Stanfield v Minister of Correctional Services and Others (5075/2003) [2003] ZAWCHC 46; [2003] 4 All SA 282 (C); 2004 (4) SA 43 (C) (12 September 2003)

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[2003] ZAWCHC 46
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Stanfield v Minister of Correctional Services and Others (5075/2003) [2003] ZAWCHC 46; [2003] 4 All SA 282 (C); 2004 (4) SA 43 (C); 2003 (12) BCLR 1384 (C) (12 September 2003)

IN THE HIGH COURT
OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
In
the matter between:
COLIN
STANFIELD
Applicant
and
THE MINISTER OF CORRECTIONAL SERVICES
First Respondent
THE
COMMISSIONER OF CORRECTIONAL SERVICES
Second Respondent
P
MANS N O
Third Respondent
THE
PAROLE BOARD, HELDERSTROOM PRISON
Fourth
Respondent
JUDGMENT: 12 SEPTEMBER 2003
VAN
ZYL J:
INTRODUCTION
[1] In this matter, after reading the
papers submitted and hearing full argument by Mr Gauntlett on behalf
of the applicant and Mr
Potgieter on behalf of the respondents, I
granted an order on 4 August 2003 in terms of which I set aside the
decision of the third
respondent rejecting the applicant's
application to be placed on parole on medical grounds in terms of
section 69 of the
Correctional Services Act
8 of 1959 (“the
Act”). In addition I ordered that the applicant be placed on parole
forthwith, subject to his remaining under
the medical supervision of
Dr David Eedes at the Southern Cross Netcare Hospital in Wynberg, and
further subject thereto that, on
discharge from the hospital, he be
placed under the care of his wife, Mrs Sharifa Stanfield, and/or his
sister, Ms Joan Stanfield,
and/or Ms Christine Caesar Nkynze, his
housekeeper, in his home at 10 Balintore Road, Rondebosch. In regard
to the costs of the application,
I ordered such costs, including the
costs of two counsel, to be borne by the first respondent.
[2] In view of the urgency of the
matter and the time constraints making it impossible to give reasons
for this order immediately,
I undertook to give reasons at a later
stage. This did not deter the respondents from filing a notice of
appeal on 5 August 2003,
the consequence of which was to suspend the
operation of the order. The applicant’s attorneys responded by
filing an application
in terms of Rule 49 (11) of the rules of this
court. Such application was opposed and fully argued by the same
counsel as before.
On conclusion of the argument I granted an order,
on 8 August 2003, implementing the order of 4 August 2003 forthwith,
but subject
to a number of further conditions proposed by the
respondents and substantially accepted by the applicant’s legal
representatives.
[3] The respondents requested that
reasons be furnished urgently for the order of 4 August 2003 in that
this is a matter of some moment,
affecting certain important policy
considerations relating to the future conduct of similar matters. I
would have preferred handing
down my reasons immediately, but the
nature of the case and the full argument addressed to me by both
sides have made it impossible
before now. In what follows the reasons
for my order are set forth..
CASE FOR THE APPLICANT
[4] The applicant, who is presently
forty-eight years old, was convicted of fraud, in the form of tax
evasion exceeding two million
rand, and was sentenced on 6 March 2001
to six years imprisonment. After exhausting his rights of appeal
against the sentence, he
commenced serving his sentence on 18
February 2002 in the Helderstroom Prison, Villiersdorp.
[5] On 22 May 2003 he was diagnosed
as suffering from incurable and inoperable lung cancer known as a
“small cell carcinoma”.
It was described by Dr Peter Chapman, a
respiratory physician or pulmonologist who did the diagnosis, as the
worst type of cancer
that “grows most rapidly and is not suitable
for surgical removal”. The CT scan and biopsy done on 26 May 2003
indicated that
the cancer was prevalent in the left lung, but had
already spread to the right lung. According to Dr Chapman
chemotherapy was the
only treatment that could be applied at the
present time. For this purpose the applicant was referred to Dr
Eedes, a radiation oncologist
practising at the said hospital.
[6] In his supporting affidavit Dr
Eedes opined that it would be appropriate for the applicant to be
placed on parole on medical grounds.
In this regard he confirmed, in
his report dated 30 May 2002, the diagnosis made by Dr Chapman and
indicated that the applicant would
be treated with “combination
chemotherapy (cisplatinum and etoposide)” as an in-patient for
three consecutive days every twenty-one
days. He would require a
minimum of six cycles of treatment over a period of at least five
months. During treatment he would suffer
from possible side-effects
such as nausea, vomiting, weakness, diarrhoea, hair loss and weight
loss. His immune system would be affected
by this treatment due to
bone marrow suppression with a very high risk of infection and
bleeding. It was hence imperative that he
not be exposed to
conditions that would result in infection, such as would be the case
should he be exposed to the public or “crowded
conditions”. He
would in any event require close contact with regular medical care
should life-threatening side-effects, emanating
from the disease and
its treatment, arise. Dr Eedes described the applicant’s prognosis
as very poor since this was “an especially
aggressive malignancy”
with an average survival rate of six to eight months with treatment.
His chance of surviving for one year
was less than 20%, while for two
years it was, indeed, less than 10%.
[7] Pursuant to these diagnoses the
applicant addressed an urgent application to the second and fourth
respondents to be placed on
parole on medical grounds in terms of
section 69 of the Act. In his supporting affidavit he pointed out
that, in addition to the
lung cancer recently diagnosed, he also
suffered from advanced coronary disease and was at high risk, as
appeared from a report dated
24 March 2003 by Dr Elwyn Lloyd, a
cardiologist. Dr Lloyd recommended that the applicant be brought
closer to adequate medical facilities
“as the risk of an acute
event occurring is high”.
[8] With regard to his personal
circumstances the applicant stated, in the said affidavit, that he
had a “common law relationship”
with his former wife, Mrs Sharifa
Stanfield, with whom he was living at the time of his imprisonment.
They are the parents of five
childen, aged nineteen, seventeen,
fourteen, thirteen and eight years respectively, all of whom,
together with Mrs Stanfield, are
depressed, uncertain and confused by
the prospect of the applicant’s dying in prison. This appears from
a report dated 17 March
2003 of Ms Joana du Toit, a psychologist who
interviewed Mrs Stanfield and the children during the period 18
December 2002 to 21
February 2003, before the latest reports relating
to the applicant’s advanced coronary disease and terminal cancer
were available.
[9] In a further report by Dr Eedes
dated 6 June 2003 and addressed to Mr Matseliso, the acting area
manager of the Helderstroom management
area, Dr Eedes stated:
Dr Ron Mallet, the general practitioner of Mr Colin Stansfield, has
asked me to draft a letter documenting the minimum requirements
for
discharge following Mr Stanfield”s chemotherapy for a lung
carcinoma.
Mr Stanfield needs to be in an uncrowded environment that is free of
infection such as tuberculosis. He also requires easy access
to
medical care in case of complications, such as lung haemorrhage and
infection, from his disease and treatment.
[10] In the meantime Dr S A Frank,
the medical officer appointed in terms of section 6 of the Act,
requested Prof D F du Toit, a specialist
general surgeon of the
Tygerberg Hospital and a professor of medicine at the University of
Stellenbosch, for a second opinion on
the applicant’s medical
condition. On the basis of the medical reports and case notes of Dr
Chapman and Dr Eedes, and with reference
to recent medical authority,
Prof du Toit stated in his report, dated 11 June 2003, the following:
Patient
is reported to have severe ischaemic heart disease (doctor’s case
notes).
Patient
has inoperable,
histologically proven
, small cell carcinoma
(SCLC) of the lung invading the mediastinum and in need of
chemotherapy.
3. Median survival, even with treatment, is 1 year (ref: Robbins
Basic Pathology, 7
th
edition; Saunders Philadelphia; 2003:
pp 504).
Recommendation:
Mr Stanfield should be released on
medical grounds on parole as from today.
[11] After
having himself interviewed the applicant and Dr Eedes at the
hospital, Dr Frank submitted a medical report, dated 12 June
2003, to
assistant director L R August, who was designated as the area manager
of the Helderstroom management area. In this report
he stated as
follows:
Mr Stanfield exhibits, at this time, no overt sign of his disease. He
appears, externally, to be in good health. He is, in fact,
a good
advertisement for the “First World” level of health care which he
is receiving. He has two main medical problems:
Ischemic
Heart Disease
He has, radiologically proven, severe
ischemic heart disease, for which he is receiving treatment, both
medical and surgical. In my
opinion, although his disease is severe,
it is being well managed and, if this degree of care is maintained,
further incarceration
should not affect his life expectancy.
In the course of his treatment, a
tumour was identified in his chest which was subsequently proven to
be a “small cell carcinoma”.
Lung
Cancer
This is a particularly malignant
tumor which spreads rapidly and is, in his case, inoperable.
Treatment is by chemotherapy with, sometimes,
radiotherapy in
addition.
The prognosis of this lesion is very
poor, being less than 6 months (untreated). This improves to a year
on treatment.
Mr Stanfield has already received 2
courses of chemotherapy in a series which stretches over a 6 month
period. One unfortunate side
effect of this treatment is that he
becomes highly susceptible to chest infections, such as tuberculosis.
This means that further
incarceration carries a very high risk of his
developing a chest infection which, in his immune-depressed
condition, is likely to
dramatically shorten his life.
There is not, to my knowledge, a DCS
[Department of Correctional Services] Medical Facility which can
adequately care for Mr Stanfield.
For this reason I recommend that he
be placed on parole (or discharged from prison) with immediate
effect.
[12] On 13 June 2003 the fourth
respondent conducted an inquiry at the hospital where the applicant
had been a patient since being
diagnosed with terminal lung cancer on
22 May 2003. The acting chairperson of the fourth respondent, Mr A P
Pepler, an assistant
director in the Department of Correctional
Services (the "Department"), presided over the inquiry. In
addition to the aforesaid
medical reports, various members of the
Department, who were responsible for religious instruction, social
work, discipline and medical
assistance at the prison, commented
favourably on the application. Mr Pepler, however, recommended that
the application be rejected
on the following grounds as set forth in
annexure A to his report dated 13 June 2003:
Voorgenoemde verslae is bestudeer en deeglik oorweeg, maar sien ek
nie op dié stadium my weg oop om aan te beveel dat Stanfield
op die
stadium op parool of om mediese redes vrygelaat word nie.
My redes is as volg:
# Hy geniet tans goeie gesondheid, op
die oog af lyk hy nie siek nie.
# Hy help homself deur self te eet,
aan te trek en te was.
# Sy lewensverwagting is tans 6 maande tot 1 jaar en kan daar gekyk
word na, of die behandeling waarop hy tans is, enige uitwerking
het.
# Die gevangene is ‘n hoë profiel
geval en het hy nog nie eers 1/3 van sy vonnis gedoen nie.
# Die strafoogmerke moet tuisgebring
word en as ‘n voorbeeld vir ander misdadigers dien.
# Die minimum vereistes, soos gestel
deur Dr. Eedes, kan deur die departement nagekom word en is dit
onnodig dat hy op eie koste in
‘n hospitaal (privaat) moet bly.
# Hy sal heel menswaardig in ‘n
gevangenis aangehou kan word.
# Wat my die ergste van die aansoek
ontstel, is dat al die dokters mediese ontslag aanbeveel en bekommerd
is oor kieme in die gevangenis,
maar nie een praat enigsins van die
feit dat Stanfield nog rook nie. Hy sal eers drasties iets moet doen
aan sy rookgewoontes.
Ek beveel aan dat die aansoek nie
goedgekeur word nie, maar weer herhaal word gedurende Oktober 2003.
[13] On the same day, 13 June 2003,
the third respondent accepted Mr Pepler’s recommendation and
rejected the the applicant’s
application to be placed on parole on
medical grounds. At the request of the applicant’s attorneys, the
third respondent, on 19
June 2003, furnished written reasons for his
decision. Although it contains numerous grammatical and spelling
errors, it should,
I believe, be quoted in full, in unamended form:
After having applied my mind properly and taking all the facts into
consideration, the following is clear:
Mr. Stanfield is clearly suffering
from a recently discovered heart and lung problem.
The lung problem is clearly so
serious that all the medical practisioners agree that his life
expectancy is between six and twelve
months. Succesful treatment can
have a influence on this period.
I have also visited the prisoner on
9-06-2003 in the public hospital. It was clear that he is very
concerned about his health condition
but he appears on the outer very
normal, he is at all not bedridden
at this stage
. Reports by
the medical practitioners also state clearly that physically Mr
Stanfield appears normal and he is able to can do everything
for
himself.
To can take a responsible decission
in this regard there is basically two questions, namely:
one, is the life expectancy so short
that from a humane point of view it will serve no purpose to keep the
person longer in prison.
Consistancy in this type of decissions is
also very important. In this spesific case the life expectancy is not
so short that further
imprisonment will not serve a purpose. We as
correctional services must also see that the sentence imposed by the
court must be served
as far as possible.
In the second instance we must answer
the question whether the prisoner’s health condition is of such a
nature, that he is in terms
of his physical abilities still able to
can do most things for himself as good as any other person. In
physical terms he is thus
able to can commit a further crime at this
stage.
Against this background I do not
approve at this stage that Mr Stanfield be released on parole on
medical grounds.
It is so that Mr Stanfield’s health
condition can soon deteriorate rapidly and is it important to make it
clear that his situation
will be monitored continuously (day to day)
and will this decision be reconsidered automatically when the stage
arrive that it will
serve no more purpose to keep him further in
prison.
[14] The applicant forthwith gave
instructions to his attorney to bring the present application to
review and set aside the third
respondent’s decision. Various
grounds of review, some of which overlap, were raised with reference
to the provisions of section
69 of the Act and the reasons given by
the third respondent for his decision. They may be reflected as
follows:
With reference to the purpose of
section 69 of the Act and the purpose for which the decision was
taken, there was no rational
connection between the information
before the third respondent and the reasons articulated by him for
such decision.
The third respondent
misconceived the nature of the discretion conferred upon him in
terms of section 69.
The decision was taken
arbitrarily and capriciously.
The third respondent had regard
to irrelevant considerations and failed to take account of relevant
ones.
The decision was taken as a
result of unwarranted adherence to a fixed principle.
The decision was taken in order
to further an improper purpose.
The decision was so grossly
unreasonable as to warrant the inference that the third respondent
had failed properly to apply his
mind to the matter.
As will be seen later (para 72
below), these grounds of review may be collectively reflected as a
central ground that the decision
was so irrational and unreasonable
as to warrant the inference that the third respondent had not applied
his mind properly to the
facts before him.
[15] Much of the remainder of the
applicant’s founding affidavit expatiates on the aforesaid grounds
of review and contains a substantial
amount of argument that will be
dealt with later on in this judgment. There is, however, a novel
submission contained therein that
may be mentioned at this stage. I
refer in this regard to the suggested interpretation of section 69 of
the Act. Not only is it wholly
at odds with that apparently applied
by the third respondent, but, it is suggested, with reference to
section 39 of the Constitution,
Act 108 of 1996, that the said
section 69 should also have been interpreted in such a way as to
promote the spirit, purport and objects
of the Bill of Rights. This
means that the applicant was entitled to protection of his inherent
dignity (section 10 of the Constitution).
This would include the
right to die in a dignified and humane way.
[16] A further point raised in the
founding affidavit is that Dr Frank himself mentioned that the
Department did not have a medical
facility that could adequately care
for the applicant while being treated for his physical condition.
[17] Appended to the founding
affidavit are supporting affidavits of Dr Chapman and Dr Eedes
confirming their aforesaid medical diagnoses.
Likewise annexed are
affidavits of Mrs Sharifa Stanfield, the applicant’s wife, Ms Joan
Stanfield, his sister and Ms Christine
Caesar Nkynze, his
housekeeper, demonstrating their willingness and ability to care for
him on his discharge from hospital.
[18] The applicant subsequently
deposed to a supplementary affidavit, arising from the filing of a
copy of the record of the proceedings
that had led to the decision
that he seeks to have reviewed and set aside. For the sake of
completeness he attached a copy of an
extract from the medical text
book referred to by Prof du Toit in his report of 11 June 2003 (para
10 above). He also attached a
medical report dated 3 June 2003 from
his general practitioner, Dr Ronald Mallet, the relevant portion of
which reads thus:
It is my considered opinion that my patient will not be in a fit
state to commit any crimes should his parole be successful. He has
two terminal diseases namely advanced Coronary Artery Disease. He has
some borrowed time because of the stents placed in his Coronary
Arteries by Dr Elwyn Lloyd. His inoperable cancer of the lung will
only be palliated by chemotherapy.
His physical condition is so weakened
that he would be physically unable to commit crime. His greatest fear
is re-imprisonment as
he dearly wants to spend his last months/days
with his family.
According to the applicant, the third
respondent appears to have ignored this document, which was before
him at the time he made his
decision. For the record the applicant
gave the assurance that he would not commit any crime should he be
released on medical grounds.
[19] Of some significance is a
medical report, dated 3 June 2003, that forms part of the said record
of proceedings and relates to
the applicant’s medical condition. In
this report Dr Frank accepted the applicant’s heart disease and
lung cancer as proven.
His recommendation was that the applicant
should be discharged on medical grounds. In the same report the head
of the prison, deputy
director N J Grootboom, commented, on 4 June
2003, that he agreed with the recommendation of the doctors and
observed that, on release
in terms of section 69, the applicant would
be placed in the care of his family.
[20] It should be added that Dr
Frank, in annexure A to the said report (medical grounds), responded
to the question whether the applicant’s
condition was terminal and,
if so, what his life expectancy was, that it was terminal and that
his life expectancy was six to eight
months. To the next question,
namely whether further detention would endanger the applicant’s
life, he responded that it would,
in that there was a risk of
infection after radiation or chemotherapy. In answer to the question
whether the applicant would, despite
his condition, still be able to
commit a crime similar to that for which he had been incarcerated or,
for that matter, any other
crime, Dr Frank indicated that he would be
able to. He nevertheless felt that it was necessary or desirable for
the applicant to
be released into someone’s care.
[21] Another interesting document
contained in the record of proceedings is a so-called “assessment
of a realistic date for release”
(“berekening van ‘n
realistiese uitplasingsdatum”) signed by Mr Pepler. From this it
appears that the applicant will have served
one third of his sentence
by 17 February 2004. If a six month remission (“vergoeding”)
should be accorded him as a first offender,
a realistic date for his
release would be 17 August 2003, a date which has already passed at
the time of my writing this judgment.
The applicant pointed out that
this was in marked contrast with Mr Pepler’s recommendation of 13
June 2003 (para 12 above) that
a new application could be considered
during October 2003.
[22] These facts and circumstances
demonstrated conclusively, the applicant suggested, that his release
on parole on medical grounds
was justified and that the third
respondent’s decision was “inexplicable and irrational” and
indicative of his failure to apply
his mind.
CASE FOR THE RESPONDENTS
[23] In his opposing affidavit the
third respondent, described as a director in the Department stationed
at the said prison, stated
that he occupied the position of area
manager of correctional services in the Helderstroom management area.
The prison fell within
his jurisdiction and was under his management.
It would hence appear that he was delegated in his official capacity
by the second
respondent to deal with the applicant's application for
parole on medical grounds.
[24] At the outset the third
respondent explained, with reference to the relevant statutory
provisions, the procedure regarding the
consideration of a prisoner’s
release on parole. He emphasised the wide discretion of the second
respondent to place a prisoner
on parole on medical grounds, after
consideration of the report and recommendations of the fourth
respondent and of the recommendation
of the medical officer, in cases
where, as provided in section 69(b) of the Act, it was “expedient
on the grounds of his physical
condition”. Guidelines in this
regard were set out in section VI(5)(e) of the standing correctional
order “B”. One of these
guidelines was that an injudicious
placement or release on parole may foil the penal objectives of the
sentencing authority. Another
was that, in all cases where there was
no doubt as to the terminal nature of the illness and where the life
expectancy was short,
it was advisable that placement or release on
parole for medical reasons be effected on a conditional basis.
[25] The said standing order was
supplemented by a circular, dated 21 December 2001 from the
provincial commissioner, Western Cape,
to all area managers,
regarding placement or release on parole on medical grounds. In this
circular an area manager, with minimum
rank of director, was
identified as a delegated official who could decide matters
concerning parole on medical grounds. Paragraph
3 of the circular
required that, in dealing with an application for release or
placement on parole on medical grounds, certain “administration
aspects” were of importance and should be followed at all times.
This included, in sub-paragraph 3(e), that the decision-making
authority “must be satisfied that the prisoner is terminally ill”.
According to the third respondent this confirmed the requirement
"that the condition of the prisoner must be terminal, i.e. death
must be imminent”.
[26] Regarding the discretion of the
second respondent or his duly delegated official to place a prisoner
on parole on medical grounds,
the third respondent stated that he was
required to consider the report and recommendations of the fourth
respondent and also the
recommendation of the medical officer. The
ultimate authority and responsibility for taking this decision,
however, vested solely
in the second respondent or his duly delegated
official, who was enjoined to exercise this power within the confines
of the applicable
statutory provisions.
[27] The third respondent gave the
assurance that, in assessing the application, he had considered all
the available and relevant
information, including that contained in
the review record. In this regard he referred to documentation
supporting an earlier application
by the applicant for parole. The
third respondent had refused such application and directed that a
further report and recommendation
be prepared by the fourth
respondent on 15 August 2003.
[28] With reference to Dr Frank’s
report dated 12 June 2003 (para 11 above), the third respondent
emphasised the words “to my
knowledge” and “[f]or this reason I
recommend” as indicating that Dr Frank had recommended that the
applicant be placed on
parole because, to his knowledge, the
Department had no medical facility that could care for him
adequately. In this regard the third
respondent stated that, in view
of the fact that there was no indication that the applicant was “in
the final phase of terminal
illness”, the question of appropriate
medical facilities for use during his continued incarceration was
particularly pertinent.
Although, in his view, the medical evidence
on the applicant’s life expectancy was “varied and incongruent”,
the third respondent
assumed in his favour that his life expectancy
was six to twelve months, which "could improve with successful
medical treatment".
[29] This assumption appears to have
been negated, or at least substantially watered down, by the
rationale underlying the third respondent's
decision not to grant the
applicant parole on medical grounds, as appears from paragraph 16 of
his opposing affidavit. It reads:
Apart from the fact that on all accounts including my own
observations, Applicant is physically still far from being bedridden,
it
becomes apparent even if one takes the statistics provided by the
medical reports on face value that his demise is not imminent.
In
fact, Dr Frank regards Applicant as still being able to commit crime.
One should add that Dr. Mallet’s contrary view concerning
Applicant’s physical condition, is patently against the weight of
the evidence and obviously exaggerated.
[30] This reasoning brought the third
respondent back to the question of appropriate medical facilities
ensconced in one or the other
of the Department’s prisons. In this
regard he referred to an investigation conducted by assistant
director August, head of health
care (medical/nursing) services in
the Helderstroom management area. In paragraph 2 of his report dated
7 June 2003, Mr August adverted
to the medication prescribed for the
applicant by his doctor and certified that, as long as the applicant
remained in prison while
on such medication, the prison nursing staff
would administer it for as long as he could provide it at his own
cost.
[31] As for the further conditions
stipulated by Dr Eedes, Mr August had investigated the situation at a
number of prison hospitals
and had been told by Sister Matshibane,
the head of nursing services at the Drakenstein prison hospital, that
she herself would first
have to establish the applicant’s current
condition in order to decide whether such hospital could accommodate
him. If she was
satified with his health status, she would discuss
his possible admission to the hospital with the head of the
Drakenstein prison.
[32] According to a handwritten note
at the end of his report, Mr August intimated that Sister Matshibane
had communicated with him
by telephone on 8 June 2003 and had
informed him that the head of the Drakenstein prison was not in
favour of admitting the applicant
to that prison. The reason was that
the prison would have the responsibility of transporting him to
hospital for treatment every
three weeks and of providing guards at
the hospital for as long as he remained there. Sister Matshibane was,
however, satisfied that
her hospital would be able to comply with the
requirements laid down by Dr Eedes. In the meantime Sister Hintsho of
the Pollsmoor
Medium B prison, who had initially expressed the view
that no prison hospital in the province could meet with such
requirements,
had, on reconsideration, concluded that her hospital
could indeed accommodate the applicant.
[33] The third respondent thereupon
stated that, although the hospital section of the Helderstroom prison
in fact also met the conditions
set by Dr Eedes, it could not provide
twenty-four hour surveillance as did the Drakenstein prison hospital,
which could cater for
the applicant’s needs and meet the
requirements set by both Dr Eedes and Dr Frank. The reservations
expressed by the head of the
Drakenstein prison were understandable,
but could not prevent the applicant from being accommodated there. In
this regard the third
respondent averred that he had consulted with
the office of the provincial commissioner and with the area manager
under whom the
Drakenstein prison fell. Both officials agreed with
him that the applicant could and should forthwith be accommodated at
such prison.
There was, in addition, a private medical facility near
the prison where the applicant could receive his prescribed
treatment, should
he so choose. In any event, the third respondent
opined, it was abundantly clear that the applicant could receive the
same treatment
in the medical facility of Drakenstein prison as he
was presently receiving. In addition nothing precluded the doctors
currently
treating him from continuing to do so at the prison
hospital.
[34] A further consideration
prompting the third respondent to refuse the application for parole
on medical grounds was the fact that
the applicant had committed a
serious crime in respect of which a sentence of six years
imprisonment had been imposed. Should he
be released at this stage he
would have served less than one third of such sentence. Inasmuch as
medical treatment in the form of
chemotherapy would not, according to
the doctors, be an exercise in futility, his premature release might
well have a negative effect
on other prisoners who had been diagnosed
with terminal illnesses, particularly HIV/AIDS. Like the applicant
their physical condition
was, at least temporarily, such that they
could continue living a normal life and could, indeed, revert to
committing crimes. It
was, in fact, “not inconceivable that such
convicted criminals who now know that they are suffering from a
terminal illness would
be even less inhibited from committing further
crimes should they be released prematurely”. This would
self-evidently have a “deleterious
effect on the objectives of
punishment and on the interests of the administration of justice and
of the community at large. “This”,
the third respondent stated,
“would certainly not be expedient but would rather frustrate the
objectives of Section 69 of the Act”.
[35] The applicant’s premature
release “in his present relatively good physical condition”
would, in the third respondent’s
view, make it impossible not to
afford the same indulgence to a large number of other prisoners
diagnosed with terminal illness but
who were “enjoying a comparable
physical state” and were likewise “neither bedridden nor in the
final phase of terminal illness”.
Such prisoners were, indeed,
“anxiously awaiting the outcome” of the applicant’s matter.
[36] These considerations, the third
respondent averred, “also underlie” his summary of reasons for
refusing the application,
read together with his decision dated 13
June 2003, as it appears from the review record. In addition he had
visited the applicant
personally in order to acquaint himself with
his “physical and mental condition”. This was to enable him to
consider the application
“carefully, fairly and in a balanced way”.
Having done so, he had come to the conclusion “that it was not
expedient, as envisaged
in Section 69 of the Act, that the Applicant
be placed on parole at this stage”. In this regard he had applied
his mind “objectively
and honestly” to the matter and come to an
“independent decision”. Should the applicant’s condition
“deteriorate dramatically”,
however, an “automatic
reconsideration of the matter” would be justified. He would hence
be monitored continuously on a day to
day basis. The third respondent
had consequently not accepted the fourth respondent’s
recommendation that the applicant’s parole
be reconsidered on 1
October 2003.
[37] In response to the applicant’s
founding affidavit the third respondent professed that he was aware
throughout that he should
consider not only the applicant’s
physical condition and the issue of expediency, but also his right to
dignity in line with a
humane approach. This prompted him to say (in
paragraph 41.5 of his affidavit):
My considered view was that it is not expedient in the circumstances
to place the Applicant on parole, when he has not even served
one-third of his sentence and his life expectancy is not so short
that it would serve no purpose to continue his incarceration.
Moreover,
his physical condition is such that he is still a fully
functional individual whose release, in that condition, could raise
serious
questions about the administration of justice and the
concomitant obligation to combat crime. It would also spark numbers
of similar
demands for release from similarly placed prisoners.
[38] On the question of expediency he
stated (in paragraph 41.7) that it was “definitely not expedient to
release a prisoner, who
is physically able to continue committing
crime, prematurely”. In this regard he appears to have
distinguished between the applicant’s
“medical” and “physical”
condition on the basis that the latter relates to his external
appearance as opposed to his internal
condition. This accords with
his interpretation of the concept “physical” as it occurs in
section 69 of the Act.
[39] Regarding the exercise of his
discretion the third respondent stated (in paragraph 42) that he
“approached the matter on the
basis that for so long as the
physical condition of a prisoner justifies it, consideration should
be given to ensuring that as much
as possible of the sentence is
served. This clearly coincides with the purpose of Section 69”.
Even accepting that the applicant’s
life expectancy was between six
and twelve months, the third respondent was of the view that it could
not be said that he was “in
the final phase of terminal illness”
and that his life expectancy was so short as to justify parole on
grounds of expediency. It
was not expedient to release on parole a
person in the applicant’s “physical condition” and with his
life expectancy, at a
time when he could still commit crime. This
would, according to the third respondent, “be inimical to the
purpose of Section 69”.
He hence denied that his decision was
arbitrary or capricious.
[40] A supporting affidavit was filed
by Mr Pepler, who presided over the fourth respondent when it
recommended that the application
be rejected (para 12 above). Mr
August (para 30 above) was a member of the fourth respondent at the
time. According to Mr Pepler
the decision to hold a parole hearing at
the hospital where the applicant was a patient was actuated entirely
by a concern for his
best interests. After careful consideration of
the matter, including the written and oral submissions of the
applicant’s counsel
and attorney, the fourth respondent unanimously
recommended that he not be released on parole on medical grounds. It
did, however,
recommend that he be considered and re-assessed for
possible placement on parole on 1 October 2003.
[41] With reference to the document
relating to an “assessment of a realistic date of release” as
being 17 August 2003 (para 21
above), Mr Pepler explained that it was
completed prior to the parole hearing as a guide for administrative
purposes. In the applicant’s
case it was based on the wrong
assumption that he was a first offender, in which event his parole
could be expedited by six months.
During the parole hearing, however,
it was established that he in fact had a number of previous
convictions, the first of which dated
back to 1972 and the last
to1989. In any event the recommendation was not binding on the second
respondent.
[42] Mr
August likewise deposed to a supporting affidavit opposing the relief
sought by the applicant. He stated that the applicant
had
consistently preferred to make use of his own medical practitioners
and facilities rather than avail himself of the medical facilities
available at the prison. He confirmed that the applicant could be
accommodated immediately in the hospital section at the Drakenstein
hospital, where he would be accorded twenty-four hour medical
observation in conditions that met the requirements set down by Dr
Eedes in his report. His circumstances would be “humane and
adequate” and would “effectively eliminate the risk of
infection”.
In any event there was a private medical facility close
to the Drakenstein prison where he could obtain “the best medical
treatment”.
This would obviate his having to travel all the way to
Cape Town for treatment that his private medical practitioners could
just
as conveniently give him at such prison or in the said medical
facility.
[43] It may be convenient to refer at
this stage to a supporting affidavit of Ms Annelize Malan, a deputy
director in the Department,
in which she stated that she had
ascertained, and could confirm, that there were indeed "facilities"
at the Drakenstein
prison where the applicant could be accommodated
in accordance with the needs specified by Dr Eedes. She pointed out
further that
the Panorama hospital, which was situated "within a
reasonable distance" from such prison, had similar specialist
medical
facilities as those offered by the hospital where the
applicant is presently being treated. The applicant could receive
"certain
of his treatment" at the Panorama hospital should
his doctors so advise and should it be expedient to treat him there.
[44] I return to Mr August’s
affidavit in which he stated that he had personally observed that the
applicant’s “physical condition"
had always been good and
that he had always been "completely self-sufficient”. He could
“by no stretch of the imagination
be described as bedridden”. He
had in fact exercised in the prison and had even assisted with the
polishing of floors.
[45] In his affidavit dated 10 July
2003 Dr Frank, the designated medical officer at the Helderstroom
prison, stated that he had initially
indicated the applicant’s life
expectancy of six to eight months on the basis of the information
available to him at the time he
compiled his report of 3 June 2003
(para 19-20 above). In his later report, dated 12 June 2003 (para 11
above), he followed the more
favourable view expressed by Prof du
Toit in his report (para 10 above), namely that the applicant’s
life expectancy could increase
to one year with treatment. In the
present affidavit, however, he pointed out that “statistically ...
survival of up to 5 years
is not excluded”.
[46] According to Dr Frank’s
observations of the applicant’s physical condition during a visit
to him on 12 June 2003 at the hospital,
the applicant appeared to be
asymptomatic. He had no complaints and was experiencing no pain or
other discomfort such as shortness
of breath. He was able to conduct
a coherent conversation and did not appear to have lost any weight.
[47] Regarding his recommendation
that the applicant be placed on parole with immediate effect, Dr
Frank explained that this had been
prompted entirely by his
impression at the time that the medical facilities of the Department
could not comply with the conditions
stipulated by Dr Eedes for the
applicant’s discharge from hospital after the application of
chemotherapy. He now realised, however,
from the third respondent’s
affidavit, that the necessary facilities indeed exist and that the
applicant could be “more than
adequately” accommodated at the
hospital facilities of the Drakenstein prison. His previous
recommendation for immediate placement
could hence “obviously”
not stand.
[48] The head of the Helderstroom
prison, deputy director Grootboom, pointed out in his affidavit that
his concurrence with the recommendations
of the various doctors (para
19 above), supporting the applicant’s placement with his immediate
family, was based on the medical
documentation made available to him.
He was in no position to question their views and recommendations.
Placing the prisoner with
his immediate family was a “standard
arrangement” from which there would be deviated only if there were
a specific recommendation
that the prisoner should be placed in an
institution. When discussing this with the applicant during a visit
to him on 18 June 2003,
the applicant had indicated that he would
prefer to remain in the Helderstroom prison rather than be
transferred to the Drakenstein
prison.
THE APPLICANT’S REPLY
[49] Much of the applicant’s
replying affidavit contains argumentative matter that does not bear
repeating at this stage. I shall
refer only to what I regard as
relevant factual matters.
[50] At
the outset the applicant pointed out that two of the grounds relied
on by the third respondent for his decision to reject
the application
for parole on medical grounds appeared for the first time from his
opposing affidavit. He referred in this regard,
firstly, to the third
respondent’s averment that granting the application would have a
negative effect on penal administration
in South Africa and,
secondly, to his averment that the Drakenstein and Helderstroom
prisons had the necessary facilities to meet
his (the applicant’s)
needs. These averments were not included in the reasons put forward
by the third respondent for his decision.
Nor was it suggested that
the reasons furnished by him were only in summary form and could
later be supplemented. Indeed, when Mr
Conradie from the Department
met with him on 18 June 2003 to inform him of the third respondent’s
decision, he was apprised only
of the content of the written reasons
received the next day, on 19 June 2003. It was incomprehensible that
he should omit to mention
two further reasons so strongly relied on
in his said affidavit.
[51] Regarding the alleged negative
effects on penal administration of his release on parole, the
applicant pointed out that no details
were furnished by the third
respondent of the large number of prisoners diagnosed with HIV/ADS
and other terminal illnesses who were
waiting expectantly for the
outcome of the present application. From the annual report of the
Office of the Inspecting Judge, Judicial
Inspectorate of Prisons (1
April 2002 – 31 March 2003), it would appear that only a tiny
proportion of prisoners (88 out of an
average population of 179 398)
was released during 2002 on medical grounds. This had prompted
Inspecting Judge J J Fagan to suggest
that more use should be made of
the provisions relating to the release of terminally ill prisoners.
[52] On the adequacy of medical
facilities in the elderstroom and Drakenstein prisons, the applicant
denied that the nursing staff
at either prison would be able to
administer the specialist treatment required by him. In addition it
would not suffice that he be
kept in a single cell in the hospital
section of either prison since that would not ensure an infection
free environment as required
by Dr Eedes and Prof du Toit. Neither
prison provided access to medical care in the case of complications
arising from his disease,
such as lung haemorrhage and infection on
the one hand, or the side-effects of chemotherapy on the other.
[53] Mr Pepler's "wrong
assumption" that the applicant was a first offender, in which
event a realistic date for placement
on parole would be 17 August
2003 (para 41 above), was rejected by the applicant on the basis that
his last conviction was more than
fourteen years earlier. In any
event his condition negated any tendency to commit further crimes.
[54] Mr August's affidavit, according
to the applicant, made it clear that Helderstroom prison was excluded
as a possible place of
rehabilitation in that it did not provide
twenty-four hour medical surveillance. For the rest he knew of no
private medical facility
in close proximity to the Drakenstein prison
which would make it unnecessary to travel to Wynberg for treatment.
[55] Turning to Dr Frank's affidavit
(para 11 and 47 above) the applicant pointed out that it was at odds
with his report of 12 June
2003, in which he recommended the
applicant's immediate release on parole. Having been a medical
officer of the Department in the
Boland area over a lengthy period of
time (eighteen to twenty years), Dr Frank must have known, the
applicant submitted, that there
was no prison in the area of his
jurisdiction that was adequately equipped to care for cases such as
that of the applicant.
[56] In a supporting affidavit in
reply, Prof du Toit confirmed the recommendations made by him in his
report of 11 June 2003 (para
10 above) and rejected the suggestion
that he should have physically examined the applicant. Inasmuch as
the histology was conclusive
of an advanced stage of small cell
carcinoma, such examination would have served no purpose. The cancer
had not only spread to both
lungs, but had already attacked the
thoracic cavity. The applicant would ultimately die of respiratory
failure.
[57] Prof du Toit made it clear that
the applicant was indeed in the final phase of terminal illness, in
that the small cell lung
carcinoma was an aggressive cancer that
spread with great rapidity and had a propensity to invade the liver,
adrenals, brain, bones
and, ultimately, every organ in the body. He
emphasised that, even with radiotherapy or chemotherapy, which was
purely palliative,
the median survival rate was one year only and
could not be described as "varied and incongruent" (para 28
above). This
condition was irreversible and incurable and could not
be improved with successful medical treatment (para 28 above). It
could not
be compared with tuberculosis or HIV/AIDS, where the life
expectancy with treatment could be fifteen to twenty-five years.
[58] On the observations as to the
applicant's outward appearance, Prof du Toit pointed out that,
initially, he might look well. As
the effects of chemotherapy and
radiotherapy manifested themselves, however, he would become
chronically ill and proceed from being
ambulant to requiring rest two
or three times a day. After a session of palliative treatment he
might, generally, feel better, but
this condition would be temporary
and would soon alternate with chronic illness severely affecting his
physical, emotional and intellectual
abilities. It was inevitable
that he would become bedridden, predictably within months. He would
in time lose weight, feel ill, suffer
from shortness of breath,
develop water on the lungs, risk haemorrhage from the bronchus and
become cathetic. These symptoms, which
would inevitably manifest
themselves in the not-so-distant future, were painful and hard to
bear "in the immediate term"
and were not eliminated by
treatment.
[59] It was exceptionally difficult,
Prof du Toit averred, to predict the precise moment when a particular
patient would become bedridden
as a result of the cumulative effect
of his symptoms, because each patient responded differently to
treatment. It was incontrovertible,
however, that a person with such
symptoms would not be able to overcome such symptoms and would
inevitably succumb to respiratory
failure as the ultimate effect of
his cancer.
[60] It followed from the aforegoing,
Prof du Toit opined, that the applicant's outward appearance belied
the terminal stage of his
illness and could not, on medical grounds,
constitute a basis for denying him parole.
[61] On the question of whether or
not the Department had medical facilities at one or more of its
prisons sufficient to meet the
applicant's needs, Prof du Toit
emphasised that the applicant's medical condition required
considerable medical skill and expertise
to be properly monitored and
treated. Treatment could be administered only by a clinician skilled
in such treatment, namely a specialist
having greater skills than the
average oncologist. The nature of the chemotherapy to be administered
required constant medical surveillance
and twenty-four hour
monitoring by a specialist such as Dr Eedes, both during and after
chemotherapy. To Prof du Toit's knowledge
there was no prison in the
country equipped to administer such treatment. Nor was the level of
medical care required by him available
in any prison.
[62] For these reasons Prof du Toit
was of the view that the third respondent did not understand, from a
medical point of view, the
content and significance of the relevant
medical reports placed before him. There was hence no basis for the
refusal of the applicant's
application to be placed on parole on
medical grounds. Prof du Toit accordingly confirmed his
recommendation that the applicant be
placed on parole with immediate
effect.
[63] One Gideon Morris, a director in
the Judicial Inspectorate of Prisons, deposed to an affidavit
confirming the content of the
annual report of the Judicial
Inspectorate (para 51 above) and pointing out that, as a result of
overcrowded prisons, the mortality
rate amongst prisoners had
increased by 600% over the past seven years. He expressed surprise at
the claim that the Drakenstein prison
could provide an uncrowded
environment free of infection as well as twenty-four hour medical
surveillance to a person suffering from
lung cancer. In most cases
the prison hospital was a large communal cell with no specialist
facilities and housing persons suffering
from various diseases, such
as tuberculosis, HIV/AIDS or pneumonia. In his experience medical
personnel were not physically present
after hours and the prisoners
themselves sounded an alarm and summoned medical personnel should a
fellow-prisoner fall seriously
ill.
[64] Ms N E Ndinisa, an "independent
prison visitor" appointed in terms of section 92 of the Act, has
been visiting the
Drakenstein Prison hospital regularly since March
2002. According to her the prison did not have facilities to treat
and care for
terminally ill patients like the applicant, and did not
provide twenty-four hour medical surveillance. On the contrary, she
rarely
saw a doctor on the premises and patients who became ill
overnight would invariably have to wait till the next morning for
day-duty
nursing staff to make the necessary arrangements for them to
see a doctor or to visit an outside hospital.
[65] Dr Eedes confirmed that the
applicant was in the final phase of a fatal illness. His outward
appearance belied his condition,
which would not improve with medical
treatment. Dr Eedes likewise confirmed that there were no adequate
facilities within the Department
to meet the applicant's medical
requirements. He associated himself with Professor du Toit's opinion
and with his reasons for such
opinion.
ARGUMENT ON BEHALF OF THE
APPLICANT
[66] In his argument on behalf of the
applicant, Mr Gauntlett submitted that the reasons tendered by the
third respondent to justify
his refusal of the applicant's
application for parole on medical grounds did not bear scrutiny in
that they were in conflict with
the overwhelming medical evidence
that the applicant was in the final stage of a fatal illness. The
applicant's outward appearance
gave no indication of his true
physical condition, while section 69 of the Act did not require him
to be bedridden or in such a state
of health that death should be
considered imminent, thereby rendering him unable to commit any
crime.
[67] The inadequacy of these reasons,
as later supplemented with reference to the penal consequences of
releasing the applicant at
this stage and the suitability of the
medical facilities in various prison hospitals, gave rise to a number
of grounds of review
dealt with by Mr Gauntlett under various
headings. The traditional common law grounds of review were preceded
by a discussion of
the standard of review set forth in section 33(1)
of the Constitution and providing that all persons have the right to
lawful, reasonable
and procedurally fair administrative action.
[68] Similarly a person's fundamental
right to dignity, as envisaged in section 10 of the Constitution,
should, according to Mr Gauntlett,
be considered in rendering a
decision in terms of section 69 of the Act. A prisoner's right to
protection of his dignity should include
his right to die with
dignity.
[69] Section 69, Mr Gauntlett
submitted, gave the second respondent a discretion to place a
prisoner on parole on medical grounds
on the recommendation of the
medical officer, should it be "expedient on the grounds of his
physical condition". In this
regard Mr Gauntlett argued that the
third respondent had, in the face of a number of contrary specialist
medical opinion, formed
his own "medical" opinion that the
applicant's life expectancy could not be regarded as "so short
that further imprisonment
would not serve a purpose", while it
could not be said that he was "in the final phase of terminal
illness" of such
a nature that he would, apparently, be unable
to commit a similar, or any other, crime.
[70] Furthermore,
Mr Gauntlett argued, the third respondent had not applied his mind to
whether or not the applicant's release on
parole on medical grounds
was "expedient" in the sense of its being advantageous,
appropriate or suitable under the circumstances.
Section 69 did not
impose any burden on the prisoner to prove an inablity to commit
crime or to constitute a threat to public safety.
Nor did it require
him to prove that death was imminent.
[71] The length of time already
served by the prisoner applying for release on parole on medical
grounds was, Mr Gauntlett suggested,
totally irrelevant, since
section 69 authorised placement on parole at any time. The fact that
the applicant had served less than
one third of his sentence should
not have been taken into account as a relevant consideration in
assessing whether or not his release
on parole on medical grounds was
expedient.
[72] During the course of argument by
Mr Gauntlett, the various grounds of review raised in the founding
affidavit (para 14 above)
centred around one main ground, namely that
the decision taken by the third respondent was objectively so
irrational and unreasonable
that the inference was justified that he
had failed to apply his mind to the matter. This was linked with the
perception that he
had misconceived the nature of his discretion in
terms of section 69 of the Act and had displayed an unwarranted
adherence to a fixed
principle or policy of the Department. In the
process he had taken irrelevant considerations into account while
ignoring relevant
ones, thereby creating the impression that his
ultimate decision was arbitrary and capricious.
ARGUMENT ON BEHALF OF THE
RESPONDENTS
[73] In his argument on behalf of the
respondents Mr Potgieter dwelt initially on the relevant procedures
emanating from the Act and
on the powers of the second respondent in
respect thereof. He emphasised that section 69 of the Act should be
read with standing
correctional order "B" of the Department
(para 24 above) and the circular supplementing such standing order
(para 25 above).
Mr Potgieter suggested in this regard that terminal
illness in fact meant that death should be imminent.
[74] In regard to the grounds of
review raised against the decision to refuse the applicant's
application for parole on medical grounds,
Mr Potgieter submitted
that the third respondent had come to his decision in a rational,
balanced and fair manner. He had given serious
and due consideration,
and applied his mind, to all relevant factors, including the
applicant's medical condition as reflected in
the various medical
reports and opinions. There was no question that he had acted beyond
the scope of the Act in exercising his wide
discretion, nor could it
be said that he had acted improperly or in bad faith. Inasmuch as his
decision was "rationally related
to the purpose for which the
power was given" this court should not interfere with it.
[75] With reference to the
fundamental right to dignity contained in section 10 of the
Constitution, Mr Potgieter accepted that every
sentenced prisoner was
entitled to be detained in conditions consistent with human dignity
and to be provided with adequate medical
treatment. In the present
matter there was no suggestion that the applicant had been deprived
of these rights. On the contrary, he
had been given every latitude to
be treated by medical practitioners of his own choice in a hospital
of his own choice.
[76] In exercising his discretion in
terms of section 69(b) of the Act, the second respondent or his
delegate (
in casu
the third respondent) was required to give
specific consideration to the elements of expediency and the physical
condition of the
prisoner. In considering expediency he should take
all relevant factors into account, including the interests of penal
administration.
The same applied to the consideration of the physical
condition of the prisoner. In this regard, Mr Potgieter appears to
have distinguished
between externally determinable "physical
condition" and internally diagnosed "medical condition".
The former
was purely factual and could be established by mere
observation of the prisoner's outward appearance. The latter could
not be determined
by factual observation, but required medical
examination and testing. As for his physical condition, Mr Potgieter
submitted, the
applicant was indisputably "asymptomatic"
and "fully functional", as properly held by the third
respondent in
exercising his discretion to refuse parole on medical
grounds.
[77] The applicant's outward
appearance of good health and the fact that he could still live for
some twelve months justified, according
to Mr Potgieter, the third
respondent's conclusion that he could still commit crimes. This, and
the fact that the applicant had served
only a short period of his
sentence, were indeed factors that had to be considered by the third
respondent in making his decision.
[78] In any event, Mr Potgieter
submitted, the fact that the applicant's condition was continuously
being monitored and that his case
would be automatically reconsidered
if his condition should deteriorate, indicated that the third
respondent's approach was objectively
rational.
[79] Regarding the allegation that
the third respondent had supplemented his initial reasons, Mr
Potgieter argued that the mere fact
that such reasons were
hand-written indicated that they were
ex tempore
and not
intended to be exhaustive of everything considered by the third
respondent. The adequacy of the medical facilities at the
Drakenstein
prison was clearly a factor taken into consideration by the third
respondent. The fact that the applicant was still smoking
(para 12
above), on the other hand, did not carry significant weight. Yet it
should not, Mr Potgieter opined, be regarded as irrelevant
or
extraneous matter.
THE RELEVANT PROVISIONS OF THE ACT
[80] The
Correctional Services Act
8 of 1959 (previously known as the
Prisons Act
8 of 1959)
has been amended many times, most recently by the
Correctional
Services Act
111 of 1998
, which has not yet come into operation.
Section 63
thereof deals with the powers, functions and duties of
parole boards, while
section 65
deals generally with the release and
placement of prisoners on parole. The most relevant section for
purposes of this application
is
section 69
, which bears the heading
"
Placement on parole on medical
grounds
" and
reads as follows:
A prisoner
serving any sentence in a prison -
who
suffers from a dangerous, infectious or contagious disease; or
whose
placement on parole is expedient on the grounds of his physical
condition or, in the case of a woman, her advanced pregnancy,
may at any time, on the recommendation of the medical officer, be
placed on parole by the Commissioner: Provided that a prisoner
sentenced to imprisonment for life shall not be placed on parole
without the consent of the Minister
[81] In terms of the interpretation
provisions of section 1 of the Act, the Commissioner is the
Commissioner of Correctional Services
appointed under section 4(1)
(the second respondent in the present case). The Commissioner in turn
appoints the medical officer for
a prison or group of prisons in
terms of section 6(2). Section 6(1) provides that the medical officer
performs such duties as are
assigned to him by or under the Act. One
of these duties is to make a recommendation regarding placement on
parole of a prisoner
on medical grounds in terms of section 69(b),
when it is "expedient on the grounds of his physical condition".
[82] It seems clear from the relevant
wording of section 69 that the Commissioner (or his duly appointed
delegate - the third respondent
in the present matter) has a
discretion
at any time
to place on parole a prisoner serving
any sentence
in a prison, provided his placement on parole is
expedient on the ground of his physical condition
and further
provided it is preceded by
the recommendation of the medical
officer
. It is hence irrelevant what the nature of his conviction
and the length of his sentence of imprisonment might be. It is
equally
irrelevant what period of imprisonment he has actually
served. The only requirements for release on parole on medical
grounds are
that the medical officer should recommend it and that it
should be "expedient" having regard to his "physical
condition".
[83] In the Afrikaans text, which was
signed by the Governor-General on 20 March 1959, "expedient"
is rendered as "raadsaam".
Although "expedient"
may bear the meaning of "advisable" (in a practical rather
than a moral sense), in the present
context it usually means
"useful", "beneficial", "advantageous",
"appropriate", "suitable"
or "convenient".
Derived from the Latin
expedire
(literally "to free the
feet" in the sense of disengaging, extricating or untangling
something), it may be used impersonally
(
expedit
) to mean
"serviceable", "profitable", "advantageous",
"useful" or, simply, "expedient"
(see Lewis and
Short
A Latin Dictionary
sv
expedio
). In
The Shorter
Oxford English Dictionary
"expedient" is rendered as,
inter alia
, "advantageous", "fit",
"proper" or "suitable to the circumstances of the
case". It also
occurs as "useful", "politic"
or, in substantive form, as "[t]hat which helps forward, or
conduces to an
object; a means to an end" or "[a] device
adopted in an exigency".
[84] The concept of "physical
condition" (Afrikaans text: "liggaamlike toestand")
relates to the realm of natural
philosophy, natural science or
physics (ancient Greek:
physiké
; classical Latin:
physica
),
which has its origin in the simplicity (and complexity) of nature
(ancient Greek:
phýsis
). "Physical" (medieval
Latin:
physicalis
)
is that which pertains to material
nature, as opposed to the psychic, mental or spiritual realm. In
anatomical sense it relates to
the body and may hence be rendered as
"bodily" or "corporeal". In the medical sphere it
relates to medicine and
the healing of diseases, whence the term
"physician". In
The New Shorter Oxford English
Dictionary
the primary sense of "physical" is rendered
as "[p]ertaining to medicine" or "[p]ertaining to
matter"
in the sense of "material" rather than mental
or spiritual, or "bodily" rather than moral.
[85] It should be noted that the
provisions and requirements of section 69 of the Act differ in marked
respects from the proposed
amendment thereto by virtue of
section 79
of the
Correctional Services Act
111 of 1998
. It appears under
the heading
Correctional supervision or parole on medical grounds
,
but has not yet been proclaimed and is hence not yet operative. It
reads thus:
Any person serving any sentence in a prison and who, based on the
written evidence of the medical pratitioner treating that person,
is
diagnosed as being in the final phase of any terminal disease or
condition may be considered for placement under correctional
supervision or on parole, by the Commissioner, Correctional
Supervision and Parole Board or the court, as the case may be, to die
a consolatory and dignified death.
Although the requirement that the
prisoner should be "in the final phase of any terminal disease
or condition" features
strongly in the proposed amendment, it is
not, and never has been, a requirement in terms of
section 69
of the
current Act. This may account for the reference to terminal illness
in the standing correctional order "B" and the
circular of
21 December 2001 (para 24-25 above).
[86] It should be noted further that
there are no requirements in section 69 relating to life expectancy,
a state of being bedridden
or the imminence of death. There is
likewise no suggestion that the prisoner should be (physically or
otherwise) unable to commit
any crime should he be released on parole
for medical reasons.
THE RIGHTS OF A DETAINEE OR
PRISONER
[87] It must not, of course, be
forgotten that this court is enjoined by section 39(2) of the
Constitution, Act 108 of 1996, to promote
the spirit, purport and
objects of the Bill of Rights when interpreting section 69 of the
Act. Section 7(1) of the Constitution describes
the Bill of Rights,
contained in chapter 2 thereof, as "a cornerstone of democracy"
that "enshrines the rights of
all people" and "affirms
the values of
human dignity
,
equality
and
freedom
".
[88] In this regard section 9(1) of
the Constitution propounds the value of
equality
by making it
clear that "[e]veryone is equal before the law and has the right
to equal protection and benefit of the law".
Human dignity
comes to the fore in section 10, where we are told that "[e]veryone
has inherent dignity and the right to have their dignity
respected
and protected". Personal
freedom
is guaranteed in section
12 in the form of various rights, including (in section 12(1)(e)
thereof) the right "not to be treated
or punished in a cruel,
inhuman or degrading way".
[89] Every sentenced prisoner is
entitled to respect for and recognition of his equality, human
dignity and freedom, in the sense
of his right not to be treated or
punished in a cruel, inhuman or degrading way. Section 35(2)(e)
ensures that he has the right "to
conditions of detention that
are consistent with human dignity, including at least exercise and
the provision, at state expense,
of adequate accommodation,
nutrition, reading material and medical treatment". What will be
"consistent with human dignity"
in any particular case
will, of course, depend on the facts and circumstances of each such
case.
[90] The right to acceptable
conditions of detention or imprisonment, consistent with the tenets
of human dignity has long been established
in our jurisprudence. In
the early case of
Whittaker vs Roos and Bateman; Morant vs
Roos and Bateman
1912 AD 92
, in which a delictual claim for
damages arising from illegal confinement of awaiting trial prisoners
in a "punishment cell"
was considered, Innes J stated (at
122-123) that such conduct was "a wrongful and intentional
interference with those absolute
natural rights relating to
personality, to which every man is entitled". Although the
freedom of the detainees had been impaired
by the legal process of
imprisonment, "they were entitled to respect for what remained".
In this regard the learned judge
said:
They were entitled to all their personal rights and personal dignity
not temporarily taken away by law, or necessarily inconsistent
with
the circumstances in which they had been placed".
[91] This approach was confirmed in
the minority judgment of Corbett JA in
Goldberg and Others v
Minister of Prisons and Others
1979 (1) SA 14
(A) at 39C-F:
It seems to me that fundamentally a convicted and sentenced prisoner
retains all the basic rights and liberties (using the word in
its
Hohfeldian sense) of an ordinary citizen except those taken away from
him by law, expressly or by implication, or those necessarily
inconsistent with the circumstances in which he, as a prisoner, is
placed. Of course, the inroads which incarceration necessarily
makes
upon a prisoner's personal rights and liberties (for sake of brevity
I shall henceforth speak merely of "rights")
are very
considerable. He no longer has freedom of movement and has no choice
in the place of his imprisonment. His contact with
the outside world
is limited and regulated. He must submit to the discipline of prison
life and the rules and regulations which prescribe
how he must
conduct himself and how he is to be treated while in prison.
Nevertheless, there is a substantial residuum of basic rights
which
he cannot be denied; and, if he is denied them, then he is entitled,
in my view, to legal redress.
[92] The aforesaid
dicta
of
Innes J and Corbett JA were approved and elaborated upon by Hoexter
JA in
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at
141C-142A:
The Innes
dictum
serves to negate the parsimonious and
misconceived notion that upon his admission to gaol a prisoner is
stripped, as it were, of
all his personal rights; and thereafter, and
for so long as his detention lasts, he is able to assert only those
rights for which
specific provision may be found in the legislation
relating to prisons, whether in the form of statutes or regulations.
The Innes
dictum
is a salutary reminder that in truth the
prisoner retains all his personal rights save those abridged or
proscribed by law. The root
meaning of the Innes
dictum
is
that the extent and content of a prisoner's rights are to be
determined by reference not only to the relevant legislation but
also
by reference to his inviolable common-law rights.
It is self-evident that the extent to
which imprisonment will make necessary inroads upon a particular
prisoner's personal rights
will depend upon the reason for his
detention and the legislation applicable to him. Making full
allowance therefor, it seems to
me nevertheless that although the
Whittaker
case was concerned with the plight of awaiting-trial
prisoners, the Innes
dictum
is one of general application. As
a matter of logic and legal principle I am unable to see why it
should not apply to every prisoner
in a gaol irrespective of the
reason for his detention. As to principle, subsequent to the
Goldberg
case the following general proposition was stated by Jansen JA in
delivering the judgment of this Court in
Mandela v Minister of
Prisons
1983 (1) SA 938
(A) (at 957E-F).
'On principle a basic
right must survive incarceration except insofar as it is attenuated
by legislation, either expressly or by necessary
implication, and the
necessary consequences of incarceration.'
For these reasons I would
respectfully express my agreement with the general approach reflected
in the
residuum
principle enunciated by Corbett JA in the
Goldberg
case. Moreover, in seeking to identify or to
circumscribe basic rights, I would approve the critical approach
adopted by Corbett
JA in the
Goldberg
case in regard to the
efficacy or otherwise of a test based upon the distinction between
'comforts' on the one hand and 'necessities'
on the other hand. In
this field of inquiry, so I consider, the line of demarcation between
the two concepts is so blurred and so
acutely dependent upon the
particular circumstances of the case that the distinction provides a
criterion of little value. An ordinary
amenity of life, the enjoyment
of which may in one situation afford no more than comfort or
diversion, may in a different situation
represent the direst
necessity. Indeed, in the latter case, to put the matter starkly,
enjoyment of the amenity may be a lifeline
making the difference
between physical fitness and debility; and likewise the difference
between mental stability and derangement.
See also
Conjwayo v Minister of
Justice, Legal and Parliamentary Affairs and Others
1992 (2) SA
56
(ZS) at 60G-61A (
per
Gubbay CJ), cited with approval by
Navsa JA in
Minister of Correctional Services and Others v Kwakwa
and Another
2002 (4) SA 455
(SCA) para 24-25 at 467G-468D;
August
and Another v Electoral Commissioner and Others
1999 (3) SA 1
(CC) para 18-19 at 10E-11D.
THE STANDARD OF REVIEW
[93] The judicial review of decisions
taken by executive and other functionaries in the exercise of public
power has long been recognised
by our common law and in the far-
reaching jurisprudence arising therefrom. In general terms, with a
view to establishing grounds
of review, it must be shown that the
decision-maker failed to apply his mind to the relevant issues in
accordance with the applicable
statutory provisions and the
requirements of natural justice. See
National Transport Commission
and Another v Chetty's Motor Transport (Pty) Ltd
1972 (3) SA 726
(A) at 735F-G;
Johannesburg Local Road Transportation Board and
Others v David Morton Transport (Pty) Ltd
1976 (1) SA 887
(A) at
895B-C;
Theron en Andere v Ring van Wellington van die NG
Sendingkerk in Suid-Afrika en Andere
1976 (2) SA 1
(A) at 14F-G.
[94] These authorities, and the
principles demonstrated by them, were cited with approval by Corbett
JA in
Johannesburg Stock Exchange and Another v Witwatersrand
Nigel Ltd and Another
1988 (3) SA 132
(A) at 152A-B. In assessing
whether the decision of the president of the Johannesburg Stock
Exchange to suspend the listing of securities
should be set aside on
review, the learned judge considered the allegation that the
president had failed to apply his mind as aforesaid,
and continued
(at 152B-D):
Such failure may be shown by proof,
inter alia
, that the
decision was arrived at arbitrarily or capriciously or
mala fide
or as a result of unwarranted adherence to a fixed principle or
in order to further an ulterior or improper purpose; or that the
president
misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored
relevant
ones; or that the decision of the president was so grossly
unreasonable as to warrant the inference that he had failed to apply
his
mind to the matter in the manner aforestated… Some of these
grounds tend to overlap.
[95] The common law grounds of review
have been bolstered by section 33(1) of the Constitution, Act 108 of
1996, which provides, under
the heading
Just administrative
action
, that "[e]veryone has the right to administrative
action that is
lawful
,
reasonable
and
procedurally
fair
". This emphasis on lawfulness (or legality),
reasonableness (or rationality) and fairness (or equity) has not
rendered the common
law grounds of review redundant. On the contrary,
they have become firmly interlinked with such constitutional norms,
having been
"subsumed under the Constitution" and deriving
their force from the Constitution. See
Pharmaceutical
Manufacturers Association of SA and Another; In Re Ex Parte President
of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) para 33. Chaskalson P explains this in para
50-51:
[50] What would have been
ultra vires
under the common law by
reason of a functionary exceeding a statutory power is invalid under
the Constitution according to the doctrine
of legality. In this
respect, at least, constitutional law and common law are intertwined
and there can be no difference between
them… What is "lawful
administrative action,""procedurally fair administrative
action" and administrative
action "justified in relation to
the reasons given for it," cannot mean one thing under the
Constitution, and another thing
under the common law.
[51] Although the common law remains
relevant to this process, judicial review of the exercise of public
power is a constitutional
matter that takes place under the
Constitution and in accordance with its provisions…
[96] As required by section 33(3) of
the Constitution, national legislation has, in the meantime, been
enacted to give effect to these
rights. I speak of the
Promotion
of Administrative Justice Act
3 of 2000 ("PAJA"), and
more particularly to sections 3 to 6 thereof. See
Minister of
Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd and Another
[2003] 2 All SA 616
(SCA) para 46 at 631
j
,
where Schutz JA opined that the common law and the said sections of
PAJA give content to the standards required by section 33(1)
of the
Constitution for administrative actions.
[97] The unfairness of a decision as
such cannot constitute a ground for review unless the unfairness is
of such a nature and degree
that it may justify the inference that
the decision-maker has erred to an extent rendering the decision
reviewable. Such inference
is not easily drawn. See
Bel Porto
School Governing Body and Others v Premier, Western Cape, and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC) para 86. In para 87 Chaskalson CJ continues
to say:
[87] The role of the Courts has always been to ensure that the
administrative process is conducted fairly and that decisions are
taken in accordance with the law and consistently with the
requirements of the controlling legislation. If these requirements
are
met, and if the decision is one that a reasonable authority could
make, Courts would not interfere with the decision.
[98] The need for administrative
action to be reasonable, in terms of section 33(1) of the
Constitution, gives rise to what has probably
become the essential
standard of review, namely the rationality of the action, conduct or
decision in question. This must be assessed
objectively and
dispassionately, since the counter-side of rationality is usually
arbitrariness and even capriciousness justifying
the review and
setting aside of the administrative act in question.
[99] In the
Pharmaceutical
Manufacturers
case (para 95 above) Chaskalson P explained it in
the following way (in para 85, 86 and 90):
[85] It is a requirement of the rule of law that the exercise of
public power by the executive and other functionaries should not
be
arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.
[86] The question whether a decision
is is rationally related to the purpose for which the power was given
calls for an objective
enquiry. Otherwise a decision that, viewed
objectively, is in fact irrational, might pass muster simply because
the person who took
it mistakenly and in good faith believed it to be
rational. Such a conclusion would place form above substance, and
undermine an
important constitutional principle.
...
[90] Rationality in this sense is a minimum threshold requirement
applicable to the exercise of all public power by members of the
executive and other functionaries. Action that fails to pass this
threshold is inconsistent with the requirements of our Constitution,
and therefore unlawful. The setting of this standard does not mean
that the courts can or should substitute their opinions as to
what is
appropriate, for the opinions of those in whom the power has been
vested. As long as the purpose sought to be achieved by
the exercise
of the public power is within the authority of the functionary, and
as long as the functionary's decision, viewed objectively,
is
rational, a court cannot interfere with the decision simply because
it disagrees with it, or considers that the power was exercised
inappropriately. A decision that is objectively irrational is likely
to be made only rarely but if this does occur, a court has the
power
to intervene and set aside the irrational decision…
[100] These requirements apply with
equal force to decisions taken in terms of a discretion vested in the
decision-maker. However
wide such discretion may be, it is not
unfettered. See
Ismail and Another v Durban City Council
1973
(2) SA 362
(N) at 371H-372B, cited with approval in the
Goldberg
case (para 91 above) at 48D. It requires a proper consideration
and assessment of all the relevant facts and circumstances. If such
facts are ignored or misconstrued, the discretion cannot be properly
exercised. See
Pepkor Retirement Fund and Another v Financial
Services Board and Another
[2003] 3 All SA 21
(SCA) para 32, 45
and 47. In para 47 Cloete JA said the following:
[47] In my view a material mistake of fact should be a basis upon
which a court can review an administrative decision. If legislation
has empowered a functionary to make a decision in the public
interest, the decision should be made on the material facts which
should
have been available for the decision properly to be made. And
if a decision has been made in ignorance of facts material to the
decision
and which therefore should have been made before the
functionary, the decision should … be reviewable …
[101] Should the reasoning of the
decision-maker, in exercising his discretion, be partly good and
partly bad, the degree of the bad
reasoning must be determined. If it
has been material or substantial, the decision will fall to be set
aside on review. Should it
be impossible to determine this, the court
would be constrained to set the decision aside. See
Cabinet for
the Interim Government of South West Africa v Bessinger
1989 (1)
SA 618
(SWA) at 627H-I, where Levy J relied on the authorities cited
by Baxter
Administrative Law
(1984) 520-521. See also De
Smith, Woolf & Jowell
Judicial Review of Administrative Action
(1995) 346-347 (para 6-084):
If the exercise of a discretionary power has been influenced by
considerations that cannot lawfully be taken into account, or by
the
disregard of relevant considerations required to be taken into
account, a court will normally hold that the power has not been
validly exercised. It may be immaterial that an authority has
considered irrelevant matters in arriving at its decision if it has
not allowed itself to be influenced by those matters; and yet it may
be right to overlook a minor error of this kind even if it has
affected an aspect of the decision. The influence of extraneous
matters will be manifest if they have led the authority to make an
order that is invalid
ex facie
, or if the authority has set
them out as reasons for its order or has otherwise admitted their
influence.
In para 6-086 the learned authors
say:
If the influence of irrelevant factors is established, it does not
appear to be necessary to prove that they were the sole or even
the
dominant influence. As a general rule it is enough to prove that
their influence was material or substantial. For this reason
there
may be a practical advantage in founding a challenge to the validity
of a discretionary act on the basis of irrelevant considerations
rather than extraneous purpose, though the line of demarcation
between the two grounds of invalidity is often imperceptible.
[102] I respectfully associate myself
with this pragmatic approach, particularly in view thereof that no
administrative decision would,
generally speaking, be wholly good or
wholly bad. The truth will more often than not lie somewhere in
between. If the decision in
question points, on balance, to bad or
flawed reasoning and such reasoning was of material or substantial
significance in prompting
the decision-maker to come to his decision,
the decision would be invalid and liable to be set aside on review.
This would, in my
view, be consonant with the well-established values
of justice, fairness and reasonableness. It would also accord with
the requirements
of good faith and public interest.
CONSIDERATION OF THE THIRD
RESPONDENT'S DECISION
[103] With this factual and legal
background I turn now to a consideration of the third respondent's
decision. At the outset it must
be made clear that there is no
indication of bad faith, improper purpose or ulterior motive on the
part of the third respondent in
deciding not to release the applicant
on parole on medical grounds. I am satisfied that, at all relevant
times he acted in good faith
and in accordance with what he believed
was the proper interpretation of section 69 of the Act, as read with
the applicable administrative
guidelines.
[104] This does not, of course, mean
that his conduct was objectively rational or reasonable, warranting
the inference that he had
properly applied his mind to the matter
requiring his decision. In this regard I shall deal, firstly, with
his consideration of the
applicant’s physical condition in the
context of section 69. Secondly I shall have regard to his views on
available medical facilities
and the expediency of retaining the
applicant in the medical hospital of the Drakenstein prison or, for
that matter, of any other
prison. In the third place reference will
be made to the applicant’s inherent right to human dignity as set
forth in section 10,
read with section 39, of the Constitution, and
raised by the applicant in his founding affidavit (para 15 above). I
shall then conclude
with remarks on the reviewability of the third
respondent’s decision with reference to his primary reasons for
refusing the application
in terms of section 69.
The Applicant's Physical
Condition
[105] It is common cause that the
applicant was diagnosed on 22 May 2003 as suffering from an incurable
and inoperable lung cancer
known as "small cell carcinoma"
(para 5 above). Even with chemotherapy and radiotherapy his life
expectancy was no more
than a year. This treatment would have
debilitating side-effects such as hair loss, vomiting, nausea,
diarrhoea and weight loss.
His immune system would be affected
negatively, exposing him to a high risk of infection, particularly in
the unhygienic and crowded
conditions prevailing in our prisons (para
6 above). Three medical specialists, Dr Chapman, Dr Eedes and Prof du
Toit, unhesitatingly
recommended that he be placed on parole with
immediate effect (para 10 above). Dr Frank, the medical officer,
agreed with this recommendation
on the basis that the Department had
no prison that could adequately care for the applicant (para 11
above).
[106] The first seeds of confusion
were sown, however, when Dr Frank said that the applicant exhibited
"no overt sign of his
disease" and appeared "externally,
to be in good health" (para 11). This seems to have prompted Mr
Pepler to recommend
rejection of the parole application, amongst
other reasons because the applicant appeared to be in good health and
was able to feed,
dress and wash himself (para 12 above).
[107] The third respondent was
clearly influenced by Mr Pepler's observations, since he himself had
established, during a visit to
the applicant (para 13 above), that he
appeared externally to be "very normal" and not yet
"bedridden". His reading
of the medical reports was that
"physically" the applicant appeared to be normal and
self-sufficient.
[108] This use of the word
"physically" would appear to allude to the applicant's
external or outward appearance as opposed
to his internal or
"medical" condition (see also para 29 and 38 above). This
attempt to distinguish between the “physical”
as opposed to the
“medical” condition of the applicant is clearly wrong and not
justified by the ordinary meaning of the words
used in section 69 of
the Act. As mentioned above (para 82) the third respondent was, after
receiving a recommendation from the medical
officer, empowered to
exercise his discretion to release the applicant on parole for
medical reasons if he was satisfied that it
was “expedient on the
ground of his physical condition”. On the assumption that he
understood “expedient” to mean “advisable”
(see para 83
above), there is no basis on which he could have accepted that
“physical condition” related merely to the applicant’s
external
or outward appearance. This would be in conflict with the ordinary
meaning of “physical condition” as pertaining to
his bodily or
corporeal condition, as opposed to his mental, spiritual or moral
condition. It would hence include both internal and
external aspects
of his bodily condition, in so far as it can be medically determined
(see para 84 above).
[109] The requirement that the
applicant should be terminally ill, in the sense that his life
expectancy should be short and his demise
imminent, appears to have
been introduced by the standing correctional order “B” and the
circular of 21 December 2001 (para 24-25
above). Similarly the
suggestion that he should be “in the final phase of terminal
illness” (para 28 above) appears to come from
section 79 of the
Correctional Services Act
111 of 1998 (para 85 above), which
indeed refers to “the final phase of any terminal disease or
condition”, but which is not
yet operative. It would appear that
the third respondent has, in his consideration of the requirements of
section 69 of the Act,
allowed himself to be confused by terminology
which is nowhere to be found in or required by the Act. The same can
be said of the
apparent requirement that the applicant should be
“bedridden” before being regarded as terminally ill.
[110] The suggestion by the third
respondent that the applicant's life expectancy was “not so short”
that further incarceration
would not serve a purpose and that there
was no assurance that he would abstain from committing a crime (para
13 above) cannot, in
my view, constitute a requirement in terms of
section 69 of the Act. There is no indication of what a “short”,
as opposed to
a “not so short”, life expectancy may be. Nor can
it be determined when a prisoner is so ill that it would be
physically impossible
for him to commit a crime. I should imagine
that the commission of further crimes would be the last thing on the
mind of any prisoner
released on parole for medical reasons,
particularly when he knows that he has only a few months to live.
[111] Likewise unacceptable is the
further reason put forward by the third respondent for his rejection
of the applicant's parole
application, namely that the applicant had
committed a serious crime and that, should he be released forthwith,
he would have served
less than one third of his sentence. This
consequence would, according to the third respondent, impact
negatively on other prisoners
diagnosed with terminal illnesses and
who were anxiously awaiting the outcome of the present application
(para 34 and 36 above).
There is no merit in these contentions.
Section 69 of the Act makes it clear that a prisoner may be placed on
parole for medical
reasons “at any time”.
[112] The supporting affidavit of Mr
August gave the third respondent anything but support in this regard.
He also plainly laboured
under the mistaken impression that the
applicant's "physical condition" related to his outward
appearance. In this regard
he was satisfied that the applicant's
physical condition was good in that he was not bedridden and was in
fact completely self-sufficient
(para 44 above).
[113] In the meantime Dr Frank
managed to execute a classic
volte face
by suggesting that,
statistically, the applicant could still live for five years. In this
regard he apparently latched onto the applicant's
exterior as
indicating his "physical condition". He related this to the
applicant's appearing to be "asymptomatic"
in that he had
no complaints, was not experiencing pain or discomfort, could conduct
a coherent conversation and did not appear to
have lost any weight
(para 45-46 above). Dr Frank, of all people, should have realised
that the symptoms referred to above (para
105) were side-effects of
the palliative treatment the applicant would receive. Such
side-effects, it seems obvious, would become
prevalent in the course
of time as the treatment was applied. The fact that they were not
visible at the time of his interview with
the applicant did not mean
that they would not eventuate or that the applicant’s condition was
improving.
[114] This is clearly how Dr Mallet,
the applicant’s general practitioner, understood it (para 18 above)
when he stated that the
applicant’s inoperable cancer of the lung
would only be palliated by chemotherapy and that his physical
condition had already weakened
to such an extent that he would be
physically unable to commit a crime. This opinion was confirmed in no
uncertain terms by Prof
du Toit (para 56-60 above) when he pointed
out that the applicant was indeed in the final phase of a terminal
illness, a view concurred
in by Dr Eedes (para 65 above). During the
course of this illness the aggressive cancer would invade every organ
in his body and
ultimately lead to his death as a result of
respiratory failure. The chemotherapy was purely palliative and could
not assist in effecting
recovery or improvement. Although the
applicant might initially look well, his outward appearance belied
the terminal stage of his
illness, an opinion likewise shared by Dr
Eedes (para 65 above). The effects of chemotherapy and radiotherapy
would inevitably lead
to his debilitation and chronic illness within
the few months left of his life, while the side-effects and symptoms
referred to above
would manifest themselves within a relatively short
time.
[115] It is clear from the above that
the third respondent totally misunderstood and misconstrued the
medical opinions of Dr Eedes,
Dr Chapman and Prof du Toit. In
addition he misinterpreted the relevant provisions of section 69 of
the Act by reading into it non-existent
requirements, or by allowing
himself to be wrongly influenced by departmental guidelines and the
provisions of an Act that had not
yet become operative. By
misinterpreting the concept of “physical condition” he could not
apply his mind properly to the expediency
of placing the applicant on
parole on medical grounds.
The Available Medical
Facilities
[116] Despite Dr Frank having
categorically stated in his report to Mr August (para 11 above) that
there was, to his knowledge, no
medical facility within the
jurisdiction of the Department of Correctional Services that could
adequately care for the applicant,
Mr Pepler gave the assurance (para
12 above) that the Department could comply with the minimum
requirements set by Dr Eedes for the
applicant’s care. In the
written reasons for his decision not to release the applicant on
parole on medical grounds, the third
respondent accepted Mr Pepler’s
recommendation, and rejected that of Dr Frank to the contrary,
without making any reference to
the medical facilities pertaining in
any departmental prison hospital.
[117] He attempted to cure this
lacuna in his opposing affidavit (para 30-33 above) by relying on
obvious hearsay placed before him
by Mr August, who had conducted an
investigation but was not said to have any medical qualifications. In
this regard Mr August had
been assured by Sister Matshibane of the
Drakenstein prison hospital that they would be able to comply with
the requirements laid
down by Dr Eedes. This was never confirmed in a
supporting affidavit by Sister Matshibane and no explanation was
tendered as to its
glaring absence. Yet the third respondent, who was
likewise not medically qualified, was quite happy to say that the
Drakenstein
prison hospital could cater for the applicant’s needs
and meet the requirements set by both Dr Eedes and Dr Frank. The
applicant
could, in fact, receive the same treatment there as he was
presently receiving and nothing prevented the doctors currently
treating
him from doing so in the prison hospital.
[118] Mr August in turn attempted to
cure the deficiencies in his report by adding that the applicant
would be under twenty-four hour
surveillance in “humane and
adequate” circumstances that would “effectively eliminate the
risk of infection” (para 42 above).
In any event there was a
private medical facility close by where he could obtain “the best
medical treatment”. This turned out
to be the Panorama hospital
which was, according to Ms Malan (para 43 above) situated “within a
reasonable distance” from the
Drakenstein prison and where the
applicant could receive “certain of his treatment” should his
doctors so advise and should it
be expedient to treat him there. How
this could be a viable alternative to the present situation is
extremely difficult to grasp,
particularly since it is made
conditional to the advice of his doctors and the expediency of
treating him there.
[119] Even more incomprehensible is
how Mr August’s extremely superficial and wholly inadequate report,
even as supplemented in
his affidavit, could ever have satisfied the
third respondent. At the very least one would have expected the
respondents to furnish
a full report by an adequately qualified and
experienced medical doctor as to the exact nature and ambit of the
medical facilities
in the Drakenstein prison. They clearly did not
mandate Dr Frank, a suitably qualified and experienced medical doctor
with specialist
knowledge of prison medical facilities, to do a full
and proper investigation of such facilities. In his further affidavit
(para
47 above) Dr Frank, in a weak and quite unpersuasive
explanation as to why he had changed his mind regarding the adequacy
of departmental
medical facilities, appears simply to have accepted
the third respondent’s allegations in this regard. There is no
indication of
what gave rise to this startling
volte face
.
[120] In this regard I have no
hesitation in accepting Prof du Toit’s observation (para 61 above)
that the applicant’s medical
condition requires considerable
medical skill and expertise for its proper monitoring and treatment.
It is quite obvious that only
highly qualified medical specialists
would be able to manage and supervise the extremely specialised care
required by a person in
his condition. This was confirmed by Dr Eedes
(para 65 above).
[121] That the medical facilities at
the Drakenstein prison cannot be said to provide an uncrowded
environment free of infection
and twenty-four hour medical
surveillance, is jarringly brought home by the affidavit of Mr Morris
(para 63 above). As a director
in the Judicial Inspectorate of
Prisons he must be accepted as being suitably qualified to make such
assessments. According to him
the prison hospital is, ordinarily, a
large communal cell with no specialist facilities and housing
prisoners suffering from all
manner of infectious diseases. This was
confirmed, with specific reference to the Drakenstein prison
hospital, by Ms Ndinisa (para
64 above), who has been visiting the
said facilities regularly since March 2002 in her capacity as an
“independent prison visitor”.
[122] It is abundantly clear from the
above that the third respondent could not reasonably have accepted
that the Drakenstein prison’s
medical facilities would be
adequately equipped to provide proper care to a person in the
applicant’s medical condition. I have
no hesitation in holding
that, in this respect also, he failed to determine, and apply his
mind to, the true facts pertaining to
such medical facilities. They
are quite obviously hopelessly inadequate for providing specialist
treatment and care to a person suffering
from inoperable and
incurable cancer.
The Applicant’s Inherent
Right to Human Dignity
[123] It is true that Mr Pepler gave
the assurance (para 12 above) that the applicant would be treated in
a humane way (“heel menswaardig”).
It is equally true that the
third respondent accepted (para 37 above) that the applicant was
entitled to his dignity in line with
a humane approach. It cannot,
however, be said that either the said assurance or acceptance was
visible in the third respondent’s
consideration of the applicant’s
physical condition and the adequacy of the medical facilities at the
Drakenstein prison. On the
contrary, I am of the view that his
inherent right to human dignity, as set forth in the discussion on
the rights of a detainee or
prisoner (para 87-92 above), has not been
observed in the consideration of his application for release on
parole on medical grounds.
I say so for the following reasons.
[124] The third respondent’s
failure to respect the applicant’s inherent right to human dignity
came to the fore, firstly, in
his assessment of the applicant’s
physical condition for purposes of section 69 of the Act. By
restricting his understanding of
such condition to the applicant’s
external or outward appearance, which is clearly only temporary and
will undoubtedly undergo
a radical change in the near future, the
third respondent chose to ignore, or downplay, the fact that he is
suffering from an inoperable
and incurable disease that will
inevitably cause his death within a few months. To insist that he
remain incarcerated until he has
become visibly debilitated and
bedridden can by no stretch of the imagination be regarded as humane
treatment in accordance with
his inherent dignity. On the contrary,
the overriding impression gained from the third respondent’s
attitude in this regard is
that the applicant must lose his dignity
before it is recognised and respected.
[125] The third respondent’s
failure to recognise and accept the obvious inadequacy of the medical
facilities at the Drakenstein
prison or, for that matter, at any
other prison under the jurisdiction of the Department, is a second
instance of his failure to
respect the applicant’s inherent right
of dignity. Although such facilities may be adequate for the
treatment of ordinary, run-of-the-mill
illnesses and medical
problems, it is abundantly clear that they are totally inadequate for
the treatment of terminally ill patients
such as the applicant. To
insist that he remain incarcerated while being housed in the said
facilities constitutes a blatant denial
of his most basic right to be
treated with dignity and respect, regardless of the crime he has
committed and the period of his sentence
that he has actually served.
[126] The third respondent’s
suggestion, in the additional reasons raised by him for his decision,
that the applicant may still,
at the present time, be able to commit
a crime or crimes, constitutes, in my view, a third instance of his
failure to respect the
applicant’s inherent right to dignity. It is
extremely unlikely that the applicant’s thoughts, urges and desires
are directed
at anything but being reunited with his family during
the last few months of his life. He has given the assurance that he
will not
be involved in crime and has accepted the conditions of his
parole as required by the respondents and this court (para 2 above).
To insist that he remains imprisoned until it is physically
impossible for him to commit any crime is, in my view, inhuman,
degrading
and thoroughly undignified.
[127] The suggestion that the release
of the applicant on parole for medical reasons will impact negatively
on the penal system and
on the expectations of other prisoners
suffering from terminal diseases may be regarded as a fourth instance
of the third respondent’s
failure to respect the applicant’s
inherent right to dignity. It amounts to no more than a lumping
together of all prisoners suffering
from terminal diseases, with no
thought whatever being directed to the particular facts and
circumstances relating to each prisoner
individually. The applicant
is an individual and deserves to be assessed as such.
[128] The facts set forth in the most
recent annual report of the Judicial Inspectorate of Prisons (para 51
above) indicate a shocking
state of affairs. Despite the huge
increase in the prevalence of HIV/AIDS and other terminal diseases in
our prisons, only the tiniest
percentage of prisoners suffering from
such diseases were released on medical grounds during 2002. I
associate myself fully with
the call by Inspecting Judge J J Fagan
that the release of terminally ill prisoners should receive far more
attention, if not priority
attention, than is the case at the present
time. The alternative is grotesque: untold numbers of prisoners dying
in prisons in the
most inhuman and undignified way. Even the worst of
convicted criminals should be entitled to a humane and dignified
death.
[129] From this it is clear that the
third respondent has failed to accord the applicant the dignity
inherently forthcoming to him.
This may be attributable to the
strict, if not rigid, policy developed by the Department in apparent
conflict with the provisions
of section 69 of the Act and also with
the provisions of section 35(2)(e) of the Constitution, which assures
the applicant that he
has the right to "conditions of detention
that are consistent with human dignity" (para 89 above). It is
likewise in conflict
with the provisions of section 10 of the
Constitution, in terms of which he has the right to have his inherent
dignity respected
and protected. It is doubtful whether the third
respondent took cognisance of these provisions, or of the
all-important provisions
of section 39(2) of the Constitution, which
enjoins a person interpreting any legislation to "promote the
spirit, purport and
objects of the Bill of Rights".
CONCLUSION
[130] The inevitable conclusion to
which I must come is that the third respondent's decision to refuse
the applicant parole on medical
grounds was, objectively, so
irrational and unreasonable that the inference must necessarily be
drawn that he failed to apply his
mind to the relevant facts and
circumstances. He clearly misconstrued and misinterpreted section 69
of the
Correctional Services Act
8 of 1959 by allowing himself
to be influenced by extraneous guidelines not included in or required
by the said section.
[131] In terms of section 33(1) of
the Constitution, Act 108 of 1996, it cannot be said that the third
respondent's decision constituted
lawful, reasonable or procedurally
fair administrative action. Such decision did not, in my view,
contain the seeds of justice, fairness
or reasonableness, and failed
to promote the spirit, purport and objects of the Bill of Rights as
required by section 39(2) of the
Constitution. Even accepting, as I
have, that the decision was made in good faith, it cannot be said
that it was so much in the public
interest as it was in the interest
of policy considerations emanating from the Department of
Correctional Services.
[132] For these reasons I am quite
satisfied that the third respondent should, in terms of the
provisions of section 69 of the said
Act, have granted the
application for the release on parole of the applicant on medical
grounds. It was clearly expedient with reference
to his physical
condition. The applicant is fully entitled to spend the remaining
portion of his life ensconced in his own home in
the consolatory
embrace of his family. When the time comes for him to pass on, he
must be able to do so peacefully and in accordance
with his inherent
right to human dignity.
[133] In the event I confirm the
order granted by me on 4 August 2003, as supplemented and amended by
my order of 8 August 2003.
D H VAN ZYL
Judge of the High Court