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[2009] ZAGPPHC 126
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Lebotsa and Another v Minister of Correctional Services and Others (6478/2009) [2009] ZAGPPHC 126; 2010 (1) SACR 379 (GNP) (29 October 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
Date: 2009-10-29
Case Number:
6478/2009
In the matter between:
LETSEPE FIX
LEBOTSA
First
Applicant
JACK LESIBA
THUPANA
Second
Applicant
and
MINISTER OF
CORRECTIONAL SERVICES
First
Respondent
COMMISSIONER OF
CORRECTIONAL SERVICES
Second
Respondent
CHAIRPERSON,
CSPB PRETORIA CENTRAL CC
Third
Respondent
CHAIRPERSON, CMC
PRETORIA CENTRAL CC
Fourth
Respondent
JUDGMENT
SOUTHWOOD J
[1]
The
applicants seek to review and set aside the decisions of the
Correctional Supervision and Parole Board, Pretoria Central (‘Parole
Board’) that each applicant not be placed on parole and that a
further profile should be submitted for each applicant and
an order
that the respondents release the applicants on parole within 30 days
of the grant of this order, alternatively, that the
respondents
reconsider the applicants for possible placement on parole within 30
days of the grant of this order.
[2] The respondents
oppose the application and have filed comprehensive affidavits
setting out the relevant facts on which they
rely and the reasons for
the decisions taken as well as the record of the proceedings. The
allegations set out in the respondents’
answering affidavits
cannot be disputed and the issue is whether on the respondents’
version together with the facts appearing
from the records of the
proceedings the applicants are entitled to the relief sought. See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at
634G-635C and
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
para
26;
Wightman
t/a J.W. Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)
paras
12 and 13.
[3] The first
applicant was convicted of murder, robbery with aggravating
circumstances, unlawful possession of a firearm and unlawful
possession of ammunition. On 8 October 1995 he was sentenced to an
effective term of imprisonment of 40 years. He is presently
serving
his sentence in the Pretoria Central Correctional Centre.
[4] The second
applicant was convicted of murder, robbery, unlawful possession of a
firearm, unlawful possession of ammunition and
unlawful dealing in
precious stones. On 10 October 1997 he was sentenced to an effective
term of imprisonment of 30 years. He
is presently serving his
sentence in the Pretoria Central Correctional Centre.
[5] Both applicants
have received general Presidential amnesties. The first applicant
has received 3 six month Presidential amnesties
which have reduced
his sentence to 38
1
/
2
years. The second applicant has received 2 six month amnesties which
have reduced his sentence to 29 years.
[6] The first
applicant has completed more than 14 years of his sentence and the
second applicant has served more than 11 years
of his sentence.
While serving their sentences the applicants have participated in
their rehabilitation. The first applicant
has completed the
following rehabilitation courses: an Anger Management Programme; a
Life Skills Programme; an HIV/Aids Programme;
a Drug Awareness
Programme; Recreational Activities; a Campaign against Women and
Child Abuse; Music Theory Grade 4 at Unisa;
Music Theory Grade 5 at
Unisa.
The
first applicant has also received the following: a letter of
commendation from the Educationist; a letter from the National
Coordinator – Prisoner Consciousness Movement; a certificate
from the Prisoner Consciousness Movement; a letter from
his family
committing their support and monitoring; a letter of employment; a
letter from the Church.
The
second applicant has completed the following rehabilitation courses:
an Anger Management Programme; a Life Skills Programme;
an
HIV/Aids Programme; a Stress Management & Rehabilitative
Training Programme; Recreational Activities; and Pretoria
Central
FET College.
The second
applicant has also received the following: a letter of commendation
from the Community; a letter from the Chiefs FC
Management; a
letter from his family; a letter of employment; a letter from the
Church.
[7
] On
17 September 2008 the first applicant attended a Parole Board
hearing. The Parole Board decided not to place the first applicant
on parole and that a further profile for reconsideration of the first
applicant for placement on parole should be submitted on
17 September
2010. This decision effectively extended the first applicant’s
incarceration by two years. On 17 September
2008 the second
applicant attended a Parole Board hearing. The Parole Board decided
not to place the second applicant on parole
and decided that a
further profile for reconsideration of the second applicant for
placement on parole should be submitted on 30
June 2010. This
decision effectively extended the second applicant’s
incarceration by 19 months.
[8
] Both
applicants were sentenced before 1 October 2004 and in terms of the
relevant provisions of the Correctional Services Act
11 of 1998 (‘the
Act’) all prisoners who were sentenced before 1 October 2004
may be considered for possible placement
on parole after they have
served
1
/
3
of
their determinate sentences. The applicants are therefore eligible
for consideration for possible placement on parole. According
to the
respondents parole is first considered by the Correctional Services
Case Management Committee (‘CMC’) which
makes a
recommendation to the Parole Board regarding the prisoner’s
placement on parole. The prisoner then appears before
the Parole
Board which has a discretion in terms of the Act to approve, amend or
disapprove the recommendation made by the CMC.
The Parole Board
exercises this discretion after hearing representations by or on
behalf of the prisoner and the prisoner’s
case has been
considered after taking all relevant facts into consideration. The
third respondent notifies the prisoner once it
has exercised its
discretion and made its decision.
[9] The applicants
are
aggrieved by the decisions not to place them on parole and contend
that the third respondent’s decisions should be reviewed
on the
following grounds (the formulation is theirs):
(1) They were not
given a copy of the profile report contemplated by section 42 of
the Act;
(2) They were not
informed of the contents of the profile submission or given an
opportunity to comment thereon in writing;
(3) The third
respondent did not fairly consider their possible placement on
parole as the reasons provided for not considering
them or not
placing them on parole were all (or mostly) due to negligence on
the part of the respondents;
(4) Due to the
negligence of the respondents and their non- compliance with the
law they were subjected to a decision based
on unfair and/or
arbitrary decision making on the part of the third respondent; and
(5) The decision
that a further profile date be set so far in the future clearly
indicates that the decision was taken arbitrarily
because relevant
issues were not considered and because irrelevant issues (such as a
half sentence policy) were applied.
[10
] The
respondents state that in accordance with the prescribed procedure
the first applicant appeared before the CMC on 26 August
2008 and the
CMC recommended that a further placement on parole should be
submitted for the first applicant on 30 October 2010
and that on 17
September 2008 the first applicant appeared before the Parole Board
and the Parole Board decided that the first
applicant should not be
placed on parole and that a further profile for reconsideration of
the first applicant for possible placement
on parole should be
submitted on 17 September 2010. The third respondent testifies that
the third respondent took this decision
after properly considering
the first applicant’s case, taking into consideration the CMC’s
recommendations and considering
the representations made by or on
behalf of the first applicant (both in writing and orally). The
Parole Board’s reasons
for the decision which it says it
communicated to the first applicant on 17 September 2008 are as
follows:
‘
The offender
is serving forty (40) years for multiple aggressive offences.
Address is outstanding. He is not a first offender.
Due
to the length of sentence and seriousness of the offences he must
undergo both social worker and psychological intervention
in order to
address the offending behaviour
.
The
detailed report about his progress will be needed during the next
consideration
.
Sentence
remarks will also be needed during the next consideration
.’
(My emphasis)
[11
] The
third respondent states that the Parole Board took into account
inter
alia
the
seriousness of the crimes of murder, robbery with aggravating
circumstances, unlawful possession of a firearm and unlawful
possession of ammunition; the state of rehabilitation reached by the
first applicant ‘in as far as it could have been determined’;
the release of the first applicant back into the community taking
into account the nature of the crimes; thus the sentence remarks
would also need to be obtained. The fact that no address was
provided by the first applicant for monitoring was also taken into
account. The Parole Board ‘would also have taken into account
the recommendation made by the CMC in which it set out all
the
programmes which the first applicant has attended as well as his
achievements and certificates’. It is clear from the
Parole
Board’s reasons that it is of the opinion that the first
applicant should be referred to a social worker or psychologist
for
individual therapy and that a report should be supplied, that a
detailed report about the first applicant’s progress
must be
provided and that the court’s sentence remarks must be
furnished.
[12
] The
third respondent chairman gives similar evidence regarding the second
applicant. He furnishes the following reasons for the
decision taken
in respect of the second applicant on 17 September 2008:
‘He
is serving 30 years for aggressive crimes. He has already served 11
years 1 month and 1 day of his sentence to date.
He has attended
some rehabilitation programmes. However the CSPB has taken into
account the seriousness of the crimes, the interests
of the community
and the length of the sentence in coming to its decision.
Sentence
remarks and SAPS 69 must be provided so that the CSPB can know as to
whether he has previous convictions and how the crimes
were
committed
.
He
must also provide a report about his prognosis
.
Further profile is approved for 2010-06-30.’ (My emphasis)
[13] The
applicants,
who
appeared in person, addressed the court on their applications. Both
are lay persons with limited education and their insight
into legal
matters in general and review procedure in particular is extremely
limited. Both applicants conveyed to the court their
dissatisfaction
at not being granted parole. This dissatisfaction is at least
partially based on a misunderstanding of their legal
position: both
referred to the fact that other prisoners who had served
1
/
3
of their sentences had been granted parole and they clearly expect to
be granted parole simply because they have served
1
/
3
of
their sentences. A prisoner sentenced before 1 October 2004
qualifies for consideration for parole after serving
1
/
3
of
his or her sentence but that is a far cry from being entitled to be
released on parole. The Parole Board decides in its discretion
whether or not to grant parole and in exercising that discretion must
take into account all the relevant circumstances which obviously
must
include, when the prisoner was convicted of a crime of violence,
whether there is a likelihood that the prisoner will repeat
the
offence if released into society. If not satisfied on that issue the
Parole Board will obviously not grant parole. There
may be other
considerations which will lead to a similar decision.
[14
] The
respondents’ counsel contends that the answering affidavit
effectively rebuts the applicants’ complaints and that
the
respondents’ reasons for its decisions to refuse parole and
require further profiles for reconsideration of the applicants’
parole in 2010 demonstrate a rational connection between the
decisions and the information before the Parole Board. At first
blush the Parole Board’s answering affidavit seems to provide a
foundation for the argument but on closer consideration of
the
affidavit and the record of the parole proceedings I am not persuaded
that all the relevant information which the Act prescribes
was before
the Parole Board and accordingly that the decision taken was in
accordance with the Act. It also appears that certain
important
procedural requirements were not satisfied.
[15
] Although
not formulated with a lawyer’s precision the applicants’
case is that the Parole Board did not have all the
relevant
information when it took the decisions and the decisions were
therefore arbitrary or capricious (see section 6(2)(e)(vi)
of Act 3
of 2000) or that relevant considerations were not considered (see
section 6(2)(e)(iii) of Act 3 of 2000). The respondents
have not
taken heed of the comments made in the unreported judgment in the
case of
Petrus
J. Lombard v The Minister of Correctional Services and Others
TPD Case No 40298/07 delivered on 7 March 2008. There, like now, it
was necessary to consider the information which must be available
to
the Case Management Committee and the Parole Board when parole is
considered and the procedure to be followed in considering
parole.
The relevant provisions of the Act are sections 38, 42 and 75.
[16
] The
relevant provisions of section 42 read as follows:
‘
Case
Management Committee
(1) At each prison
there must be one or more Case Management Committees composed of
correctio
nal
officials as prescribed by regulation.
(2) The Case Management Committee
must –
(a) ensure that each sentenced
prisoner has been assessed, and that for prisoners serving more than
12 months there is a plan specified
in section 38(2);
(b) interview, at regular intervals,
each prisoner sentenced to more than 12 months, review the plan for
such prisoners and the
progress made and, if necessary, amend such
plan;
(c) make
preliminary arrangements, in consultation with the Head of Community
Corrections for possible placement of a prisoner under
community
corrections;
(d) submit a report, together with the
relevant documents, to the Correctional Supervision and Parole Board
regarding –
(i) 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;
(ii) the previous criminal record of
such prisoner;
(iii) the conduct, disciplinary
record, adaptation, training, aptitude, industry, physical and mental
state of such prisoner;
(iv) the likelihood of a relapse into
crime, the risk posed to the community and the manner in which this
risk can be reduced;
(v) …
(vi) …
(vii) the
possible placement of such prisoner on day parole or on parole,
and the conditions for such placement;
and
(viii) such other matters as the
Correctional Supervision and Parole Board may request; and
(e) at the request
of the Area Manager, submit a report contemplated in paragraph (d) to
him or her in respect of any prisoner sentenced
to 12 months
imprisonment or less.
(3) A prisoner must
be informed of the contents of the report
submitted
by the Case Management Committee to the Correctional Supervision and
Parole Board or the Area Manager and be afforded
the opportunity to
submit written representations to the Correctional Supervision and
Parole Board or Area Manager, as the case
may be.’
[17
] Section
38, which is peremptory, reads as follows:
‘
Assessment
(1) As soon as possible after
admission as a sentenced prisoner, such prisoner must be assessed to
determine his or her –
(a) security classification for
purposes of safe custody;
(b) health needs;
(c) educational needs;
(d)
social
and psychological needs
;
(e) religious needs;
(f) specific
development programme needs;
(g) work allocation;
(h) allocation to a specific
prison; and
(i)
needs
regarding reintegration into the community
.
(2)
In
the case of a sentence of imprisonment of 12 months
or
more, the manner in which the sentence should be
served
must be planned in the light of this assessment
and
any comments by the sentencing court
.’
(My emphasis)
[18
] The
relevant provisions of section 75, which deals with the powers of,
the functions and duties of Correctional Supervision and
Parole
Boards, read as follows:
‘(1) A
Correctional Supervision and Parole Board, having considered the
report on any prisoner serving a determinate
sentence exceeding
12 months submitted to it by the Case Management Committee in
terms of section 42 and in the light of
any other information or
argument, may –
(a) subject to the
provisions of paragraphs (b) and (c) and subsection (1A)
place a prisoner under correctional supervision or day parole or
grant parole and, subject to the provisions of section 52, set
the
conditions of community corrections imposed on the prisoner.’
[19
] Both
applicants are subject to these provisions. It is noteworthy that
the information in the record of the parole proceedings
does not show
that a CMC has assessed either applicant and prepared a plan as
required by section 38(2); that a CMC has interviewed
the
applicants at regular intervals and reviewed the plans and the
progress made and, where necessary, amended the plans; and
that a
CMC has submitted to the Parole Board a judgment on the merits and
the remarks made by the court when imposing the sentence
and dealt
with the likelihood of the applicants’ relapsing into crime,
the risk posed to the community and the manner in
which the risk can
be reduced. The existence of the section 38(2) plan and the progress
made by the prisoners in serving the sentence
in accordance with the
plan and any special therapy received and still required are
obviously essential to the question of the
likelihood of a relapse
into crime, the risk posed to the community and the manner in which
this risk can be reduced. In the absence
of this information the
Parole Board’s consideration of the applicants for parole of
necessity is not only superficial but
arbitrary and capricious. This
appears from the reasons for the decision which do not deal with any
of the relevant issues which
proper compliance with section 38 would
have revealed. The reasons also show that all the relevant
information was not available.
[20
] The
record also does not establish that the CMC submitted a proper report
(i.e. one complying with section 42(2)(d)) to the Parole
Board or
that the applicants were informed of the contents of the report
submitted by the CMC to the Parole Board and that the
applicants were
given the opportunity to submit written representations thereon to
the Parole Board. The applicants allege that
there was no compliance
with section 42 in this regard and this is not denied by the
respondents. There are also no facts to show
that the CMC and/or the
Parole Board complied with the section.
[21
] Finally,
it is striking that the record of the proceedings contains no minute
of what transpired at the hearing or any indication
of what the
Parole Board considered important. On the face of the record the
applicants were not heard or given an opportunity
to explain why they
should be released on parole.
[22
] The
Parole Board’s decision was taken without all the prescribed
information being available and it was therefore arbitrary
and
capricious. It is significant that the applicants were not aware of
the fact that they must have counselling from a social
worker and/or
a psychologist – something they would have known if the Case
Management Committee had prepared the section
38(2) plan and reviewed
the applicants’ progress in the light of the plan – and
that the Parole Board now says that
the reasons for sentence must be
available when the applicants’ parole is reconsidered in 2010.
The Parole Board also failed
to comply with the Act in important
respects – it failed to advise the applicants of the contents
of the Case Management
report and give the applicants an opportunity
to comment on the contents. The applicants are therefore entitled to
an order reviewing
and setting aside the decision of the Parole Board
not to grant parole and to require a further profile for
reconsideration of
the applicants’ parole late in 2010. There
is no reason why the applicants must wait so long before parole is
properly considered.
Order
[23
] I The
decisions of the Correctional Services Parole Board Pretoria
Central taken in respect of the applicants on 17 September
2008
are reviewed and set aside;
II The Case
Management Committee Pretoria Central is ordered to immediately
p
repare
the report contemplated in section 42 of Act 111 of 1998 in respect
of the applicants and submit the reports to the applicants
for their
written representations as required by section 42(3) of Act 111 of
1998 so that both can be available for a sitting of
the Parole Board
Pretoria Central not later than 31 January 2010;
III The
Correctional Services Parole Board Pretoria Central is ordered to
convene and consider the applicants’ release
on parole as
required by section 75(1) of Act 111 of 1998 read with section 42
of Act 111 of 1998 not later than 31 January
2010.
____________________
B.R.
SOUTHWOOD
JUDGE OF THE
HIGH COURT
CASE NO:
6478/2009
HEARD
ON: 14 October 2009
FOR
THE APPLICANTS: In person
FOR
THE RESPONDENTS: ADV. J. ROUX
INSTRUCTED
BY: State Attorney
DATE
OF JUDGMENT: 29 October 2009