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[2012] ZAGPPHC 318
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Bester v Minister of Correctional Services and Others (64018/09) [2012] ZAGPPHC 318 (28 November 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 64018/09
DATE:28/11/2012
In
the matter between:
GERT
PETRUS
BESTER
…..............................................................................
Applicant
And
THE
MINISTER OF CORRECTIONAL
SERVICES
........................................
1st
Respondent
THE
NATIONAL COMMISSIONER
DEPARTMENT
........................................
2nd
Respondent
OF
CORRECTIONAL SERVICES
THE
PAROLE BOARD,
KLERKSDORP
...........................................................
3rd
Respondent
THE
CASE MANAGEMENT
COMMITTEE,
.......................................................
4th
Respondent
KLERKSDORP
CORRECTIONAL CENTRE
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
The Applicant brought this application seeking an order as follows:
“
1.
that the respondents and or interested parties hereby be summoned to
give reasons, if any why;
The
decision by the 3rd respondent alternatively the 1st respondent
together with other respondents to the effect not to adequately
consider, recommend and or approve the applicant’s placement on
parole. Such decision should be reviewed, set aside and substituted
with the following;
(a)
the respondents are ordered to place the applicant on parole within
30 days subject to him being monitored by the respondents
division
“community corrections” in accordance with the statutes
and regulations of the Republic of South Africa or
(b)
respondents be ordered to reconsider the applicant for parole and/or
conversion of his sentence into correctional supervision
within 30
days after the decision of the above Honourable Court and
(c)
respondents be ordered not to utilize the 2/3 (two thirds) or %
policy criteria as a prerequisite when Applicant is considered
for
possible placement on parole.
(d)
To allow the Applicant to be represented at the hearing when
Applicant is considered for conversion of sentence or possible
placement on parole and
(e)
Allow Applicants (sic) representatives to make oral and written
submissions prior to any decision taken by relevant Respondents
and
(f)
Respondents to be ordered to bear the costs of this application;
(g)
Further and/or alternative relief.”
[2] BRIEF FACTS
On
26 October 2000 the Applicant was convicted of rape and kidnapping
and sentenced to an effective sentence of 20 years imprisonment.
He
appeared before the Parole Board, Klerksdorp on 2 April 2009 when his
placement on parole was considered. This was after the
Case
Management Committee (“CMC”) had made its recommendation
to the Board. The CMC did not recommend that the Applicant
be placed
on parole. The Third Respondent, instead, recommended further profile
for 30 December 2010. The Applicant was not happy
therewith and
proceeded to launch this application which is opposed by the
Respondents.
[3]
The Applicant brought the application on the basis that the Parole
Board did not apply their minds to his application. It is
the
Applicant’s further contention that certain documents were
missing while others which were irrelevant were considered.
The
Respondents deny this.
[4]
It is conceded, on behalf of the Respondents, that the decision taken
by the Third Respondent constitutes an administrative
decision which
can be reviewed by this
Court
subject to certain requirements having been met. The Applicant
therefore has to satisfy the Court that he, due to the circumstances
of his case, is entitled to have the decision reviewed, set aside and
substituted.
[5] REQUIREMENTS FOR THE REVIEW
Section
6(2) (h) provides:
“
(2)
A court or tribunal has the power to judicially review an
administrative action if-
(a )-------
(b)
(c)
(d)
------------
(e)
----------
(f)
---------
(g) ---------
(h)
The exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken} is so unreasonable that
no reasonable person could have so exercised the power or
performed
the functionor
(i)
-------------------------
The
section has from time to time been considered and interpreted. In
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at 512-513 D O’Regan J said that
the Section must be considered, construed consistently with Section
33 of the Constitution
which requires administrative action to be
“reasonable”. An administrative decision is reviewed if
“a reasonable
decision maker could not reach it”. In
determining whether a decision is reasonable factors such as the
nature of the decision,
the reasons for the decision, the identity
and expertise of the decision maker, factors relevant to the
decision, the nature of
the competing interests involved and the
impact of the decision on the lives and well-being of those affected
are taken into account.
The
court warned against usurping the functions of the administrative
agencies. The analysis of Section 6 (2) (h) was stressed in
the case
of Sidumo and Another v Rusternburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) at 59 para [107].
[6]
A court dealing with a matter where the attack is on the basis of
unreasonableness sits as a review court and not an appeal
court. The
test applicable in matters of this nature must then be applied. The
court will intervene only if the decision is so
unreasonable that no
reasonable person would have reached it. The Applicant’s case
is that the Respondent did not apply its
mind when the application
for placement on parole was considered. The case, as Mr Malatji for
the Respondents, correctly submitted,
is not that the decision of the
Third Respondent is so unreasonable that no reasonable person could
have reached it.
The
Third Respondent showed that due consideration was accorded to the
application. The Applicant was present and his legal representative
submitted written representations and submissions. With the exception
of the reports that were not there, reports were there for
the Third
Respondent to consider when it dealt with the application, it is not
correct as Mr Chauke argued on behalf of the Applicant
that a
decision was taken even before the application was heard.
[7]
It is noteworthy that a prisoner has no right to be released on
parole. He, however, has a right to be considered for placement
on
paroie. Parole is only a privilege. (Combrink and Another v Minister
of Correctional Services and Another
2001 (3) SA 338
(D and CLD) at
341). A perusal of the Respondents’ answering affidavit
discloses that the Third Respondent, indeed, applied
its mind when it
considered the Applicant’s application.
[8]
It was submitted on behalf of the Applicant that this is one
appropriate case where the Court could substitute the decision
of the
Correctional Supervision and the Parole Board, it is noteworthy that
the circumstances under which that can be done are,
indeed,
circumscribed. The Court, in circumstances such as these, will
invariably refer the matter back to the CSPB except in cases
where
bias or gross incompetence has been demonstrated or where the outcome
is a forgone conclusion. (Onshelf Trading Nine (Pty)
Ltd v De Klerk
N.O. and Others
1997 (3) SA 103
(W) at 111-112 and Erf One Six Seven
Orchards CC v Greater JHB Metropolitan Council
[1998] ZASCA 91
;
1999 (1) SA 104
(SCA)
at 109).
This,
in my view, is not the case where bias or gross incompetence has been
shown. Neither are the facts of the case warranting
the substitution
of the decision of the CSPB with that of the Court.
[9]
Having regard to the facts of the matter I am not satisfied and
persuaded that I should exercise my discretion in favour of
reviewing, setting aside and substituting the decision of the Third
Respondent as prayed for by the Applicant. The application,
in my
view, should fail.
[10]
COSTS
Having
regard to the facts of the case my considered view is that there
should be no order to costs.
[11]
I, in the result, make the following order:
1.The
application is dismissed.
2.
There will be no order as to costs.
MSIMEKl
M.W
JUDGE
OF THE HIGH CCjURT NORTH GAUTENG HIGH C^)URT
Counsel
for applicant: Counsel for respondent: Attorneys for applicant:
Attorneys for respondent: Date heard:
Date
of judgment:
Advocate
A Chauke Advocate S.M. Malatji Julian Knight and Ass 1 State
Attorneys 28 October 2010