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[2012] ZAFSHC 63
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Hans and Another v Minister of Correctional Services and Others (188/2012) [2012] ZAFSHC 63 (29 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 188/2012
In the matter between:-
SAM HANS
…........................................................................
First
Applicant
ZOLA ELVIS
GROOTBOOM
…........................................
Second
Applicant
and
MINISTER OF
CORRECTIONAL SERVICES
…...............
First
Respondent
COMMISSIONER OF
CORRECTIONAL
SERVICES
…................................................................
Second
Respondent
HEAD OF THE
CORRECTIONAL CENTRE
MANGAUNG MAXIMUM
SECURITY PRISON
…............
Third
Respondent
_______________________________________________________
HEARD ON:
22 MARCH 2012
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
29 MARCH 2012
_______________________________________________________
INTRODUCTION
[1] Applicants, two
inmates presently detained at the Mangaung Maximum Security
Correctional Centre (hereinlater referred to as
MMC), intended to
apply on an urgent basis for certain interim relief on 25 January
2012 after giving a mere four court days notice
to respondents. Third
respondent managed to file an opposing affidavit on 24 January 2012,
a day before the intended hearing. By
demand the matter was postponed
on 25 January 2012
sine die
, costs to stand over.
[2] On 10 February 2012
first and second respondents filed their opposing affidavits. No
replying affidavits were filed on behalf
of applicants and on 12
March 2012 and thus more than a month later, a notice of set down for
22 March 2012 was delivered on behalf
of third respondent. A notice
informing that first and second applicants’ attorneys withdraw
as attorneys of record, was
served and filed on 20 March 2012,
attached whereto was a letter of even date by the local attorney to
his instructing correspondent,
Mr. Joka, the first sentence of which
reads as follows:
“
Good
afternoon, Ntate Joka. As per your instructions a while ago, we will
withdraw, and attach a copy of the notice of withdrawal.”
[3] When the matter was
called in open court, there was no appearance on behalf of
applicants, who were absent as well as there
were probably no
instructions for them to be questioned. Mr. Venter appeared for first
and second respondents and Mr. J. Zietsman
for third respondent.
Heads of argument were also filed on behalf of respondents in
accordance with the Rules of Practise of this
division. I enquired
from both counsel whether they could give me any further information
pertaining to the position of applicants
as I was loath to deal with
the matter, given the late withdrawal of their attorneys. I was
informed there were indeed telephonic
conversations and email
correspondence between the local attorney of applicants, Mr. Steyn
and their attorneys of record to the
effect that on 19 March 2012 the
applicants requested a postponement to file a replying affidavits on
or before 11 April 2012 and
the matter to be removed from the roll.
The attorneys of the respondents were of the view that they would
agree to such a request,
but only on the basis that the wasted costs
had to be tendered, which was not done. Consequently no agreement
pertaining to postponement
or removal of the roll was reached. I was
handed a copy of the email of Mr. Steyn on behalf of applicants dated
19 March 2012 confirming
that I would have been informed by counsel.
I was also handed correspondence from the State Attorney acting for
first and second
respondents and Honey Attorneys acting for third
respondent, dated 19 March 2012, again confirming what I was informed
by counsel.
THE POSSIBILITY OF
A POSTPONEMENT
[4] I indicated to both
counsel that although I was of the view that there was no merit in
the application, it might be in the interest
of justice, bearing in
mind applicants’ rights of access to the court in accordance
with section 34 of the Constitution to
allow them the opportunity to
reply and to obtain new legal representatives to argue the matter on
their behalf. Both counsel emphasised
that the application is doomed
to fail and that it could not be remedied by way of a replying
affidavit and that no possible arguments
could be advanced to
persuade the court to grant the relief claimed. I considered the
matter and without making a definite ruling,
allowed argument on the
merits.
THE RELIEF SOUGHT
[5] Applicants in essence
seek the following orders:
(a) Directing third
respondent to allow them access to a telephone to make telephone
calls to their attorneys and family.
(b) Interdicting third
respondent from harassing, intimidating and imposing cruel punishment
upon applicants by instructing its
subordinates to assault and
ill-treat applicants.
(c) Directing third
respondent to allow first applicant access to his business chequebook
to allow him to sign cheques for payment
of employees at his
businesses.
(d) Directing respondents
to transfer applicants to Colesberg and Port Elizabeth Correctional
Centres respectively or to any other
correctional centre within the
Eastern Cape Province.
(e) Costs of suit.
FACTS NOT IN
DISPUTE
[6] The following facts
are not in dispute:
6.1 First applicant was
sentenced in February 2010 to 15 (fifteen) years imprisonment and was
transferred to MMC on 13 May 2010.
Although it does not appear from
the founding papers when second applicant was transferred to MMC, it
is apparent that this from
the opposing affidavit of third respondent
that this happened 30 December 2004.
6.2 It is not applicants’
case that they are presently classified as maximum security
classified inmates.
6.3 First and second
applicants shared a cell and on 9 December 2011 a cellular phone was
found in the cell.
6.4 First respondent did
apply for transfer from MMC but this application was declined by
second respondent.
FACTS IN DISPUTE
[7] The following facts
are in dispute:
7.1 The allegation that
first applicant is a candidate to be classified as a medium security
category inmate.
7.2 First applicant is
not entitled to be transferred to any prison in the Eastern Cape and
the MMC is the closest maximum security
correctional centre to
Colesberg where his relatives stay.
7.3 Over and above the
cellphone found, a cellphone charger was found in first applicant’s
locker as well as R900,00 in cash
on first applicant’s person.
MMC is a cash free environment and the cellphone posed a high
security breach. An investigation
is still pending and disciplinary
proceedings will be instituted shortly which disciplinary proceedings
would include action against
an employee of third respondent, who was
allegedly involved in corrupt dealings with applicants.
7.4 Although cellphones
are not allowed in MMC, telephones are located throughout the
correctional centre and inmates have free
access thereto, contrary to
what is alleged on behalf of applicants.
7.5 First applicant
previously applied for a transfer, but his application was
unsuccessful. He did not take that decision on review
and did not
file a new application for transfer at any later stage.
7.6 Applicants’
allegations that they were threatened by gangster members and fear
for their lives are denied. In fact, it
is made clear on behalf of
third respondent that it cannot allow the ill-treatment of inmates,
because of the strict contractual
obligations based on it by second
respondent. It is placed on record that the MMC is a world-class
correctional centre. Although
applicants declined to be removed to
the single cell special treatment unit, they are presently detained
in the intermediate unit
where both of them share a different cell
with one other inmate. It is contrary to the
Correctional Services
Act, 111 of 1998
, to allow inmates to conduct business activities
whist detained and consequently first applicant’s request to
utilise his
chequebook and to sign cheques, was turned down.
7.7 Second applicant
filed a confirmatory affidavit confirming the allegations made by
first applicant, but absolutely no facts
were alleged by him or on
his behalf pertaining to any entitlement to be transferred from MMC.
APPLICABLE
LEGISLATION AND POLICIES
[8] The Department of
Correctional Services and third respondent in particular in this
instance are due to be bound to ensure the
safe custody of inmates
and to maintain security and good order in MMC
in casu
like in
all other correctional centres. Inmates are required to accept the
authority and to obey the lawful instructions of the
National
Commission and all other employees and custody officials. See section
4 of the Correctional Services Act, 111 of 1998
(the Act).
Segregation of an inmate which may include detention in a single cell
is permissible,
inter alia
, when an inmate is threatened with
violence. See section 30(1)(d) of the Act.
[9] A sentenced offender
(inmate) must, due regard to the availability of accommodation and
facilities to meet his or her security
requirements and with
reference to the availability of programmes, be housed at the
correctional centre closest to the place where
he or she is to reside
after release and the transfer of a sentenced offender is subject to
these same considerations. See sections
43(1) and (3) of the Act.
Chapters IX and X of the Act provides for inspections by inspecting
judges and in the ...................
correctional centre visitors
who have to pay regular visits and may interview inmates in private
and record complaints in an official
diary and to discuss those
complaints.
[10] Third respondent
utilises an information handbook for all inmates approved by the
National Commissioner of Correctional Services
and it is distributed
to all inmates. It deals with various aspects such as contact with
family by making use of the telephone,
financial matters and the fact
that MMC is a cash free environment and that all calls to family and
friends are recorded for security
reasons, obviously these calls had
to be made through the installed telephones available for the benefit
of inmates and not cellphones.
[11] First and second
respondents attached the applicable transfer policy as well as the
policy and/or procedure applicable for
placement of inmates in MMC to
their opposing affidavit. The allegations contained in the opposing
affidavit are in harmony with
................................ It is
apparent that the applicants are duly detained in MMC insofar as they
belong to the maximum
custody classification and all other criteria
set out in the policy applied to them. It is also apparent that
inmates must be transferred
according to the custodial
classifications. Inmates with approved placement/release dates must
be transferred at an available opportunity
as soon as possible after
their placement/release dates are known to the correctional centre
nearest to their intended place of
residence. Obviously and bearing
in mind the information placed on record on behalf of first and
second respondents, no placements/release
dates have been approved in
respect of applicants and they are not as of right entitled to be
transferred to any correctional centre
closest to their homes.
[12] Insofar as first
applicant applied for transfer and which application was dismissed,
he would have been entitled if so advised
and if sufficient grounds
existed, to apply to this court for the review and setting aside of
the decision not to transfer him.
The present application is not a
review application.
APPLICATION OF THE
LAW TO THE FACTS AND EVALUATION OF THE EVIDENCE
[13]
Insofar as a factual dispute has arisen, the matter should be dealt
with in accordance with the well-known dictum in
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 I and further. A final order can only be granted if those
facts averred in an applicant’s affidavit which have
been
admitted by the respondent, together with the facts alleged by the
respondent justify such an order.
[14] It is apparent from
the notice of motion that applicants intended to request a rule
nisi
with interim relief initially, but insofar as respondents have fully
dealt with all the allegations contained in the founding affidavits,
the application should be dealt with as if final relief is sought at
this stage. Applicants have not made out any case whatsoever
that
they were not allowed to access the telephones installed within MMC
for the use of inmates in accordance with the inmates
handbook. In
any event there is no allegation that they laid complaints in this
regard and that these complaints have not been
considered,
investigated and dealt with to their satisfaction. They are not
entitled to the relief claimed in prayer 2 of the notice
of motion.
[15] It is indeed strange
that applicants who fear for their lives and seek an interdict
against third respondent, as is apparent
from prayer 4 of the notice
of motion, preferred not to be detained in the single cells or cell,
called special treatment unit
(segregation), where they would be safe
from any harassment or assaults from other inmates. The version is
not only improbable,
but insofar as it is denied and fully explained
on behalf of respondents, there is no reason not to accept the
respondents’
version. Again no allegations have been made as to
complaints filed and what the outcome thereof was. They are not
entitled to
the relief claimed in prayer 4.
[16] First applicant
wishes to carry on with the conduct of a business whilst
incarcerated. There is no reason why he cannot authorise
a relative
or any other person to conduct the business on his behalf. In any
event, third respondent was totally within its rights
to prevent
first applicant from having access to his chequebook in order to sign
business cheques. See in this regard section 40(2)
of the Act. First
applicant is not entitled to the relief claimed in prayer 5 of the
notice of motion.
[17] Second applicant has
made out no case whatsoever that he has at any stage applied for a
transfer, that such application was
dismissed or that there is a
pending application for transfer which is not dealt with properly by
respondents. Insofar as first
applicant’s application for a
transfer has been dismissed, he was entitled, if so advised to take
that decision on review.
This court cannot entertain the application
in its present form, but in any event respondents have shown clearly
that applicants
are not entitled to be transferred from MMC at this
stage. They are not entitled to their relief claimed in prayer 6 of
the notice
of motion.
COSTS
[18] Both counsel for
respondents requested me to dismiss the application with costs and
Mr. Zietsman, on behalf of first and second
applicants, requested a
punitive costs order. On my request to indicate any reported or
unreported judgment where a costs order
has been made in the past
against inmates launching similar applications, neither counsel could
be of any assistance. From the
past experience as counsel, I am fully
aware of the fact that several judges of this division have refused
to burden unsuccessful
inmates with costs orders. The mere fact that
inmates might not be in a position to settle costs orders granted
against them, should
not be the overriding factor.
In casu
both applicants made use of an attorney from outside Bloemfontein,
who has instructed Bloemfontein attorneys to act on behalf of
them. I
have to accept that the instructing attorney would not be willing to
accept a brief and .............. papers without being
compensated
fully or at least in part. Inmates should not be allowed to argue
that they are incarcerated, unemployed and unable
to pay legal fees
and I can see no reason why they should be in a more privileged
position than the normal man in the street who
has lost his legal
battle. Therefore I am of the view that costs should be awarded
against the applicants.
[19] In conclusion the
following orders are issued:
1. The application is
dismissed with costs.
2. Applicants are ordered
to pay respondents’ costs in opposing the application, jointly
and severally, the one to pay the
other to be absolved.
______________
J.P. DAFFUE, J
On behalf of applicants:
None
On behalf of first and
second respondents: Adv. P.M. Venter
Instructed by:
Mr. J.F. Botha
State Attorney
BLOEMFONTEIN
On behalf of third
respondent: Adv. P.J.J. Zietsman
Instructed by:
B.M. Jones
Honey Attorneys
BLOEMFONTEIN
/sp