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[2024] ZANCHC 28
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Vundisa v Kimberley Correctional Supervision and Parole Board (1969/2022) [2024] ZANCHC 28 (28 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: 1969/2022
Date
Heard
: 05 / 02 / 2024
Date
Delivered: 28 / 03 / 2024
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
Circulate
to Magistrates: YES /
NO
In
the matter between:
MXOLISI
VUNDISA
APPLICANT
and
KIMBERLEY
CORRECTIONAL SUPERVISION AND
PAROLE
BOARD
RESPONDENT
Coram:
Tlaletsi, JP
et
Tyuthuza, AJ
JUDGMENT
Tyuthuza
AJ
INTRODUCTION
1.
The applicant is an inmate at the
Tswelopele Correctional Centre in Kimberley. He launched this
review application acting
in person seeking an order in the following
terms:
1.1
That non-compliance with the provisions of Rule 6(5)(b) pertaining to
service
address be condoned.
1.2
That the respondent be ordered to observe and respect the right to
fair administrative
action in terms of section 33 of the Constitution
of the Republic of South Africa, 1996.
1.3
That the action of the respondent was procedurally unfair.
1.4
That the decision was taken in bad faith.
1.5
That the applicant be released on parole.
1.6
That the respondent be ordered to pay the costs of the application
the one paying
the other to be absolved.
2.
The
respondent is the Kimberley Correctional Supervision and Parole Board
(CSPB)
appointed
as such by the responsible Minister, in terms of
section
74
of
the
Correctional
Services Act
[1]
(the Act). The Parole Board is statutorily responsible for the
consideration of reports of sentenced offenders and the determining
of their parole in terms of section 75 of the Act. The review
application is opposed.
FACTUAL BACKGROUND
3.
The factual background in this matter is
largely common cause. The Applicant was sentenced to 40 years
and six months’
imprisonment for various offences and his
prison term is due to end on 26 February 2043. The applicant
was released on parole
on 28 September 2017. In January 2019 he
was apprehended and incarcerated for violating his parole
conditions. He was
released again on parole on 21 January 2020.
Whilst on parole, the applicant was arrested on 08 August 2021
on allegations
of armed robbery and was detained in Douglas, a town
which is about 107km from Kimberley.
4.
On 03 October 2021 the Chairperson of the
Supervision Committee issued a warrant for the arrest and the
detention of the applicant
for breaching his parole conditions. He
recommended that the applicant be brought before the Board within 14
days to have
his parole revoked because he had violated his parole
conditions by leaving the district of Kimberley. The Head of
Community
Corrections also motivated that the applicant be referred
back to the Board. The applicant’s parole was formally
withdrawn
on 11 October 2021 by the Board.
5.
The
applicant appeared before the Parole Board on three instances after
his arrest. It is apposite to provide a brief background
on
what transpired at these appearances as they are relevant to the
applicant’s case and the relief he seeks. The dates
on
which he appeared are 11 October 2021, 30 March 2022 and 30 June
2022.
11 OCTOBER 2021
HEARING
6.
The appearance on this date happened eight
days after he was served with the warrant of arrest and detention.
The template
for the referral of the applicant stated that he
had violated his parole condition on 08 August 2021 as he had left
the district
of Kimberley without permission. The supervisory
committee recommended to the Board that the applicant’s parole
be
revoked. The recommendation for the referral and revocation
of the parole was supported in the motivation prepared by the
Head of
Community Corrections on 03 October 2021.
7.
The applicant confirms his appearance
before the Board in his founding affidavit. He avers, however,
that he presented to
the Board his reasons for having violated his
parole conditions. His reasons were briefly that, Sunday 08
th
August 2021 fell on a Women’s Day celebration long weekend
.
There was also the lock down restrictions in place to combat
the Covid-19 pandemic. He went to the Community Corrections
offices to request permission as required. The offices were
locked. Out of desperation, he got tempted and left the
Kimberley district without the permission of his supervision officer.
8.
The applicant further alleges that the
Board understood his explanation and he was informed that he would
appear before the Board
at the next available sitting where, should
he obtain bail or should the charges against him be withdrawn or he
be acquitted of
those charges, he would be released on parole. A
date for his next appearance was set as 01 March 2022. As the
applicant
understands it, his parole was provisionally withdrawn at
this hearing and not revoked.
9.
The respondent’s version on the
outcome of the proceedings differs from that of the applicant. The
respondent contends
that a formal decision on the status of the
applicant was taken by the Parole Board on the 11
th
of October 2021, namely, to “withdraw” the applicant’s
continued release on parole. The record of the proceedings
reveals that the Commissioner – Corrections was informed on the
same day and a signature of the secretary of the CSPB/ CMC
in
acknowledgment is reflected. A further profile report was
requested for 01
March 2022. The report further reflects that the applicant
(offender) was informed and he signed to signify this aspect.
10.
The applicant alleges that he only became
aware on 06 May 2022 that his parole was revoked on 11 October 2021,
but he alleges that
his parole was only revoked on 30 June 2022,
eight months after he was served with the warrant of arrest and had
been in custody.
Thus, the Board had contravened section 75(2)
(a) of the Correctional Services Act.
11.
Despite the allegations in the founding
affidavit, the applicant conceded in court that his case is that his
parole was withdrawn
on 11 October 2021 and that he was informed of
this decision. The applicant further submitted that the
withdrawal of his
parole did not amount to it being revoked. He
alleges that the parole was withdrawn as a result of the criminal
case that
was pending and that the withdrawal was effective until the
circumstances of the case had changed.
30 MARCH 2022 HEARING
12.
The applicant did not appear before the
Board on 01 March 2022. He appeared on 30 March 2022.
According to the applicant,
the Chairperson informed him that
the Case Management Committee had prepared another report in which
they recommended a further
profile. The reasons advanced are
that the applicant had a requisition to appear before court on 19
April 2022 on the criminal
charges pending against him and that he
had not submitted an address of residence to which he could be
released on parole. He
avers that the Board resolved to afford
him more time to sort out the address to which he would be released
and to secure his release
on the pending criminal charges. He
was for these reasons granted a shorter date for the next appearance,
01
June 2022.
13.
The applicant was dissatisfied with the
decision not to grant him parole because an address had already been
supplied by his family
member and he had been released on his own
recognisance by the magistrates’ court. He then launched
an application
in this court on 25 April 2022 under case number
549/2022 to review the decision of the Parole Board not to release
him on parole.
On 06 May 2022, he was served with an answering
affidavit in his application. It is only then that he learnt
for the
first time that his parole was “revoked” on 11
October 2021 as averred by the deponent to the answering affidavit.
Because of this turn of events he withdrew his review
application and decided to wait for his next appearance before the
Board which was 01 June 2022. He believed that his parole was
never revoked and that he was wrongly kept in custody solely
because
of his pending criminal charges.
30 JUNE 2022 HEARING
14.
It is common cause that the applicant
appeared before the Board on 30 June 2022. It is the
applicant’s case that on
this occasion he was informed that his
parole was revoked for violating the parole condition by leaving the
Magisterial District
of Kimberley without permission and a further
profile was imposed until 01 June 2024. The applicant contends
that his parole
was only revoked at this sitting which was his third
appearance before the Board, constituting a further eight months
after being
served with the warrant of arrest. He voiced his
dissatisfaction with the decision to revoke his parole at this
hearing and
was advised by the Chairperson that he could appeal the
Board’s decision, and was informed that the operation two-year
period for further profile will be suspended pending the finalisation
of the appeal.
15.
Dissatisfied with the actions of the
respondent, the applicant launched this application seeking to review
the decision made at
the hearing of 30 June 2022. The
respondent disputes that the decision to revoke the applicant’s
parole was made at
the hearing on 30 June 2022. It contends
that the decision was made on 11 October 2021.
ISSUES:
16.
The applicant contends that the revocation
of his parole was procedurally unfair and done in bad faith in that:
16.1.
his parole was revoked on 30 June 2022,
eight months after he was served with the warrant of arrest and
detention and thus contrary
to section 75 of the Correctional
Services Act.
16.2.
the decision to revoke his parole on 30
June 2022, was motivated by the applicant challenging the
respondent’s decision of
30 March 2022 by launching the
application under case number 549/2022.
16.3.
the document titled “
Template
for Referral
” which is attached
to the respondent’s answering affidavit (annexure “A”)
is forged in that:
(a)
the surname and initials of the chairperson
were not on the document which he received on 06 May 2022;
(b)
the date stamp was not on the document he
received on 06 May 2022; and
(c)
the word “
revoked
”
was not on the document he received on 06 May 2022.
17.
It is on these grounds that the applicant
seeks to have the decision of the respondent reviewed and set aside.
WAS
THE DECISION PROCEDURALLY UNFAIR?
18.
In
Jimmale
and Another v S
[2]
the Constitutional Court held the following at paragraph 1:
“
Parole
is an acknowledged part of our correctional system. It has
proved to be a vital part of reformative treatment for the
paroled
person who is treated by moral suasion. This is consistent with
the law: that everyone has the right not to
be deprived of
freedom arbitrarily or without just cause.”
19.
Section 73(5) of the Act which
authorises an offender’s right to correctional services or
parole reads as follows:
“
(a)
A sentenced offender may be placed under correctional supervision, on
day parole,
parole or medical parole-
(i)
on a date determined by the
Correctional Supervision and Parole Board; or
(ii)
in the case of an offender
sentenced to life incarceration, on a date to be determined by the
Minister.
(b)
Such placement is subject to the provisions of Chapter IV and such
offender
accepting the conditions for placement.”
20.
As defined in section 50 of the Act, the
objectives of community corrections are the following:
“
(1)
(1)(a)
The objectives of community corrections are-
(i)
to afford sentenced offenders an opportunity to serve their sentences
in a non-custodial manner;
(ii)
to enable persons subject to community corrections to lead a socially
responsible and crime-free life during the period of their sentence
and in future;
(iii)
to enable persons subject to community corrections to be
rehabilitated in a manner that best keeps them as an integral part of
society;
and
(iv)
to enable persons subject to community corrections to be fully
integrated into society when they have completed their sentences.
(b)
These objectives do not apply to restrictions imposed in terms of
section 62(f) of the Criminal Procedure
Act or section 24 (4)(d) or
26 of the Child Justice Act, 2008.
(2)
The immediate aim of the implementation of community corrections is
to ensure
that persons subject to community corrections abide by the
conditions imposed upon them in order to protect the community from
offences which such persons may commit.
”
21.
In accordance with section 70(1) of the
Act,
after the Commissioner finds that the parolee has failed
to comply with any aspect of the imposed conditions, the Commissioner
may:
(i)
reprimand the person;
(ii)
instruct the person to appear before the Correctional
Supervision and Parole Board that is situated closest to the place of
residence
of such person or the Board which has jurisdiction within
the area where the non-compliance took place, or other body which
imposed
the conditions of community corrections;
(iii)
issue a warrant for the arrest of such person; and
(b)
must, if he or she is satisfied that the person has a valid excuse
for not complying
with any such condition or duty, instruct that the
community corrections be resumed subject to the same conditions or
duties applicable
to that person.
22.
Section 75(2) of the Act which deals
with the powers, functions and duties of the Board states as follows:
“
(a)
If the National Commissioner on the advice of a Supervision Committee
requests a Board
to cancel correctional supervision or day parole or
parole except where the person concerned was originally serving a
sentence
of life incarceration, or to amend the conditions of
community corrections imposed on a person, the Board must consider
the matter
within 14 days but its recommendations may be implemented
provisionally prior to the decision of the Board.
(b)
After consideration of such conditions the Board may
cancel
the correctional supervision or day parole or parole, or amend the
conditions but if the person concerned refuses to accept the
amended
conditions, the correctional supervision or day parole or parole must
be
cancelled
.”
(emphasis provided)
23.
The
applicant was placed on parole in terms of section 73 of the Act from
21 January
2020 to 26
February 2043. It is apposite to mention that the applicant was
subject to community corrections in terms of section
51(1)(d) of the
Act.
24.
Part
of the function of the Parole Board is to consider a report compiled
by the Case Management Committee, which supervises and
considers the
fitness for parole of a prisoner sentenced to a determinate term of
24 months or more. The Case Management
Committee supervises the
prisoner’s process of rehabilitation and oversees the services
made available to a prisoner to enable
that process.
25.
It is a requirement
in terms of subsection (2)(a) that the Board must consider the
request to cancel or amend the correctional supervision
or day parole
or parole within 14 days of the request. In this case, the
applicant was issued with a warrant of arrest and
detention on 03
October 2021. On 03 October 2021, the Supervision Committee
recommended that the applicant be placed before
the Board within 14
days to revoke the remaining days of his parole. He appeared
before the Board on 11 October 2021. In
this regard the
procedural requirement prescribed in subsection (2)(a) was complied
with because it is common cause that the applicant
appeared before
the Board on the 8
th
day after the issuing of the warrant of arrest and detention. Having
made this finding, it is necessary to determine whether
a decision to
cancel or revoke the applicant’s parole was taken by the Board
at the parole Board sitting of 11 October 2021.
26.
While the applicant
persists with an averment that the Board only revoked his parole on
30 June 2022, he conceded that the parole
was withdrawn on
11
October 2021 and that the template for referral
attached to the
respondent’s papers is a true reflection of what had transpired
at the hearing on 11 October 2021. He
however contended that
the withdrawal of parole does not amount to revocation thereof. In
his understanding, withdrawal is
a temporary suspension of his
release pending the finalisation of his criminal case or being
released either on bail or on his
own recognisance. Revocation,
he contended, is a cancellation of the parole.
27.
It is the
respondent’s case that the applicant’s parole was revoked
on 11
October 2021 by Mr Samolapo because the applicant had left the
Magisterial District of Kimberley without permission and that the
applicant had violated another condition of his parole.
28.
The respondent
disputes that the applicant’s parole was only revoked at the
hearing of 30 June 2022. The Board did not
decide on the
applicant’s parole on that day but reiterated what was decided
during the meeting of 11 October 2021. The
Court was referred
to a document attached to the respondent’s answering affidavit
titled:
“
COVERING
PAGE FOR APPROVAL/DISAPPROVAL OF PROFILE REPORT: DETERMINATE
SENTENCE (S):
“
FP
approved for 2024.06.01. The offender is alleged to have
committed crime whilst on Parole. Warned by Court. Has
also violated the parole conditions to leave the magisterial district
without permission. CSPB approved revoke of his parole.
FP
approved for 2024/06.01. Must be engaged in rehab programme.”
This
document is signed by the chairperson Mr Tutuse and is dated 30 June
2022.
29.
This document
records what transpired at the hearing on 30 June 2022. It is
clear therefrom that the withdrawal of the applicant’s
parole
had already been approved and that the only decision made on 30 June
2022 was for a further profile of the applicant to
be considered on
01 June 2024. In the circumstances, there is no merit to the
applicant’s assertions that the decision
to revoke his parole
was only made on 30 June 2022.
30.
The applicant
himself conceded that his parole was withdrawn on
11
October 2021 and that he was informed of this decision. The
applicant was referred to the document titled: TEMPLATE FOR REFERRAL
OF PROBATIONER/PAROLEE TO THE CORRECTIONAL SUPERVISION AND PAROLE
BOARD (CSPB)/HEAD of Correctional Centre. This document
records
the various stages with recommendations for the referral of the
parolee to the Parole Board. Section C records the
applicant’s
non-compliance and the type of violation as “
Left
District without Permission
”.
The summary of the Supervision Committee is reflected as
follows:
“
Parolee
left the district without permission, place before CSPB to revoke
parole”. Section E is a recommendation of the supervision
committee to the head community corrections and recommends: ‘Parolee
violated his conditions by leaving the district of Kimberley
to
Douglas, place before CSPB within 14 days to revoke remaining days
.”
Section
G of the document, which is signed by the chairperson of the Board
states, “
parole withdrawn
”. The
recommendation by the Supervision Committee to the Head Community
Corrections which was signed on
03 October 2021 reads: ‘
Parolee Violated His Conditions By
Leaving The District of Kimberley to Douglas. Place Before CSPB
within 14 Days to Revoke
Remaining Days
”. The
“
motivated decision
” by Head Community Corrections
also state the same violation by the applicant and that it be
referred back to the CPSB to
revoke his parole.
31.
The record
reflects that the same document with recommendation was placed before
the CSPB when the applicant appeared. The
decision of the CSPB
is reflected as “
Parole
withdrawn
”.
The applicant confirms that the document is a true account of
the proceedings on 11 October 2021, that his parole
was withdrawn and
that he was informed about the withdrawal.
32.
The
applicant’s point of contention is the word “
withdrawn
”.
It is the applicant’s case that the word “
withdrawn
”
carries a different meaning to the word “revoke”. Thus,
it is the applicant’s case that the withdrawal
meant that his
parole was temporarily suspended pending the finalisation of his
criminal case or being released either on bail
or on his own
recognisance. Revocation, he contended, is a cancellation of
the parole.
33.
The
Concise Oxford English Dictionary
[3]
defines the word revoke as “
end
the validity or operation (a decree, decision or promise)”.
Whilst
the word “
withdraw
”
is defined as, “
remove
or take away, take back, discontinue or retract”.
34.
In my view
these two words carry the same meaning and same effect. I find
no merit in the applicant’s assertion that
the fact that the
parole was withdrawn did not mean that it was revoked. The
effect of the withdrawal is that on 11
October 2021, the applicant’s parole ended, alternatively, the
validity thereof had ended.
35.
In the
circumstances I find that the Board decided to revoke the applicant’s
parole on 11 October 2021. The decision
was made in compliance
with section 75(2)(a) of the Act and thus the decision is not
susceptible to review and stands.
WHETHER
OR NOT THE DECISION WAS MADE IN BAD FAITH:
36.
The applicant
alleges that the decision of 30 June 2022 to revoke his parole was
made in bad faith in that the decision was made
after his application
was launched against the Board in April 2022.
37.
It is now
established that the decision to revoke the parole was actually taken
on 11 October 2021 and not on 30 June 2022 as alleged
by the
applicant, thus prior to him launching the application. Accordingly,
there is no merit to the applicant’s assertion
that the
decision was taken as a result of him launching the application
against the respondent.
38.
The applicant further alleges that
the document titled “
Template for
Referral
” which is discussed
above is forged. He bases his contention on the fact that u
pon
launching the application in April 2022 against the Board, the
applicant was served with the respondent’s answering affidavit
on 06 May 2022, which had the document titled “
Template
for Referral
”
purporting to be the one that served before the CSPB. He
submitted that the document he received then differs in some
respect
from the one produced by the respondent in the present proceedings.
39.
The applicant
is correct in his observations of the differences between the
document which he received on 06 May 2022 and the document
which is
now attached to the respondent’s answering affidavit as
Annexure “A”. The surname and the initials
of the
chairperson of the Board, the date stamp and the word “
revoked
”
have now been included on the document which is attached to the
respondent’s answering affidavit as Annexure “A”.
These features were not included in the document filed with the
respondent’s answering affidavit under the proceedings in
case
number 549/2022.
40.
It is clear
that the document attached to the respondent’s answering
affidavit as Annexure “A” to these proceedings
was
tampered with after 06 May 2022. The date stamp, surname and
initials of the Chairperson were inserted after the fact
and not on
11 October 2021. The respondent could not explain the
discrepancies between the two documents. Be that as
it may, the
applicant has conceded that the document is a true reflection of the
events of and the decision taken on 11 October
2021. The
substantive content of the two documents including the handwriting in
the various sections are similar. The
date stamp and the names
of the chairperson were omitted and only included later. It
would therefore be unreasonable to suggest
that the document was
fraudulently manufactured to deceive the court. The stand-alone
handwritten inscription of the word “revoked”
at the top
of the typed document is not part of the contents of the document. It
does not relate to any of the contents or items
of the document. It
is also not in response to any prescribed requirements to be filled
in the document. The applicant’s
claim that the document was
forged should be dismissed.
41.
What
remains for consideration is the issue of costs. The respondent
has been substantially successful. The general
rule is that
costs follow the result unless there are good reasons to depart from
the general rule. The applicant is a prisoner
who drafted his
papers and appeared in person in an attempt to exert and protect his
constitutional rights. He did not have
access to legal advice.
Punishing him with costs would discourage prospective litigants
in the position of the applicant
from protecting their rights
(See
Biowatch
Trust v Registrar Genetic Resources and Others
[4]
.
In
addition, the applicant mentioned that he tried to pursue an appeal
against the CSPB internally and could not get the necessary
assistance from the correctional officers as prescribed. For
these reasons, there shall be no order as to costs.
In
the premise, the following order is made:
1.
The
application is dismissed.
2.
No order as to
costs.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree.
L
P TLALETSI
JUDGE
PRESIDENT OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the Applicant:
In
person
On
behalf of the Respondent:
Mr
Ramavhale
On
the instruction of:
Office
of the State Attorney
[1]
Act
111 of 1998
[2]
[2016]
ZACC 27
;
2016
(2) SACR 691
(CC);
2016
(11) BCLR 1389
(CC)
.
[3]
Pearsal,
J. (1999) Concise Oxford Dictionary. 10th Edition, Oxford University
Press, Oxford, 1591
[4]
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (3 June 2009)