Nongalo and Others v National Commissioner: Department of Correctional Services and Another (3905/2005) [2007] ZAFSHC 84 (10 May 2007)

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[2007] ZAFSHC 84
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Nongalo and Others v National Commissioner: Department of Correctional Services and Another (3905/2005) [2007] ZAFSHC 84 (10 May 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application No. :
3905/2005
In
the application between:-
ISHMAEL
NONGALO
First
Applicant
ABEDNIGO
MAHUSA
Second
Applicant
MOLEME
MAKGEBO
Third
Applicant
and
THE
NATIONAL COMMISSIONER:
First
Respondent
DEPARTMENT
OF CORRECTIONAL
SERVICES
THE
PROVINCIAL COMMISSIONER:
Second
Respondent
DEPARTMENT
OF CORRECTIONAL
SERVICES
_____________________________________________________
CORAM:
MALHERBE
JP
_____________________________________________________
HEARD
ON:
3
MAY 2007
_____________________________________________________
DELIVERED
ON:
10
MAY 2007
_____________________________________________________
The applicants are
inmates of the Mangaung Correctional Centre (the MCC) in Bloemfontein
where they are serving long terms of imprisonment.
On 6 September
2005 they issued a notice of motion which they drafted themselves and
in which they claim the following relief:
“
(1) Declaring
the applicants’ detention and allocation in Mangaung Correctional
Centre unlawful and inconsistent.
(2) Granting
an interdict to applicants confirming their reallocation to
convenient CENTRES as prayed for in affidavit.
(3) Directing the respondents to
reallocate applicants immediately.”
As could have been
expected applicants’ founding affidavit is not a model of clarity.
However, it is clear from the following extract
from this affidavit
that they are dissatisfied with their detention in MCC and wish to be
transferred to other prisons:
“
(3) We are residence of Soweto
(Gauteng), Mafikeng and Klerksdorp, (Northwest) provinces and our
family are based there. Furthermore,
it has always been our wish to
be reallocated to Gauteng and Northwest provinces in order to enhance
communication with our families.
In addition, we submitted requests
to the Department of Correctional Services Controller in M.C.C. for
transfer, simultaneously
from 2001 until recently in 2004/5, but to
no avail. Therefore, it has come to our attention that all requests
for transfer are
handled by the controller who further forwards them
to the (DCS) Provincial Commissioner for further handling and
consideration.
(4) Granting, in our individual
submission we identified and indicated the following Correctional
Centres:
I. I. Nongalo: Leeuwkop. C.C.
II. A.
Mahusa: Rooigrond or Potchefstroom
M. Makgebo: Rooigrond
as convenient and appropriate.
Furthermore, we have also consulted the representatives of Judge
(Inspecting Judge for Prisons), who
are known as I.P.V. (Independent
Prisoners Visitors) but also in vain and unsuccessful. Furthermore,
among the reason we (applicants)
furnished in support of our requests
are:
(A) Our allocation in M.C.C.
jeopardizes and has a negative impact on our family relation and
communication, more especially on contact
visit.
(B) Moreover, our allocation is
expensive and detrimental, because our families can’t travel
frequently for visit (two of the applicants
never have family visit).
Infect, we solemnly depend on our parents for financial support,
others being pensioners, for funding
our studies, and maintaining our
livelihood in prison.
(C) Furthermore,
our present predicaments affect our rehabilitation process and
academic endeavours, hence difficult and impossible
to concentrate
and reach high altitude. However, we firmly belief that our
reallocation will help improve family contact and relations.
(5) In light of the above furnished
reasons, we humbly submitted that our allocation and detention in
M.C.C. from 2001 is inconsistent
with provisions of the Constitution,
108 of 1996 S. 35(2)(f)(i)(ii)(iii) and (iv), which reads ‘everyone
who is detained, including
every sentenced prisoner has the right to
communicate with, and be visited by, that person’s spouse, next of
kin and etc’.
(6) Furthermore,
the
Correctional Services Act, 111 of 1998
S. 43(i)
read ‘Every
sentenced prisoner must be housed at the prison closest to the place
where he or she is to reside after release’.
(7) Therefore,
it is respectfully submitted that the prisoner subject to which
transfer and allocation (centre) next to his or her
residence,
according to the Correctional Service Act provision.”
Since the delivery of the
founding affidavit there have been many delays, with the result that
the replying affidavit was only delivered
on 26 April 2007 whereafter
the matter was heard on the first succeeding Motion Court day.
Respondents’ opposition
to the application appears from the following paragraphs of the
answering affidavit:
“
3.
I have been informed that applicants
seek in paragraph 1 of their notice of motion the review and setting
aside of decisions taken
as long ago as in 2001 in terms whereof they
were transferred to the MCC. Secondly it appears from paragraphs 2
and 3 of the notice
of motion as if applicants seek an order in terms
whereof respondents be ordered and directed to transfer them to
prisons of their
choice.
4.
4.1 In so far as applicants seek the
review of the 2001 decisions to transfer them to MCC, their
application has been filed almost
four years after the decisions have
been taken. The application has been filed hopelessly out of time
without any reasons whatsoever
as to why the Honourable Court should
condone non-compliance with the provisions of Section 7(1) of the
Promotion of Administrative
Justice Act, 3 of 2000 (
‘PAJA’
).
Since the application was issued a further period of two years has
lapsed.
4.4 First applicant never complained
about his transfer to MCC or the dismissal of any of his applications
for transfer from MCC to
which I will refer later herein according to
the official Complaints’ Register of MCC. Second applicant
complained in May 2002
for the first time about his transfer, whilst
third applicant never complained about his transfer to MCC or the
dismissal of his
applications to be transferred from MCC.
4.5 No
reasons have been advanced to explain the delay and there is no
application for condonation.
4.6 As
advised, argument will be addressed to the Honourable Court that the
review application pertaining to the 2001-decisions should
be
dismissed by the Honourable Court without having to go into the
merits thereof.
6.
Before dealing with the allegations
made by applicants, I have been advised to give the following
background to the Honourable Court:
6.1 As stated the MCC is run by a
private enterprise in accordance with a contract entered into with
the Department of Correctional
Services.
6.2 In accordance with the terms and
conditions of the contract between the Department and MCC, MCC should
never be overcrowded, but
on the other hand, must also be on 100%
capacity at any given time.
6.3 In order to facilitate transfers
between prisons and particularly from MCC to other prisons, so-called
cross-transfers can be
arranged.
6.4 Although
it is not reasonable to transfer a prisoner from MCC to an already
overcrowded prison, transfer may be allowed at the
request of a
prisoner and if all other relevant conditions are satisfied on the
basis that a prisoner(s) from the overcrowded prison
is/are
simultaneously transferred to MCC or if prisoners at such prison are
released to effectively reduced the numbers.
6.5 Aspects
such as security risks must also be taken into consideration. The
applicants are maximum-security prisoners and can in
any event not be
transferred to prisons that do not provide for the detention of
maximum-security prisoners.
6.6 The
MCC was opened in 2001 and has a capacity of 2 928 prisoners.
6.9 It has to be emphasised that there
was not nearly enough maximum-security classified prisoners within
the Free State Province
that qualified for transfer to MCC and it was
therefore inevitable that prisoners from other provinces such as
Northern Cape, North
West and Gauteng had to be transferred to MCC to
ensure that it was filled to 100% capacity.
6.10 Applicants were transferred to
MCC in accordance with the aforesaid plan.
7.
7.1 Applicants did not comply with the
provisions of Section 7(2)(c) of PAJA. They did not exhaust their
internal remedies and did
not set out any exceptional circumstances
as to why the Honourable Court should come to their relief. The
Honourable Court is respectfully
referred to chapters 9 and 10 of the
Correctional Services Act, 111 of 1998
. Independent Prison Visitors
visit the MCC on a regular basis. Applicants are fully entitled to
be interviewed in private and to
file complaints with these visitors.
This option is open to them over and above the Inmate Complaint
Register, as well as the Confidential
Access System, which facilities
allow prisoners to file complaints. One of the powers of Independent
Prison Visitors is to discuss
complaints with the Head of Prison with
a view to resolve issues internally. In the event of an unresolved
complaint the matter
may be referred to the Inspecting Judge for his
further attention.
7.2 It is alleged in paragraph 4 of
the founding affidavit that applicants consulted representatives of
the Inspecting Judge and Independent
Prison Visitors. No information
was provided in respect of when these consultations took place, what
grievances were made and what
feedback was received. I have
thoroughly investigated this matter and could find no proof
whatsoever that either the office of the
Inspecting Judge or the
Independent Prison Visitors reported grievances to either the MCC or
the DCS Controllers with instructions
to attend to the complaints. I
submit therefore that these allegations are without substance.
7.3 The application should be
dismissed without dealing with the merits on the basis that
applicants did not exhaust their internal
remedies. There is no
proof that they followed above procedures in order to obtain relief.
9.2 It
is admitted that the relatives of applicants are resident in Soweto,
Mafekeng and Klerksdorp respectively. However, save in
the case of
second applicant, there is no proof that applicants wanted to be
transferred to Gauteng or North West prisons immediately
or soon
after arrival at MCC.
9.3 First applicant applied to be
transferred to Zonderwater Prison on
12
May 2003
. This application
is still pending due to the fact that no feedback has been received
from the Zonderwater Prison. However as indicated
in annexure ‘D’
the population percentage of the Zonderwater Medium A Prison is
presently 227%, which is more than double the
figures it can host.
It is just not possible to transfer first applicant to the
Zonderwater Medium A Prison without the consent
and co-operation of
not only the head of that prison, but also the office of the Regional
Commissioner for Gauteng. On
26
May 2005
first applicant
applied to be transferred to Leeukop Prison, but this application was
disapproved and he was informed accordingly.
It appears from
annexure
‘D’
that Leeukop Maximum Prison has at present a population of 220%.
9.4 Contrary
to the perception of applicants, over-crowdedness in the prisons of
their choice is a serious problem. A prisoner cannot
be
‘dumped’
on a prison of his
choice merely because he seeks a transfer to that prison. Such
action would be irresponsible and not in line with
the Department’s
statutory duties and obligations.
9.5 First
applicant also applied on
13
October 2006
to be
transferred to Potchefstroom. This prison does not cater for maximum
security classified prisoners and although no feedback
has been
received from the Regional Commissioner for North West and/or the
head of the prison yet, I have reason to believe that
this
application will probably be disapproved in due course for this very
reason.
9.6 Second
applicant applied twice to be transferred to Rooigrond, i.e. on
29
July 2003
and again on
25
October 2004
. Both
applications were disapproved and second applicant informed
accordingly. He applied on
13
October 2006
(on the same
date as first applicant) to be transferred to Potchefstroom. I refer
the Honourable Court to my comments made in the
previous
sub-paragraph. This application is also still pending.
9.7 Third
applicant also applied twice to be transferred to Rooigrond, i.e. on
4 January 2005
and again on
14 July 2006
.
Both applications were dismissed and third applicant advised
accordingly.
9.8 The
reasons for the disapproval of the aforesaid applications appear from
annexures
‘E’
and
‘F’
hereto. The Honourable Court will note that over-crowdedness was
stipulated as the reason for disapproval.
9.9 I reiterate that applicants are
serving lengthy services after having been found guilty of serious
crimes. They are maximum-security
classified prisoners and there are
pertinent security risks in detaining them.”
The replying affidavit
does not raise anything worthy of note.
I
have considered the evidence and the arguments addressed to me. Even
if respondents’ reliance on Act 3 of 2000 and Act 111 of
1998 as
set out in paragraphs 4.1and 7.1 quoted above, is not considered at
all, there is no way that the application can succeed
on the merits.
This is clearly a case where inmates of a high security prison want
to dictate to the prison authorities where and
under what conditions
they prefer to serve their sentences. That cannot be allowed.
For
what it is worth, costs must follow the result.
The
application is dismissed with costs.
The
Registrar is requested to make a copy of this judgment available to
each applicant.
_________________
J.P. MALHERBE, JP
On
behalf of applicants: In person
On
behalf of respondents: Adv. J.P. Daffue
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp