled to be visited
by any
other person each month.
(5)
An inmate who is a foreign national must be allowed to communicate
with the appropriate diplomatic or consular representative
or, where
there is no such representative, with a diplomatic representative of
the state or international organisation whose task
it is to protect
the interests of such inmate.
(6)
(a) On admission to a correctional centre and after transfer to
another correctional centre, an inmate must notify his or her
next of
kin that he or she is being detained in a particular correctional
centre, and if—
(i)
the next of kin is unknown, the inmate may notify any other relative;
(ii)
the inmate does not wish to notify his or her next of kin, the inmate
must indicate this to the Head of the Correctional Centre.
(b)
The National Commissioner must ensure that all reasonable steps are
taken to enable an inmate to notify his or her next of kin
in terms
of paragraph (a) and, if necessary, steps must be taken to notify his
or her next of kin on his or her behalf.
(c)
(i) In the case of an inmate who is a child, the National
Commissioner must notify the appropriate state authorities who have
statutory responsibility for the education and welfare of children as
well as the parents of such child when this is required in
terms of
paragraph (a).
(ii)
If no parent is available, the National Commissioner must notify the
legal guardian and if the legal guardian is not available
the next of
kin or other relative must be notified.
(iii)
An inmate who is a child may not refuse to allow notification.
(d)
If requested by the spouse, partner or next of kin, the National
Commissioner must as soon as practicable, with the written
consent of
the inmate, give particulars of the place where the inmate is
detained.
(7)
(a) The National Commissioner may allow community organisations,
non-governmental organisations and religious denominations
or
organisations to interact with sentenced inmates in order to
facilitate the rehabilitation and integration of the inmates into
the
community.
(b)
The organisations or denominations referred to in paragraph (a), must
be registered with the Department and members thereof
may be screened
by the National Commissioner before they can be allowed to interact
with sentenced inmates. ’
‘
21.
Complaints and requests.—(1) Every inmate must, on admission
and on a daily basis, be given the opportunity of making
complaints
or requests to the Head of the Correctional Centre or a correctional
official authorised to represent such Head of the
Correctional
Centre.
(2)
The official referred to in subsection (1) must—
(a)
record all such complaints and requests and any steps taken in
dealing with them;
(b)
deal with complaints and requests promptly and inform the inmate of
the outcome;
and
(c)
if the complaint concerns an alleged assault, ensure that the inmate
undergoes an immediate medical examination and receives
the treatment
prescribed by the correctional medical practitioner.
(3)
if an inmate is not satisfied with the response to his or her
complaint or request, the inmate may indicate this together with
the
reasons for the dissatisfaction to the Head of the Correctional
Centre, who must refer the matter to the National Commissioner
(4)
The response of the National Commissioner must be conveyed to the
inmate.
(5)
If not satisfied with the response of the National Commissioner, the
inmate may refer the matter to the Independent Correctional
Centre
Visitor, who must deal with it in terms of the procedures laid down
in
section 93.
’
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29.
Security classification.—Security classification is determined
by the extent to which the inmate presents a security risk
and so as
to determine the correctional centre or part of a correctional centre
in which he or she is to be detained. ’
'43.
Location and transfer of sentenced offenders.—(1) A sentenced
offender must be housed at the correctional centre closest
to the
place where he or she is to reside after release, with due regard to
the availability of accommodation and facilities to
meet his or her
security requirements and with reference to the availability of
programmes.
(2)
The transfer of a sentenced offender is subject to the same
consideration.
(3)
A sentenced offender must be examined by the registered nurse or
correctional medical practitioner before his or her transfer.
Where
such an offender is being treated by a medical practitioner, he or
she must not be transferred until such an offender has
been
discharged from the treatment or the transfer has been approved by
the correctional medical practitioner after consultation
with the
Head of the Correctional Centre.
(4)
The Commissioner may, in consultation with a provincial head of
education, or a provincial head of social development, as the
case
may be, transfer a sentenced child to a child and youth care centre
providing a programme contemplated in section 191 (2)
(j) of the
Children's Act, 2005 (Act No. 32 of 2005) and from the date of such
transfer the provisions of
section 76
of the
Child Justice Act, 2008
,
will apply.
93.
Powers, functions and duties of independent Correctional Centre
Visitors.—
(1)
An Independent Correctional Centre Visitor shall deal with the
complaints of inmates by—
(a)
regular visits;
(b)
interviewing offenders in private;
(c)
recording complaints in an official diary and monitoring the manner
in which they
have
been dealt with; and
(d)
discussing complaints with the Head of the Correctional Centre, or
the relevant
subordinate
correctional official, with a view to resolving the issues
internally.
(2)
An independent Correctional Centre Visitor, in the exercise and
performance of such powers, functions and duties, must be given
access to any part of the correctional centre and to any document or
record.
(3)
The Head of the Correctional Centre must assist an Independent
Correctional Centre Visitor in the performance of the assigned
powers, functions and duties.
(4)
Should the Head of the Correctional Centre refuse any request from an
Independent Correctional Centre Visitor relating to the
functions and
duties of such a Visitor, the dispute must be referred to the
Inspecting Judge, whose decision will be final.
(5)
An Independent Correctional Centre Visitor must report any unresolved
complaint to the Visitors’ Committee and may, in
cases of
urgency or in the absence of such a committee, refer such complaint
to the Inspecting Judge.
(6)
The Inspecting Judge may make rules concerning, or on the appointment
of an Independent Correctional Centre Visitor, specify,
the number of
visits to be made to the correctional centre over a stated period of
time and the minimum duration of a visit, or
any other aspect of the
work of an Independant Correctional Centre Visitor.
11.
The relevant regulations promulgated under Act 111 of 1998 are the
following:
‘
8.
Contact with Community.—(1) The Head of the Correctional Centre
must give special attention to the development and maintenance
of
good family relationships between inmates and their family members
and other relatives.
(2)
The Head of the Correctional Centre must convey any important
information regarding an inmate’s family, relatives or friends
that may come to his or her attention, to the inmate as soon as
practicable.
(3)
On admission to a Correctional Centre or when an inmate is
transferred, subject to the provision of Regulation 25 (1) (b), the
Head of the Correctional Centre must, allow the inmate to notify his
or her spouse, partner or next of kin in the manner prescribed
by the
Order, unless otherwise requested in writing by the inmate. ’
22.
Classification of Sentenced Offenders.—(1) Subject to the
provisions of Sections 7 (3), 29, and 39 of the Act, a sentenced
offender must be classified
according
to the security risk he or she poses, taking into account his or her
suitability for treatment and training at a Correctional
Centre.
(2)
The National Commissioner determines the classification in accordance
with the following principles—
(a)
individual classification in so far as the period of sentence permits
and an analysis
and
assessment of the offender’s previous record, aptitude,
qualification or previous training, ability and other personal
factors;
(b)
the maintenance of regular contact with, spouse, partner and next of
kin; and
(c)
insofar as the duration of sentence permits, the application of
progressive and
flexible
reclassification.
25.
Location and Transfer of Inmates.—(1) (a) When an inmate is
transferred the Head of the Correctional Centre or a correctional
official authorised by him or her must, subject to paragraph (b)
convey the reason for the proposed transfer to the inmate and
allow
the offender to make a representation in this regard, which must
recorded in writing, where after the Head of the Correctional
Centre
or the authorised official may take a decision on the proposed
transfer.
(b)
If the transfer is for security reasons the Head of the Correctional
Centre or the authorised official need not inform the inmate
of the
proposed transfer, but the inmate must be informed of the reasons as
soon as practicable after his or her admission to the
place where he
or she is transferred to and must be allowed an opportunity to make a
representation in this regard as well as an
opportunity to notify his
or her spouse, partner or next of kin in the manner prescribed by the
Order.
(2)
If an inmate or cared-for child is being transferred, his or her
medical history file and any prescribed medication must be
transferred with him or her.
12.
lt is therefore clear that, upon admission to a correctional
institution, an inmate may lawfully be assessed and placed in a
correctional centre that provides the appropriate level of security
considering the risk the sentenced offender poses at that stage.
The
locality of the correctional centre best equipped to accommodate the
offender must be considered with reference to the ease
with which the
offender’s next of kin or friends may be able to visit him. It
is, however, clear that an offender may lawfully
be placed in a
centre that is far removed from his family’s residence, if it
is necessary to do so in the bona fide opinion
of the responsible
official in the respondents’ service.
13.
Should an offender be of the view that his classification is
incorrect or that his placement in a particular correctional centre
is unreasonable, irrational or mala fide, the complaints procedure
provided for in section 21 must be followed.
14.An
offender may, of course, also follow the same route by way of a
request to be transferred to another centre. If the head of
the
relevant correctional centre reacts in a manner the inmate regards as
unsatisfactory to a complaint or request, an appeal may
be directed
to the National Commissioner. If the inmate is still displeased with
the National Commissioner’s response, he
has the option to seek
the assistance of the Independent Prison Visitor
15.
lt would appear that the assessment, classification and placement of
an offender in a correctional institution, the filing and
consideration of a complaint or the submission and consideration of a
request are administrative actions. Any challenge of a decision
taken
in regard to these matters must therefore be brought in terms of the
Promotion of Administrative Justice Act 3 of 2000
.
16.
The regulations published in 2002 in terms of Act 3 of 2000 provide
in Chapter 4 thereof for the following steps that must be
taken in
writing to obtain reasons for an administrative action with an eye to
an internal appeal or a judicial review:
CHAPTER
4 REQUESTS FOR REASONS Application of this Chapter
26.
This Chapter applies to administrative action which materially and
adversely affects the rights of any person, and must be complied
with
if a request for reasons for administrative action is made in terms
of section 5(1) of the Act.
Formal
requirements
27.
(1) A request in terms of section 5 of the Act for reasons for
administrative action which materially and adversely affected
a
person's rights must beta) in writing;
(b)
addressed to the administrator concerned; and
(c)
sent to the administrator by post, fax or electronic mail or
delivered to the administrator by hand.
(2)
If an administrator receives an oral request for reasons from a
person who cannot write or otherwise needs assistance, the
administrator or a person designated by the administrator must give
reasonable assistance to that person to submit such request
in
writing.
(3)
A request for reasons contemplated in this Chapter must -
(a)
indicate-
(i)
the administrative action which affected the rights of the person
making the
request;
and
(ii)
which rights of that person were materially and adversely affected by
the
administrative
action; and
(b)
state-
(i)
the full name and postal and, if available, electronic mail address
of that person;
and
(ii)
any telephone and fax numbers where that person may be contacted.
Administrator's duties
28.
(1) An administrator to whom a request for reasons is made must-
(a)
acknowledge receipt of the request; and
(b)
either-
(1)
accede to the request and furnish the reasons in writing; or
(ii)
decline the request.
(2)
If an administrator declines a request for reasons in terms of
section 5(4)(a) of the Act, the administrator must give reasons
in
writing to the person who made the request why the request was
declined. ’
17.
The Rules of Procedure for Judicial Review of Administrative Action
formulated by the Rules Board were published in October
2009. They
contain comprehensive provisions for the launching an application to
court, the preparation of affidavits, discovery
of documents and
preparation for trial.
They
would govern any application for the review of any decision relating
to the accommodation of a sentenced prisoner in a specific
correctional institution after the internal remedies referred to
above have been exhausted.
They
have not yet come into operation, though, see: Lawyers for Human
Rights v Rules Board for Courts & Another
2012 (3) All SA 153
(GNP) – with the consequence that the Rules of Court relating
to reviews, and in particular Rule 53 thereof, apply to review
applications. In the ordinary course of litigation the Rule 53
procedure takes several weeks to reach finality.
18.
Neither counsel appearing for the respondents in the two applications
raised the point that the correct procedure to challenge
the
decisions the applicants attacked was a judicial review, which the
court pointed out but which counsel adopted after some consideration.
19.This
is, however, not the only reason why the applications cannot succeed.
The respondents drew attention to the fact that the
applicants were
all classified as ‘high risK upon admission to a correctional
institution and that they therefore had to
be accommodated in a
maximum security centre until they had successfully completed a
sufficient number of rehabilitative programmes
to justify their
reclassification and subsequent placement in a medium security
correctional centre. Not one of the applicants
challenged their
original classification and neither was the rationale of placing them
in a maximum security centre at the commencement
of their
incarceration put in issue.
20.
Respondents further pointed out that the applicants would, in time,
be transferred to a medium security correctional centre
which would
in all probability be in Johannesburg. Not all prisoners that had to
be accommodated in maximum security centres could
or should be
admitted to one close to their next of kin or friends. Again, the
applicants did not challenge the rationale of their
original
placement in the relevant correctional centre, but argued that they
were entitled as a matter of course to be accommodated
in the centre
closest to their families. This approach is incorrect. There may be
very sound reasons to place a high risk offender
in a centre far
removed from his home or friends.
21.
The fact that the successful completion of appropriate programs leads
to an eventual reclassification and placement in a medium
security
facility was proven by the transfer of the second applicant in the
first matter to a Johannesburg medium security centre,
following upon
his reclassification, while the application was pending. He did not
participate in the proceedings thereafter.
22.
The first and second applicants in the second matter had requested a
transfer to the Johannesburg medium security facility,
which request
was communicated to that facility’s Head in writing by the
Zonderwater management during 2012 already, to which
no reply had
been received by the time the application was heard. One of the
Zonderwater applicants had already been classified
as a medium risk
offender at this stage. All the Zonderwater applicants had completed
all programmes that are available at the
latter centre and expected
to be reclassified soon.
23.
In the light of these facts it is indisputable that the applicants
have failed to satisfy the requirements of an urgent application.
Applications for a transfer from a maximum security centre to one
with a lesser security grading could hardly be said to be urgent
in
the absence of truly extraordinary circumstances. All the applicants
have been convicted of grave offences. The minimum sentence
that was
imposed upon one of them was 15 years’ imprisonment, the other
sentences range from twenty years to life. The process
of completing
the necessary programs and thereafter embark upon the administrative
process of reclassification and transfer to
another centre obviously
takes time. Given the applicants’ circumstances, the hearing of
a judicial review against a decision
to decline a transfer to another
facility, or a decision to admit an offender to a maximum security
centre, would under normal
circumstances scarcely qualify to be heard
as a matter of urgency.
24.
In addition the facts of these two matters do not justify the relief
sought, namely a mandamus. The respondents have never refused
to
transfer the applicants to another correctional centre as soon as
they are no longer regarded as ‘high risk and have in
fact
enquired from the Johannesburg medium security centre whether first
and second applicants could be accommodated there.
25.
There is no suggestion that the administrative actions involving the
applicants performed by the respondents and their officials
were
executed unlawfully, irrationally or mala fide. No review could
therefore be launched against them.
26.
While the applications cannot succeed, the respondents readily agreed
that the first two applicants in application No 16995/2013
are
entitled to a reply from the Johannesburg Medium B correctional
centre to their applications for a transfer to it.
27.
The following orders are made:
1.
Both applications are dismissed.
2.
The respondents in Case No 16995/2013 are ordered, by consent, to
procure a reply to the first and second applicants’ application
for a transfer to the Johannesburg Medium B correctional centre
within fifteen days from date hereof.
Signed
at Pretoria on this 16th day of April 2013.
E
BERTELSMANN
Judge
of the High Court