De Lange v Clerk of the Magistrate's Court, Port Elizabeth and Others (ECJ 015/2005) [2005] ZAECHC 8; 2005 (2) SACR 300 (C) (25 February 2005)

FORM A

ECJ NO : 015/2005

REPORTABLE

PARTIES: Douglas Michael De Lange

v

The Clerk of the Magistrate’s Court, Port Elizabeth (1st respondent)

The President of the Regional Court, Port Elizabeth (2nd respondent)

The Minister of Justice and Constitutional Development (3rd respondent)

The Department of Correctional Services (4th respondent)

REFERENCE NUMBERS -

Registrar: 660/2005

DATE HEARD: 25 February 2005

DATE DELIVERED: 25 February 2005

JUDGE(S): ERASMUS J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): N.M. Paterson

for the accused/respondent(s): C. Mouton SC

Instructing attorneys:

Applicant(s)/Appellant(s): A. Basson and Associates Inc.

Respondent(s): State Attorney

CASE INFORMATION -

Nature of proceedings : Urgent application

Topic: Order regarding correctional institution where the

applicant to serve sentence of imprisonment. Interim relief.

Keywords: See judgment

CASE NO: 660/05

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

DATE: 25.2.2005

In the matter between:

DOUGLAS MICHAEL DE LANGE Applicant

and

THE CLERK OF THE MAGISTRATE’S COURT,

PORT ELIZABETH First Respondent

THE PRESIDENT OF THE REGIONAL COURT,

PORT ELIZABETH Second Respondent

THE MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT Third Respondent

THE DEPARTMENT OF CORRECTIONAL SERVICES Fourth Respondent

Keywords:

Procedure – application for order that sentence of imprisonment be served at a specific correctional institution.

Interpretation of statute – section 299 of Criminal Procedure Act 51 of 1977 read with ss 37 to 39 of the Correctional Services Act 111 of 1998 – power of magistrate to order that a sentenced person be admitted to a prison outside his/her magisterial district.

Sentence – delay in commencement of serving imprisonment – public interest – the interests of administration of justice – concern of courts.

Interim relief – postponing of imprisonment pending adjudication of main application – amounting to temporary interdict – discretion of court – applicant’s past conduct relevant – delaying tactics – court viewing applicant’s averments with measure of scepticism . Denial of interim relief effectively denying the applicant the relief sought in main application – important consideration – not necessarily decisive in itself.

Constitutional relief – application to introduce prayer involving such issue – relevant that outcome will be of academic interest to the applicant – such issues should be properly canvassed and formally raised.

JUDGMENT

ERASMUS J:

[1]1 Last Tuesday, 22 February 2005, at 10.00 pm, the applicant brought before me an urgent application on extremely short notice to the respondents. The application was for a rule nisi, as well as a review in terms of rule 53 of the Uniform Rules of Court. There was also a prayer for related interim relief. Essentially, what the applicant sought to achieve was that he be received by and serve his sentence of imprisonment at the Malmesbury Correctional Centre rather than the St Albans prison, Port Elizabeth. (I deal later more fully with the nature of the relief sought as well as with the underlying facts2.) I declined to make any order on the main application, but granted the applicant alternative interim relief, which defused the immediate urgency of the matter. (I deal later with the terms of that order3.) Today, Friday 25 Friday 2005, the applicant renews his application. There is now appearance for the four respondents.

[2] In order properly to comprehend and consider the application, it is necessary to set out the background history of the matter. This has been outlined to me by counsel with reference to a list of the relevant dates. It is as follows. The applicant is a practising advocate of this court. During 1999 he was convicted in the regional court, Port Elizabeth, of 11 counts of fraud committed during 1991 and 1992. On 7 March 1999 he was sentenced to four years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act. On 30 May 2001 his appeal to this court against the conviction and sentence was dismissed, but he was granted leave to appeal further to the Supreme Court of Appeal. He failed to prosecute the appeal timeously in accordance with the rules of court. After some two and a half years, on 25 September 2003, he was brought before this court, constituted of the judges who had dismissed the appeal. He was required by them to show cause why he should not commence serving his imprisonment with immediate effect. The court made such order and a warrant for his imprisonment was issued the next day by the magistrate, Port Elizabeth. The applicant commenced serving his sentence in October of that year. Soon thereafter he brought a review application in the High Court, Grahamstown. The application was, however, withdrawn and the costs tendered. In November of that year the applicant sought direct access to the Constitutional Court – I take it in order to have his conviction and sentence set aside. Access was denied. He served approximately 40 days of his sentence before he was, on 15 December 2003, released on bail pending his appeal to the Supreme Court of Appeal, he having obtained condonation of his failure to prosecute the appeal timeously. His appeal to the Supreme Court of Appeal was dismissed on 1 December 2004, whereupon he applied to the Constitutional Court for leave to appeal to that court. On 17 December 2004, he was granted bail by PICKERING J pending his leave application. The relevant portion of that order is part of the papers before me and is central to this application. It is numbered 3 and reads as follows:

‘That in the event of the applicant’s application to the Constitutional Court being dismissed, applicant is to surrender himself to the Clerk of the Court, Port Elizabeth within 48 hours.’

On 15 February 2004 the Constitutional Court dismissed the application for leave to appeal. The applicant was notified thereof on 17 February 2005. He thereupon, on 22 February 2005, brought the present application as described in the opening paragraph of this judgment. The order for alternative relief which I issued that night amended the bail conditions. It read:

‘That the condition of bail that the applicant is to surrender himself to the clerk of the court, Port Elizabeth, set out at p.4 and numbered paragraph 3 of the court order dated 17 December 2004 is extended to 10.00 am on Friday, 25 February 2005.’

[3] As I have mentioned, the applicant this morning re-enrolled his applications. Counsel approached me in chambers with a draft order agreed upon by the parties. The relevant provisions thereof are as follows.-

‘1. The application is postponed to 5 May 2005 at 9.30 or as soon thereafter as counsel can be heard;

2. The condition of bail that the applicant is to surrender himself to the Clerk of the Court, Port Elizabeth, set out in numbered paragraph 3 on page 4 of the court order issued by the High Court in Grahamstown on 17 December 2004 under case reference No. 1318/5303, is extended to 5 May 2005 at 09.30 or as soon thereafter as counsel can be heard;

3. In the event of the application being dismissed on 5 May 2005, or on any extended date, the applicant is to surrender himself to the Clerk of the Court, Port Elizabeth, within 48 hours thereafter in terms of the condition of bail referred to in paragraph 2 above.’

Paragraphs 4, 5 and 6 relate to the terms upon which papers have to be filed or amended. The final paragraph reads as follows. –

‘7. The postponement of this matter is without prejudice to the right of the Respondents to raise any valid defence to the application, including the jurisdiction of this Court to entertain this application.’

I expressed concern regarding the appropriateness of para 2 of the draft order and directed that the application be heard in open court.

[4] When the matter was then later called in court, Mr. Paterson, who appears on behalf of the applicant, advised me that the parties had in the meantime reached agreement on the further proceedings in the application. He informed the court that the applicant no longer persisted in his application for a rule nisi, but that – by agreement – the papers before court would be regarded as an application in terms of rule 6. The parties had reached agreement on the prayers. As these indicate the nature of the application, I set them out in full as renumbered by counsel:

‘1. That the first and/or second and/or third respondents be ordered to issue within a period of 7 days after the granting of the relief on review sought in part B of this notice of motion, a form SAP 69, and all other related documents required, in order for applicant to be admitted and taken up in the Malmesbury Corrective Centre, Malmesbury, Western Province, in order to serve the remainder of his sentence.

2. That applicant be given due notice in writing by registered post to, or by service by first and/or second and/or third respondents upon, the address of his attorneys, A Basson Associated Inc., allowing the applicant a period of seven days time calculated from the date of the receipt of the aforementioned SAP 69 and all other related documents, to report to the Malmesbury Corrective Centre, Malmesbury, Western Cape Province.

3. That the decision of the Constitutional Court in Case 54/2004 as set out in D.4 hereto be suspended pending a return date of this application, and further suspended, pending the granting of the relief sought in part B of the notice of motion.’

I comment that the prayers obviously require modification. That can be done at a later stage. I continue:

‘4. That the respondents be called upon to show cause on a date and time to be determined by the above Honourable Court why it should not be ordered that the proceedings of 21 February 2005 in Criminal Case no. RC1/26/1996 in the Regional Magistrate’s Court, Port Elizabeth, before second respondent, alternatively first respondent, be reviewed and set aside, alternatively be reviewed and set aside inasmuch as it is found by the Honourable Court to have been irregular.

5. That those respondents who oppose these proceedings be ordered to pay the costs of the review jointly and severally, the one paying the other to be absolved.’

In addition, the applicant seeks an order that paras 2 and 34 of the draft serve as an interim interdict.

[5] Mr. Mouton, who appears on behalf of the four respondents, advises the court that the reason why the respondents agreed to para 2 of the draft order was for fear of being seen to be ‘over robust’ in resisting the application. He, however, accepts that the court is not bound by the respondents’ agreement, and that concession is in accordance with legal principle: the incarceration of a sentenced person is a matter of public interest involving the administration of justice in regard to an aspect which is of particular concern to the courts. In the circumstances, the court is not obliged to rubber-stamp the parties’ agreement, but may make the order which it deems proper in the public interest. Mr. Paterson does not contend the contrary.

[6] I deal next with the contents of the founding affidavit in relation to the facts and circumstances underlying the interim relief sought in para 2 of the draft order. The applicant states that he is averse to being admitted to any Eastern Cape correctional institution. He claims that it will be physically impossible and dangerous for him to travel to Port Elizabeth in order to report to the clerk of the court, Port Elizabeth, as required by the bail conditions. He alleges that he would be placing his life at risk, and for no real reason. He contends that the matter is therefore extremely urgent. He states that he is at present suffering from high blood pressure. As a precaution he visited his doctor who increased his treatment and instructed him to rest in bed for at least a week and to visit him again thereafter. His doctor handed him the certificate dated 19 February 2005 which is annexed to his affidavit. This document purports to be a medical certificate by a Dr. Van der Spuy in which he certified that the applicant suffered from hypertension, headaches and stress. He states that he has been advised that the slightest form of exertion could lead to a stroke and partial or complete disfunction that could be terminal. It is therefore of the utmost importance, so he avers, that he not be exposed to undue stress, hazard or exertion. He has been warned that he is to keep very still. The applicant, further, claims to have transport problems: he cannot travel in an aeroplane which is pressurised; he is compelled to employ a fulltime driver; and he finds it very stressful to travel by car for more than half an hour.

[7] The applicant claims that he will run the risk of bodily harm in a prison in the Eastern Cape. He states that he practised as an advocate in this region and was involved in a number of criminal cases on behalf of persons incarcerated in various Eastern Cape prisons. Although he obtained a number of acquittals on behalf of his clients, some of them were unsuccessful and might seek revenge against him. He has, furthermore, on numerous occasions been compelled - on behalf of his clients - to challenge co-accused and witnesses ‘dauntingly’, he says, with the result that he can expect reprisal from such persons who have landed in prison.

[8] The applicant points out that Malmesbury is close to his home and is therefore – in his submission – suited for his imprisonment in view of the fact that his many friends and relations can visit him there. His colleagues can offer support. His mother lives in the area. He refers to the previous treatment allegedly experienced by him when incarcerated in St Albans prison. He was, in a cell intended for 22 persons, with 47 other prisoners and had to use a single toilet and a single shower. He was there for several weeks before being removed to the Goodwood prison. He has complaints about his mode of transport between the institutions.

[9] The applicant mentions the fact that on 21 February 2005 his attorney contacted the clerk of the court, Port Elizabeth, in order to obtain an amended form SAP 69, one – I take it – which would indicate Malmesbury Correctional Centre as the centre for his reception, but the request was refused (hence prayer 1 above5). In this regard he makes allegations of bias on the part of officials, of personal vendettas against him by members of the prosecuting staff, and other allegations of a serious nature against a number of officials in various positions.

[10] The applicant, further, advances what is seemingly a legal basis for his demand that he be admitted to the Malmesbury Correctional Centre, namely an enforceable agreement – if I understand him correctly. He contends that the department has in fact agreed to admit him to that centre and annexes in that regard a letter from the head of the particular institution. (I return to this document later in the judgment6.)

[11] Mr. Mouton contends that the main application has no prospect of success. In effect, so he submits, the applicant seeks to dictate through the court to the officials of the department of correctional services where he shall serve his sentence. Such an order, so he submits, would be ultra vires the powers of this court. The proper course for the applicant, according to counsel, would be first to submit himself to incarceration and then to make representations to the authorities regarding the place and other circumstances of his imprisonment; only after he has exhausted his administrative remedies would he be entitled to approach the court for relief by way of review of the decisions of the officials. There is certainly merit in these contentions. The questions raised by the argument are of course for another court to decide. The prima facie prospects of the application are nevertheless relevant to the interim relief sought by the applicant: the more remote those prospects, the less compelling the need for the interim relief.

[12] The imprisonment of the applicant involves two separate but related aspects, viz the place and the time factors relating to his incarceration. The first aspect has two components, i.e. where the applicant is to be received for purposes of serving his sentence and where he is actually to serve that sentence. As to the latter aspect, I very much doubt whether this court has the power to prescribe beforehand to the fourth respondent where applicant is to be imprisoned. That aspect is, however, not directly relevant to the question with which I am concerned at this stage which is the interim relief sought by the applicant. However, as I explain later in the judgment7, the place where the applicant shall be received for purposes of serving his sentence is relevant to the granting of the order for the postponement of the date of commencement of that sentence in terms of para 2 of the draft order. There was in that regard some considerable debate regarding the procedure relating to the reception of a sentenced person in a particular institution of incarceration and the power of the court to dictate in regard thereto. Specifically, the question arose whether this court could order that the magistrate, Port Elizabeth, indicate on the warrant of imprisonment that the applicant be received at the Malmesbury Correctional Centre. Section 299 of the Criminal Procedure Act 51 of 1977 is of direct relevance. It provides as follows, under the heading ‘Warrant for the execution of sentence’.-

‘A warrant for the execution of any sentence may be issued by the judge or judicial officer who passed the sentence or by any other judge or judicial officer of the court in question, or, in the case of a regional court, by any magistrate, and such warrant shall commit the person concerned to the prison for the magisterial district in which such person is sentenced’.

The provision is clear in its wording, and unequivocal in its effect: by virtue of the fact that the magistrate’s authority for committing the sentenced person is limited to a prison within his or her district, the magistrate – by necessary inference – lacks the power to commit such person to a prison outside of that district.

[13] Mr. Mouton, further, refers the court to certain relevant provisions of the Correctional Services Act 111 of 1998. Section 37(1) provides that ‘(i)n addition to the obligations which apply to all prisoners, every sentenced prisoner must participate in the assessment process and the design and implementation of any development plan or programme aimed at achieving the said objective.’ I am referred also to s 38, which deals with the assessment of a sentenced prisoner in order to determine his or her security classification for purposes of safe custody, health needs, educational needs, social and psychological needs, etc. Counsel emphasizes s 39 which deals with the commencement, computation and termination of sentences. It is not necessary, I think, to read the whole of these sections8. Clearly, there is a specific process laid down by the two statutes for the reception, classification and treatment thereafter of sentenced persons.

[14] I find that on a proper interpretation of the relevant statutory provisions the magistrate has no power but to order that the applicant be received in an institution within his or her magisterial area. In my view, applicant will have considerable difficulty in the main application to get around the provisions of s 299 of the criminal code read with ss 37 to 39 of the Correctional Services Act. This consideration militates against the granting of the postponement of the applicant’s imprisonment in terms of para 2 of the draft order.

[15] Mr. Paterson would avoid the consequences for his client flowing from the above finding. He contends that s 299 is not applicable to the applicant in the particular circumstances of this case. His submission is based on the fact that the applicant commenced serving his sentence (that is the 40 days’ sentence I have referred to above9). Therefore, so he submits, the s 299 procedure has already been implemented in the case of the applicant. However, the distinction between the position on the one hand of a newly convicted person and one who has partially served his sentence on the other hand, is to me a distinction without any real or substantial difference. The fact of the matter is that the balance of the applicant’s imprisonment is now to take place. He must be re-admitted into an institution under a warrant in terms of s 299 of the criminal code where he must be assessed in terms of the relevant sections of the Correctional Services Act. This requires a specific process and the only one provided for is that found in the provisions of the two statutes. I find therefore that there is no substance in counsel’s submission.

[16] The crisp question to be decided is whether the court should give effect to the agreement between the parties that the commencement of applicant’s imprisonment be delayed until at least 5 May this year when the application is to be heard and (perhaps) finalised. I shall assume for purposes of this judgment that the court has the power to postpone, pending the adjudication of an application such as the present, the applicant’s serving of his sentence. That relief in its operation constitutes an interdict pro tem restraining the authorities from giving effect to the sentence of imprisonment ordered by the Regional Court, and confirmed by the High Court, the Supreme Court of Appeal and effectively the Constitutional Court. In the issue of an interdict, the court exercises a discretion and it does so judicially. This involves the weighing up of the considerations operating in favour of the interdict against those that operate against the granting thereof.

[17] Mr. Paterson points out, correctly, that the failure to grant the interim relief would be tantamount to the effective denial of the relief sought in the main application. This is indeed a relevant and cogent consideration which must be accorded its due and full weight. It is, however, not necessarily decisive in itself. Counsel, further, underscores those portions of the affidavit of the applicant where he states that travelling to Port Elizabeth would be a threat to his ‘life and limb’, as counsel puts it. In order to assess that submission, it becomes necessary to examine the factual basis of the applicant’s case. I must therefore deal with the affidavit of the applicant, summarised above10.

[18] The fact that the applicant is averse to being admitted to an Eastern Cape correctional institution is in itself of no consequence in this application. He can hardly be the judge of the proper institution where he shall be incarcerated. The fact that he has to travel to Port Elizabeth is an inescapable prescript of law. As I have held above11, the statutory provisions allow of no other course but that the magistrate, Port Elizabeth, issue the warrant for the reception of the applicant at a correctional institution within that magisterial district. The journey to Port Elizabeth is therefore an act which the applicant sooner or later must perform. And the sooner the better. I am sure that suitable arrangements can be made for his safe travel.

[19] In any event, I am not impressed by the factual basis alleged by the applicant. The allegations relating to his health are based largely on hearsay or the applicant’s say-so. There is a medical certificate which purports to support him to some extent. However, there is no affidavit confirming the correctness of the content thereof. There is no medical evidence regarding the full nature and extent of the applicant’s conditions. I am even less impressed by the alleged risk to the applicant at the hands of his ex-clients and persons whom he cross-examined in the past. This is all pure conjecture without factual foundation. It can be accepted that his family and friends are in the Western Cape and that, certainly, it will be more agreeable for the applicant should he be close to those persons. However, this is a consideration to be taken into account by the authorities in deciding upon the institution for his imprisonment. In saying this, I am in no way prescriptive in regard to such issue and the consideration thereof by officials of the department.

[20] It seems to me that some degree of healthy scepticism is called for in considering the applicant’s averments. He has been convicted of dishonesty. This is a shocking thing in the case of an advocate of this court. It means that he has in the past masqueraded as a person of integrity while lacking that quality. Also, it seems from the history of the matter that the applicant has in the past indulged in delaying tactics in avoiding his incarceration. He, for example, failed to prosecute the appeal for an inordinately long period12. And, with due respect, the very nature of this application and the contents of the applicant’s affidavit smack of a further attempt to that end.

[21] Finally, there is an overall and to my mind compelling consideration operating against the granting of the interim relief. It is this. The courts of this country have dictated that the applicant serve a sentence of imprisonment and it is implicit in the various judgments that he commence doing so expeditiously in accordance with statutory provisions. Public policy requires not only that convicted persons serve their sentences but also that they do so immediately upon their sentences becoming operative. Having regard to all the relevant facts and circumstances, I find that the considerations operating against the exercise by the court of its discretion in favour of granting the interim relief are heavily outweighed by those to the contrary.

[22] As to the claim that the applicant and the Malmesbury Centre (and therefore the fourth respondent) have entered into a binding agreement to the effect that he be admitted to that institution13, Mr. Mouton submits that the applicant’s claim is not supported by the certificate attached to the founding affidavit. Counsel points to the note at the foot of the document:

‘Telefoniese gesprek tussen mnr Basson en Koegelenberg op 2005.02.19 verwys. Akkommodasie sal gereël word vir bogenoemde persoon. Mnr. De Lange sal slegs opgeneem kan word indien hierdie Sentrum in besit is van ‘n oorspronklike lasbrief SAP 69.’

It is, therefore, a clear prerequisite for his reception at that centre that the warrant mentioned in the note first be issued. As I have held, this can only be done by the magistrate, Port Elizabeth, who can designate only an institution within his or her district14. I moreover doubt whether the head of the Malmesbury institution has the power to enter into an agreement such as the one relied upon by the applicant.

[23] One further aspect remains for consideration. In his reply, Mr. Paterson moved for an amendment of the prayers by the introduction of a further prayer. It reads, as I have noted it, as follows.-

‘That this court declare that the provisions of s 299 of the Criminal Procedure Act are unconstitutional insofar as it precludes the exercise of a discretion on the part of an official to commit a person to a prison outside the magisterial district in which such person was sentenced.’

The application is opposed by the respondents. Their counsel submits that this prayer was not agreed to by the parties beforehand and goes outside their agreement. There is to my mind another, more cogent, reason why the application for the insertion for the prayer cannot be sustained. The proposed additional prayer is obviously closely linked to the interim relief sought by the applicant, viz the delay of his imprisonment. Should the court order that the applicant serve his sentence pending the adjudication of the constitutional issue, the whole purpose of the declarator will become nugatory as far as he is concerned. Put otherwise, the additional prayer will be of real effect only if this or another court order that the applicant’s imprisonment be delayed pending adjudication of the prayer by the Constitutional Court. I certainly am not prepared to make such order; nor, in my view, is there any real prospect of another court doing so. The application for amendment is therefore of academic interest only. Moreover, the proper administration of justice requires that constitutional issues be properly and fully canvassed in the papers, and that the prayers for relief be raised in formal good order.

[24] We then face the reality of the present position, and it is as follows. In terms of the bail conditions as amended by the order of last Tuesday, the applicant had to present himself to the clerk of the court by 10h00 this morning. That deadline has passed. Prima facie the applicant is therefore in contempt of the court’s order, although – presumably – he might not have the necessary intention in view of this application. In the circumstances, I shall order that the time period in the bail conditions be further extended by making an order like that made on the 22nd.

[25] In the result, the following order issues:

1. By agreement between the parties, the application as reformulated by counsel is postponed to 5 May 2005; provided that that date is agreed to by the registrar, otherwise to an alternative date allocated by the registrar.

2. The condition of bail that the applicant is to surrender himself to the clerk of the court, Port Elizabeth, set out in paragraph 3 of the court order dated 17 December 2004, is amended by substituting for ‘within 48 hours’, the words ‘on or before 10.00 am on Monday 28 February 2005’15.

3. The costs of the application are reserved for adjudication by another court.

________________________

A.R. ERASMUS

JUDGE OF THE HIGH COURT

1 Paragraph numbering and cross-referencing added by court researchers for purposes of website.

2 See paras [4] and [6] below.

3 See para [2] below.

4 See para [3] above.

5 See para [4] above.

6 See para [22] below.

7 See para [18] below.

8 Court researchers: ss (1) of s 39 provides that ‘a sentence of imprisonment takes effect from the day on which that sentence is passed, unless it is suspended under the provisions of any law or unless the sentenced person is released on bail pending a decision of a higher court, in which case the sentence takes effect from the day in which he or she submits to or is taken into custody.’

9 See para [2] above.

10 See paras [6] to [9] above.

11 See para [14] above.

12 See para [2] above.

13 See para [10] above.

14 See para [14] above.

15 Court researchers’ comment: On 28 February 2005 at 10h00 am, the applicant surrendered himself at St. Albans prison for the purposes of commencing his imprisonment.