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[2011] ZACC 9
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Minister for Correctional Services and Another v Van Vuren and Another and Another, In re Van Vuuren v Minister for Correctional Services and Others (CCT 07/10) [2011] ZACC 9; 2011 (10) BCLR 1051 (CC) (31 March 2011)
Links to summary
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 07/10
[2011] ZACC 9
In the matter between:
MINISTER FOR CORRECTIONAL SERVICES
…...................................
First
Applicant
COMMISSIONER OF CORRECTIONAL SERVICES
….....................
Second
Applicant
and
PAUL FRANCIOUS VAN VUREN
….....................................................
First
Respondent
CHAIRPERSON, NATIONAL COUNCIL FOR
CORRECTIONAL SERVICES
…........................................................
Second
Respondent
In re:
PAUL FRANCIOUS VAN VUREN
…........................................................
First
Applicant
and
MINISTER FOR CORRECTIONAL SERVICES
…...............................
First
Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
….............................................................................
Second
Respondent
COMMISSIONER OF CORRECTIONAL SERVICES
….....................
Third
Respondent
CHAIRPERSON, NATIONAL COUNCIL
FOR CORRECTIONAL SERVICES
…................................................
Fourth
Respondent
CHAIRPERSON, CSPB PRETORIA CENTRAL CC
….........................
Fifth
Respondent
CHAIRPERSON, CMC PRETORIA CENTRAL CC
….........................
Sixth
Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
…............
Seventh
Respondent
Decided on : 31 March 2011
JUDGMENT
THE COURT:
This
is an urgent application
1
for an order (a) that Mr Van Vuren or any offender, who was serving
a sentence of life imprisonment before 1 October 2004, shall
not be
considered by the Minister for Correctional Services (Minister) for
placement on parole unless the National Council for
Correctional
Services (NCCS) has made a recommendation to the Minister regarding
his or her placement on parole and (b) varying
the order in
paragraph 78(g) of the judgment handed down by this Court in
Van
Vuren v Minister for Correctional Services and Others
2
(main judgment), by inserting the words “acting on the
recommendation of the [NCCS]” after the words “Minister
for Correctional Services”.
3
The
order sought to be varied reads:
“
The
Case Management Committee, to the extent that it is statutorily
authorised to do so, the Correctional Supervision and Parole
Board
and the Minister for Correctional Services are ordered to consider
the applicant for release and placement under community
corrections,
with immediate effect.”
4
The
Minister and the Commissioner of Correctional Services
(Commissioner) are the first and second applicants respectively.
They were parties in the main application. Mr Van Vuren, the first
respondent, was the applicant in the main application. The
Chairperson of the NCCS, the second respondent, was the fourth
respondent in the main application.
The
insertion the applicants seek would, if the order is varied, result
in that order reading:
“
The
Case Management Committee, to the extent that it is statutorily
authorised to do so, the Correctional Supervision and Parole
Board
and the Minister for Correctional Services, acting on the
recommendation of the National Council for Correctional Services,
are
ordered to consider the applicant for release and placement under
community corrections, with immediate effect.”
According
to the applicants, the NCCS understands the main judgment as meaning
that the NCCS no longer has jurisdiction to consider,
for purposes
of making a recommendation to the Minister, the placement of
offenders who were sentenced to life incarceration
on parole. The
applicants submit
5
that, absent a recommendation by the NCCS, any decision by the
Minister for the placement of such an offender on parole would
be
ultra vires
and would constitute reviewable administrative
action. They argue that a recommendation by the NCCS is a
jurisdictional fact
for administrative action by the Minister. Put
differently, the applicants understood the main judgment to mean
that the Correctional
Services Act, 1959
6
required that any consideration by the Minister should be preceded
by and based on a positive recommendation by the National
Advisory
Council for Correctional Services.
Mr
Van Vuren contends that, while the NCCS has jurisdiction to consider
the placement of an inmate serving a sentence of life
incarceration
on parole, nowhere in the
Correctional Services Act, 1998
7
(New Act) is it stipulated that the Correctional Supervision and
Parole Board has to refer an application to the NCCS, that the
Minister has to refer the matter to the NCCS for recommendation, or
that a recommendation by the NCCS for the release of an inmate
is a
condition precedent for the release of an inmate. Mr Van Vuren
submits that, the Minister, in exercising his or her discretion,
in
terms of section 78(1)
8
of the New Act, can grant or refuse parole. He argues that it is not
compulsory for the NCCS to make a recommendation to the
Minister. Mr
Van Vuren submits that paragraph 78(g) of the order is unambiguous
and that the application for its variation should
be dismissed.
Rule
42(1) of the Uniform Rules of Court
9
empowers a court to rescind or vary an order or judgment erroneously
sought or granted, in which there is an ambiguity or a patent
error
or omission, or in which there is a common mistake by the parties.
10
The jurisdictional facts in subrule (1) must, however, be
established by the party seeking variation before a court may
exercise
its discretion to set aside the order or to amend it.
A
court may clarify its order or judgment to give effect to its true
intention which is to be ascertained from the language used
without
altering the sense and substance of the judgment if, on its proper
interpretation, the meaning remains unclear.
11
But once a court has pronounced a final judgment or order, it has,
itself, no authority to correct, alter or supplement it. The
rationale for this principle is delineated by Ngcobo J in
Zondi v
MEC, Traditional and Local Government Affairs
12
that:
“
In the
first place a Judge who has given a final order is
functus
officio
.
Once a Judge has fully exercised his or her jurisdiction, his or her
authority over the subject matter ceases. The other equally
important
consideration is the public interest in bringing litigation to
finality. The parties must be assured that once an order
of Court has
been made, it is final and they can arrange their affairs in
accordance with that order.”
13
(Footnotes
omitted.)
The
main judgment is clear. There can be no doubt that it does not refer
to all people sentenced to life incarceration before
1 October 2004.
It only applies to those sentenced to life incarceration before the
introduction of “the 20-year pre-parole
minimum” which
happened either during March 1994 or April 1995. The judgment
undoubtedly excludes the NCCS from the process
of parole
consideration and there is no basis for the suggestion that the NCCS
was intended to be included in that process either
explicitly or
implicitly. Finally, the notion that the implementation of the order
of this Court will amount to unlawful administrative
action must be
firmly rejected.
This
Court would ordinarily have dismissed this application because rule
42(1) had not been properly engaged in the sense that
its
requirements had not been met. The only reason for this judgment is
the difference of opinion between the NCCS on the one
hand and the
Minister on the other, which seemed to be a stumbling block to
parole consideration and to the implementation of
the main judgment.
This
matter has been decided without hearing oral submissions. Mr Van
Vuren, although represented by an attorney, does not ask
for costs.
Accordingly, it is just and equitable to make no order as to costs.
In
the result, the following order is made:
The
application is dismissed.
There
is no order as to costs.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J,
Mthiyane AJ, Nkabinde J and Yacoob J.
For the Applicants: Advocate MTK Moerane SC and Advocate
TWG Bester instructed by the State Attorney, Pretoria.
For the First Respondent: Advocate GC Muller SC instructed by Jaco
Du Plessis Attorneys.
1
Rule
12 of the Rules of this Court makes provision for urgent
applications. It provides that:
“
(1)
In
urgent applications, the Chief Justice may dispense with the forms
and service provided for in these rules and may give directions
for
the matter to be dealt with at such time and in such manner and in
accordance with such procedure, which shall as far as
is practicable
be in accordance with these rules, as may be appropriate.
(2) An application in terms of
subrule
(1)
shall on notice of motion be accompanied by an affidavit
setting forth explicitly the circumstances that justify a departure
from the ordinary procedures.”
2
[2010]
ZACC 17
;
2010 (12) BCLR 1233
(CC). The judgment was delivered on 30
September 2010.
3
The
relief sought in terms of the notice of motion reads:
“
1. That the application be
heard as a matter of urgency in terms of rule 12 of the Rules of the
Constitutional Court and that
the forms and service provided for in
such rules be dispensed with;
2. That it is declared that the First Respondent, or
any other offender who was serving a sentence of life imprisonment
before
1 October 2004, shall not be considered by the Minister of
Correctional Services (the First Applicant) for placement under day
parole or parole unless the National Council for Correctional
Services (the Second Respondent) has made a recommendation to the
Minister regarding his or her placement on parole;
3. That paragraph [78](g) of the order made in the
application under case no. CCT07/10 is varied to read as follows:
‘
(g) The Case Management
Committee, to the extent that it is statutorily authorised to do so,
the Correctional Supervision and
Parole Board and the Minister for
Correctional Services, acting on the recommendation of the National
Council for Correctional
Services, are ordered to consider the
applicant for release and placement under community corrections,
with immediate effect.’
4. Further and/or alternative relief.”
4
Above
n 2 at para 78(g).
5
The
parties filed submissions consequent to the directions by the Chief
Justice dated 1 February 2011. Para 1 of these directions
reads:
“
1. The parties are invited to
submit written argument on the following questions:
Whether the order granted by this Court on 30
September 2010 requires clarification or amendment, and, if so,
What the terms of the amendment order should be?”
6
8
of 1959.
7
111
of 1998.
8
It
provides that:
“
Having
considered
the record of the proceedings of the Correctional Supervision and
Parole Board and its recommendation in the case of
a person
sentenced to life incarceration, the [NCCS] may . . . recommend to
the Minister to grant parole or day parole and prescribe
the
conditions of community corrections in terms of section 52.”
9
In
terms of rule 29 of the Rules of this Court, rule 42 of the Uniform
Rules of Court applies to proceedings in this Court.
10
Rule
42(1) provides:
“
The court may, in addition to
any other powers it may have,
mero
motu
or
upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby;
(b) an order or judgment in which there is ambiguity,
or a patent error or omission, but only to the extent of such
ambiguity,
error or omission;
(c) an order or judgment granted as the result of a
mistake common to the parties.”
11
Firestone
South Africa (Pty.) Ltd. v Genticuro A.G.
1977 (4) SA 298
(A.D.)
at 307A-E. See also
Thompson v South African Broadcasting
Corporation
[2000] ZASCA 76
;
2001 (3) SA 746
(SCA) at paras 5-6 and
S v Wells
1990 (1) SA 816
(AD) at 820C-F.
12
[2005]
ZACC 18
;
2006 (3) BCLR 423
(CC);
2006 (3) SA 1
(CC)
.
13
Id
at para 28. See also
Firestone
above n 11 at 306F-G and
Minister for
Justice v Ntuli
[1997] ZACC 7
;
1997 (6) BCLR 677
(CC);
1997 (3)
SA 772
(CC) at para 29
.