Appollis v Correctional Supervision and Parole Review Board and Others (CA171/09) [2010] ZAECGHC 1 (14 January 2010)

12

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE - GRAHAMSTOWN)

CASE NO: CA171/09

DATE HEARD:23/11/09

DATE DELIVERED: 14/1/10

NOT REPORTABLE

In the matter between

EARL GODFREY APPOLLIS Appellant

and

THE CORRECTIONAL SUPERVISION

AND PAROLE REVIEW BOARD First Respondent

THE COMMISSIONER OF CORRECTIONAL

SERVICES Second Respondent

THE MINISTER OF CORRECTIONAL

SERVICES Third Respondent

THE CORRECTIONAL SUPERVISION AND

PAROLE BOARD, ST. ALBAN’S MEDIUM B

CORRECTIONAL CENTRE Fourth Respondent

The appellant appealed against the dismissal of an application in which he had sought to review a decision of the Correctional Supervision and Parole Review Board (the Parole Review Board) to set aside a decision taken by the St Alban’s Correctional Supervision and Parole Board. On appeal it was held that: (a) the validity of the referral to the Parole Review Board was not open to challenge by the appellant because the notice of motion sought no relief in this respect and it was, in any event res judicata; (b) the respondents had established that the Parole Review Board had taken a decision to set aside the granting of parole to the appellant; (c) in the light of this finding and the finding that the appellant had been furnished with the decision and the reasons for it – albeit only in the answering papers – he was not entitled to an order directing the reconsideration of the decision by the Parole Review Board; and (d) that as a result of the fact that the decision and the reasons for it were only furnished to the appellant in the answering papers, and because of the reprehensible way in which the respondents conducted themselves in the litigation and in their treatment of the appellant, he was entitled to certain of his costs both in the court below and on appeal.

JUDGMENT

PLASKET J:

[1] The appellant, a sentenced prisoner, applied urgently in the South Eastern Cape Local Division for orders declaring that he was entitled to be released on parole pursuant to a decision of the fourth respondent – the St. Alban’s Parole Board – with effect from 2 May 2008 and, alternatively, that the first respondent – the Parole Review Board – be ordered to ‘reconsider’ the St. Alban’s Parole Board’s decision referred to it in terms of s 75(8) of the Correctional Services Act 111 of 1998; that it furnish its decision to the applicant in terms of s 77(1) of the Act; that it give written reasons for its decision to the appellant in terms of s 77(2) of the Act; and that this reconsideration, decision and reasons be effected or furnished to the appellant within 10 days of the date of service of the order. In addition the appellant sought a costs order against the first, second and third respondents.

[2] The matter was heard by Sangoni J who dismissed the application with costs. The appellant now appeals against the whole judgment of Sangoni J.

[A] THE FACTS

[3] The appellant was sentenced to a total of twenty three and a half years imprisonment in 1996. That sentence has been reduced to 22 years by various special remissions and amnesties. During the early part of 2008, a process commenced which eventually saw the St. Alban’s Parole Board decide to order the release of the appellant on parole with effect from 2 May 2008. The appellant states that steps were taken by the prison authorities to prepare him for his release with the necessary counselling. He was handed his civilian clothing and a bag in which to pack his belongings. Despite this, his release was not forthcoming. The reason was that the decision taken by the St. Alban’s Parole Board had been referred to the Parole Review Board for reconsideration.

[4] Such a process is envisaged by s 75(8) of the Act which deals with the powers, functions and duties of parole boards. It provides that a decision of such a board ‘is final except that the Minister or the Commissioner may refer the matter to the Correctional Supervision and Parole Review Board for reconsideration, in which case the record of the proceedings before the Board must be submitted to the Correctional Supervision and Parole Review Board’.

[5] Section 77 of the Act concerns the decision-making powers and procedures of the Parole Review Board. It states:

‘(1) On consideration of a record submitted in terms of s 75 and any submission which the Minister, Commissioner or person concerned may wish to place before the Correctional Supervision and Parole Review Board, as well as such other evidence or argument as is allowed, the Correctional Supervision and Parole Review Board must –

confirm the decision; or

(b) substitute its own decision and make any order which the Correctional Supervision and Parole Board ought to have made.

(2) The Correctional Supervision and Parole Review Board must give reasons for its decision, which are to be made available to the Minister, Commissioner, the person and the Correctional Supervision and Parole Board concerned in a specific matter and all other Correctional Supervision Parole Boards for their information and guidance.’

[6] As a result of this decision to refer the matter for reconsideration, the appellant was not released. He brought an urgent application in the South Eastern Cape Local Division before Jones J for an order that he be released pending the decision of the Parole Review Board. That application was dismissed with costs.

[7] A great deal of correspondence was directed to the prison authorities by the appellant’s attorney to ascertain the outcome of the referral to the Parole Review Board. He was met with a wall of obfuscation. I shall say more of this in due course. Eventually the appellant launched his application which, as I have said, was dismissed with costs by Sangoni J.

[B] THE ISSUES ON APPEAL

[8] Four issues must be decided on appeal. They are: (a) the appellant’s attack on the decision to refer the St. Alban’s Parole Board’s decision to the Parole Review Board; (b) whether the Parole Review Board has taken a decision to set aside the St. Alban’s Parole Board’s decision and, if not, whether the appellant is entitled to be released forthwith; (c) whether, in the alternative, the Parole Review Board should be ordered to reconsider the St. Alban’s Parole Board’s decision, take a decision thereon and give reasons for it; and (d) who is liable to pay costs.

(a) The Referral to the Parole Review Board

[9] As has been indicated above, s 75(8) of the Act provides for the reconsideration of decisions of parole boards by the Parole Review Board. In the appellant’s founding affidavit it is alleged that the referral of the decision taken by the St. Alban’s Parole Board to release him on parole was irregular. Two broad bases seem to be put up. The first is that the appellant was not given a hearing prior to the decision being taken and the second is that neither the second respondent – the Commissioner – nor the third respondent – the Minister – have sought to justify the decision. They are the functionaries empowered to refer such decisions for reconsideration.

[10] In my view, it is not open to the appellant to attack the decision in this way without applying for the review and setting aside of the decision in his notice of motion. No such relief is sought. In any event the issue of whether the St Alban’s Parole Board’s decision was referred for review to the Parole Review Board is res judicata. In Narshi v Ranchod NO and another,1 Friedman J held that ‘the requirements for the successful invocation of the doctrine of res judicata are that a decision has previously been given by a competent Court on the same cause of action between the same parties’. In the urgent application before Jones J, involving the same parties, the same issue on the same cause of action was disposed of by him when he found that ‘a realistic consideration of the facts leads inevitably to the conclusion that the Department has indeed submitted the parole board’s decision on review, and that the question of the applicant’s release on parole is now before the correctional supervision and parole review board’.2

(b) Did the Parole Review Board Take a Decision?

[11] The appellant alleges in his founding affidavit that the Parole Review Board never took a decision and that he is consequently entitled to be released because the decision of the St Albans Parole Board is, in terms of s 75(8) of the Act, final.

[12] While the appellant persists with an averment that the Parole Review Board has still not taken a decision, he then states that a Mr Stander of the Case Management Committee at St Alban’s Prison told him on 15 July 2008 that the Parole Review Board had met on 19 May 2008 and had decided that the appellant ‘needed to stay in prison longer in order to engage in social work and psychology programs’. Stander then ‘prevailed’ upon the appellant to sign a document to ‘acknowledge that I had been informed of this but declined my request to furnish me with a copy thereof’.

[13] Stander deposed to an answering affidavit on behalf of all four respondents. He stated that he did, indeed, inform the appellant of the decision of the Parole Review Board and that he asked the appellant to sign the document recording the decision. He is silent on whether or not he gave the appellant a copy of the document and I accept that he did not do so. He attached, as annexure ‘B’ to his affidavit, the document concerned.

[14] The document is from the Commissioner of Correctional Services; Director of Pre-Release Resettlement, to the Regional Commissioner for the Eastern Cape. Its subject is: ‘Decision of the Correctional Supervision and Parole Review Board: Offender 96353507 E.G. Appollis St Alban’s Med B Correctional Centre.’ Paragraph 2 reads as follows:

‘2. In terms of the provisions of section 77 of the Correctional Services Act, Act 111 of 1998, the decision of the Review Board taken on 19 May 2003 in respect of the above mentioned offender’s placement of parole is as follows:

2.1 The decision of the Parole Board at St Alban’s Medium B of parole on 2 May 2008 is set aside. A further profile report is set for May 2009.

2.2 The Review Board expresses their concern that there was no Social Worker’s report or proper Psychological Report indicating this offender’s propensity to commit aggressive crimes. The CSPB must ensure that such report is made available during the next hearing.’

[15] This document records the decision of the Parole Review Board and its reasons.3 The appellant’s assertion that no decision was taken by the Parole Review Board has no merit.

(c) Reconsideration of the Original Decision

[16] It was argued, in the alternative, that the Parole Review Board should be ordered to ‘reconsider’ the St. Alban’s Parole Board’s decision, take a decision thereon and give reasons for it. This argument appears to be premised on the notion that the Parole Review Board has not done so properly.

[17] Section 77(2) of the Act requires the Parole Review Board to give reasons for its decisions, which must be made available to various people and bodies, including the applicant for parole. The Parole Review Board has taken a decision and, although it did not do so immediately, it made available its decision to the appellant eventually – when it filed its answering papers and attached annexure ‘B’. That document contains reasons. They are that the appellant cannot be released on parole at this stage because there was no information before either the St Alban’s Parole Board or itself from the relevant professionals dealing with whether the appellant remained a threat to society – of, as it was put, his ‘propensity to commit aggressive crimes’. As the Parole Review Board has complied with its duties in terms of s 77(2), there is no merit in the argument that it should be ordered to perform its duty again, and no legal basis for requiring it to do so.

(d) Costs

[18] Annexure ‘B’ is central to the appellant’s case and is also the crux of the respondents’ case. A copy of it was, as I have found above, never given to the appellant despite numerous requests. Mr Dala, who appeared for the respondents, argued that it was not necessary to do so: the duty to give the appellant reasons for the decision to set aside the St Alban’s Parole Board’s decision was met when Stander informed him of the decision and showed him annexure ‘B’. Ms Hartle, who appeared for the appellant, on the other hand, argued that when s 77(2) of the Act says that the reasons for the decision ‘are to be made available’ to an applicant for parole, the section requires this to be done by furnishing him or her with written reasons.

[19] I am mystified as to why Stander did not give the appellant a copy of annexure ‘B’ whether he was obliged in law to do so or not. One would have expected this of any reasonable person in Stander’s position. Mr Dala was not able to advance any rational reason for Stander’s failure and it is hard to imagine what a good reason for the failure could be.

[20] In my view, however, the Act does require the decision and the reasons for it to be furnished to an applicant for parole in writing. This is apparent, in the first instance, from the language used in s 77(2). To make available the decision and the reasons for it involves more than merely informing the applicant for parole: it involves the furnishing of the decision and the reasons and that necessarily involves providing these in writing. Secondly, courts are required to interpret legislation ‘through the prism of the Bill of Rights’4 and, in so doing, promote its spirit, purport and objects. The duties imposed on the Parole Review Board by s 77(2) must be interpreted in a way which is consistent with the fundamental right to just administrative action entrenched in s 33 of the Constitution. Section 33(2) defines the right to reasons for administrative decisions. It provides: ‘Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.’ The spirit, purport and objects of the Bill of Rights would, in my view, be promoted by an interpretation of s 77(2) to the effect that making available the decision and the reasons for it involves furnishing them in writing.5

[21] The appellant was only furnished with the decision and the reasons for it when the respondents filed their answering papers on or about 22 May 2009. When pressed as to why the respondents had failed to provide the appellant with annexure ‘B’ when he had, through his attorney, first asked for it, Mr Dala took the view that no obligation rested on the respondents to do so and, if the appellant was dissatisfied, he should have launched an application. This is, of course, precisely what he did. When this was put to Mr Dala, he was constrained to concede that the respondents were liable for at least a portion of the appellant’s costs as he had been forced to litigate to get the written decision and reasons for it. This concession was correctly made. The respondents are liable for the appellant’s costs up to and including the perusal of the answering papers.

[22] Their liability for costs does not end there. All of the respondents are organs of state bound to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’.6 In the way in which they treated the appellant they did the opposite: they undermined his rights at every turn and treated him with contempt. In so doing, they undermined the Constitution.

[23] Organs of state are not free to act as they please:7 the Constitution subjects them to what Cameron J, in Van Niekerk v Pretoria City Council,8 called ‘a new regimen of openness and fair dealing with the public’. It is expected of organs of state that they treat people with whom they deal with dignity, honestly, openly and fairly. This is particularly so in the case of the appellant, a prisoner who was particularly vulnerable and in a position of weakness in relation to his gaolers. The contemptuous attitude that the respondents have displayed goes further: it is evident from the slap-dash nature of their papers.

[24] In these circumstances, in my view, the court below ought to have awarded the appellant, in addition to the costs referred to in paragraph 21 above, 50 percent of his remaining costs as a mark of its disapproval of the unacceptable and unconstitutional way in which the respondents have conducted themselves in relation to the appellant and in how they have conducted this litigation. (The appellant was represented at all times by an attorney who diligently took up his cause. One shudders to think how he might have been treated if he had not been represented and, indeed, how the large number of prisoners who are not fortunate enough to be represented may be treated.)

[25] I have set the percentage of the costs at 50 percent because the appellant’s persistence with the arguments that I have found to be unsound was unwarranted. In my view, it was necessary for the appellant to come on appeal for the limited purpose of challenging the costs order made by the court below. On appeal, the respondents’ attitude to the appellant did not change until Mr Dala was constrained to concede liability for some of the appellant’s costs. Despite this concession, he was unwilling to concede that his clients had behaved in an unacceptable manner. The attitude displayed by the respondents is deserving of censure but, at the same time, the appellant’s persistence with his arguments on the merits was not justified. For this reason, the respondents will be directed to pay 50 percent of the appellant’s costs of this appeal.

[C] THE ORDER

[26] For the reasons set out above, the following order is made.

(a) The appeal succeeds to the limited extent set out in paragraph (b) below.

(b) The order issued by the court below is altered to read:

‘The application is dismissed but the respondents are directed to pay the applicant’s costs up to and including the perusal of the answering affidavits and, in addition, 50 percent of his remaining costs.’

(c) The respondents are directed to pay 50 percent of the appellant’s costs in this appeal.

____________________

C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

F. KROON

_________________________

J. NEPGEN

APPEARANCES:

For the appellant: Ms B. Hartle instructed by James Philipson Attorneys, Port Elizabeth and Borman and Botha, Grahamstown

For the respondents: Mr I. Dala instructed by the State Attorney, Port Elizabeth

1 1984 (3) SA 926 (C), 934B-C.

2 Appollis v Commissioner for Correctional Services and others SECLD 12 May 2008 (case no.945/08) unreported, para 4.

3 See Kiva v Minister of Correctional Services and another (2007) 28 ILJ 597 (E), para 38: ‘A reason is defined in the Concise Oxford English Dictionary as ‘a cause, explanation or justification’. This meaning is in harmony with the specialised meaning attributed to the word in administrative law. Reasons are constituted by the decision-maker’s ‘explanations as to why it settles upon its final choice’ or, put in slightly different terms, reasons are ‘statements which explain why certain action has been taken’. These definitions are a distillation of the case law.’

4 Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others: In re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC), para 21.

5 Zondi v MEC for Traditional and Local Government Affairs and others [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC), para 102.

6 Constitution, s 7(2).

7 MEC for Roads and Transport and others v Umso Construction (Pty) Ltd CkHC undated judgment (case no. 2034/05) unreported; MEC for Roads and Public Works, Eastern Cape and another v Intertrade (Pty) Ltd 2006 (5) SA 1 (SCA), paras 20-21; Mlatsheni v Road Accident Fund 2009 (2) SA 401 (E), paras 16-17.

8 1997 (3) SA 839 (T), 850B-C.