Anderson v Minister of Justice and Correctional Services and Another (022949/2024) [2024] ZAGPPHC 1355 (23 December 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 022949/2024

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

DATE

SIGNATURE

In the matter between:

LEE ANDERSON

Applicant

and

MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES

First Respondent

CHAIRPERSON NATIONAL COUNCIL OF

CORRECTIONAL SERVICES

Second Respondent

Summary: Review in terms of Promotion of Administrative Justice Act 2 of 2000 (PAJA). Applicant alleges that the Minister; took into account irrelevant consideration; was influenced by material error of law; took an arbitrary decision; had an ulterior purpose or motive; or was irrational when deciding on 26 October 2023 to give him further profile instead of ordering his release on parole. Held: (1) The decision is set aside and the Minister is ordered to release the applicant on parole. Held: (2) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] On 8 February 2001, a newspaper article relating a story of murder committed by the applicant and his co-accused was captioned – slagoffer is soos n bees geslag – the victim was slaughtered like a cattle. The applicant and his co-accused gruesomely killed Mr Benjamin Ntoba Ramanamane (deceased). The fact that the deceased was gruesomely killed is an unchangeable fact.

[2] The applicant, Mr Lee Anderson (Mr Anderson) is a life sentenced prisoner, currently serving his prison term at Kgosi Mampuru II Correctional Centre, Pretoria Male Prison. He launched the present application without any legal assistance. In the present application he seeks a review and setting aside of a decision taken by the Minister of Justice and Correctional Services (“The Minister”) on 26 October 2023, in terms of which, Mr Anderson was refused a release on parole and instead was offered a “third profile”. The present application is opposed by the Minister and the Chairperson of the National Council Correctional Services (“The NCCS”).

Pertinent background facts to the present application.

[3] On 05 March 2001, Mr Anderson was sentenced to life imprisonment. As at the time of the hearing of the present application, Mr Anderson had been incarcerated for a period of over 24 years inclusive of awaiting trial period. On two occasions, Mr Anderson applied to be released on parole. On those two occasions he was given what is known as further profiles (effectively a refusal to grant parole). Pertinent to the present application, on 26 October 2023, the Minister reached a decision to approve a further

profile (third profile). In reaching that decision, the Minister recorded the following:

“Having considered the documentation of the aforesaid offender and the recommendations of the NCCS, further profile is hereby approved.”

[4] In its meeting held on 24-26 May 2023, the NCCS concluded that parole is not recommended at that stage. The NCCS recommended that the matter be placed before the NCCS after 12 months. The recommendation was recorded in the following terms:

“The offender is presently urged to improve his situation as follows:

1. The offender should undergo individual psychotherapy to address his criminogenic needs anti-social personality traits, lack of victim empathy, lack of remorse and violent offending behaviour;

2. A risk assessment by a non-treating Psychologist should be conducted using a tool (e.g. VRAG).

Compliance with the above will not guarantee the offender placement on parole.”

[5] Mr Anderson was aggrieved by the decision of the Minister and launched the present application. In his notice of motion, he prayed for the following orders:

i. “That the decision of the first and second respondent to give the applicant a further profile be reviewed, declared unlawful and invalid, and set aside;

ii. That the pending decision of the first and second respondent be declared a “foregone conclusion” and be substituted with that of the above Honourable Court;

iii. That the applicant is released on parole by the above Honourable Court immediately with effect of the granting, alternatively, of service of this order;

iv. Directing that the respondent pays the costs of this application; and

v. Granting further and/or alternative relief that this Honourable Court deems appropriate.”

[6] As already indicated the Minister and the NCCS opposed the application.

Evaluation

[7] There is no doubt that when the Minister decided to give Mr Anderson a further profile on 26 October 2023, the Minister was exercising public power. It is by now settled law that the rule of law requires that every exercise of public power must be lawful and rational. Should the power not meet any of the legs of legality, a Court of law is empowered in terms of section 172(1)(a) of the Constitution of the Republic of South Africa, 1996 (“Constitution”) to declare that exercise of power invalid. An invalid exercise of public power is inconsistent with the Constitution and is bound to be set aside. Before this Court considers the legality of the decision of the Minister, it is of significance to consider the question of opposition by the Minister (decision maker).

Did the Minister depose to an opposing affidavit?

[8] Undoubtedly, it is the decision of the Minister that is called into question. The only functionary who can defend the impugned decision is the Minister. Sadly, Mr Anderson is unrepresented in the present application. His Court papers are haphazardly prepared. The papers were not appropriately indexed and numbered. There was a lot of duplication. It was difficult for this Court to identify the opposing affidavit. After trawling through three ring-bound bundles, the Court stumbled into an affidavit titled ‘first and second respondents’ answering affidavit”. This affidavit was deposed to by one Ms Amanda Lindokuhle Vilakazi (Ms Vilakazi). This Court must remark, included in the papers before Court was an unsigned version of an answering affidavit. As an indication that the answering affidavit stumbled into is one relied upon by the respondents, Minister included, the heads of arguments submitted on behalf of the respondents, almost word for word, regurgitated the contents of that affidavit.

[9] Ms Vilakazi is a practising attorney and a member of the NCCS. She alleged that the facts she deposed to were within her own personal knowledge. The only mention by the deponent of the Minister, relates to submissions of a legal nature which she accept as being both sound and correct, given to her by the legal representatives of the Minister and herself. Of utmost significance, there is no confirmatory affidavit deposed to by the Minister. With regard to the impugned decision of the Minister, in an attempt to justify the decision, she testified as follows:

“[9] …Absent such reports or reports to the negative, the Minister cannot, under any circumstances whatsoever, grant such parole to any offender, including but not limited to, the applicant.

[10] To this end, I respectfully state that the Minister’s decision in casu is rationally connected to the material that served before him when he made the decision to refuse parole, as at that stage, and further direct such further profile on the applicant…

[11] In that event logic and rationality would dictate that the Minister ought to err on the side of caution, if only in the interest of the wider society as opposed to the applicant’s rather own selfish interest…”

[10] All of the above allegations constitutes inadmissible hearsay evidence. These allegations were not confirmed by the Minister. That which is allegedly logical and rational was made in hollow and was not sufficiently expatiated. The full Court of this Division in the matter of The Minister of Home Affairs and another v The Hellen Suzman Foundation and others (Foundation)[1] aptly stated the law to be as follows:

“What renders the Minister’s application destined for failure is the Minister’s failure to depose to the answering affidavit in the review proceedings. Only the Minister, as the decision maker, could give evidence as to what passed through his mind and how he exercised it. The affidavit deposed to by the Director-General… constitutes inadmissible evidence. As was held by the Supreme Court of Appeal in Freedom Under Law v Judicial Services Commission if the decision maker has failed to depose to an affidavit it is impermissible for a functionary in the office to do so on behalf of the decision maker. In those circumstances the affidavit of the functionary falls to be declared inadmissible. The court in FUL proceeded on the basis that on the merits the application was to fail in any event. However, the principle is that inadmissible affidavits should not be considered in adjudicating a matter…”

[11] Based on the principles deduced from Foundation, the evidence of Ms Vilakazi is inadmissible to the extend it seeks to justify the decision taken by the Minister on 26 October 2023. This Court per the erudite Acting Justice Ally, in Mbatha v Minister of Justice and Correctional Services and another (Mbatha)[2] felicitously stated the following:

“…The deponent to the answering affidavit requests the Court to accept hearsay evidence where no confirmatory affidavit has been filed. No explanation is given as to why ‘the Minister’ has not deposed to the answering affidavit nor why no confirmatory affidavit by him has been filed. The exceptions to the hearsay rule do not cater for circumstances wherein a person could have deposed to an affidavit and one wherein a reasonable explanation has been provided for the failure to depose to an affidavit. In my view, the request to accept hearsay evidence in this matter cannot be acceded to for the reason that it is clearly prejudicial to the Applicant and sufficient grounds have not been provided for the acceptance of such hearsay evidence.”

[12] Likewise, no explanation is given as to why the Minister did not depose to either an answering affidavit or a confirmatory affidavit. In the heads of argument submitted on behalf of the Minister there is no scintilla of a submission regarding the application of section 3 of the Law of Evidence Amendment Act.[3] Accordingly, in considering whether the decision of the Minister is rational and not arbitrary, the evidence of Ms Vilakazi remains

inadmissible.

Exhaustion of internal remedies

[13] An exercise of public power may be impugned in terms of either a legality or PAJA review. PAJA only applies to administrative actions. Inasmuch as the papers of Mr Anderson are jumbled up, upon careful read of the Notice of Motion as well as the founding affidavit, it is clear that his review application is hybrid. It is predicated on both PAJA and legality review.

[14] According to section 7(2)(a) of PAJA, no Court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has been exhausted. Counsel for the Minister and the NCCS forcefully argued that Mr Anderson has failed to exhaust internal remedies. In his submission, a further profile which was to happen in October 2024 constituted an internal remedy for Mr Anderson. Put differently, Mr Anderson should have withheld his impugn of the decision of 26 October 2023 until the Parole Board meets again in October 2024. This Court disagrees with such a submission.

[15] An internal remedy must be one provided for in any other law. Examples of internal remedies would be internal appeal, mediation, conciliation and or arbitration. Mr Anderson is unhappy

with a decision to be given a further profile. It is thus incongruous to consider the impugned process to be an internal remedy. In deciding to subject Mr Anderson to a further profile, the Minister has exercised public power. If that exercise of public power is irrational, then Mr Anderson acquires a right in law either in PAJA or legality review to seek a review. The irony that beset the contended internal remedy is that Mr Anderson is told upfront that

compliance with aspects to be reviewed in a further profile is not a guarantee for being granted parole.

[16] The import of exhausting internal remedies is to avoid a continuation to judicial review. Where a process aimed at avoiding a judicial review does not promise such avoidance, then such cannot be considered as a remedy. In law a remedy is a legal means to achieve justice and compensate a person for harm caused by a legal wrong. Accordingly, there are no internal remedies provided for in law in relation to the impugned decision. Assuming that the further profile is a remedy as opposed to a legal wrong, it must be accepted by this Court that until the Minister on the recommendation of the NCCS ends a string of perpetual further profiles, the likes of Mr Anderson must suffer, as it were, and await a positive profile. This assumption is clearly inconsistent with constitutional rights.

[17] This Court concludes that Mr Anderson cannot be non-suited for want of compliance with section 7(2)(a) of PAJA.

Is the decision of 26 October 2023 reviewable in law?

[18] Mr Anderson threw an avalanche of arsenals to the direction of the decision. As dealt with above, the Minister for some inexplicable reasons have failed to defend the decision. This Court must be quick to point out that failure to oppose an application for review does not automatically lead to the review and setting aside of the decision. If any of the arsenals thrown by Mr Anderson at the decision deals a fatal blow to the decision, such a decision cannot survive a constitutional muster.

[19] As correctly pointed out in Van Vuuren v Minister of Correctional Services (Van Vuuren)[4] these type of applications concerns the proper interpretation of section 136 of the Correctional Services Act. There is no quibble

that Mr Anderson has already served the required number of years in incarceration to enable him to apply and be considered for parole. He has applied to be considered for parole four times already and has been subjected to a plethora of assessments by various relevant professionals.

[20] Mr Anderson has alleged that the decision of the Minister is irrational. There is no dispute that all other relevant reports submitted are not averse to Mr Anderson being granted a parole. It is only the report of Ms Janeen M Prinsloo, the Clinical Psychologist furnished on 31 October 2017 which is averse. The report concluded thus:

“This report should be seen as an addendum to the first psychological report which was submitted for consideration to the National Council for Correctional Services (NCCS) by Ms Benic in June 2015.

Mr Anderson appears to pose a serious threat to the professional well-being and personal safety of professionals in DCS and I am thus of the opinion that Mr Anderson’s risk for re-offending should be assessed by DCS officials. The fact that Mr Anderson had reported the social worker who wrote his last report to her professional council provides evidence of this….”

[21] The Constitutional Court in Walus v Minister of Justice and Correctional Services and others (Walus)[5] confirmed that the question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. In this particular instance, this Court is bereft of any facts from a decision maker. This makes it difficult to conduct an objective enquiry. As confirmed in Walus, what the Constitution requires is that public power vested in the executive and other functionaries be exercised in an objectively

rational manner[6].

[22] Since the Minister did not depose to an affidavit, it is unknown to this Court what factors he considered to reach the impugned decision. The only official document which contains the Minister’s decision informs this Court as follows:

“Having considered the documentation of the aforesaid offender and the recommendations of the NCCS, further profile is hereby approved.”

[23] Based on the above, the Minister appears to have considered only two factors; (a) the documentation of Mr Anderson; and (b) the recommendations of the NCCS. It is of course unclear as to which of the documentation of Mr Anderson did the Minister consider. Having reached the decision he reached, it must be so that he considered only a report that is averse to granting Mr Anderson a parole. There is no objective rational basis upon which this Court can predicate acceptance of a Clinical Psychologist report over other reports that recommended parole.

[24] It is so that in terms of section 136(3)(c) of the Correctional Services Act,[7] (CSA) the discretionary power to place a sentenced offender under parole lies with the Minister. In other words, it is not the duty of the Minister to rubber-stamp, as it were, the recommendation of the NCCS. In my view, the section cannot be interpreted to mean that the Minister may only exercise the discretionary powers once a favourable recommendation is made by the NCCS. Were that to be the case, the Minister will be nothing but a token. Such will also render the Parole Board Manual or Departmental Policy nugatory. Since every exercise of statutory power ought to be objectively rational, if the Minister is a rubberstamp, then rationality will hardly be achieved.

[25] As indicated above, the Minister provided no explanation to his decision as predicated on those two grounds. There is no evidence of application of mind. Prima facie, the Minister simply endorsed the recommendations of the NCCS. In Walus, the Court said;[8]

“…The Minister did not explain any of this in his answering affidavit. His failure to explain this renders his decision to deny the applicant parole inexplicable. If it is inexplicable, it follows like night follows a day that it is irrational. There is no connection between the exercise by the Minister of his powers and the purpose for which the legislation conferred that power on him. If there is no connection between the Minister’s exercise of the power and the purpose of the power conferred upon him, his decision is irrational.”

[26] Likewise, this Court is faced with a dearth of explanation as to why the Clinical Psychologist report was preferred above the report of other professionals. How many times Mr Anderson should be profiled. Criminogenic nature, is nothing but a likelihood to cause criminal behaviour. The Minister was behoved to explain this recommendation by the NCCS to this Court. He failed to do so. This Court has no knowledge of what anti-social personality traits would refer to. Traits are qualities of a person and they typically belong to a person. It is something that the person may not change. The fact that Mr Anderson gruesomely killed the deceased is

unchangeable. Lack of victim empathy and remorse as well as violent offending behaviour can only relate to the commission of the crime, something Mr Anderson cannot change. As it was recognised in Walus, 40 years later, the fact that Mr Anderson violently killed the deceased will still remain.

[27] Mr Anderson alleged that the assessments suggested were underwent by him four times. There is no proper answer before this Court as to what purpose will the fifth assessment serve.

[28] As confirmed in Walus, prove of one ground – irrationality – is sufficient to vitiate the decision of the Minister. Absent any explanation, this Court must reach a conclusion that the decision to refuse Mr Anderson parole is not adorned with rationality and it is reviewable in law.

Remedy

[29] A finding that the decision is irrational ineluctably leads to the setting aside of the decision by the Minister. The key question

considering the doctrine of separation of powers is whether this Court must decide or remit to the Minister for a decision that is rational. In Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited (Trencon)[9], the Constitutional Court suggested two factors to be considered when a Court finds itself in the separation of powers crossroad. 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 the administrator is a foregone conclusion. Even though the Court in Trencon took time to explain these two factors, the opaqueness in terms of practical application of these factors still looms large, in my view.

[30] Nevertheless, Mr Anderson qualified to be considered for parole some years back. As at the time of this application he had served over 20 years of incarceration. This Court was favoured with reams upon reams of paper, the majority of which supports the release of Mr Anderson. Accordingly, this Court is in as good a position as the Minister to grant Mr Anderson parole. The decision is a forgone conclusion. It is unnecessary to delay the release of Mr Anderson any further. Accordingly, Mr Anderson must be released on parole.

[31] As a concluding remark, this Court must emphasise the fact that in matters of this nature, a Court should, without fail, be favoured with evidence from the decision maker. It becomes an arduous or almost an impossible task for a Court of review to objectively enquire into the rationality of the decision absent cogent and admissible evidence. In casu, this Court was furnished with an affidavit of a party who only recommended and not decided. This is inappropriate and it must stop.

Order

[32] For all the above reasons, I make the following order:

1. The decision of the Minister of Justice and Correctional Services made on 26 October 2023 of not approving the release of Mr. Anderson on parole is hereby reviewed and set aside.

2. The Minister of Justice and Correctional Services is hereby ordered to place Mr. Anderson on parole on such terms and conditions as s/he may deem appropriate and to take all steps as may be needed to be taken to ensure that Mr. Anderson is released on parole within 14 calendar days of this order.

3. There is no order as to costs.

GN MOSHOANA

JUDGE OF THE HIGH COURT

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 23 December 2024.

APPEARANCES:

For the Applicant: In Person For the Respondent: Mr M Zondo Instructed by: State Attorney, Pretoria Date of the hearing: 21 November 2024 Date of judgment: 23 December 2024

[1] (32323/2002) [2023] GPPHC dated 16 October 2023 at para 12.

[2] (5876/2022) [2024] GPPHC dated 15 March 2024 at para 21.

[3] Act 45 of 1988.

[4] 2010 CC 17.

[5] CCT 221/21 [2022] ZACC 39 (21 November 2022).

[6] Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC).

[7] Act 8 of 1959.

[8] Ibid fn. 5 at para 81.

[9] 2015 (10) BCLR 1199 (CC).