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[2012] ZAGPPHC 324
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C.V v Minister of Correctional Services and Others (48967/2012) [2012] ZAGPPHC 324 (30 November 2012)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 48967/2012
DATE:30/11/2012
In
the matter between:
CV
…..........................….................................................................................
Applicant
and
THE
MINISTER OF CORRECTIONAL SERVICES
…..........................
First
Respondent
COMMISSIONER
OF CORRECTIONAL SERVICES
…......................
Second Respondent
HEAD
OF THE FEMALE CORRECTIONAL CENTRE ,
PRETORIA
CENTRAL PRISON
…..........................................................
Third
Respondent
CASE
MANAGEMENT COMMITTEE: FEMALE
CORRECTIONAL
CENTRE,
PRETORIA
CENTRAL PRISON
….........................................................
Fourth
Respondent
PAROLE
AND CORRECTIONAL SUPERVISION BOARD:
FEMALE
CORRECTIONAL CENTRE,
PRETORIA
CENTRAL
…............................................................................
Fifth
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
The applicant seeks, in the main, an order reviewing and setting
aside the decision of fifth respondent (the parole board) made
on 7
August 2012 not to recommend her for conversion of her sentence into
correctional supervision. The applicant accordingly seeks
an order
substituting that decision with an order referring her to the
sentencing court for reconsideration of her sentence in
terms of s
276A(3)(a)(ii) of the Criminal Procedure Act, 51 of 1977 (the CPA).
In the alternative, the applicant seeks an order
directing the second
respondent to refer the matter to the Correctional Supervision and
Parole Review Board.
[2]
The applicant is currently serving a 7 years prison term, following
her conviction by this court (Eksteen AJ) of twelve counts
including
fraud; several counts of indecent assault involving minor girls,
among others; contravention of s 27(1 )(a) of the
Films and
Publications Act 65 of 1996
; contravention of s14(3)(c) of the Sexual
Offences Act, 34 of 1957. She was sentenced on 10 February but only
commenced serving
on 17 May 2010 after an application for leave to
appeal was refused by the Supreme Court of Appeal. She received a 6
months presidential
general amnesty announced on 27 April 2012. Her
effective sentence is therefore 6.5 years.
[3]
Since her incarceration, the applicant has taken some steps towards
rehabilitation. She has completed an HIV/Aids adherence
and
prevention programme. She has also obtained a certificate in a skills
development project hosted by the University of Pretoria,
and
participated in a restorative justice programme. She was appointed a
tutor in adult basic education and English, assisting
offenders to
complete grades 10, 11 and 12. She has letters of support
and
recommendation from the chairperson of the fourth respondent, a
priest form the Dutch Reformed Church; a spiritual care coordinator
of the prison; and her mother.
[4]
The conversion of a sentence of direct imprisonment into one of
correctional supervision is deal with in s 276A (3)(a)(ii) of
the
CPA. The following provisions are relevant:
'(3)
(a) Where a person has been sentenced by a court to imprisonment for
a period-
(i)
not exceeding five years; or
(ii)exceeding
five years, but his date of release in terms of the provisions of
the Correctional Services Act, 1959 (Act 8 of 1959),
and the
regulations made thereunder, is not more than five years in the
future,
And
such a person has already been admitted to a prison, the Commissioner
or a parole board may, if he or it is of the opinion that
such a
person is fit to be subjected to correctional supervision, apply to
the clerk or registrar of the court, as the case may
be, to have that
person appear before the court a quo in order to reconsider the said
sentence’,
[5]
In terms of s 73(7)(c) of the Correctional Services Act 111 of 1998
(before its amendment in March 2012 by Act 5 of 2011) an
inmate must
have served at least a quarter of her sentence before he or she is
considered for conversion of sentence. It is common
cause that the
applicant qualifies in this regard, having served a quarter of her
sentence. The next step in the process is a finding
by the parole
board that the inmate is fit and suitable to be referred to the
sentencing court for reconsideration of their sentence.
In this
regard the parole board decided on 7 August 2012 that the applicant
is not suitable. The applicant is aggrieved by that
decision, hence
this application.
[6]
The applicant seeks to review and set aside the parole board decision
in terms of s 6(2) of the Promotion of Administrative
Justice Act 3
of 2000 (PAJA), on the ground that:
(a)
the audi alteram partem rule was not fairly applied;
(b)
the decision was not rationally connected to the information before
the parole board, or the reasons furnished for it by the
parole
board;
(c)
the decision was taken in bad faith, arbitrarily and/or capriciously;
(d)
irrelevant considerations were taken into account and relevant
considerations were not considered.
[7]
Before I consider the specifics of the present application, it is
prudent to set out the process of conversion of sentence into
one of
correctional supervision. The process commences with the fourth
respondent, who, in terms of s 42 of the Act, is enjoined,
among
others, to ensure that each sentenced prisoner has been assessed. For
prisoners serving more than twelve months there should
be a sentence
plan as required by s 38(2). Of particular relevance to the present
case, the fourth respondent has to prepare and
submit to the parole
board, a profile report, together with the relevant documents,
regarding:
(a)
the offence or offences for which the sentenced prisoner is serving a
term of imprisonment together with the judgment on the
merits and any
remarks made by the court in question at the time of the imposition
of sentence if made available to the Department
of Correctional
Services;
(b)
the previous criminal record of such prisoner;
(c)
the conduct, disciplinary record, adaptation, training, attitude,
industry, physical and mental state of such prisoner;
(d)
the likelihood of a relapse into crime, the risk posed to the
community and the manner in which this risk can be reduced;
(e)
the possible replacement of such sentenced offender under
correctional supervision in terms of a sentence provided for in s
276(1) (i) or 287(4)(a) of the CPA, or in terms of the conversion of
such an offender’s sentence into correctional supervision
under
sections 276A(3)(e)(ii), 286B(4)(b)(ii) or 287(4)(b) of the CPA and
the conditions for such placement;
(f)
the possible placement of such prisoner for such placement; and
(g)
such other matters as the parole board may request.
[8]
Back to the facts of the present case. In February 2012, the fourth
respondent commenced with the process to prepare the applicant’s
profile to place her before her before the fifth respondent to
consider her suitability for reconsideration of sentence. That
process was interrupted by circumstances which are not particularly
relevant for the present purposes. On 29 May 2012 the applicant
brought an application before this court to enforce certain of her
rights. That application was ultimately settled between the
parties
on the following basis:
(a)
the fourth respondent would prepare the applicant’s profile and
recommendation by no longer than 31 July 2012;
(b)
the parole board would consider the applicant’s suitability for
conversion of her sentence by no later than 31 August
2012;
(c)
the applicant would receive a copy of her profile at least 7 days
before the hearing.
[9]
Shortly after the settlement, the applicant was consulted by a social
worker and a psychologist, with a view to compiling the
relevant
reports to be submitted to the parole board. On 24 July 2012 the
fourth respondent recommended the conversation of the
applicant’s
sentence into correctional supervision in terms of s 276A (3) of the
CPA. On 7 August 2012 the applicant appeared
before the parole board
for consideration whether she is a suitable candidate for conversion
of sentence. The parole board decided
that she is not. The reasons
for that decision are stated as follows;
The
Board has decided not to recommend the offender for conversion of
sentence. The CSPB has noted with concern, the seriousness
of the
crime, the number of victims involved and the negative impact this
had on the community. Many lives were affected; especially
the minors
whose future was adversely scarred by the experience the offender put
them through. The fact that offender attended
and completed relevant
programs are greatly appreciated, and the efforts she put in
improving fellow offenders' lives. The board
also noted the
Court/Judge sentence remarks (enclosed) that the only appropriate
sentence for the offender is direct imprisonment.
The offender, in
her capacity as a learned advocate, betrayed less learned victims as
she misused her position of trust and misled
poor, disadvantaged
children. The Board concur with the court that offender should serve
the sentence as prescribed’.
[10]
It is common cause that the decision of the parole board was taken
without the social worker and psychologist’s updated
reports.
These reports are extremely important for the fourth respondent’s
recommendation to the parole board for it to properly
exercise its
discretion as to whether the applicant is a suitable candidate for
reconsideration of sentence. That discretion must
be exercised taking
into account a range of considerations, including the contents of the
reports by the social worker and/or psychologist.
[11]
In addition, the views of the victims and their families need to be
considered. In terms of s 299A of the CPA, the nature of
the offences
of which the applicant was convicted, accords the victims or their
relatives, a right to attend a meeting of the parole
board or make
representations when placement on parole of the applicant is
considered. Under those circumstances, s 74(4) of the
Act provides
that the second respondent (the commissioner) must inform the
complainant or relative in writing when and to whom
he or she may
make representations, and when and where a meeting will take place.
This is dependent on whether during the sentencing
the victims or
relatives were informed of their right, and have indicated their wish
to the commissioner to exercise that right.
There is some debate in
the present case as to the adequacy of the explanation by the court
during the sentencing stage. In the
end, nothing turns on this aspect
as it is now clear that the victims wish to exercise that right and
they were not informed of
the sitting of the parole board.
[12]
In the absence of all the above information, it is clear that the
decision of the parole board was taken without all the prescribed
information being available. To that extent, it was arbitrary and
capricious. On that basis alone the parole board’s decision
has
to be set aside. What remains is what should be ordered in its stead.
Mr. Engeibrecht SC, counsel for the applicant, urged
me, quite
forcefully, not to refer the matter back to the parole board.
Instead, counsel proposed, I should refer the applicant
directly to
the sentencing court to reconsider the sentence. This, counsel
submitted, was justified as the applicant should not
be prejudiced by
the respondents’ failure to ensure that all the relevant
information was before the parole board when it
considered the
applicant’s suitability for sentence reconsideration. Counsel
furthermore submitted that the applicant has
proven herself to be a
‘model prisoner’ having regard to the favourable
considerations mentioned in paragraph [3] above.
[13]
I have a conceptual difficulty with the above proposition. As
indicated elsewhere in this judgment, the jurisdictional factor
which
must be present before a referral to the court for sentence
reconsideration, is the opinion of the parole board that an inmate
is
a suitable candidate for such reconsideration. On a proper
construction of the enabling section (276A(3) of the CPA) the only
functionary body entrusted with that task is the parole board. I find
nothing in the plain language of the section that a court
can,
without further ado, usurp that power and substitute the decision of
the parole board with its own. Of course, the court retains
the
residual discretion in terms of s 8(1 )(ii)(aa) of PAJA, where
exceptional circumstances justify such a decision. In the present
application no such circumstances exist. It is not even suggested
that there are any such circumstances.
[14]
It has been stated - repeatedly now, that a court should be careful
not to attribute itself superior wisdom in relation to
matters
entrusted to other branches of government: See Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
para 48, which has been followed in a line of subsequent cases. I
therefore conclude that this court is not competent, in
the absence
of clear and demonstrable exceptional circumstances, to refer the
applicant directly to the sentencing court.
[15]
Even if this conclusion is wrong, the proposition contended for on
behalf of the applicant is in any event, self-defeating.
It is the
applicant’s case, and my finding, that the decision of the
parole board was capricious and arbitrary, to the extent
that the
relevant information, which I have set out above, was not before it.
As correctly submitted by Mrs. Manaka, counsel for
the respondents,
this court is in no better position than the parole board was when it
took the decision. Were I to refer the applicant
directly to the
sentencing court, like the parole board, it would have to be on the
basis of a finding that the applicant is suitable
for reconsideration
of sentence. Like the parole, I do not have all the relevant
information which I would have to consider for
that decision. All
there is before me is evidence that the applicant appears to have
acquitted herself very well as an inmate.
That, however, relates to
rehabilitation, which is but only one of the various factors to be
considered, together with others.
[16]
The applicant has prayed that, in the event I disincline to refer her
directly to the sentencing court, I should order the
commissioner to
refer the matter to the Correctional Supervision and Parole Review
Board. In my view, this would not be a proper
order under the
circumstances, for the simple reason that having found that the
decision of the parole board was taken without
adequate information,
it is only fair and just that the parole board be afforded an
opportunity to make a proper decision, with
all relevant information
before it.
[17]
Although there is a muted allegation of bias on the part of the
parole board against the applicant (with the concomitant fear
of the
board’s decision being a foregone conclusion not to recommend
her), I find no evidence of that on the papers.
I
therefore conclude that the matter should be remitted to the parole
board for it to consider afresh, the applicant’s suitability
for conversion of her sentence. In the light of this conclusion, it
is not necessary to consider a preliminary point argued on
behalf of
the respondents in terms of s 7(2) of PAJA, that the applicant has
not exhausted all internal remedies before approaching
this court.
[18]
From the papers, it seems that both the psychologist and the social
workers’ updated reports are ready. The access to
the victims
would be facilitated by the presence of Mr. Coetzee, counsel who
appeared on the day of the hearing. Although his application
for
joinder/postponement was refused, he remained on a watching brief
throughout the hearing.
[19]
Finally, the issue of costs. The applicant has been substantially
successful. She is entitled to her costs. On her behalf,
it was
contended that these costs should include the costs of two counsel
and ‘a senior attorney’. In my view this
is a simple and
straight-forward application, where the employment of senior counsel
was not warranted. I will therefore allow
only costs of a junior
counsel. To clarify the position for taxation purposes before the
taxing master, the costs consequent upon
employment of senior counsel
are not allowed. The applicant’s attorney is not entitled to
the costs of arguing the application.
[20]
In the result the following order is made:
1.
The decision of the Parole and Correctional Supervision Board: Female
Correctional Centre, Pretoria Central not to recommend
the applicant
for referral to the sentencing court, taken on 7 August 2012 is
reviewed and set aside;
2.
The Case Management Committee: Female Correction Centre, Pretoria
Central is ordered to immediately prepare ail the relevant
documentation, including the applicant’s social worker and
psychologist’s reports, within 21 days of this order;
3.The
Parole and Correctional Supervision Board: Female Correctional
Centre, Pretoria Central, is ordered, by no later than 31 January
2013, to convene and consider the applicant’s suitability for
recommendation to the sentencing court for conversion of her
sentence
to one of correctional supervision.
4.
The fifth respondent is ordered to pay the costs of the application,
subject to the remarks made in paragraph [18] of the judgment;
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 26 NOVEMBER 2012
JUDGMENT
DELIVERED : 30 NOVEMBER 2012
FOR
THE APPLICANT : ADV J ENGELBRECHT SC WITH
ADV
A JANSEN VAN VUUREN AND MR R KUHN (ATTORNEY)
INSTRUCTED
BY : J BREWIS ATTORNEYS,
PRETORIA
FOR
THE FIFTH RESPONDENT: ADV N O MANAKA
INSTRUCTED
BY : THE STATE ATTORNEY, PRETORIA