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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 2023-076681

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED.

DATE 29/11/2024

LENYAI J

 

In the matter of:

 

MARTIN MAHLANGU                                                                                         Applicant

 

And

 

THE MINISTER OF JUSTICE

&  CORRECTIONAL SERVICES                                                            First Respondent

 

THE NATIONAL COUNCIL FOR

CORRECTIONAL SERVICE                                                               Second Respondent

 

THE PAROLE BOARD                                                                            Third Respondent

HEAD OF PRISON: WITBANK CORRECTIONAL

CENTER                                                                                                Fourth Respondent

 

HEAD OF PRISON: BARBERTON

CORRECTIONAL SERVICE                                                                   Fifth Respondent

 

AREA COMMISSIONER OF CORRECTIONAL

SERVICE                                                                                               Sixth Respondent

                                          

Delivered: This judgment is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading to Caselines. The date and time of hand-down is deemed to be 14:00 on 29 November 2024

 

JUDGEMENT

LENYAI J

[1]      This is an application in terms of which the following reliefs are sought against the respondents:

 

(a)      That the late filling of the review application be condoned in respect of the first respondent’s decision to refuse to release the applicant on parole;

 

(b)      That the decision of the first respondent to refuse to release the applicant on parole, be reviewed and set aside;

 

(c)      The decision of the fourth respondent to transfer the applicant from Witbank Correctional Centre to Barberton Maximum Security Centre be reviewed and set aside, and the applicant return to Witbank Correctional Centre within 10 days of the order.

 

(d)      Costs of the application, on Attorney and client scale, against the respondents, jointly and severally, the one paying the other absolved.

 

[2]      There was no opposition to the condonation application for the late filling of the review, and in the interest of justice, the court grants the condonation.

 

[3]      The applicant avers that he is serving a life sentence for various crimes. He was serving his term at the Witbank Correctional Centre. He qualified for parole consideration and was so considered, and parole was refused and was given a further profile of 18 months.

 

[4]      The applicant further avers that while he was still considering the decision to refuse his parole application, he heard rumours that he must be transferred to Barberton Maximum Security Prison. Applicant submits that he addressed a letter to the respondents trying to verify what he heard, and in the letter, he raised an issue with the non-compliance of the law relating to transfer.

 

[5]      The applicant avers that on the 5^th July 2023 he was transferred to Barberton Maximum Prison the following day a letter was addressed to the respondents  to complain about the unlawful process of transferring him.

 

[6]      The respondents raised three points in limine namely, lack of jurisdiction, noncompliance with Rule 41A and non-compliance with section 3 of the Judicial Matters Amendment Act. The respondents did not persist with the last two points in limine and only proceeded with the one of lack of jurisdiction.

 

[7]      The first respondent contends that the Court does not have jurisdiction to adjudicate over this matter as the cause of action arose within the jurisdiction of Mpumalanga. Further to that, the order sought shall be executed and implemented within the jurisdiction of Mpumalanga.

 

[8]      The applicant argued that it is seeking a review against the decision of the Minister and are therefore entitled to heard by the Court and he is therefore in the correct Court.

 

[9]      It is important to remember that there are two decisions that the court is required to review and set aside. The first decision to be reviewed is that of the first respondent ( The Minister) to refuse to grant the applicant parole. The second decision is that of the fourth respondent to transfer the applicant from Witbank Correctional Centre to Barberton Maximum Security Centre.

 

[10]     I am of the view that the court has jurisdiction over the first respondent’s decision as the seat of office of the Minister is in Pretoria, which falls squarely within our jurisdiction.

 

[11]     The second decision of the fourth respondent however does not fall within the jurisdiction of the Court. The argument of the respondents finds favour with me. The cause of action herein arose in Mpumalanga and the order sought by the applicant would be implemented in Mpumalanga which is outside of our jurisdiction.

 

[12]    The applicant avers that his application for parole was refused, he has completed the required programs, and he was subjected to a further profiling of 18 months for programs that normally take three months to be completed. The applicant contends that he has completed the said programs. The last program he had to attend was completed during May 2024.

 

[13]    The applicant contends that the further profiling is too excessive and unfair and not appropriate as he had completed the required programs. The applicant submits that he accepts the prerogative rights of the first respondent on parole decisions of lifers ( persons serving life sentences), however such power should not be allowed to offend the rule of law and be arbitrarily and indirectly applied in such a manner that it unnecessarily extends his detention.   

 

[14]    The applicant contends that the first respondent’s decision was not rational as it did not take into consideration the reasonable period required to complete the programs that were not yet completed. At the time the decision was taken, the outstanding program required a month to be completed. The applicant contends that he is concerned as to what could have informed the first respondent to require such a lengthy period.

 

[15]    The applicant submits that he completed the outstanding program in less than a month after the decision was taken, and he requires the decision to be reconsidered.

 

[16]    The respondents contend that parole is not a right but a privilege. There are programs that must be completed by an applicant for parole before parole can be granted. The applicant still has to be assessed by a psychologist and this fact is not alluded to in his papers.

 

[17]    The respondents contend that the applicant had not yet completed the necessary programs and the submission that he completed the outstanding program during May 2024 is not part of his papers. The respondents contend that the applicant is withholding certain crucial information from the court.

 

[18]    The respondents aver that the period of further profiling would come to an end on the 7^th September 2024. The parole board will reconsider his parole application as soon as is reasonably possible and there was no need for the applicant to approach the court.

 

[19]    On careful consideration of the papers and submissions by the legal representatives of the parties in court, it is clear that the principle of separation of powers applies to this matter. The court has no authority to delve into the purview of the executive. The Parole Board is the one that has the power and authority to consider and recommend to the Minister on applications for parole by lifers.

 

[20]    It is common cause that the further profiling period would have come to an end during the month of September 2024. It was submitted by the respondents that after the end of the further profiling period, the parole board will reconsider the applicant’s parole application. As soon as reasonably possible. I am of the view that if it has not already done so, the parole board must urgently reconsider the applicant’s application as any further delays would amount to a miscarriage of justice which would offend our Constitution and the applicant’s rights.

 

[21]    Under the circumstances I make the following order:

1.       The condonation application for the late filing of the review is granted.

2.       The matter is remitted back to the parole board for reconsideration as soon as reasonably possible.

3.       No order as to costs.

 

LENYAI J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

Appearances

Counsel for Applicant                  :	Adv V Mukwevho
Instructed by                              :	M.E Makgopa Attorneys
Counsel for Respondent             :	Adv T Vukeya
Instructed by                              :	The State Attorney
Date of hearing                            :	28 August 2024
Date of Judgement                      :	29 November 2024

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