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[2012] ZAFSHC 157
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Makaba v Minister of Correctional Services and Others (5369/2011) [2012] ZAFSHC 157 (16 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 5369/2011
In the matter between:
PHILLIP PHIL MAKABA
...............................................................
Applicant
and
THE MINISTER OF
CORRECTIONAL
SERVICES
........................................................................
First
Respondent
THE REGIONAL
COMMISSIONER OF
CORRECTIONAL
SERVICES
.....................................
Second
Respondent
THE AREA
COMMISSIONER (GROENPUNT
MANAGEMENT AREA)
...................................................
Third
Respondent
THE HEAD OF
CORRECTIONAL CENTRE
(GROENPUNT MAXIMUM
PRISON)
.............................
Fourth
Respondent
THE CHAIRPERSON OF
THE CORRECTIONAL
SUPERVISION AND
PAROLE BOARD
...........................
Fifth
Respondent
THE CHAIRPERSON OF
THE CASE
MANAGEMENT
COMMITTEE
.........................................
Sixth
Respondent
_______________________________________________________
HEARD ON:
2
AUGUST 2012
_______________________________________________________
JUDGMENT:
LEKALE, J
_______________________________________________________
DELIVERED ON:
16 AUGUST 2012
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] This is an opposed
application for an order in the following terms, among others:
1.1. that the provisions
of section 136(1) of the Correctional Services Act, No 111 of 1998
(the new Act), are inconsistent with
the provisions of section
35(3)(n) of the Constitution of the Republic of South Africa of 1996
(the Constitution) and are, as such,
unconstitutional;
1.2. that the application
of the release and placement policies of the Department of
Correctional Services, applicable from the
1
st
October
2004 and which prescribe that the applicant, as a correctional centre
inmate, must be considered for parole after having
served half of his
sentence of imprisonment, are similarly unconstitutional for being
inconsistent with section 35(3)(n) of the
Constitution;
1.3. that the applicant
falls to be dealt with, for parole purposes, in terms of the
Correctional Services Act, No 8 of 1959 (the
old Act) and the release
and placement policies applicable before the 1
st
October
2004 and, as such, should be considered for parole after having
served one third of his sentence.
[2] The applicant, who is
appearing in person, is an inmate at Groenpunt Maximum Correctional
Centre in Vereeniging where he serves
an effective 33 years
imprisonment. He was sentenced to a total of 97 years imprisonment on
the 14
th
April 2005 after he was arrested on the 7
th
September 2001 for offences committed on the 13
th
July
2001.
[3] The respondent is
generally the Department of Correctional Services although the
applicant has taken the liberty to cite all
the authorities involved
and associated with the said Department.
[4] Section 65(4)(a) of
the old Act entitles inmates serving a determinate sentence to be
considered for placement on parole when
they have served half of
their terms of imprisonment. It, however, makes provision for
acceleration of the date on which such inmates
may be considered for
parole on the basis of the credits earned by them.
[5] The new Act repealed
the old Act
in toto
with effect from the 1
st
October 2004. It generally and uncompromisingly limits the right of
inmates sentenced to determinate incarceration to be considered
for
parole to service of half of their sentences or 25 years of a
sentence or cumulative sentence in the absence of a court stipulated
non-parole period.
[6] The new Act, however,
subjects inmates serving custodial sentences as at the 1
st
October 2004, to the parole regime of the old Act.
[7] The applicant feels
aggrieved by the fact that he is being dealt with in terms of the new
parole regime, which does not provide
for anticipation of the date of
parole consideration.
[8] The respondents, on
their part, generally maintain that the law in question does not
offend the Constitution.
ISSUE IN DISPUTE
[9] The parties are,
effectively, in dispute over whether or not the provisions of section
136(1) of the new Act, (the transitional
provisions) are inconsistent
with the Constitution and are, as such, unconstitutional.
APPLICANT’S
CASE
[10] In support of his
contentions the applicant deposed to,
inter alia
, the effect
that the impugned provisions violate his right to the benefit of the
least severe of the prescribed punishments where
the prescribed
sentence for the offence has changed between the time of the
commission of the offence and the time of the imposition
of the
sentence.
[11] In his view the fact
that the offences for which he was sentenced were committed before
the 1
st
October 2004, entitles him to be treated in terms
of the old parole dispensation notwithstanding the fact that he was
sentenced
after that date.
[12] He, further, feels
that the provisions of section 35(3)(n) of the Constitution are
applicable in his case because, as at the
1
st
October
2004, he was still an accused person as opposed to a sentenced
correctional centre inmate following his arrest in September
2001.
RESPONDENTS’
CONTENTIONS
[13] The respondents’
case, both in opposing papers and in argument, through Mr Cronje, is
effectively that neither section
35(3)(n) of the Constitution nor the
impugned provisions of the new Act, is applicable to the applicant as
the sentenced inmate
because:
13.1 as at the 1
st
October 2004, when the new Act came into operation, he was not
serving a sentence of incarceration;
13.2 both the old Act and
the new Act apply only to sentenced inmates and not to arrested,
accused or detained people even if they
are awaiting-trial-inmates at
correctional centres;
13.3 when the applicant
was, eventually, exposed to the parole regime provided for by the new
Act after his sentencing in 2005,
he was no longer an arrested,
accused or detained person within the contemplation of the
Constitution.
[14] Mr Cronje, further,
effectively submits that release on parole and the policies and
guidelines governing the same, do not constitute
a punishment within
the contemplation of the Constitution. Nor do they serve to aggravate
the punishment imposed on the applicant
by the court.
[15] In Mr Cronje’s
view, the wording of the impugned provisions of the new Act is clear
and in interpreting it the language
of the legislature should be read
in its original sense.
EXPOSITION OF THE
LAW INVOLVED
[16] Section 35(3)(n) of
the Constitution 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;”
[17] Section 136(1) of
the new Act, on its part, provides:
“
136
Transitional provisions
(1) Any person
serving a sentence of incarceration immediately before the
commencement of Chapters IV, VI and VII 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.”
APPLICABLE LEGAL
PRINCIPLES
[18] Constitutional
interpretation, in the context of the present matter, aims at
ascertaining the meaning of a provision in the
Bill of Rights
viz
section 35(3)(n) of the Constitution so as to establish whether the
impugned law is inconsistent with the Constitutional provision.
(See
Iain Currie and Johan de Waal in
The Bill of Rights –
Handbook
, 5
th
Edition, p 145.)
[19] The said
interpretation involves two enquiries. Firstly it seeks to determine
the meaning or scope of a right involved, where
after, the exercise
is concerned with the determination of the question whether the
impugned law or conduct conflicts with the
constitutional right in
question. (See
Bill of Rights – Handbook
,
supra
,
at 145.)
[20]
Constitutional interpretation pays due regard to the language used by
the legislature whilst, at the same time, being “generous”
and “purposive” and giving expression to the underlying
values of the Constitution. (See
S v MAKWANYANE AND
ANOTHER
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at par
[9]
.)
[21] Purposive
interpretation, on the other hand, seeks to ascertain the core values
that underpin the listed fundamental rights
in an open and democratic
society based on human dignity, equality and freedom. Once the
purpose of the listed right has been established
an interpretation
which best supports and protects the values so established, is to be
preferred. (See
S v ZUMA AND OTHERS
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at par
[15]
and
The Bill of Rights – Handbook
, at p
148.
[22] A generous
interpretation required by a supreme constitution should be “
suitable
to give to individuals the full measure of the fundamental rights and
freedoms referred to in the Bill of Rights
”. (See
S v
ZUMA AND OTHERS
,
supra
, at par [14] citing with
approval
MINISTER OF HOME AFFAIRS (BERMUDA) v FISHER
[1980] AC 319
(PC) 328-9.)
[23] In interpreting the
impugned legislative provision, to test it against the Constitutional
provision, one gives words used their
original and ordinary meaning
bearing in mind the general duty on every court, tribunal or forum to
promote the spirit, purport
and objects of the Bill of Rights when
interpreting any legislation. Statutory interpretation seeks to give
effect to and promote
the Bill of Rights and Constitutional
provisions. (See
INVESTIGATING DIRECTORATE: SERIOUS ECONOMIC
OFFENCES AND OTHERS v HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND
OTHERS;
IN RE HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS v
SMIT NO AND OTHERS
[2000] ZACC 12
;
2001 (1) SA 545
(CC) at par
[22]
and
section 39(2) of the Constitution.)
FINDINGS AND
APPLICATION OF APPLICABLE PRINCIPLES
[24] The provisions of
section 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.
[25] As correctly
submitted by Mr Cronjè, the provision in question applies to
accused persons who have not yet been sentenced.
[26] The provision in
question confirms and upholds the principle of legality by ensuring
that accused persons do not get caught
by surprise in the sense that
the punishment meted out is not more severe than what they bargained
for when they set out to commit
the relevant offences.
[27] As further correctly
contended for the respondents, the impugned provisions are axiomatic
and only have to be read out to appreciate
their import.
[28] The said provision
applies to inmates in the sense of convicted and sentenced people who
are incarcerated at correctional centres
in terms of court orders.
[29] The said legislative
provision, in my view, seeks to promote the spirit, purport and
object of the right to just administrative
action conferred by
section 33(1) of the Constitution by ensuring that the pre-existing
right to be considered for parole at an
earlier date is not unfairly
disturbed.
[30] The impugned
provision generally does not affect any of the applicant’s
constitutional rights and, in particular, the
right which he had,
when he was an accused person, to benefit from any less severe
punishment.
[31] In conclusion, I may
emphasise that the impugned section does not offend the Constitution,
as contended by the applicant and,
as such, is not unconstitutional.
[32] The application,
therefore, falls to be dismissed. No order as to costs is appropriate
in the present matter, because the applicant
is an inmate and not
likely to be able to pay any costs.
[33] The applicant does,
in fact, fall to be dealt with in terms of the parole regime provided
by the new Act.
ORDER
[34] In the result the
application is dismissed.
[35] No order as to costs
is made.
______________
L. J. LEKALE, J
On behalf of applicant:
In person
Groenpunt Maximum
Correctional
Centre
VEREENIGING
On behalf of respondents:
Adv P R Cronjé
Instructed by:
State Attorney
BLOEMFONTEIN
/sp