Mnguni v Minister of Correctional Services and Others (CCT 42/05) [2005] ZACC 13; 2005 (12) BCLR 1187 (CC) (26 September 2005)

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[2005] ZACC 13
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Mnguni v Minister of Correctional Services and Others (CCT 42/05) [2005] ZACC 13; 2005 (12) BCLR 1187 (CC) (26 September 2005)

THE COURT
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 42/05
BONGANI
NORMAN MNGUNI Applicant
and
MINISTER
OF CORRECTIONAL SERVICES First Respondent
NATIONAL
COMMISSIONER OF CORRECTIONAL
SERVICES Second
Respondent
GAUTENG
PROVINCIAL COMMISSIONER Third Respondent
HEAD OF
LEEUWKOP MEDIUM “A” Fourth Respondent
CHAIRPERSON
OF CASE MANAGEMENT COMMITTEE Fifth Respondent
CHAIRPERSON
OF PAROLE BOARD, LEEUWKOP
PRISON Sixth
Respondent
Decided
on : 26 September 2005
JUDGMENT
THE COURT:
The
applicant, Mr Bongani Norman Mnguni, who brings this application
without the benefit of legal assistance, is serving a prison
term of
15 years at Leeuwkop Medium “A” Prison in Johannesburg. He
seeks an order requiring the respondents to reconsider
his request
for medical parole in terms of section 79 of the Correctional
Services Act, 111 of 1998 (the Act).
1
The
respondents are the Minister of Correctional Services, the national
Commissioner of Correctional Services, the provincial Commissioner
of Correctional Services in Gauteng where the prison is situated,
the head of the Leeuwkop prison, the chairperson of the Case
Management Committee at Leeuwkop prison established in terms of
section 42 of the Act and the chairperson of the Parole Board at
Leeuwkop. None of the respondents have, within the time set in the
rules, indicated that they intend to oppose the application.
The
applicant alleges that he was diagnosed as living with HIV-AIDS
during 1998 when he was already in prison; and that during 2004
his
doctor informed him that his CD 4 blood count had dropped below 200,
which is an indicator of a severely compromised immune
system. He
accordingly applied ─ unsuccessfully it would appear ─ for
medical parole.
The
applicant then approached the Johannesburg High Court for relief.
On 8 June 2005 an order was made by that court in the following
terms:
“
1. The applicant is to be
seen by the medical practitioner of Johannesburg Hospital on or
before 23 June 2005; and the medical practitioner
is to prepare the
applicant’s medical practitioner report/profile regarding the
status of the applicant.
2. The applicant gives consent
to the respondents to have access to his medical record.
3. The Case Management
Committee of Leeuwkop Medium “A” prison is to interview the
applicant on or before 14 July 2005 and to
prepare and submit the
report and the relevant documents to the Correctional Supervision and
Parole Board of Leeuwkop Johannesburg
in terms of the provisions of
section 42(2)(d)(i), (ii), (iii), (iv) and (vii) of Act 111 of 1998
regarding:
3.1 the offences for which the
applicant is serving his sentence of imprisonment together with the
judgment on the merits, and any
remarks made by the court in
sentencing him, if made available to the Department of Correctional
Services;
3.2 the criminal record of the
applicant;
3.3 the conduct, disciplinary
record, adaptation, training, aptitude, industry, physical and mental
state of the applicant;
3.4 the likelihood of his
relapse into crime, the risk he poses to the community and the manner
in which this risk can be reduced;
3.5 the possible placement of
the applicant on day parole or on parole or further alternative on
medical parole, and the conditions
for such placement.
4. The Case Management
Committee and the Correctional Supervision and Parole Board are to
have regard in favour of the Applicant’s
case for placement on
parole, to any credits the applicant may have earned before 1 October
2004, in terms of sections 22A and 62
of Act 8 of 1959.
5. The Correctional Supervision
and Parole Board of Leeuwkop is ordered to consider the placement on
parole of the Applicant taking
account of the following factors
enumerated in sections 69 and 63(F)(a)
5.1 the nature of the offence;
5.2 any remarks made by the
court in question at the time of imposition of sentence, if made
available to the Department of Correctional
Services;
5.3 the applicant’s conduct,
adaptation, training, aptitude, industry and physical and mental
state, and the possibility of his
relapse into crime;
5.4 the report of the Case
Management Committee aforesaid;
5.5 any written or oral
representations the Applicant may make to it.
6. A meeting of the
Correctional Supervision and Parole Board aforesaid will take place
in order to give effect to paragraph 5 of
this Order on or before 2
August 2005, and the Applicant is to be given at least seven (7) days
notice of such meeting.
7. The Applicant shall be
entitled to present his case during the interview at the Case
Management Committee and to actively participate
at the Correctional
Supervision and Parole Board proceeding.
8. No order as to the costs.”
The
applicant alleges that on 4 July 2005 he was called before the Case
Management Committee and informed that prisoners are no
longer
released on medical parole. The applicant seeks an order requiring
that this decision be reconsidered.
The
application is, in effect, for direct access to this Court in terms
of section 167(5) of the Constitution
2
and rule 18.
3
Because it is not ordinarily in the interests of justice for this
Court to sit as a court of first and final instance, such
applications
are only granted in exceptional circumstances.
4
We are not of the view that the applicant has established that
exceptional circumstances justifying direct access to this Court
in
this matter. The application must therefore be dismissed.
Nevertheless,
the issues raised by the applicant are important and it may be that
they require adjudication, though on the papers
lodged by the
applicant, and in the absence of any response from the respondents,
we cannot be sure. It does seem clear that the
issues are unlikely
to be formulated properly if the applicant does not receive some
legal advice. In the circumstances, it seems
appropriate to direct
that the registrar of this Court draw this judgment to the attention
of the Law Society for the Northern
Provinces with the request that
it consider whether to appoint an attorney to consult with the
applicant. The Law Society may
then decide whether the applicant
has a legal claim which needs to be pursued, and, if so, whether to
assist the applicant.
The
following order is made:
1.
The application for direct access is dismissed.
2. The registrar is directed to draw this judgment to the attention
of the Law Society for the Northern Provinces.
Langa
CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Skweyiya
J, Van der Westhuizen J and Yacoob J participated in the
decision of
the Court.
1
Section 79 provides as follows:
“
Any person serving any sentence in a prison and who,
based on the written evidence of the medical practitioner 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.”
2
Section 167(5) reads:
“
The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, a High Court, or a court of similar
status,
before that order has any force.”
3
Rule 18 reads:
“
(1) An application for direct access as contemplated
in section 167(6)(a) of the Constitution shall be brought on notice
of motion,
which shall be supported by an affidavit, which shall set
forth the facts upon which the applicant relies for relief.
An application in
terms of subrule (1) shall be lodged with the Registrar and served
on all parties with a direct or substantial
interest in the relief
claimed and shall set out–
the grounds on
which it is contended that it is in the interests of justice that
an order for direct access be granted;
the nature of the
relief sought and the grounds upon which such relief is based;
whether the matter
can be dealt with by the Court without the hearing of oral
evidence and, if it cannot,
how such evidence
should be adduced and conflicts of fact resolved.
Any person or party
wishing to oppose the application shall, within 10 days after the
lodging of such application, notify the
applicant and the Registrar
in writing of his or her intention to oppose.
After such notice of
intention to oppose has been received by the Registrar or where the
time for the lodging of such notice has
expired, the matter shall
be disposed of in accordance with directions given by the Chief
Justice, which may include–
a direction calling
upon the respondents to make written submissions to the Court
within a specified time as to whether or not
direct access should
be granted; or
a direction
indicating that no written submissions or affidavits need be
filed.
Applications for
direct access may be dealt with summarily, without hearing oral or
written argument other than that contained
in the application
itself: Provided that where the respondent has indicated his or her
intention to oppose in terms of subrule
(3), an application for
direct access shall be granted only after the provisions of subrule
(4)(a) have been complied with.
4
See
Bruce and Another v Fleecytex Johannesburg
CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at
para 8; see also
Ex parte Omar
2003 (10) BCLR 1087
(CC) at
para 4;
Satchwell v President of the Republic of South Africa and
Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at para 6;
Christian Education South Africa v Minister of Education
1999
(2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at para 4.
6