Van Vuren v Minister of Justice and Constitutional Development and Another (CCT15/07) [2007] ZACC 11; 2007 (8) BCLR 903 (CC) (1 June 2007)

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[2007] ZACC 11
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Van Vuren v Minister of Justice and Constitutional Development and Another (CCT15/07) [2007] ZACC 11; 2007 (8) BCLR 903 (CC) (1 June 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 15/07
PAUL F VAN VUREN                                                                                             Â
Applicant
                                                                                                                                        Â
versus
MINISTER
OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT                                                     Â
First
Respondent
MINISTER
OF CORRECTIONAL SERVICES                                       Second
Respondent
Decided on     :           1 June 2007
JUDGMENT
THE COURT:
[1]
The applicant, Mr Paul van Vuren, seeks direct
access to this Court in terms of section 167(6)(a) of the Constitution
[1]
and Constitutional Court Rule
18,
[2]
to obtain an order declaring
section 136(3)(a)
[3]
of the Correctional Services Act 111 of 1998 (the Act) to be inconsistent with
the Constitution.
[2]
The applicant represents himself.  He is
presently serving sentences in the Pretoria Central Correctional Centre.  He
also seeks
an order condoning his non-compliance with Rule 11(1)(b), which requires
that an address for service be provided within 25 kilometres
from the office of
the Registrar.
[3]
The respondents are the Minister of Justice and
Constitutional Development and the Minister of Correctional Services.  Neither has,

within the time periods provided for in the Rules, indicated an intention to
oppose the application.
[4]
On 13 November 1992 the applicant was convicted
of murder, robbery with aggravating circumstances, theft and possession of an
unlicensed
firearm and ammunition.  On the counts of murder and robbery, he received
death sentences.  For theft a sentence of five years’
imprisonment was imposed.Â
He was sentenced to three years’ imprisonment on the possession counts.
[5]
On or about 20 September 2000 the death sentences
imposed on the applicant were commuted to life imprisonment, antedated to 13
November
1992.  The determinate sentences run concurrently with the life
sentences.
[4]
Â
During his imprisonment, Mr van Vuren apparently received amnesty credits which,
he submits, allows a reduction of 24 months
in relation to the sentences
imposed.
[6]
According to the applicant, from the time that
the crimes were committed until March 1994, the policy of the Department of Correctional

Services was to consider parole for persons sentenced to life imprisonment after
they had served a minimum of ten years’ imprisonment.
 The norm, however, was
that persons were usually paroled only after having served fifteen years of
their sentences.  To date,
the applicant has served over fourteen years of his
sentence.
[7]
The applicant alleges that the policy was changed
on 1 March 1994 to provide that a prisoner sentenced to life imprisonment had
to serve twenty years’ imprisonment before he or she became eligible for
parole.  That policy was later turned into a statutory
provision, through the
enactment of section 136(3)(a) of the Act.
[5]
Â
In relation to sentences imposed before the enactment of the new policy, section
136(1) of the Act provides:
“Any person serving a sentence of
imprisonment immediately before the commencement of Chapters IV, VI and VII is
subject to the
provisions of the Correctional Services Act, 1959 (Act No. 8 of
1959), relating to his or her placement under community corrections,
and is to
be considered for such release and placement by the Correctional Supervision
and Parole Board in terms of the policy
and guidelines applied by the former
Parole Boards prior to the commencement of those Chapters.”
[8]
In late 2006 the applicant applied to the
Pretoria High Court for an order in the following terms:
[6]
“1.  That the 4
th
Respondent be ordered to consider the
Applicant for recommendation for placement on parole in terms of the parole
policies and
Act(s) that were in effect on 13
th
November 1992 when
Applicant was first sentenced, and
2.  That the Respondents take into account the amnesties and credits
the Applicant qualified for since incarcerated when considering
recommending
Applicant for parole and/or placement on parole, and
3.  That the Applicant be considered for placement on parole with
immediate effect, and
4.  That the 1
st
Respondent shall forward a decision
regarding the Applicant’s release on parole no later than 30 November 2006,
failing which
the Applicant shall be entitled to approach the Honourable Court
for an order requesting his release on parole from this Court,
and
5.  That the Respondents be ordered jointly and severally to pay the
costs of this application on an attorney client scale . . .
.”
[9]
In respect of the credits claimed by the applicant,
Molopa J, relying on sections 65(4)(a) of the Correctional Services Act 8 of

1959
[7]
and 136(2) of the Act,
[8]
held that since life
imprisonment is not a determinate sentence, credits have no role to play.  In
relation to the applicant’s
eligibility to be placed on parole, the High Court
considered the provisions of section 136(3)(a) of the Act and held that he would

only qualify to be considered to be placed on parole after serving a minimum of
twenty years of his sentence.  The application
was dismissed and no order was
made as to costs.
[9]
[10]
The relief sought by the applicant in the High
Court was materially different from the relief now sought in this Court.  In
the
High Court the applicant did not seek an order declaring section 136(3)(a)
of the Act unconstitutional.  He sought an interpretation
of the section that
enabled him to qualify for parole in terms of a pre-existing parole policy.
[11]
This Court has stressed that it is ordinarily not
in the interests of justice for it to sit as a court of first and last instance

and that direct access should only be granted in exceptional circumstances.
[10]
  Assuming that the High Court
was correct concerning the credits claimed by the applicant, the fifteen-year
period for the threshold
requirement would be reached approximately six months
from now.
[12]
Mr van Vuren’s case appears to be premised on
the prejudice he may suffer if the statutory provision in question is
retrospective
in effect.  His case may implicate any changes in parole policy
from 1994 and the proper interpretation of related provisions of
the Act.  His
case has not been clearly and properly formulated.  He contends that others in
a similar position are also affected.Â
The issue is certainly one of importance
and complexity and it may be that adjudication is required.  The interests of
justice
require that he receive legal advice to enable him to launch an
application in the High Court, properly formulated and substantiated.Â
It would
also be fair to the respondents, who will then be in a position to formulate a
response and place evidence before the
court.
[13]
It must be noted, however, that the papers in
this matter were served on the State Attorney, Pretoria, as the legal
representative
of the respondents.  Regrettably, no notice of intention to
oppose, or any other response, has been filed, even though the constitutionality

of national legislation was put in issue.
[11]
[14]
In the circumstances, it is appropriate to
direct the Registrar to bring this judgment to the attention of the Law Society
of the
Northern Provinces, with a request to consider whether one of its
members might provide assistance to Mr van Vuren and perhaps,
if his claim is
deemed meritorious, to institute appropriate action in the High Court.  The
judgment must also be brought to the
attention of both respondents as well as
the State Attorney in Pretoria.
[15]
In our view, the applicant has not shown that it
would be in the interests of justice to grant direct access to this Court.
[16]
Accordingly, the following order is made:
1.
The application for condonation is granted.
2.
The application for direct access is refused.
3.
The Registrar is directed to bring this judgment
to the attention of the Law Society of the Northern Provinces, the respondents
and the State Attorney, Pretoria.
Moseneke
DCJ, Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde J, O’Regan J, Sachs J,
Skweyiya J and Van der Westhuizen J.
[1]
Section 167(6)(a) provides:
“National
legislation or the rules of the Constitutional Court must allow a person, when
it is in the interests of justice and
with leave of the Constitutional Court to
bring a matter directly to the Constitutional Court . . . .”
[2]
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.
(2)           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—
                (a)           the
grounds on which it is contended that it is in the interests of justice
that                          an
order for direct access be granted;
                (b)           the
nature of the relief sought and the grounds upon which such relief is
                               based;
                (c)           whether
the matter can be dealt with by the Court without the hearing of oral
                        evidence
and, if it cannot,
                (d)           how
such evidence should be adduced and conflicts of fact resolved.”
[3]
Section 136(3)(a) provides:
“Any
prisoner serving a sentence of life imprisonment immediately before the
commencement of Chapters IV, VI and VII is entitled
to be considered for day
parole and parole after he or she has served 20 years of the sentence.”
[4]
Section 39(2)(a)(ii) of the Act provides:
“Subject
to the provisions of paragraph (b), a person who receives more than one
sentence of imprisonment or receives additional
sentences while serving a term
of imprisonment, must serve each such sentence, the one after the expiration,
setting aside or remission
of the other, in such order as the Commissioner may
determine, unless the court specifically directs otherwise, or unless the court

directs that such sentences shall run concurrently but . . . one or more life
sentences and one or more sentences to be served
in consequence of a person
being declared an habitual criminal or a dangerous criminal also run
concurrently . . . .”
Section 39(2)(a)(ii) of the Act replaced
section 32(2) of the Correctional Services Act 8 of 1959 Act, which provided:
“When a
person receives more than one sentence of imprisonment or receives additional
sentences while serving a term of imprisonment,
each such sentence shall be
served the one after the expiration, setting aside or remission, unless the
court specifically directs
otherwise . . .  or unless the court directs that
such sentences shall run concurrently: . . . Provided further that any
determinate
sentence of imprisonment to be served by any person shall run
concurrently with a life sentence or with an indeterminate sentence
of
imprisonment to be served by such person in consequence of being declared an
habitual criminal . . . .”
[5]
Above n 3.  The Act came into operation on 31 July 2004 (unless
otherwise indicated).  Section 136(3)(a) does not indicate otherwise.
[6]
Case No 31596/06.
[7]
Section 65(4)(a), as amended by the
Correctional Services Amendment
Act 68 of 1993
, and now repealed, provided that:
“…the
date on which consideration may be given to whether a prisoner may be placed on
parole may be brought forward by the number
of credits earned by the prisoner.”
[8]
Section 136(2)
, under the heading “Transitional provisions”,
provides:
“When
considering the release and placement of a prisoner who is serving a
determinate sentence of imprisonment as contemplated
in subsection (1), such
prisoner must be allocated the maximum number of credits in terms of section
22A of the Correctional Services
Act, 1959 (Act No. 8 of 1959).”
[9]
Court order dated 13 February 2007, reasons furnished on 10 May
2007.
[10]
See for example
Mkontwana v Nelson Mandela Metropolitan
Municipality and Another; Bissett and Others v Buffalo City Municipality and
Others; Transfer
Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi

Municipality as
Amici Curiae
)
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR
150
(CC) at para 11;
Mnguni v Minister of Correctional Services and Others
2005 (12) BCLR 1187
(CC);
De Kock v Minister of Water Affairs and Forestry
and Others
2005 (12) BCLR 1183
(CC) at paras 3-4;
Bruce and Another v
Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR
415
(CC) at paras 7-9.
[11]
The difficulties associated with the lack of submissions by the
State Attorney on matters that raise the constitutional invalidity
of
legislation have been set out in
South African Liquor Traders Association
and Others v Chairperson, Gauteng Liquor Board and Others
[2006] ZACC 7
;
2006 (8) BCLR 901
(CC).  This case also clearly sets out this Court’s response to such conduct of
the State Attorney at paras 50-54.  A similar
situation recently occurred in
the case of
Dingaan Hendrik Nyathi v MEC for the Department of Health, Gauteng and Another
, CCT 19/07, in which this Court made a punitive costs order against
the State.