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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 83547/2016

4/7/2017

Not reportable

Not of interest to other Judges

In the matter between:

ANDILE QAQA                                                                                                                  Applicant

and

MINISTER OF CORRECTIONAL SERVICES                                          First Respondent

CHAIRPERSON, NATIONAL COUNCIL                                            Second Respondent

FOR CORRECTIONAL SERVICES

 

Summary: Review - Parole - prisoner serving sentence of life imprisonment - Parole Board recommending release of prisoner on day parole to prepare for full parole - National Council of Correctional Services not accepting the recommendation of the Parole Board and placing further for the applicant - Minister accepting recommendations of the National Council of Correctional Service. National Council and Minister's decisions made without having regard to the judgment on sentence, a key requirement- decision set aside and matter remitted to the Minister for reconsideration.

JUDGMENT

MAKGOKA, J

[1] On 30 June 2017 I made an order setting aside the first respondent's decision approving the second respondent's decision not to approve the placing of the applicant on parole. The first respondent was ordered to reconsider the applicant's parole application within 60 days of the order. The respondents were ordered to pay the applicants' costs. I undertook to furnish the reasons for that order, later. Here are the reasons.

[2] Mr Andile Qaqa, the applicant, seeks an order reviewing and setting aside the decision of the first respondent, the Minister of Correctional Services (the Minister) made on 13 June 2015 approving the second respondent's recommendation not to approve the placing of the applicant on parole. The applicant further seeks a substitution order in terms of which he is placed on parole with immediate effect in terms of s 65 of the Correctional Services Act 8 of 1959 (the old Act) on such conditions as this court may deem fit.

[3] In the alternative, the applicant seeks an order referring back the decision refusing him parole for reconsideration by the Minister and the second respondent, the National Council for Correctional Services (the National Council), of which its chairperson has been nominally cited. The applicant also seeks ancillary relief. Although the notice of intention to oppose indicates that both the Minister and the National Council, only the National Council has filed an answering affidavit. The Minister has not filed any answering affidavit.

The background facts

[4] The background facts are these. The applicant is currently serving a sentence of imprisonment for life at the Kirkwood Prison. He was convicted with two co-accused on 4 August 1999 of the following counts: murder, robbery with aggravating circumstances and illegal possession of a firearms and illegal possession of ammunition. On 10 August 1999 he was sentenced to imprisonment for life in respect of the murder count; ten (10) years' imprisonment for the robbery; twelve (12) months' imprisonment for the possession of illegal firearms and six (6) months for the possession of ammunition. These crimes involved an armed robbery on a cash-in transit guard van on 11 April 1994, during which Mr Andre Terblanche, a security officer, was shot and killed.

[5] On 17 September 1999 the applicant was further sentenced to two (2) years' imprisonment on two counts of escaping from lawful custody. Further, on 24 November 2000, the applicant was sentenced to fifteen (15) years' imprisonment for robbery on a bank, and three (3) years' imprisonment for unlawful possession of a firearm and one (1) imprisonment for unlawful possession of ammunition. In addition, the applicant had four previous convictions of theft (three counts) and possession of stolen property.

The legislative and policy framework for consideration of parole

[6] Before considering the merits of the grounds of review, a brief exposition of the legislative and policy framework within which decisions regarding placement of offenders on parole are made. The Correctional Services Act 111 of 1998 (the 1998 Act) an the relevant policies provide the following in respect of prisoners serving life imprisonment:

(a) A case management committee comprising of correctional officials in each prison, assess and interview longer-tern offenders at regular intervals and submit reports to the Correctional Supervision and Parole Boards (Parole Boards) regarding possible placement of offenders on parole and the conditions of such placement;

(b) The Parole Boards, established under s 74 of the 1998 Act, are appointed by the Minister. They consider the reports of the case management committees and make recommendations to the Minister on the placing on parole of offenders serving a sentence of life imprisonment;

(c) The Minister does not act directly on the recommendation of the Parole Boards. The Act requires that the parole board make recommendations to the National Council, established under s 83. The National Council comprises among others, two judges, a regional magistrate, Director or Deputy Director of Public Prosecutions, and persons with special knowledge of the correctional system;

(d) After considering the recommendation of the Parole Board, together with the relevant record of proceedings, the National Council may recommend to the Minister that parole be granted to an offender serving a sentence of life imprisonment.

(e) If the Minister does not approve the recommendation of the National Council, and decides to refuse to place an offender on parole, he may act in terms of s 78(2) of the 1998 Act, in terms of which he make recommendations in respect of ' treatment, care, development and support' of the offender which may contribute to improving the likelihood of future placement on parole or day parole.

(f) Parole decisions for prisoners serving sentences of life imprisonment prior to the coming into effect of the 1998 Act, must be made on the basis of the policies and guidelines applicable at the time they were sentenced and in accordance with the repealed Correctional Services Act 8 of 1959 (the 1959 Act). The policy guidelines are contained in the 'Parole Manual' issued by the Commissioner of Correctional Services.

The jurisprudence in respect of prisoners sentenced before 1 October 2004

[7] Section 65(4)(a) of the 1959 Act entitled inmates serving a determinate sentence to be considered for placement on parole when they have served half of their terms of imprisonment. It, however, makes provision for acceleration of the date on which such inmates may be considered for parole on the basis of the credits earned by them. The 1998 Act repealed the 1959 Act in whole with effect from the 1 October 2004. The 1998 Act, however, subjects inmates serving custodial sentences as at the 1 October 2004, to the parole regime of the 1959 Act. Section 136(1) of the 1998 Act, which makes provision for transitional periods, reads as follows:

‘Any person serving a sentence of incarceration immediately before the commencement of Chapters IV, VI and VII is subject to the provisions of the Correctional Services Act, 1959 (Act 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 Van Vuren v Minister of Correctional Services and others 2012 (1) SACR 103 (CC) the Constitutional Court held that s 136(1) refers to any person serving a term of imprisonment, including that serving life imprisonment. 

[9] Section 136(2) provides that when considering the release and placement of a prisoner serving a sentence of imprisonment as contemplated in subsection (1), such prisoner must be allocated the maximum number of credits in terms of s 22A of the 1959 Act. Section 22A created a system for the allocation of credits to offenders for their compliance with the rules of the correctional institution and their active participation in programmes aimed at their treatment, training and rehabilitation. It provided:

‘(1) A prisoner may earn credits to be awarded by an institutional committee, by observing the rules which apply in the prison and by actively taking part in the programmes which are aimed at his treatment, training and rehabilitation. Provided that-

(a) a prisoner may not earn credits amounting to more than half of the period of imprisonment which he has served;

…

(2) The number of days and months earned by a prisoner as credits may be taken into account in determining the date on which a parole board may consider the placement of such a prisoner on parole. '

[10] Section 22 (and various provisions of the 1959 Act) was, however, repealed by the Parole and Correctional Supervision Amendment Act 87 of 1997 which came into force on 1 October 2004. The 1998 Act created a new system for the early release of offenders in Chapters IV, VI and VII. In terms of the new dispensation, ' a sentenced offender serving a determinate sentence or cumulative sentences of more than 24 months may not be placed on day parole or parole until such sentenced offender has served either the stipulated non­ parole period, or if no non-parole period was stipulated, half of the sentence' (s 73(6)(a) of the 1998 Act). There is no provision for any kind of a credit system except in s 136, referred to above.

[11] In Van Wyk v Minister of Correctional Services & Others 2012 (1) SACR 159 (GNP), this court held that offenders who were serving sentences of life incarceration immediately before 1 October 2004 are entitled to have the date on which they may be considered for parole advanced by credits earned in terms of section 22A of the 1959 Act, subject to the applicable criteria for the allocation of credits.

[12] Following Van Wyk, the then Department of Correctional Services adopted an implementation plan in terms of which prisoners serving life terms sentenced before 1 October 2004 are granted maximum credits under section 22A of the 1959 Act. In terms of the implementation plan, the minimum detention period for prisoners serving life imprisonment sentenced before 1 October 2004 is accordingly thirteen years and eight months. This accords with the provision in s 22A of the 1959 Act that an offender may not earn credits amounting to more than half of the period of incarceration, which he has served.

[10] The Supreme Court of Appeal neatly summed up the position thus in Minister of Correctional Services and others v Seganoe 2016 (1) SACR 221 (SCA):

'[13] The position of sentenced offenders serving determinate sentences at the commencement of Chapter VII of the 1998 Act, ie on 1 October 2004, is clear from a plain reading of the above provisions. In Van Vuren, the Constitutional Court held that the phrase ‘any person’ ins 136(1) refers to any person serving a sentence of incarceration and that the provisions relate 'to an offender’s placement under community corrections and his or her consideration for such release and placement in terms of the policy and guidelines applied by the former parole boards prior to 2004'. Section 136(I) therefore preserves the parole policy and guidelines that applied before the commencement of the 1998 Act, in 2004, in relation to this particular class of offenders. Their eligibility for placement on parole must, therefore, be assessed in terms of the 1959 Act. They are entitled to receive the maximum number of credits in terms of s 22A thereof. Obviously, the legislature's intention was to obviate prejudice to offenders sentenced under the old dispensation by the retrospective application of the new provisions which take away the credit system available when they were sentenced.'

(footnotes omitted.)

 

The applicant's parole application

[13] The applicant was allocated the maximum number of credits in terms of s 22A of the 1959 Act, which had the effect of bringing forward his date of consideration for placement on parole. The total number of credits that were allocated to the applicant amounted to six (6) years and eight (8) months. This had the effect that the applicant was considered for place before serving 20 years of the sentence.

[14] The applicant was considered twice for consideration of being placed on parole - first on 10 May 2013 and on 25 May 2015. On the first occasion, the Parole Board recommended that the applicant furnish further information to close 'the gaps' identified by it. It forwarded the application to the National Council, which resolved not to recommend the applicant for parole. The reasons for that decision were stated as follows:

(a) The applicant needed to be involved in further rehabilitation programmes and psychological ' interventions' as may be prescribed by a social worker and psychologist;

(b) The National Council was not persuaded that sufficient steps had been taken to further the aims of restorative justice by means of offender/victim/next of kin of deceased, dialogue;

(c) The National Council wished to have access to the files of the applicant's accomplices, for the purpose of assessing the prospect and risk of re­ offending. It therefore suggested the sub-joining of the accomplices' files with that of the applicant.

[15] The Minister approved the recommendation on 11 October 2013. After the second consideration on 22 May 2015, the Parole Board, on 25 May 2015,recommended day parole for a period of 12 months and thereafter parole for 2 years as the information required became available the ' gaps' it had identified, are closed. On 12 June 2015 the National Council resolved not to recommend the placement of the applicant on parole, but recommended reconsideration of the matter in not more than twenty four (24) months, which means that the applicant's placement on parole was to be reconsidered by 24 May 2017.

[16] The National Council further recommended that:

(a) attempts should be made to obtain a copy of the judgment on the conviction and the sentence;

(b) restorative justice processes should be pursued and proof of all such attempts should be documented and be included when the profile is resubmitted;

(c) the department of Correctional Services should assist the applicant to pursue his studies ;

(d)the risk factors1[1] identified by the psychologist should be attended to.

[17] The Minister approved the National Council's recommendations on 13 June 2015. On 19 October 2015 the applicant launched this application against the Minister's decision. As stated earlier, the Minister has not filed an answering affidavit. The answering affidavit on behalf of the National Council, the second respondent, has been deposed to by Mr Charl Cilliers, a penologist and a member of the National Council. I assume that the Minister relies on the affidavit of Mr Cilliers.

 

Grounds for review

[18] The applicant impugns the decision of the Minister on various provisions of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) for the review of the Minister's decision. The grounds of procedural unfairness and error of law having been abandoned by the applicant's counsel in his supplementary written submissions, the remaining grounds, which I consider in tum, are as follows:

(a) A mandatory and material procedure or condition prescribed by an empowering provision was not complied with - s 6(2)(b);

(b) The decision was taken because irrelevant considerations were taken into account or relevant considerations were not considered- s 6(2)(e)(iii);

(c) The decision itself is not rationally connected to the purpose of the empowering provision or the information before the Minister - s 6(2)(f)(ii);

(d) The exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the decision was purportedly taken, is so unreasonable that no reasonable person could so exercised the power or performed the function - s 6(2)(h).

 

A mandatory and material procedure or condition prescribed by an empowering provision not complied with.

[19 In this regard, it is common cause that the Parole Board, the National Council and the Minister considered the applicant's parole application without a copy of the judgment on sentence. But it is not clear why, though. It is not clear from the papers whether it had already been obtained when the applicant appeared before the Parole Board on 22 May 2015. In his founding affidavit, the applicant referred to the judgment and attached a copy of thereof to the affidavit. It is not clear how, and when, he obtained the judgment, except a statement that the members of the case management committee at Kirkwood Correctional Centre 'were already in possession of the sentencing remarks as at 20 July 2015.

[20] What is strange, though, is that the judgment on sentence forms part of the record of proceedings filed by the respondents' record of proceedings, suggesting that it was part of the documents which the National Council considered when it made its decision. It is unfortunate that the Minister elected not to file an answering affidavit, which could have clarified the position as to what really transpired. Mr Cilliers' answering affidavit on behalf of the National Council is not helpful, either.

[21] As mentioned above, the applicant in his founding affidavit suggested that the judgment had been available much earlier. One would have expected Mr Cilliers, as a member of the National Council, to clarify that aspect in his answering affidavit. He did not. In dealing with the applicant's paragraph regarding the availability of the record, he was contend to simply 'note' the allegations. But, whatever might have happened, it is clear, on the National Council's version, that it did not consider the judgment on sentence when it made a decision not to accept the Parole Board's decision to place the applicant on day parole.

[22] In terms of the parole manual , one of the key requirements that need to be considered when a parole decision is made is that the sentencing remarks or judgment on sentence must be before the Parole Board, the National Council and the Minister as part of the record. In Van Vuren para it was held that the policy and guidelines contained in the parole manual must be applied and taken into account when parole decisions are made. In light of the above, it is plain that the National Council and the Minister must consider the judgment on sentence for a decision whether to place the applicant on parole.

[23] Given the view I take of the matter, it is not necessary for me to consider other grounds of review.

 

Substitution or referral back to the Minister?

[24] I tum now to the applicant's request for a substation order. In the circumstances of the case, would it be appropriate to substitute this court's decision for that of the Minister? I tum to consider that aspect.

[25] The law in this regard is well-settled. Courts will not lightly interfere with the exercise of a discretionary power of the executive or administration. In terms of s 8(l)(c)(ii)(aa) of the PAJA the court has the discretion to substitute the administrative action in ' exceptional cases'. What constitutes 'exceptional' was considered in Gauteng Gambling Board v Silverstar Development Ltd and others 2005 (4) SA 67 (SCA) where it was stated:

'[28] Since the normal rule of common law is that an administrative organ on which a power is conferred is the ·appropriate entity to exercise that power, a case is exceptional when, upon a proper consideration of all the relevant facts, a court is persuaded that a decision to exercise a power should not be left to the designated functionary. How that conclusion is to be reached is not statutorily ordained and will depend on established principles informed by the constitutional imperative that administrative action must be lawful reasonable and procedurally fair’.

[26] In Trencon Construction v Industrial Development Corporation of South Africa (Pty) Ltd and another 2015 (5) SA 245 (CC) the Constitutional Court at paras 47-55, summarised the principles governing a consideration whether there are exceptional circumstances, and how a court should conduct such an enquiry, given the doctrine of separation of powers. The following factors should be considered: The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion, which factors must be considered cumulatively. Thereafter, a court should still consider other relevant factors. These may include delay, _bias or the incompetence of an administrator.

[27] The Constitutional Court further explained that a court will not be in as good a position as the administrator where the application of the administrator's expertise is still required and a court does not have all the pertinent information before it. Once a court has established that it is in as good a position as the administrator, it is competent to enquire into whether the decision of the administrator is a foregone conclusion. A foregone conclusion exists where there is only one proper outcome of the exercise of an administrator's discretion and 'it would merely be a waste of time to order the [administrator] to reconsider the matter'. There can never be a foregone conclusion unless a court is in as good a position as the administrator.

[28] Finally, the Constitutional Court pointed out that a court must consider other relevant factors, including delay. Ultimately, the appropriateness of a substitution order must depend on the consideration of fairness to the implicated parties. If the administrator is found to have been biased or grossly incompetent, it may be unfair to ask a party to resubmit itself to the administrator's jurisdiction. In those instances, bias or incompetence would weigh heavily in favour of a substitution order. However, having regard to the notion of fairness, a court may still substitute even where there is no instance of bias or incompetence.

[29] In the present case, it was submitted that it would merely be a waste of time to order the Minister to reconsider the matter under circumstances where it is clear that it would be a foregone conclusion. It was further submitted that the court is in as good a position as the Minister in order to make a substitution order. It was accordingly contended that the court should order that the applicant be placed on day parole subject to conditions.

[30] I disagree. Properly construed, the recommendation by the National Council, accepted by the Minister, was never meant to be a final word on the applicant's application to be placed on parole. As stated earlier, the matter was supposed to be reconsidered towards the end of May 2017. However, the applicant elected not to await the reconsideration, and launched review proceedings. When that date came, the review application had not been determined, as judgment was still pending. It can therefore be assumed that the reconsideration did not occur. I therefore conclude that it would be inappropriate to make a substitution order. The applicant has simply made no case for it. I am of the view that an order for reconsideration within 60 days would be fair to the parties.

[31] Finally, there remains the issue of costs. The applicant has achieved substantial success. The Minister and the National Council are liable to pay the applicant's costs. Besides, they have been very unhelpful to the court in matters that fall within their peculiar knowledge.

[32] The aforegoing are the reasons for the order referred to in para 1. For completeness' sake, I repeat the order below:

1. The decision of the first respondent on 13 June 2015 approving the recommendation of the second respondent not to place the applicant on parole is reviewed and set aside;

2. The first respondent is ordered to reconsider the applicant' s parole application within 60 days of the date of this order;

3. The first respondent and the second respondent are ordered to pay the applicant's costs, jointly and severally, the one paying the other to be absolved.

TM Makgoka

Judge of the High Court

 

Heard: 20 March 2017

Order made: 30 June 2017

Reasons furnished: 4 July 2017

 

APPEARANCES:

For the Applicant: L Kellerman SC

Instructed by: Julian Knight and Associates, Pretoria

For the Respondents: M Moerane SC (with EB Ndebele)

Instructed by: State Attorney, Pretoria

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