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[2013] ZAFSHC 154
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Shebe v Minister of Correctional Services and Others (2338/2013) [2013] ZAFSHC 154 (19 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2338/2013
In
the matter between:-
LAZARUS
MOKETE SHEBE
....................................................
Applicant
and
THE
MINISTER OF CORRECTIONAL
SERVICES
....................................................................
First
Respondent
THE
REGIONAL COMMISSIONER OF
.................
.Second
Respondent
FREE STATE AND
NORTHERN CAPE
STATE ATTORNEY
.....................................................
Third
Respondent
CHAIRPERSON OF THE
PAROLE BOARD
............
Fourth
Respondent
_____________________________________________________
HEARD ON:
5
SEPTEMBER 2013
_____________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_____________________________________________________
DELIVERED ON:
19 SEPTEMBER 2013
_____________________________________________________
[1] This is an
application whereby the applicant seeks an order that the respondents
be compelled to release him from prison forthwith.
[2] Applicant appeared in
person. He is serving a sentence of thirty five and a half years at
Kroonstad Correctional Centre. In
terms of his correctional service
profile, he was supposed to have appeared before the Parole Board on
25 April 2013. However due
to the credits he received, he was seen
and considered for parole on 1 December 2012 i.e. before he had done
one third of his sentence.
The Parole Board decided not to grant
parole and postponed the matter to 1 May 2013 for further profile.
The reason for not granting
parole was that the victims of crime were
not engaged as envisaged in terms of
section 299A
of the
Criminal
Procedure Act 1977
, Act 51 of 1977.
[3] Applicant had
previous convictions and the current imprisonment is for five counts
of attempted murder, two counts of armed
robbery and possession of
firearm. On 31 May 2013, the applicant again appeared in front of the
Parole Board and by then the victims
of his crimes had still not been
engaged and the matter was postponed to 1 December 2013. As a result
of this, applicant approached
this court for an order that
respondents be compelled to release him from prison.
[3] The issue to be
considered is whether the applicant had made up a case for this court
to can order the respondents to immediately
release him from prison
based on the aforesaid facts.
[4] Section 73(1)(a) of
Correctional Services Act 1998
, Act 111 of 1998 states as follows:
“
(1) Subject
to the provisions of this Act-
(a)
a sentenced
offender remains in a correctional centre for the full period of
sentence;”
Section 73(6)(a) states:
“
(6)
(a)
Subject to the provisions of paragraph
(b)
,
a sentenced 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…”
[5] Section 75(1)(a) of
the aforesaid Act states
(1) A Correctional Supervision and
Parole Board, having considered the report on any sentenced offender
serving a determinate sentence
of more than 24 months submitted to it
by the Case Management Committee in terms of section 42 and in the
light of any other information
or argument, may-
(a)
subject to
the provisions of paragraphs
(b)
and
(c)
and subsection
(1A) place a sentenced offender under correctional supervision or day
parole or grant parole or medical parole…”
[6] It is common cause
that case management committee had compiled a report which was
submitted to the Parole Board for applicant
to be considered for
parole hence applicant’s parole was considered on 1 December
2012. The provisions of section 75(1)(a)
are not peremptory hence it
states that the Parole Board may grant parole. It is therefore within
the discretion of the Parole
Board to grant or not to grant an
offender a parole after considering all available information. It is
common cause that the victims
of the crimes were not engaged, a
scenario which is stipulated by
section 299A
of the
Criminal
Procedure Act due
to the fact that applicant was convicted of serious
offences.
[7] The granting of
parole is not a right that can be claimed by an applicant, it is a
privilege as in terms of
section 73(1)(a)
of the
Correctional
Services Act,
supra
, a sentenced offender is to remain in
correctional centre for a full term of his sentence subject to the
provisions of
section 73(6)(a).
The Act makes provision for
consideration of placement on parole and not the actual placement on
parole. What a sentenced offender
in the position of the applicant
enjoys is the right to be considered for parole. See also in this
regard
Winckler and Others v Minister of Correctional Services
and Others
2001 (2) SA 747
(CPD).
[8] It is apposite to
mention that this is not a review matter either at common law or in
terms of
Promotion of Administrative Justice Act 2000
, Act 3 of 2000
(PAJA). In an obiter, if the applicant is of the view that the
respondents’ decision was grossly unreasonable,
his cause of
action should be based on administrative review. I may mention,
en
passant
, without deciding the issues that
ex facie
the
documentary evidence before me, there appears to be no substantial
merits in such a review, should the applicant be adduced
for launch
of same.
[9] The applicant
requests this court to compel the Parole Board to release him. The
Parole Board is a statutory body having its
powers and functions.
This court can thus not interfere with the decisions of the Parole
Board as this will be contrary to the
well-known notion of separation
of powers between the judiciary and the executive. As aforesaid, this
court can interfere with
the executive powers once it has been proven
that such powers were unreasonably in a review application.
[10] In my judgment the
real cause of the applicant’s grief is failure on the part of
the authorities to finalise his consideration
for parole. An
application for a mandatory order to that effect would most probably
be appropriate.
[11] Counsel for third
respondent rightly submitted that there is a misjoinder in respect of
the third respondent as he has no direct
or substantial interest in
this matter and thus requested a costs order. Applicant submitted
that the third respondent was joined
because he always defends the
other respondents in litigation, which submission has no merits.
[12] In the circumstances
applicant failed to make up a case as per his prayer and the
application thus falls to be dismissed.
[13] Respondent requested
the court to order costs against the applicant whilst the applicant,
on his part, prayed for costs against
all four respondents. The
general rule is that the successful party is entitled to its costs. I
however feel that such a costs
order against the applicant would be
academic and of no practical effect regard being had to the fact that
he is currently serving
a penal term. There was, further, no fault on
the part of the applicant with regard to failure to engage victims of
the crimes.
To the aforegoing extent the applicant, in my view, has
cause to grief although the vehicle which he chose to convey his
grievance
to court is inappropriate.
[14] The following order
is thus made:
Application is
dismissed.
No order is made as to
costs.
_________________
S.J. THAMAGE, AJ
On
behalf of applicant: In person.
On
behalf of respondents: Adv B.S. Mene
Instructed
by:
State Attorney
BLOEMFONTEIN
/spieterse