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[2009] ZAGPPHC 7
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Derby-Lewis v Minister of Correctional Services and Others (54507/08) [2009] ZAGPPHC 7; 2009 (6) SA 205 (GNP) ; 2009 (2) SACR 522 (GNP) ; [2009] 3 All SA 55 (GNP) (17 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(
NORTH
GAUTENG HIGH COURT, PRETORIA
)
CASE
NO: 54507/08
DATE:
17/03/2009
UNREPORTABLE
IN
THE APPLICATION OF
CLIVE
JOHN DERBY-LEWIS APPLICANT
AND
THE
MINISTER OF CORRECTIONAL SERVICES 1
ST
RESPONDENT
THE MINISTER OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT 2
ND
RESPONDENT
THE CHAIRPERSON OF THE
NATIONAL
COUNCIL FOR
CORRECTIONAL SERVICES 3
RD
RESPONDENT
THE CHAIRPERSON OF THE
CORRECTIONAL
SUPERVISION AND PAROLE
BOARD 4
TH
RESPONDENT
LIMPHO
HANI 5
TH
RESPONDENT
JUDGMENT
VAN
DER MERWE, J
0n 15 0ctober 1993 the applicant and his co accused, Mr Janusz
Walus, were convicted of the murder of Mr Chris Hani
during April
1993. The applicant and his co accused were both sentenced to
death.
The applicant applied for the re opening of his trial to
advance further evidence during 0ctober 1994. The application was
refused. A subsequent appeal by the applicant to the Supreme
Court of Appeal against his conviction and sentence was dismissed.
An application for amnesty in terms of the
Promotion of National
Unity and Reconciliation Act, 33 of 1995
, was refused by the Amnesty
Committee on 7 April 1999. A review application brought
against the decision of the Amnesty
Committee was dismissed on
15 December 2000. In the meantime the death sentences
imposed on the applicant and his co accused
were substituted by
the Supreme Court of Appeal in November 2000 for terms of life
imprisonment, antedated to the original sentencing
date, ie
15 0ctober 1993.
The applicant says that "at all relevant times (he) was made
aware or became aware of the existence and nature of policies
regarding parole and the expectations to be made towards fulfilment
of the requirements to be considered for parole".
The applicant therefore, according to him, actively partook in all
activities which were aimed at personal development and
rehabilitation
in order to enhance his chances regarding entitlement
to parole as well as the nature of the conditions of parole.
It is common cause that the applicant completed several
rehabilitation programs in prison for which he received recognition
by
way of certificates. It is also common cause that the applicant
was involved in a number of voluntary psychotherapy sessions, that
he
underwent religious counseling and that he was actively involved in
the Pretoria Central Sports, Recreation & Arts Committee
in
prison. All in all it appears that the applicant has an excellent
record in prison.
Although I will later deal with the applicable legislation in some
detail it is necessary to refer to three institutions created
in
terms of the Correctional Services Act, 111 of 1998 ("the 1998
Act").
In terms of section 42 of the 1998 Act, one or more Case Management
Committees ("the Committee") are established in
each
prison. Such a committee's duties and functions are set out in
section 42. In terms of section 74 of the 1998 Act the
Minister
of Correctional Services is empowered to establish Correctional
Supervision and Parole Boards ("the Boards").
A National
Council for Correctional Services ("the Council") is
established in terms of section 83 with functions
and duties as set
out in section 84 of the 1998 Act.
A function of the Committee is to submit a report to the Board
regarding the possible placement of a prisoner on parole and the
conditions for parole. [See section 42(2)(d)(vii).] A function
of the Board in respect of a prisoner serving a sentence
of life
imprisonment (a lifer) is to make recommendations to the court
on the granting of parole.
It is common cause that the Committee complied with its duties in
respect of the applicant and submitted a report to the Board
regarding his placement on parole.
It is also common cause that the Board recommended on 2 November
2007 that the applicant be placed on parole after he has
completed a
minimum of fifteen years imprisonment. The applicant was therefore
eligible to be placed on parole after 15 0ctober
2008 when he
would have completed the minimum period required by the Board
(as well as by the applicable legislation as will
be seen later
herein).
It is common cause that the applicant was not placed on parole on
16 0ctober 2008 or thereafter. The primary reason being
that
the Council required the Board to enquire from Ms Hani, the
widow of the late Mr Chris Hani, whether she wanted
to make
representations regarding the applicant's placement on parole or to
attend a meeting of the Board to give verbal inputs
regarding such
placement. Before Ms Hani could make representations to the
Board the applicant brought a notice of motion
on 9 0ctober 2008
under case no 47117/08 for an order that he be granted parole on the
terms and conditions as the court deems
fit. The second, third and
fifth respondents were not parties to that application. The third
and fifth respondents filed applications
to be joined in that
application. That application was eventually postponed
sine die
.
This court was informed that the application was later withdrawn but
that the applicant did not tender the costs of the application.
0n 9 December 2008 the present application was brought as an
urgent application. Again the fifth respondent was not joined
as a
party. 0n 9 December 2008 a draft order was made an order of
court. I will later deal with the draft order in
more detail
when I deal with the question of costs in the application under case
no 47117/08.
In the present application the relief sought in the notice of motion
reads as follows:
"
PART A:
1. That this application be dealt with as one of urgency and that any
deviation from the prescribed rules with regard to times
and forms of
service be condoned;
2. That
section 136(1)
of the
Correctional Services Act, Act
111 of
1998 ('the Act') be declared to be unconstitutional, in so far
as it may be interpreted to provide that the applicant
is subject to
the provisions of the Correctional Services Act, 1959 (Act 8 of
1959), ('the 0ld Act') relating to his or her placement
under
community corrections release and placement on parole, in so far as
those provisions are in conflict with the provisions
of sections
73(6)(b)(iv) and 78(1) of the Act;
3.
Alternatively, to prayer 2 above:
That section 136(1) of the Act, be read down and interpreted to
provide that it is not in conflict with the provisions of sections
73(6)(b)(iv) and 78(1) of the Act.
That section 136(3)(a) of the Act be declared to be unconstitutional
in so far as it may be interpreted to provide that the applicant
may
not be considered for day parole and parole before he has served 20
years of his sentence;
5.
Alternatively, to prayer 4 above:
That section 136(3)(a) of the Act, be read down and interpreted to
provide that the applicant may be considered for day parole
and
parole before he has served 20 years of his sentence.
6. That sections 136(3)(b) and (c) of the Act, be declared to be
unconstitutional and discriminatory in so far as it may be
interpreted
to provide that the applicant's case: 'must be submitted
to the National Council which must make a recommendation to the
Minister
regarding the placement of the applicant under day parole or
parole and if the recommendation of the National Council is
favourable,
the Minister may order that the applicant be placed under
day parole or parole, as the case may be';
PART B:
7. That this honourable court, having considered the record of
proceedings of the Correctional Supervision and Parole Board and
its
recommendations in respect of the applicant in terms of the
provisions of section 78(1) and subject to the provisions of section
73(6)(b)(iv) of the Act, grant parole or day parole or prescribe the
conditions of community corrections in terms of section 52,
to the
applicant;
8. That the first respondent is ordered to immediately implement the
order of this honourable court in terms of prayer 8 (
sic
)
above and to release the applicant on parole or day parole on the
conditions of community corrections as prescribed by this honourable
court;
9. That all the respondents who may oppose this application are
ordered to pay the costs of the application jointly and severally;"
Prayers 4 and 5 were not proceeded with. Prayer 7 was on 10 March
2009 amended to read as follows:
"7. That this honourable court, having considered the record of
proceedings of the Correctional Supervision and Parole Board
and its
recommendations in respect of the applicant grant parole or day
parole or prescribe the conditions of community corrections
to the
applicant;"
For the sake of completeness it must be pointed out that the third
respondent on 23 January 2009 filed a notice of motion
in terms
of which the following relief is sought:
"1. That
section 78(1)
of the
Correctional Services Act 111 of
1998
be declared to be inconsistent with the Constitution of the
Republic of South Africa and invalid.
2. That any party to this application who opposes this application be
ordered to pay the costs of the application.
3. That the further conduct of the main application, including the
filing of any further affidavits, if any, will be governed by
the
Uniform Rules of Court;
4. That the costs of this application be costs in the cause of the
main application;"
This application was not persisted with.
Before dealing with the applicant's contentions it is necessary that
the statutory history and background pertaining to parole
be
discussed and considered.
When the applicant was sentenced on 15 0ctober 1993 the
Correctional Services Act, 8 of 1959 ("the 1959 Act") was
the applicable Act.
Section 62 deals with the powers, functions and duties of
Institutional Committees established in terms of section 5A of the
1959
Act. In summary section 62 provides that an Institutional
Committee should make decisions with regard to credits to be awarded
to a prisoner, make certain recommendations to the Commissioner of
Prisons and exercise the powers and perform such functions and
duties
as prescribed by regulation.
Section 63 of the 1959 Act deals with the powers, functions and
duties of Parole Boards. It provides
inter alia
that a Parole
Board shall submit a report to the Minister with regard to,
inter
alia
, the conduct, adaptation, training, aptitude, industry and
physical and mental state of a prisoner and the possibility of his
relapse
into crime. It further provides that together with the
report on each prisoner the Parole Board shall make recommendations
regarding
the placement of a prisoner on parole in terms of section
65 of the 1959 Act.
Section 65(1) of the 1959 Act provides that a prisoner shall be
released upon the expiration of the term of imprisonment imposed
upon
him. The section then continues to deal with the possibility of a
prisoner being placed on parole. Section 65(5) and (6)
provide as
follows:
"(5) Upon receipt of a report from a parole board regarding a
prisoner who has been sentenced to life imprisonment, the Minister
shall refer the matter to the National Advisory Council, which, after
considering the report of the parole board, and having regard
to the
interests of the community, shall make a recommendation to the
Minister regarding the placement of the prisoner on parole.
(6) The Minister may, after considering such recommendation,
authorise the placement of the prisoner on parole subject to any
conditions which he may determine and as from a date determined by
him up to the date of such prisoner's death."
The Parole and Correctional Supervision Amendment Act, 87 of 1997
("the 1997 Act") was assented to on 26 November
1997.
The date of commencement will be dealt with later herein.
Sections 62, 63 and 65 of the 1959 Act were amended by the 1997 Act
while sections 64B and 64C, which have a bearing on the present
application, were inserted in the 1959 Act by the 1997 Act.
The amendment to section 62 of the 1959 Act provides that the
Institutional Committee shall, in respect of a prisoner sentenced
to
imprisonment exceeding twelve months, submit a report to a Parole
Board regarding,
inter alia
the conduct, adaptation, etc as
well as the possible placement of such prisoner on parole and the
period for and the conditions
under which such prisoner should be so
placed.
Section 63 of the 1959 Act was completely substituted. The new
section 63(2) reads as follows:
"(2) A Parole Board shall, in respect of any prisoner serving a
sentence of life imprisonment, submit a report with recommendations
on the possible placement of the prisoner concerned on parole or on
day parole, and the conditions under which the prisoner may
be so
placed, to the court which sentenced the prisoner."
The
scheme in the 1997 Act regarding parole was therefore
that the Institutional Committee submits a report to the Parole Board
which
in turn submits a report to court.
The other amendments to section 63 concern notice to the prisoner,
his right to make written representations regarding the
recommendation
to court and his acceptance of the recommendations.
It also provides that if a prisoner's placement on parole has been
approved
but circumstances regarding his placement change before he
is so placed to such an extent that placement is no longer advisable,
that placement could be deferred until the Parole Board again
approves such placement.
The most important amendment affecting the applicant, however, is
the fact that it is no longer the Minister who decides on the
placement on parole but the court which sentenced the prisoner.
The amendments to section 65 of the 1959 Act also take the Minister
out of the decision making process and replaces him with the
court.
Also of importance is the provision in section 65(4)(b)(v) which
provides that a person who has been sentenced to life
imprisonment
shall not be placed on parole until he has served at least twenty
five years of his sentence provided that he may
be placed on parole
when he has reached the age of 65 years and he has served at
least fifteen years of his sentence.
The new section 64B merely makes provision that a court to which a
report has been submitted in terms of section 63(2) of the
Act may
order that the prisoner concerned be placed on parole and determine
the conditions on which the prisoner shall be so placed.
The new section 64C in turn provides that when a court sentences a
person to imprisonment for
inter alia
murder, it shall inform
any relative of the deceased present in court that he/she has a right
to make representations when placement
of the prisoner on parole is
considered or to attend any meeting of the Parole Board.
The 1998 Act was assented to on 19 November 1998. I will later
deal with the date of commencement of this Act.
Earlier in this judgment I dealt with sections 42, 74 and 83 of the
1998 Act dealing with the report by the Committee to the Board
and
the Board's recommendations to the court regarding the placement of a
lifer on parole. It is therefore only necessary to refer
to the
following further provisions of the 1998 Act.
Section 78 deals with the powers of the court in respect of
prisoners serving life sentences. In broad terms it provides
that the court, having considered the record of proceedings of the
Board and its recommendations in the case of a lifer, may grant
parole to such prisoner subject to the provisions of section
73(6)(b)(iv) which provides that a lifer may not be placed on parole
until he or she has served at least twenty five years of the sentence
but that the prisoner, on reaching the age of 65 years,
may be
placed on parole if he or she has served at least fifteen years of
such sentence.
The 1998 Act contains a transitional provision in section 136
thereof. The section prior to any amendment thereof reads as
follows:
"(1) Any person serving a sentence immediately before the
commencement of this Act will be subject to the provisions of the
Correctional Services Act, 1959 (Act No 8 of 1959), relating to his
or her placement under community corrections, but the Minister
may
make such regulations as are necessary to achieve a uniform policy
framework to deal with prisoners who were sentenced immediately
before the commencement of this Act, and no prisoner may be
prejudiced by such regulations.
(2) For the purposes of considering the placement of such person
under community corrections, the relevant authority provided for
in
this Act will have the power to consider such a placement."
The commencement date of this section was 19 February 1999 in
terms of Proclamation 20,
Government Gazette
19778 dated
19 February 1999.
It is clear that the provisions of the 1959 Act would still have
been applicable to the placement on parole of all prisoners after
the
commencement date of the 1998 Act. To achieve a uniform policy
framework to treat pre and post commencement date prisoners
equally,
the Minister was empowered to make regulations.
Section 136 was substituted by section 42 of Act 32 of 2001 ("the
2001 Act") with date of commencement 14 December
2001. The
amended section 136 reads as follows:
"136. (1) Any person serving a sentence of imprisonment
immediately before the commencement of Chapters IV, VI and VII is
subject to the provisions of the Correctional Services Act, 1959 (Act
No 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.
(2) When considering the release and placement of a prisoner who is
serving a determinate sentence of imprisonment as contemplated
in
subsection (1), such prisoner must be allocated the maximum number of
credits in terms of section 22A of the Correctional Services
Act,
1959 (Act No 8 of 1959).
(3)(a) Any prisoner serving a sentence of life imprisonment
immediately before the commencement of Chapters IV, VI and VII is
entitled to be considered for day parole and parole after he or she
has served 20 years of the sentence.
(b) The case of a prisoner contemplated in paragraph (a) must be
submitted to the National Council which must make a recommendation
to
the Minister regarding the placement of the prisoner under day parole
or parole.
(c) If the recommendation of the National Council is favourable, the
Minister may order that the prisoner be placed under day
parole or
parole, as the case may be.
(4) If a person is sentenced to life imprisonment after the
commencement of Chapters IV, VI and VII while serving a life sentence
imposed prior to the commencement, the matter must, after the
prisoner has served 25 years accumulatively, be referred to the court
which imposed the last sentence of life imprisonment for
consideration of placement under day parole or parole."
I will later herein deal with this section again.
Different sections of the 1998 Act commenced on different dates. As
a result thereof the 1998 Act has become a labyrinth where
one can
easily lose one's way. In what is to follow I hope to give
some direction to get out of this labyrinth.
In terms of Proclamation R20, 1999 published in
Government
Gazette
no 19778 dated 19 February 1999 a number of sections
of the 1998 Act were brought into operation and a number of sections
in the 1959 Act were repealed with effect from 19 February 1999.
In terms of Proclamation R38, 2004 published in
Government
Gazette
no 26626 dated 30 July 2004 certain sections of
the 1998 Act were put into operation and certain sections of the 1959
Act were repealed with effect from 31 July 2004. The 1997 Act
which amended the 1959 Act commenced on 1 0ctober 2004
in terms
of Proclamation 45, 2004 published in
Government Gazette
no 26808 dated 1 0ctober 2004. In Proclamation R30,
2004, referred to above, it was also proclaimed that certain
sections
relevant to this application in the 1998 Act were put into operation
and certain sections in the 1959 Act relevant to
this application
were repealed. These sections include sections 73, 74 and 75 of the
1998 Act and sections 62, 63, 64 and 65 of
the 1959 Act. Sections
62, 63, 64 and 65 of the 1959 Act represented amendments to that Act,
brought about by the 1997 Act which
came into operation on the very
same day, namely 1 0ctober 2004.
In summary, from the aforegoing it is clear that the 1997 Act, which
was intended to amend the 1959 Act, was only put into operation
on
1 0ctober 2004 by which time the legislature had already decided
to substitute some of the provisions in the 1997 Act (and
therefore
the 1959 Act) with provisions in the 1998 Act, which had in turn been
amended by the 2001 Act.
Section 137 of the 1998 Act deals with the repeal of laws and reads
as follows:
"The Acts set out in the schedule are hereby repealed or amended
to the extent set out in the third column of the schedule."
It is clear from the provisions of this section read with the
schedule that the intention of the legislature was to repeal the
whole of the 1959 Act as at the date of commencement of the 1998 Act.
From the aforegoing it is also clear that with the introduction of
the 1997 Act it was intended to amend certain provisions of
the 1959
Act.
Proclamation 38, 2004 referred to, puts section 137 into operation
"only with reference to the amendment of the Criminal
Procedure
Act, 1977 (Act no 51 of 1977)". It therefore excludes the
repeal of the whole of the 1959 Act. In my judgment
Proclamation 38,
2004 read with section 137 of the 1998 Act and the schedule mean that
the whole of the 1959 Act had not been repealed
but only those
sections specifically mentioned in Proclamation 38, 2004.
To add to the haze of statutory enactments the
Correctional Services
Amendment Act 2008
, Act 25 of 2008, was assented to on 8 November
2008. The only relevance of the 2008 Act for purposes of the present
application
is that it contains an amendment of section 78 of the
1998 Act in terms of which the right to place a prisoner on parole is
taken
away from the court and put into the hands of the Minister
after certain administrative steps have been taken. This court was
informed that the 2008 Act will be promulgated in the very near
future.
As appears from prayer 2 in Part A of the notice of motion the
applicant wants this court to declare section 136(1) of the 1998
Act
unconstitutional if it is to be interpreted that the applicant is
subject to the provisions of the 1959 Act relating to his
placement
on parole, in so far as section 136(1) is in conflict with certain
provisions of sections 73 and 78 of the 1998 Act.
In the
alternative the applicant wants this court to read section 136(1) of
the 1998 Act down and interpret it as not to
be in conflict with
provisions of section 73 and 78 of the 1998 Act.
In the applicant's papers and his original heads of argument it is
the applicant's case that if section 136(1) of the 1998 Act
provides
that he is subject to the provisions of the 1959 Act, his placement
on parole will have to be dealt with by the Minister
whereas in terms
of the 1998 Act a lifer's placement on parole is dealt with by the
court. That, the applicant argued, amounts
to discrimination between
himself and a prisoner sentenced to life imprisonment subsequent to
0ctober 2004. The applicant further
contends in his papers and
original heads of argument that section 136(1) of the 1998 Act is in
any event not applicable to him
because section 136(1) does not refer
to prisoners sentenced to life imprisonment but to prisoners
sentenced to determinate sentences.
For this last mentioned argument
the applicant relies on an unreported judgment by ELLIS, AJ in
the matter of
P F van Vuren v Minister of Correctional
Services & six others,
case no 37771/08 delivered, in this
court during September 2008. In paragraph 16 the learned acting
judge states the following:
"In terms of the principle
generi per speciem derogatur
and in order to avoid a finding that section 136(3)(a) is
superfluous, the only meaning which can be ascribed to section
136(1),
interpreted in the light of section 136(3)(a), is that
section 136(1) deals with all prison sentences
except life
imprisonment
for which specific provision was made in the other
enactment."
The learned acting judge also remarked as follows in paragraph 19 of
the judgment:
"In the light of my finding above that section 136(1) is not
applicable to life sentences, which are dealt with expressly
in
section 136(3)(a), …"
It is at present common cause between the applicant and all the
respondents that this finding by ELLIS, AJ is wrong. 0n a
mere reading of section 136(1) it is clear that it refers to any
person serving a sentence of imprisonment before the commencement
of
chapters IV, VI and VII of the 1998 Act. The applicant falls
squarely under the provisions of section 136(1) because chapter
IV
came into operation on 31 July 2004 and chapters VI and VII on
31 0ctober 2004, in terms of Proclamation R38, 2004.
It is
clear that the learned acting judge was not referred to the different
Acts applicable as this court was.
As stated earlier herein the applicant's initial attack on the
constitutionality of section 136(3)(a) of the 1998 Act has fallen
away because it became common cause on the papers before us that the
applicant was eligible for parole after having served fifteen
years
imprisonment as a minimum and having reached the age of 65 years.
When Mr Van Loggenberg SC stepped into the shoes of
applicant's former senior counsel, supplementary heads of argument
were filed in which there was a new approach namely that after the
amendment of the 1959 Act by the 1997 Act, all discrimination
between
pre and post 0ctober 2004 lifers fell away, because, as a result of
the 1997 Act, the 1959 Act was amended to provide for
the court to
consider the placement of a lifer on parole and not the Minister.
0n behalf of the first and fourth respondents, Mr Tokota SC
referred us to the Acts referred to above, as well as Proclamations
45, 200 and R38, 2004 and submitted that while the 1997 Act was
hovering in the air, waiting to be promulgated to amend the 1959
Act,
the legislature had assented to the 1998 Act with a view of
streamlining all enactments affecting the Department of Correctional
Services. For that reason, when provisions of the 1997 Act came into
effect on 1 0ctober 2004, they were immediately repealed
on the
very same day.
Mr Tokota's submission was further that the terms of the policy and
guidelines applied by the former Parole Boards prior to the
commencement of chapters IV, VI and VII are to be considered and
applied when any prisoner sentenced prior to the commencement
of
those chapters is considered for parole. Mr Tokota's submission
was further that as all the provisions of the 1959 Act
dealing with
parole had been repealed, prisoners sentenced to life imprisonment
pre 0ctober 2004 had to be dealt with in terms
of section 136 of the
1998 Act. It was therefore only the Minister who could place a lifer
on parole. In respect of lifers sentenced
pre 0ctober 2004 the
position was as it was before the 1997 Act came into operation. In
respect of parole for lifers post 0ctober
2004 the court was the
decision making body. In order not to make any distinction between
pre and post 0ctober 2004 lifers the
2008 Act amending the 1998 Act
was enacted.
Mr Van Loggenberg at the outset submitted that there are three
questions in this application that must be answered. Firstly,
whether this court is statutorily empowered to place the applicant on
parole. Secondly, whether the fifth respondent has a common
law
right to make recommendations to the Parole Board regarding the
placement of the applicant on parole. Thirdly, whether this
court
should place the applicant on parole.
From the aforegoing it is, in my judgment, clear that this court is
not statutorily empowered to place the applicant on parole.
I say
that because I agree with the respondents' submissions that only
the provisions of section 136 of the 1998 Act
are applicable to
lifers sentenced pre 0ctober 2004. All the provisions of the 1959
Act regarding parole for lifers have been
repealed and the provisions
of section 136(1) do not keep those provisions alive in spite of
their repeal in terms of Proclamation
R38, 2004.
0nly the policy and guidelines applied by the former Parole Boards
prior to the repeal of the provisions of the 1959 Act dealing
with
parole remained intact and had to be applied by the Board.
Mr Van Loggenberg referred us to the contents of paragraph 56 of the
applicant's founding affidavit where the following is stated:
"I am challenging the constitutionality of certain sections of
the Act to the extent as set out in the notice of motion, but
only in
so far as any of the respondents may decide to rely on any of those
sections, in opposition to the granting of my parole."
In the heads of argument filed by Mr Van Loggenberg he reserved
the right to fall back on the original approach followed
by the
applicant, ie to challenge the constitutionality of section 136 of
the 1998 Act.
In my judgment, if this court should find that section 136 is
unconstitutional, and that is to be confirmed by the constitutional
court, there is nothing left in the 1959 Act for the applicant to
fall back on. If the applicant is, under those circumstances,
entitled to rely on the provisions of the 1998 Act for his placement
on parole, the intent of the legislature is now clear in the
light of
the 2008 amendment which, as stated, will in the very near future be
put into operation. The result thereof will be that
the applicant
will still be subject to the decision of the Minister regarding his
placement on parole.
The second question posed by Mr Van Loggenberg SC concerns the
alleged right of the fifth respondent to make recommendations
to the
Parole Board regarding the placement of the applicant on parole.
As stated earlier in this judgment the Council requested the Board
to contact the fifth respondent to ascertain whether she intended
making representations to the Board. That delayed the placement of
the applicant on parole. As a result thereof the first
application was launched. As also stated earlier herein, the
fifth respondent applied to be joined in that application.
The
present application followed without the fifth respondent being
joined. As also stated earlier a draft order was made
an order
of court on 9 December 2008 in the present application. In
terms of paragraph 2 thereof the fifth respondent
was joined in
the application. She was by then at least, seen to have a
substantial interest in the outcome of the application.
The fifth
respondent's right to be a respondent in this matter and her right to
make recommendations regarding the placement of
parole of the
applicant was acknowledged and supported by all the respondents.
Such a right was denied by the applicant.
Section 299A of Act 51 of 1977 provides that when a court sentences
a person to imprisonment for,
inter alia,
murder, it shall
inform any immediate relative of the deceased, if he or she is
present, that he or she has a right to make representations
when
placement of the prisoner on parole is considered. The section also
places a duty on the relative to inform the Commissioner
of
Correctional Services of such intention in writing and to provide the
Commissioner with his or her postal and physical address
and to
inform the Commissioner of any change of such address.
Section 299A was inserted in Act 51 of 1977 by section 6 of Act 55
of 2003, subsequent to the applicant's trial and subsequent
to the
date when his sentence of death was commuted to one of life
imprisonment. It was therefore submitted on behalf of
the
applicant, and accepted on behalf of the fifth respondent, that
section 299A of Act 51 of 1977 is not applicable to the fifth
respondent.
I do not agree. The section refers to the sentencing court
informing the relative of his or her
right
to make
representations. In my judgment it does not mean that if a
court does not inform the relative of his or her right,
that that
relative's right falls away.
The right of a relative to make representations and to attend board
meetings is acknowledged in section 75(4) of the 1998
Act.
Mr Bizos SC referred in some detail to the Service Charter
for Victims of Crime in South Africa. It was submitted
that the
Charter is compliant with the spirit of the South African
Constitution and the United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power, 1985.
It is true as was submitted by Mr Bizos that the Charter
provides that a victim may attend a parole hearing and submit written
inputs.
It was further submitted on behalf of the fifth respondent that
the Council considered the fifth respondent as having a right
to
intervene in the applicant's parole proceedings and therefore
instructed the Board to make contact with her. She was in fact
contacted and invited to make representations which invitation she
accepted. She therefore has a legitimate expectation to be
heard.
Mr Bizos also submitted that the 1998 Act requires a Board to
consider and make its decision to place a prisoner on parole
based on
a report compiled, and in terms of section 42 of that Act, "in
the light of any other information or argument".
He said that
must of necessity refer to
inter alia
information that may
come from a relative.
I agree with that submission. Before a prisoner can be placed
on parole all possible relevant information should be considered.
0ne cannot argue, as the applicant now does, that the fifth
respondent's representations will be of a political nature and
nothing
else. Any person, including the applicant, may put relevant
information before a Board. It is the duty of that Board to
weigh and consider all information placed before it and to exclude
information that may be irrelevant.
Mr Bizos also referred to foreign and international law on the
right of a victim to make representations during the parole
process.
In this respect reference was made to the law in England and
Wales, Scotland, certain states of Australia and Canada.
I do
not find it necessary to deal with the foreign and international law
in any detail, save to say that it supports Mr Bizos'
submissions that the fifth respondent is entitled to be heard during
the parole proceedings.
I therefore conclude that the fifth respondent has indeed a right to
make representations before the applicant is placed on parole.
The third question posed by Mr Van Loggenberg is whether this
court should grant an order placing the applicant on parole.
Even if I am wrong in my conclusion that the Minister has the
final say to place the applicant on parole and that it is this
court
that must do so, I am of the view that this court is not in a
position to place the applicant on parole. I say that for
the
following reasons. In the amended notice of motion the applicant
asks for an order in paragraph 7 that this court, "having
considered the record of proceedings of the Correctional Supervision
and Parole Board and its recommendations", grant parole.
It is
common cause that we do not have the record of the proceedings of the
Board. We obviously also do not have the fifth
respondent's
representations to the Board. The judgment of the trial court, not
only on the merits, but also on sentence, is of
the utmost importance
for a proper decision on the placement of the applicant on parole.
Many other documents such as the application
to re open the
trial, the appeal to the Supreme Court of Appeal, the application for
amnesty and the review of the Amnesty
Committee's decision are also
relevant and are not before this court.
In my judgment the application by the applicant, even if he was
entitled to approach the court to be placed on parole, was premature.
It is clear from the papers that the applicant fears that the
Minister will arbitrarily refuse his placement on parole. If that
is to happen, it may be a proper cause to apply for a review of the
Minister's decision.
Earlier herein I referred to the withdrawal of the applicant's first
application and the fact that no costs were tendered in the
notice of
withdrawal. I also referred to the order of court of 9 December
2008. In paragraph 3 of that order it
was ordered that "the
costs incurred by Ms Hani in the previous application under case
no 4117/2008 (should read 47117/08)
are reserved". In paragraph
4 thereof the previous application's costs as well as the costs of
9 December 2008
were also reserved. That is a reference to the
costs of the respondents in the first application as well as the
respondents in
the present application.
Mr Van Loggenberg referred us to rule 41 and in particular to
rule 41(1)(c) which reads:
"If no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for
an order
for costs."
Mr Van Loggenberg's submission was that the respondents who ask
for the costs of the first application, should apply therefore
on
notice of motion.
I disagree. By order of court those costs were reserved. The
costs were reserved for determination by this court. In my
judgment
there is no need for any of the respondents to apply by notice of
motion for those costs.
I have earlier herein referred to the manner in which not only the
1998 Act was put into operation, but also to the manner in
which
sections in the 1959 and 1997 Acts were put into operation and then
repealed. This has led to uncertainty and confusion
in the minds of
prisoners, Correctional Service officials and even lawyers regarding
parole. I am of the view that urgent
and real attempts should
be made by all role players to bring harmony and consistency in
legislation concerning the Department
of Correctional Services and in
particular the handling of parole.
The following orders are issued:
1. The applicant's application is dismissed with costs which costs
will include the costs occasioned by the employment of two counsel
in
respect of each of the respondents.
2. The applicant is ordered to pay the costs that were reserved in
terms of the order of court dated 9 December 2008 which
costs
will include the costs occasioned by the employment of two counsel in
respect of those respondents who employed two counsel.
W J
VAN DER MERWE
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
J
B SHONGWE
DEPUTY
JUDGE-PRESIDENT
NORTH GAUTENG HIGH COURT
I
agree
W
L SERITI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
54507-2008
HEARD ON:
FOR THE APPLICANT:
INSTRUCTED BY:
FOR THE RESPONDENTS:
INSTRUCTED BY: