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[2013] ZAGPPHC 280
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Broodryk and Others v Minister of Correctional Services and Others (69585/11) [2013] ZAGPPHC 280; 2014 (1) SACR 471 (GJ) (9 September 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, GAUTENG DIVISION)
CASE
NO: 69585/11
DATE:09/09/2013
In
the matter between
K
BROODRYK
.........................................................................................................
FIRST
APPLICANT
RS
SINDANE
...........................................................................................................
SECOND
APPLICANT
HL
BOTHA
................................................................................................................
THIRD
APPLICANT
and
THE
MINISTER OF CORRECTIONAL
SERVICES
..............................................
FIRST
RESPONDENT
THE
NATIONAL COMMISIONER OF
CORRECTIONAL
SERVICES
................................................................................
SECOND
RESPONDENT
THE
CORRECTIONAL SUPERVISION AND PAROLE
BOARD:
RUSTENBURG
MANAGEMENT
AREA
............................................................................................
THIRD
RESPONDENT
THE
HEAD OF PRISON: LOSPERFONTEIN
CORRECTIONAL
CENTRE
.....................................................................................
FOURTH
RESPONDENT
THE
CASE MANAGEMENT COMMITTEE:
LOSPERFONTEIN
CORRECTIONAL
CENTRE
…...............................................
FIFTH
RESPONDENT
PRO-LIBERTY
CONSTITUTION COMPLIANCE
ASSOCIATION
.............................................................................................................
AMICUS
CURIAE
JUDGMENT
VAN
OOSTEN J:
[1]
This application concerns a constitutional challenge of the
provisions of s 136(1) of the Correctional Services Act 111 of 1998
(the Act) on the ground of an alleged inconsistency thereof with the
provisions of s 35(3)(n) of the Constitution.
[2]
The applicants are offenders serving determinate sentences of 14, 18
and 20 years respectively in the Lospersfontein Correctional
Centre.
Their sentences were imposed after 1 October 2004 (the operative
date). The operative date is the crucial date for purposes
of
determining the parole regime provided for in the Correctional
Services legislation. In respect of offenders sentenced prior
to the
effective date, s 65(4)(a) read with s 22A of Act 8 of 1959 (the old
Act) in effect provides for the consideration of parole
after the
offender has served one-third of the sentence. Post the operative
date the provisions of s 136(1) read with s 173(6)(a)
of the Act
applies: in terms thereof parole will be only be considered after the
offender has served at least one half of the sentence.
[3]
The respondents are collectively Correctional Services. The first and
second respondents oppose the application. The Pro-Liberty
Constitution Compliance Association
1
was at its request allowed to be joined in the proceedings as amicus
curiae.
[4]
It is necessary at the outset to pay regard to the statutory
framework within which the impugned sections falls (see Van Vuren
v
Minister of Correctional Services and others
2010 (12) BCLR 1233
(CC);
2012 (1) SACR 94
(CC) para [24]-[35]; Mafoho v The State
(149/12)
[2012] ZASCA 49
(28 March 2013)). Commencing with s 73 of
the Act, which
deals
with correctional supervision and prisoners out on day parole or
parole, s 73(6)(a) provides that an offender serving a determinate
sentence or cumulative sentences of more than 24 months may not be
placed on day parole or parole until such sentenced offender
has
served either the stipulated non-parole period, or if no non-parole
period was stipulated, half of the sentence, but day parole
or parole
must be considered whenever a sentenced offender has served 25 years
of a sentence or cumulative sentences. Section 136
was one of the
transitional provisions brought into force before the Act came into
operation. It provides:
‘
(1)
Any person serving a sentence of imprisonment immediately before the
commencement of Chapters IV
2
,
VI and VII
3
is subject to the provisions of the Correctional Services Act, 1959
(Act 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.
(2)
When considering the release and placement of a sentenced offender
who is serving a determinate sentence of incarceration as
contemplated in subsection (1), such sentenced offender must be
allocated the maximum number of credits in terms of section 22A
of
the Correctional Services Act, 1959 (Act No. 8 of 1959).’
The
applicants were, as I have mentioned, sentenced after the operative
date
4
and are therefore excluded from the operation of s 136 with the
result that they are required to serve at least one half of their
sentences before being eligible for parole. The kernel of their
attack on the constitutionality of the impugned section is based
on s
35(3)(n) of the Constitution which provides:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right-
(n)
to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed
between
the time that the offence was committed and the time of sentencing;’
Against
this background I now turn to consider the applicants’
constitutional challenge of the impugned section.
THE
SCOPE OF THE APPLICANTS’ CHALLENGE
[5]
The applicants contend that the parole policy applicable at the time
of commission of the offences in respect of which they
are serving
their sentences, should apply and that they are therefore entitled to
be considered for parole after having served
one third of their
sentence. The main focus of the applicants’ constitutional
attack in the papers before me concerns an
alleged conflict of the
impugned section with s 35(3)(n) of the Constitution on the ground
that it also affords to them, as offenders
serving sentences of
incarceration, the right to benefit from the least form of
punishment. In argument before me counsel for the
applicants with
reference to the judgment of the Constitutional Court in S v Zuma and
others
[1995] ZACC 1
;
1995 (2) SA 642
(CC), sought to widen the scope of the attack
in relying on substantive fairness as a requirement for parole
policy. In Shaik v
Minister of Justice and Constitutional Development
and others
[2003] ZACC 24
;
2004 (3) SA 599
(CC) para [25] Ackermann J concerning the
observance of accuracy in a constitutional attack, said:
‘
It
constitutes sound discipline in constitutional litigation to require
accuracy in the identification of statutory provisions that
are
attacked on the ground of their constitutional invalidity. This is
not an inflexible approach. The circumstances of a particular
case
might dictate otherwise. It is, however, an important consideration
in deciding where the interest of justice lies.’
(Cf
Knox D’Arcy AG v Land and Agricultural Development Bank of
South Africa
[2013] 3 All SA 404
(SCA) para [35])
The
fundamental requirement of accuracy should, in my view, be extended
to include the grounds of attack. The constitutionality
of the
impugned section is a serious matter and of vital importance with
far-reaching effects not only to the applicants and the
various
parties cited as respondents in this application but also to other
offenders serving incarceration and finally, the requirements
of
legal certainty. The aspect of fairness was neither mentioned nor
addressed in the papers before me. I accordingly consider
it in the
interests of justice to confine the present application to the attack
based on s 35(3)(n) of the Constitution.
[6]
In interpreting the impugned section I propose to adopt the approach
and apply the principles relating to interpretation enunciated
by the
Constitutional Court in Van Vuren.
I
do not consider it necessary to traverse those principles but what
bears repeating is the governing principle of the supremacy
of the
Constitution, which constitutes the starting point in interpreting
any legislation. An interpretation is accordingly demanded
that
promotes the spirit, purport and objects of the Bill of Rights. At
issue in Van Vuren was the interrelation between ss 3(a)
and ss (1)
of s 136 in regard to lifers, which formed the basis of the
constitutional attack. Concerning the constitutionality
of the
impugned section, Nkabinde J, who wrote for the majority of the
court, found a coherency and sensibility between the sub-sections
and
concluded that ss 136(3)(a) is not superfluous and does not nullify s
136(1), and was therefore constitutionally compliant.
It is true that
the Constitutional Court in Van Vuren did not deal with the basis of
the present attack. On the other hand, as
a point of departure, it is
important in deciding the present application, that the section was
subjected by our highest court
to constitutional scrutiny and that it
passed constitutional muster. All that needs to be added to the
principles of interpretation
is the much-quoted reminder borrowed
from Lord Wilbeforce by Kentridge AJ in Zuma (para [18]) that ‘even
a constitution is
a legal instrument the language of which must be
respected’. The learned Justice continued
‘
If
the language used by the lawgiver is ignored in favour of a general
resort to ‘values’ the result is not interpretation
but
divination. If I may again quote S v Moagi
5
(supra at 184), I would say that a constitution ‘embodying
fundamental rights should as far as its language permits be given
a
broad construction’ (My emphasis.)’
[7]
More directly in point is the judgment of Lekale J in Makaba v The
Minister of Correctional Sen/ices and others (FSHC, case
no
5369/2011, unreported, delivered on 16 August 2012) where the
constitutional challenge similar to the present by the applicant,
who
was sentenced after the operative date, in respect of offences he had
committed before that date, was dismissed. The learned
Judge
proceeded form the premise that the provisions of s 35(3)(n) of the
Constitution ‘are clear and the values underpinning
it, as well
as its scope, are apparent from a reading of the Constitutional
provision as a whole’ and held that it applied
to accused
persons who have not been sentenced and further that the impugned
section generally did not affect any of the applicant’s
constitutional rights especially the right of an accused person to
benefit from any less severe punishment. I am unable to find
that the
reasoning or the interpretation of the learned Judge was in way
‘restrictive’ or ‘contrary to the spirit
of the
Constitution’ as was submitted by counsel for the applicants
and I accordingly respectfully agree with the learned
Judge’s
interpretation of s 35(3)(n) of the Constitution.
[8]
This brings me to the judgment of Hiemstra AJ in Van Wyk v Minister
of Correctional Services and others
2012 (1) SACR 159
(GNP). The
judgment and its effect was extensively dealt with in the applicants’
founding affidavits.
6
The Minister of Correctional Services, in a public announcement,
commented on the consequences of the judgment on the eligibility
for
parole and an official notice to all correctional officials and
offenders serving life sentences was issued containing instructions
to implement the orders made in Van Wyk. The applicants contend that
those instructions were not carried out.
7
Before me counsel for the applicants sought to derive support for his
contentions from one of the sub-paragraphs of the order that
was made
while counsel for the respondents submitted that the ratio of the
judgment supports the respondents’ contentions
concerning the
constitutionality of the impugned section. In view of the opposing
contentions it is necessary to consider the orders
granted in Van Wyk
in the light of the facts, issues and findings that were made. The
applicant was a lifer who had been sentenced
prior to the effective
date. The parole provisions of the old Act were accordingly
applicable to him in terms of which he had to
serve at least 20 years
before becoming eligible for parole subject to the allowance of
credits. Subsequent the transitional provisions
having come into
force the Department of Correctional Services issued an order
containing criteria and guidelines in respect of
prisoners sentenced
to life imprisonment, in accordance with the transitional provisions
(the order). The order incorrectly reflected
that credits could not
advance the consideration date for parole. The incorrect order
prompted the applicant to launch the application
in which he sought
wide ranging orders including a declaration of unconstitutionality of
the impugned section as well as the order.
As the learned Judge
remarked, all the orders sought were aimed at his entitlement to have
his parole date advanced through credits
in terms of s 22A of the old
Act. The learned Judge with reliance on Van Vuren found that the
constitutional challenge was ‘misconceived’
and
‘superfluous’, that the impugned section passed
constitutional muster and that it was free from contradictions.
This
is the finding embraced by the counsel for the respondents. The
learned Judge further held that the order did not correctly
reflect
the provisions of s 136, that it constituted deprivation
8
and as such offended the rule of law. The resultant orders made were,
first, a declarator that the order was inconsistent with
the
Constitution, and, second,
‘
2.
The applicant and other offenders who were serving sentences of life
incarceration immediately before 1 October 2004 are entitled:
2.1
to have the date on which they may be considered for parole advanced
by credits earned in terms of s 22A of the Correctional
Services Act
8 of 1959, subject to the applicable criteria for the allocation of
credits;
2.2
to be considered for parole in terms of the policy of the Department
of Correctional Services which applied at the date of the
commission
of the crimes for which they are serving life imprisonment.
[emphasis
added]
Counsel
for the applicants relied on paragraph 2.2 of the order. The
subsequent instructions issued by the Department of Correctional
Services, to which I have referred were premised on and indeed
followed the exact wording of paragraph 2 of the order.
9
[9]
Paragraph 2.2 of the order in Van Wyk, in my view is an apparent
misnomer. It is clearly inconsistent with and moreover flies
in the
face of the findings made by the learned Judge, in particular in
upholding the constitutionality of the impugned section.
The issue
pertaining to the operative date for purposes of parole consideration
was not dealt with in the body of the judgment,
which, I regret to
say, has the inevitable result of paragraph 2.2 of the order being a
non-sequitur. I accordingly conclude that
the applicants’
reliance on paragraph 2.2 of the order Van Wyk is misplaced.
[10]
Two Canadian cases dealing with the effective date for determining
the applicable parole regime, by way of comparison, need
to be
considered. The first is R v Gamble
[1988] 2 SCR 595
where Wilson J,
in the majority judgment, held that extended parole ineligibility
constituted continuing deprivation of liberty
which is contrary to
the principle of fundamental justice that an accused person must be
tried and punished under the law in force
at the time an offence is
committed. The judgment therefore is authority for the proposition
that parole eligibility is determined
in accordance with the law at
the time of the commission of the offence. Counsel for applicants
urged me to approve of the judgment
which he submitted should be
afforded considerable persuasive force in view of it having been
referred to with approval by the
Constitutional Court in Van Vuren.
Considered in its proper context I do not think that Gamble, although
referred to in Van Vuren,
10
was approved. I am unable to find any persuasive support in the
majority judgment in Gamble. It was disapproved of by inter alia
the
Ontario Supreme Court in Caruana v Director of Bath Institution,
Commissioner of Corrections and Attorney General of Canada
2002
CanLII 49628 (ON SC)
where the distinct dividing line between the
proceedings up to and including sentencing of an accused person
(indictment, trial
and sentencing) and the process thereafter (the
manner in which a sentence of detention is to be served) was, which
in my view
lies at the heart of arriving at a proper interpretation
of s 35(3)(n) of the Constitution.
[11]
Section 35(3) of the Constitution, as the plain wording of the
introductory sentence conveys, deals with an accused person’s
right to a fair trial. The trial of an accused person is conducted in
court and reaches conclusion when the accused person has
been
sentenced. The serving of the sentence, in this case incarceration,
on the other hand constitutes an entirely different process
which is
administered by Correctional Services. The prescribed punishments
referred to in s 35(3)(n) can only be to those that
may be imposed on
an accused person after conviction. Counsel for the applicants sought
to rely on an extended dictionary meaning
of the word ‘punishment’
as ‘an act or a way of punishing’ in support of the
argument that the section
should also apply to the serving of
sentences. I am unable to agree. The word ‘punishment’ as
used in s 35(3)(n), in
my view, does not refer to the way in which
punishment is served. And, finally, and decisively, the subsection
expressly, in clear
wording, provides for changes in the prescribed
punishments ‘between the time that the offence was committed’
and ‘the
time of sentencing’. To extend the meaning of
the subsection to include the serving of sentence would constitute
reading
into it what one wishes it to mean which plainly is
impermissible.
11
[12]
For all the above reasons the attack on the constitutionality of the
impugned section cannot be sustained. I further hold that
the date of
sentencing is the operative date for purposes of determining parole
eligibility in terms of the statutory provisions
I have referred to.
[13]
Counsel for the respondents fairly and properly did not ask for costs
against the applicants.
[14]
In the result I make the following order:
The
application is dismissed.
VAN
OOSTEN JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANTS: ADV HL ALBERTS
APPLICANTS’
ATTORNEYS: PRETORIA JUSTICE CENTRE
COUNSEL
FOR FIRST & SECOND
RESPONDENTS:
ADV MT MOERANE SC
ADV
TWG BESTER
FIRST
& SECOND RESPONDENT’S
A
TTORNEYS:THE STATE A TTORNEY
COUNSEL
FOR AMICUS CURIAE ADV HP JOUBERT
ATTORNEYS
FOR AMICUS
CURIAE:
JULIAN KNIGHT AND ASS
DA
TE OF HEARING: 2 SEPTEMBER 2013
DATE
OF JUDGMENT: 9 SEPTEMBER 2013
1
A
prison rights association with main objective within its means to
establish and promote the best interests of prisoners in the
South
African penal system
2
The date of coming into operation was 31 July 2004.
3
Which
came into operation on 1 October 2004, that accordingly being the
operative date.
4
In
respect of offences committed before the operative date.
5
The
reference is to
Attorney-General
\/
Moagi
1982 (2) Botswana LR 124.
6
The
applicants prepared and launched the application in person.
7
This
aspect was not persisted with in argument before me.
8
See
Van
Vuren
para [60].
9
The
applicant in
Van Wyk
committed the offences on 13 October 1991, and he therefore,
pursuant to paragraph 2.2 of the order, became eligible for parole
in terms of the parole policy in force at the time which in somewhat
inelegant terms, provided eligibility for parole after having
served
10 years ‘but only in exceptional cases prior to 15 years’.
This is indeed way beyond what the applicant sought
to achieve in
the application.
10
Van
Vuren
132 footnote 80.
11
Zuma
652J.