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[2009] ZAGPPHC 46
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Botha v Minister of Correctional Services and Others (29765/08) [2009] ZAGPPHC 46 (10 March 2009)
IN
H
IGH
COURT
OF SOUTH AFRICA
(T
RANSVAAL
PROVINCIAL DIVISION)
Case
no.: 29765/08
In
the matter of:
Botha,
Riaan
Applicant
and
THE
MINISTER OF CORRECTIONAL SERVICES First Respondent
THE
NATIONAL COMMISSIONER DEPARTMENT OF CORRECTIONAL
SERVICES Second
Respondent
THE
PROVINCIAL COMMISSIONER OF
CORRECTIONAL
SERVICES (GAUTENG) Third Respondent
THE
CHAIRMAN OF THE CASE MANAGEMENT
COMMITTEE,
ZONDERWATER MEDIUM PRISON Fourth Respondent
THE
CHAIRPERSON OF THE PAROLE BOARD, ZONDERWATER MEDIUM A
PRISON Fift
h
Respondent
THE
HEAD OF PRISON, ZONDERWATER
CORRECTIONAL
FACILITY Sixth Respondent
HEARD
ON 5/3/2009
J
UDGMENT
HANDED
DOWN
On 10/03/2009
JUDGMENT
EBERSOHN
AJ.
[1]
In this matter the applicant applied for the review of the decision
of the Parole Board not to release him on parole after he
duly served
the required one-third of his sentence. The application is opposed.
[2]
In terms of the provisions of Rule 53 the respondents duly filed the
record of the proceedings of the Parole Board and an answering
affidavit and also certain further reports regarding the suitability
of the applicant to be released on parole.
[3]
The applicant was sentenced on the 1st May 2002 to 18 years
imprisonment on a charge of murder and the trial judge recommended
that the applicant first has to serve 2\3rds of his sentence before
he may be considered for parole.
[4]
The matter went on appeal to the Supreme Court of Appeal and the
judgment, wherein the Court deals in detail with the facts
of the
matter, was reported as S v Botha
2006 (2) SACR 110
(SCA). This Court
will therefore not rehash the facts of the case in this judgment.
[5]
In the answering affidavit deposed to by the chairperson of the 5th
respondent, a Mr. J. Setshedi, he stated that the applicant
received
a Presidential Amnesty of 6 months, granted during May 2005, with the
result that the applicant's sentence was reduced
to 17 1\2 years
imprisonment.
[6]
Mr. Setshedi stated in paragraph 5.1 of his affidavit that a person
serving a determinate sentence becomes eligible for consideration
of
placement on parole after having served l\3rd of his sentence.
[7]
The explanation as to why it is l\3rd and not 1\2 was provided in an
affidavit deposed to by one Sarel Johannes Wilkins, the
Regional
Co-ordinater: Corrections Gauteng, being a Deputy -Director position
in the office of the Regional Commissioner: Gauteng.
[8]
With regard to the provisions of the applicable act, namely Act 8 of
1959, he stated the following:
"4.
1
Section 65(c) of Act 8 of 1959 is to the effect that a prisoner
shall not be considered for placement on parole before he has
served
1\2 of his term of imprisonment. This, however, is subject to the
proviso that the date on which consideration may be given
to whether
a prisoner may be placed on parole may be brought forward by the
number of
credits
earned by the prisoner (the so-called 'credits system').
4.2 Section
22 A of Act 8 of 1959 prescribes that a prisoner may earn credits to
be awarded by the Case Management Committee (previously
known as the
Institutional Committee)
'by
observing the rules which apply in the prison and by actively taking
part in the programmes which are aimed at his treatment,
training and
rehabilitation '.
In
this respect, a prisoner may not earn credits amounting to more than
half of the period of imprisonment which he has served.
4.3. In
terms of the 'credits system', a prisoner, subject to good behaviour,
earns credits up to a maximum of 1 day for every 2
days' imprisonment
served by him. The practical effect thereof is that a prisoner
becomes eligible for consideration for placement
on parole after
serving l\3rd of his sentence. This is irrespective of the crime for
which a prisoner was sentenced.
4.4. Whether
or not a prisoner is in fact placed on parole depends on the
consideration of various factors, by way of weighing up
positive
factors in his favour against negative factors which militate against
his placement on parole. Certain criteria with regard
to the
placement of prisoners on parole are contained in the applicable
Correctional Services Orders, read together with the Manual
for the
Parole Board. Such criteria are not, however, intended to be the
Alpha and Omega with regard to whether or not to place
a prisoner on
parole. Rather, they are guidelines only which find application in
the exercise of the discretion which vests in
delegated officials in
this regard, given that the decision whether or not to place a
prisoner on parole (involving as it does,
the exercise of a
discretion) does not entail a simple mechanical comparison of the
guidelines laid down in this regard. Rather,
it requires a process
of consideration and assessment of each case on its own merits.
4.5. It
is so that since April 1999, prisoners who were sentenced before 1
October 2004 (when the parole provisions of
Act
111 of 1998 came into operation), were allocated the full quota of
credits for which they may qualify, in advance, upon admission
to
prison. This was so by reason thereof that the provisions of Act 111
of 1998 with regard to the placement of prisoners on parole
make no
provision for the credit's system. In the light of the then imminent
coming into operation on 1 October 2004, of Act 111
of 1998.
prisoners were upon admission to prison allocated the full quota of
credits for which
they
may qualify. This was for purely administrative reasons. In
particular, the fact that prisoners were after April 1999 allocated
their full quota of credits, in advance upon admission to prison,
does not mean that the credits system was at any stage abandoned.
On
the contrary, the credits system has throughout applied (and will
continue to apply, for reasons dealt with in paragraph 6 below)
to
prisoners who were sentenced prior to the coming into operation of
the parole provisions of Act 111 of 1998 (i.e. prisoners
who were
sentenced prior to 1 October 2004).
[9]
With regard to the policy directive he stated the following:
"5.1
On 23 April 1998, the Commissioner of Correctional Services issued
the policy directive in terms of which certain categories
of
prisoners should serve a minimum period of their sentences before
being placed on parole. The intention behind the policy directive
was
to ensure uniformity on the part of the parole boards countrywide
with regard to the placement of prisoners on parole. This
was as a
consequence of criticisms levelled against the Department that there
was a lack of consistency from parole board to parole
board in this
regard. Suffice it only to add in this regard that the policy was
intended to be used as a guideline only when considering
the
placement of the relevant categories of prisoners on parole
5.2
After several judgments in which criticism was levelled at the policy
(see Combrink and Another v Minister of Correctional Services
and
Others
2001 (3) SA 338
(D); Saunders v Minister of Correctional
Services and Others (unreported) TPD case no,. 14015/2000; Mohammed v
Minister of Correctional
Services and Others
2003 (6) SA 169
(SE);
Ngenya and Others v Minister of Correctional Services and Others
(unreported) WLD Case no. 29540\2003) the Parole Boards
were
to disregard the policy directive when considering prisoners for
placement on parole. (My underlining)
[10]
In the answering affidavit filed it was conceded that the applicant
became eligible for consideration for placement on parole
on 1 March
2008, after having served l\3rd of his sentence and stated that for
that reason the applicant was considered for placement
on parole on
the 25th March 2008.
[11]
The Supreme Court of Appeal in its judgment referred to the
recommendation of the trial judge that the applicant first has
to
serve 2\3rds of his sentence before being considered for parole and
paragraphs [25], [26] and [27] of the judgment of Ponnan
AJA (as he
then was) read as follows:
"[25]
One final aspect merits mention. The trial judge recommended that the
appellant serve at least two thirds of his sentence
before being
considered for parole. The function of a sentencing court is to
determine the term of imprisonment that a person,
who has been
convicted of an offence, should serve. A court has no control over
the minimum period of the sentence that ought to
be served by such a
person. A recommendation of that kind encountered here is an
undesirable incursion into the domain of another
arm of State, which
is bound to cause tension between the judiciary and the executive.
Courts are not entitled to prescribe to
the executive branch of
Government how long a convicted person should be detained, thereby
usurping the function of the executive.
(See S v Mhlakaza
1997 (1)
SACR 515
at 521(f)-(i)
[26]
Albeit, just a recommendation, its persuasive force is not to be
underestimated. It no doubt, was intended to be acted upon.
In making
the recommendation, which he did, the trial judge may have imposed,
by a different route, a punishment which in truth
and in fact was
more severe than originally intended. Such a practice is not only
undesirable but also unfair to both an accused
person as well as the
correctional services authorities.
[27]
In the result, for the reasons given, the appeal must fail and it is
accordingly dismissed. The Registrar has been instructed
to forward a
copy of this judgment to the Department of Correctional Services with
a request that the remarks in paragraph 26 be
taken in account of in
relation to the present case."
[12]
It must be observed that a sentence of 18 years imprisonment on a
first offender whose intent was
dolus
eventualis
is a very severe sentence.
[13]
It appears that the remarks of Ponnan AJA (as he then was) were not
heeded by the Prison Authorities. In the first part of
page 5 of the
proceedings before the Parole Board (record p. 117), it being a
portion of the parole application form, appears a
report filed by the
Chairperson: Case Management Committee, for the assistance and
guidance of the Parole Board wherein the Chairperson
objectively
reports on the applicant and lauds the applicant as showing signs of
rehabilitation. The last two sentences thereof,
however, read as
follows:
"Due
to the seriousness of his crime and length of sentence the court has
ordered that the offender serves 2\3rds of his sentence
before
placement on parole could be considered. Further profile is
recommended."
“
It
appears that the Parole Board was under the impression that the trial
judge
ordered
that the applicant first has to serve 2\3rds of his sentence before
he could be considered for parole. The applicant signed this
form
with a qualification namely "Under duress"
[14]
It is clear that the Case Management Committee in a gross manner
misdirected itself prejudicing the applicant irreparably.
[15]
Annexure "B" to the papers that were before the 5th
respondent is a document with the heading "Sentence".
Therein appears the following:
"SENTENCE:
MURDER:
18 YEARS IMPRISONMENT - The Court recommends that at least 2\3 of the
period be served in prison before being considered
for release on
parole"
[16]
One would have expected from the Prison Authorities that they would
have heeded the remarks by Ponnan AJA, as he then was,
but they did
not and placed the tainted documents before the Parole Board who
obviously read it and acted in terms of the remarks
of the trial
judge.
[17]
The Social Worker of the Prison Authorities, who dealt with the
applicant, and whose report is to be found on pages 147-149
of the
record, stated on page 148, where she reports on the applicant's
social work involvement:
"No
further needs for involvement in therapeutic programs could be
identified."
[18]
Under the heading SUPPORT SYSTEM on page 148 of the record appears
the following:
"The
offender indicates that he will stay with his mother in Naboomspruit
after release. His parents were divorced in 2005.
The offender owns
two houses which are currently rented out. He also still has shares
in businesses which make him financially
independent after release.
Offender improved his qualifications during 2003: N2 - Fitter and
Turner, Investing and trading course
and A-Plus Computer course. This
will also improve his ability to be a productive member of society.
He will also be able to provide
much needed employment for some of
his previous employees after release. The offender has a very large
support system. He receives
regular visits from his mother, other
family members and friends. He is in a relationship with a woman
since 2005 and she also
visits him. His Pastor also provides the
needed support and acts as a link between offender and his family."
[19]
Under RECOMMENDATION the social worker stated the following:
"Although
recidivism can never be ruled out, the feeling is that his sentence
served its purpose and that he should be given
a chance to proof
(sic) himself in society."
[20]
On page 227 of the record appears a copy of a letter addressed by the
applicant to a Mrs. Delia Nation, apparently a person
in the employ
of the res[pondents, wherein he requests her to facilitate
correspondences between himself and the family of the
deceased.
[21]
On pages 230-235 of the record appears a psychological report
compiled by one W. van den Berg, a clinical psychologist in the
employ of the Prison Services. In the report it is related that
during the trial of the applicant the prosecutor stated that the
case
was racially motivated. Despite this remark the trial court could not
find any supporting evidence for the prosecutor's remark.
After
dealing at length with all the relevant aspects regarding the
applicant he concludes his report as follows on page 235 of
the
record:
"From
my professional judgment, there is very little he can still do to
'rehabilitate' himself within a maximum security facility.
The
limitations a maximum facility places on his rehabilitation, could be
frustrating and could create a negative attitude in general.
This
could nullify the progress he has achieved up to now."
[22]
The matter was heard by the Parole Board and a day after the hearing
the following appears to have been written on the page
with the
heading
ADDITIONAL
PAGE FOR MOTIVATED REASON FOR DECISION IN RESPECT OF 1 TO 5 ON THE
PREVIOUS PAGE:
"CSPB
will acknowledge and appreciate progress already registered by the
offender in relation to his rehabilitation processes.
The offender's
efforts were also recognised and he was classified as being amongst
those offenders who are seriously en route to
be brought back into
the community. The offender was successfully subjected to various
bible studies, self-development, anger management,
key rings &
cards making, woodwork, drug awareness, corrections week and sports
and Arts.
Offender's
crime was highly publicised during his trial and it therefore
attracted national and international interest. His half
of the
sentence period is 01.02.2011. The offender will have to serve more
of his sentence. The offender must still be subjected
to Pre-release
programme and his address must be confirmed. Social work services
must also be activated again whereby another social
work
re
port
need to be submitted. Restorative justice was also highly recommended
by CSPB. CSPB will thereafter approve a further profile
report to be
submitted on 01.01.2010."
(my
underlining).
[23]
It is clear that the Parole Board in the quoted reasons again grossly
misdirected itself to the detriment of the applicant.
[24]
Firstly,
the
reason for the decision that the applicant "will have to serve
more of his sentence" is clearly based on the irrelevant
ground
that "the applicant's case was highly publicised during his
trial and it therefore attracted national and international
interest."
[25]
To use that as a norm for deciding whether an offender may be
released on parole or not based on whether an offender's case
was
highlighted and attracted national and international interest is
totally wrong, is a misdirection and must not happen again.
The
Parole Board is to objectively consider a parole application and
divorce from its mind the measure of publicity a case has
received or
not. To not divorce its mind therefrom is to abdicate the obligations
it owes the applicant in terms of section 33(1)
of the Constitution
of the Republic of South Africa, 1996, which reads as follows:
"Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair."
[26]
Secondly,
it
appears that the Parole Board further misdirected itself by ignoring
the reports, favourable to the applicant, compiled by its
own
experts.
[27]
Thirdly,
the
Parole Board erred by unilaterally, and at the stage the applicant,
on the face of it, was entitled to parole, insisting on
a process of
"restorative justice", which appears not to be compulsory,
whereas on the papers it is clear that the applicant
could not attend
to a restorative process whilst being incarcerated in prison. It also
begs the question why, only at the stage
of the hearing of the parole
application, the process of "restorative justice" was
pulled out of the hat like a rabbit
and why the Prison Authorities
did not implement the "process" sooner, so as to have the
report regarding the restorative
process also before the Parole
Board.
[28]
With regard to "restorative justice" a proposed programme
appears on page 287 of the record. It consists of 5 paragraphs
with
the following headings:
1. FAMILY
GROUP CONFERENCE;
2. VICTIM/OFFENDER
MEDIATION;
3. VICTIM-OFFENDER
DIRECT CONFERENCE;
4. COMMUNITY
CONFERENCE;
5. COMMUNITY-OFFENDER
MEDIATION.
[29]
Of these 2 and 3 fall away because the victim is dead.
[30]
Paragraph
1
requires
counselling of the relatives of the offender and the victim twice a
month for two consecutive months. The applicant is
detained in
Cullinan. His mother stays in Naboomspruit and the relatives of the
victim stay near Dendron. During argument before
me Mr. Bester, who
appeared for the respondents, admitted that to give effect to these
proposals would be costly and it was not
clear who was to pay for the
expenses incurred to have the said meetings held. In this regard
already on the
1
st
February
2007, the applicant addressed a letter to a Me. Plaatjies (record p.
226) at the Head Office of the Prison Services wherein
he refers to
restorative justice and stated the following:
"Ek
is ook meegedeel dat D.K.D. nog slyp aan hulle beleid random
restorative justice en dat fondse "n problem is en ek
dus net
tot hier gehelp kan word. Ek aanvaar dit so. Ek het gedoen wat ek
kan."
This
statement by the applicant was not gainsaid by the respondents.
[31]
Paragraph 4, which deals with community conferences once a month for
two
10
consecutive
months, creates the same problems set out above with regard to
paragraph 1 but just on a larger scale..
[32]
Paragraph 5, which deals with community-offender mediation, calls for
meetings once a month for two consecutive months. Mr.
Bester, with
regard to these meetings, conceded that these meetings could be
politicised and have a detrimental and negative impact
on the parole
process, prejudicing the applicant irreparably.
[33]
The question arises, once more, why, if the Prison Authorities were
sincere, and they could and should have implemented the
process long
ago especially in the light of the contents of the applicant's letter
to them, referred to in paragraph [30] supra,
they did not. No
reasons were furnished as to why, only at this late stage, the
process be insisted with. In other parole matters,
which I have heard
in the past in this court, no mention was ever made by the Prison
Authorities of a "restorative justice
programme" which has
to be complied with before parole could be granted. One gets the
uncomfortable feeling that the "restorative
justice programme"
is used in this matter as a ploy to frustrate and stall the
applicant's parole process.
[34]
The implementation of the "restorative justice process",
would open up possible and probable opportunities to abuse
the
process.
[35]
The applicant already expressed a desire to communicate with the
relatives of the deceased and one wonders why the reasonable
and
suitable aspects of the "restorative justice programme"
could not be implemented in the parole conditions to be imposed
on
the applicant to comply with after he is released on parole.
[36]
There are too many unanswered questions in the parole process
followed with regard to the applicant and there is the clear
evidence
of misdirection on the part of the respondents compelling this Court
to interfere. Mr. Bester submitted in conclusion
that this Court
should not substitute its own decision for that of the Parole Board,
but to refer the matter back to the Parole
Board for reconsideration.
I am prepared to accede to that request.
[37]
Costs must follow the event.
[38]
I accordingly make the following order:
1.
The decision of the respondents not to release the applicant on
parole is set aside on review and the matter is referred
back to the
respondents for reconsideration, which reconsideration must be
completed on or before the 14th May 2009, during which
reconsideration the respondents must divorce their minds from the
fact that the trial judge recommended that the applicant serve
2\3rds
of his sentence before being considered for parole.
2.
The respondents must pay the costs of the application.
3. The
matter is postponed to the 27th May 2009 to be further heard by
Ebersohn AJ and leave is granted to the parties to file supplementary
affidavits, if necessary, on or before the 22nd May 2009.
EBERSOHN,
A J
ACTING
JUDGE IN THE HIGH COURT
Applicant's
counsel Adv. H.P. Joubert
Applicant's
attorney Julian Knight & Associates
Respondents'
counsel Adv. T.W.G. Bester
Respondents'
attorney State Attorney