Essau v Minister of Correctional Services and Others (10315/2007) [2008] ZAKZHC 81 (21 October 2008)

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

10315/2007

JOSEPH GLEN ESSAU APPLICANT

versus

THE MINISTER OF CORRECTIONAL SERVICES FIRST RESPONDENT

COMMISSIONER OF CORRECTIONAL SERVICES SECOND RESPONDENT

HEAD OF THE C.M.C. WESTVILLE

MEDIUM B PRISON THIRD RESPONDENT

CHAIRPERSON OF THE PAROLE BOARD

WESTVILLE MEDIUM B PRISON FOURTH RESPONDENT

RESERVED JUDGMENT

Delivered on: 21 October 2008

NTSHANGASE, J

[1] The applicant was sentenced on 2 October 2001 to an effective prison term of twenty years. On 2 July 2007 he launched the present proceedings. Distilled from numerous itemised heads of relief claimed in his notice of motion what emerges and was in fact pursued as the only issues at the hearing is a claim for an order directing the respondents to consider his eligibility for possible placement on parole and his eligibility as a candidate whose sentence is to be reconsidered for his possible placement under correctional supervision and in that regard to act in terms of section 63(1)(b)(i) of the Correctional Services Act No. 8 of 1959 [“the Act”].

Background

[2] According to the applicant, he sent a report through Mrs L Chetty to the Case Management Committee of Westville Medium B Prison concerning his claims, Mrs Chetty’s response reflects in his founding affidavit as follows:

“1) The applicant does not qualify for conversion at this stage;

The applicant has completed ¼ of his sentence but has more than five years left of his sentence;

Applicant may apply on 02.04.2016

The applicant is a high risk because of his case of murder

The applicant’s application is not to be recommended.”

Mrs Chetty also told him to “rather wait to see the Correctional Supervision and Parole Board as (he) was sentenced prior

to the promulgation of the new legislation and (he is) under Act 8 of 1959 – section 65(4)(A) for parole and section 22A of the said Act; therefore he will be considered for parole after serving 1/3 of (his) sentence on 02.04.2008.” In the respondents’

affidavit deposed to by Mr Monama, what Mrs Chetty told the applicant is endorsed as the correct position. In essence it represents the respondents’ answer to the applicant’s claims.

Parole

[3] The parties are ad idem that the terms of imprisonment of the applicant as a person sentenced before the parole provisions of the Correctional Services Act 111 of 1998 came into operation on 1 October 2004 was and is still regulated by the Act. Section 136 of the Correctional Services Act 111 of 1998 provides

“(1) Any person serving a sentence of imprisonment 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.

(2) When considering the release and placement of a prisoner who is serving a determinate sentence of imprisonment as contemplated in subsection (1), such prisoner must be allocated the maximum number of credits in terms of section 22A of the Correctional Services Act, 1959 (Act 8 of 1959).”

[4] Section 22A of the Act provides that a prisoner may earn credits to be awarded by the Case Management Committee, previously known as the Institutional Committee, by observing the rules which apply in the prison and by actively engaging in programmes aimed at his or her treatment, training and rehabilitation. Such credits accrued to a maximum of one day for every two days’ imprisonment served. The effect of this is that the prisoner became eligible for consideration for placement on parole after serving one-third of his or her sentence, irrespective of the crime for which the prisoner was sentenced. In the present matter the parties agree that the applicant has earned maximum credits.

[5] Section 65(4) of the Act provides that a prisoner serving a determinate sentence shall not be considered for placement on parole before he or she has served one-half of his or her term of imprisonment. This is subject to a proviso that the date on which consideration may be given to whether a prisoner may be placed on parole may be brought forward by the number of credits earned by the prisoner in terms of the credits system. No provision is made for the credits system in the Correctional Services Act 111 of 1998. It is in terms of such provisions that the applicant would fall to be considered for parole on 2 April 2008. There is agreement

that in February 2008 the applicant’s parole fell to be considered with reference to various criteria including his crime

history.

[6] Insofar as the parole issue is concerned, the applicant has not established a failure to act on the part of the respondents as these proceedings were launched before February 2008 when the respondents would be required to accord the prescribed attention to the issue of parole.

What remains in contention is the issue of the applicant’s eligibility to be considered for placement under correctional supervision.

Correctional supervision

[7] In regard to conversion of imprisonment to correctional supervision, section 276A of the Criminal Procedure Act, 1977 to the extent of its relevance to this matter reads:

“(3) (a) Where a person has been sentenced by a court to

imprisonment for a period –

…

exceeding five years, but his date of release in terms of the provisions of the Correctional Services Act, 1959 (Act 8 of 1959) and the regulations made thereunder is not more than five years in the future, and such a person has already been admitted to a prison, the Commissioner or a parole board may, if he or it is of the opinion that such a person is fit to be subjected to correctional supervision, apply to the clerk or registrar of the court, as the case may be, to have that person appear before the court a quo in order to reconsider the said sentence.

…

…

…

After a court has reconsidered a sentence in terms of this subsection it may –

…

convert the sentence into correctional supervision on the conditions it may deem fit; or

…”

[8] Section 63 of the Act, quoted to the extent of its relevance to this matter reads:

“63. Powers, functions and duties of parole boards. (1) A parole board shall, in respect of each prisoner under its jurisdiction serving … a sentence of imprisonment in excess of six months or in respect of whom a special report is required by the Minister or the Commissioner having regard to the nature of the offence and any remarks made by the court in question at the time of the imposition of sentence if made available to the Department, and at the times and under the circumstances determined by the Commissioner or when otherwise required by the Minister or the Commissioner –

(a) submit a report to the Commissioner or to the Minister, as the case may be, with regard inter alia to the conduct, adaptation, training, aptitude, industry and physical and mental state of such prisoner and the possibility of his relapse into crime;

(b) together with the report on each prisoner submitted in terms of paragraph (a), make recommendations to the Commissioner regarding –

(i) the placement of such prisoner under correctional supervision by virtue of a sentence contemplated in section 276(1) or 287(4)(a) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), or by virtue of the conversion of such prisoner’s sentence into correctional supervision under section 276A(3)(e)(ii) or 287(4)(b) of the said Act and the period for which and the conditions on which such prisoner may be so subjected to correctional supervision: Provided that for the purposes of such recommendations a prisoner’s date of release contemplated in section 276A(3)(a)(ii) of the Criminal Procedure At, 1977, shall be deemed to be the earliest date on which a prisoner may, in terms of this Act, be considered for placement on parole or the date on which the prisoner may be released upon the expiration of his sentence, whichever occurs first; or

(ii) …”

[9] The decision of the Case Management Committee that the applicant’s ‘date of release’ was more than five years was apparently premised on the interpretation of ‘date of release’ as meaning the expiration of his sentence, less any remission. I have indicated earlier that the date on which the applicant might be eligible for placement on parole is not in dispute. It is evident from the respondents’ calculation of the applicant’s term of imprisonment which reflects in paragraph 10 of the respondents’ answering affidavit that the respondents interpret ‘date of release’ to mean the date of expiration of the prisoner’s sentence, which, in the case of the applicant would be less amnesty of six months. The expiration of the

applicant’s effective prison term would, without amnesty, have been on 2021.10.02; with amnesty of six months it became 2021.04.02.

The respondents’ calculation then factors in a reduction of ‘5 years’ referred to in the proviso from 2021.04.02 to result in 2016.04.02. The fact that the respondents interpret ‘date of release’ to mean the date of expiration of the applicants’ effective sentence is clearly manifest from the respondents’ answering affidavit where it reads:

“Because the remaining sentence of imprisonment of the applicant as on 2006.08.18 was more than 5 years he could not qualify in terms of section 276A(3)(a) of the Criminal Procedure Act for conversion to correctional supervision. The earliest date on which he could be considered for conversion of his sentence, in terms

of this section is 2016.04.02.”

On the other hand the applicant contends that the ‘date of release’ in his case, as contemplated in section 276A(3)(a)(ii) of the Criminal Procedure Act is to be construed as meaning the earliest date upon which he becomes eligible to be considered for placement on parole, which is, in this case 2 April 2008, and that such date is ‘not more than five years in the future’, much less from the date on which the applicant launched these proceedings. He might as well add that it ‘occurs first’ in relation to the date ‘upon which (he) may be released upon the expiration of his sentence’ which makes 2 April 2008 the proper ‘date of release’ as contemplated in section 276A(3)(a)(ii) of the Criminal Procedure Act in terms of the proviso to section 63(1)(b)(i) of the Act.

[10] The applicant’s foregoing contentions find support in the case of Price v Minister of Correctional Services 1 in which the court declared that –

“the ‘date of release’ referred to in s276A(3)(a)(ii) of the Criminal Procedure Act 51 of 1977 means, for the purpose of a prisoner subject to the provisions of the Correctional Services Act 8 of 1959 relating to his or her placement under community corrections, the date on which such prisoner may be considered for placement on parole or the date upon which the prisoner may be released upon the expiration of his or her sentence whichever occurs first.”

In his judgment in the case of Price supra, Scott JA expressed the view that the words ‘date of release’ in section 276A(3)(a)(ii) of the Criminal Procedure Act, 1977 were intended to have the same meaning as that deemed to be their meaning in the proviso. The respondents’ contention to the contrary must fail.

The order

[11] In the result the following order is made:

It is declared that the applicant, as a prisoner subject to the provisions of the Correctional Services Act 8 of 1959, is entitled

to consideration forthwith, by the Commissioner or the Parole Board, for fitness to be subjected to correctional supervision in terms of section 276A(3)(a)(ii) of the Criminal Procedure Act 51 of 1977.

The respondents are directed to take such steps as may be necessary forthwith to facilitate the process for the immediate consideration of the applicant for placement under correctional supervision.

The respondents are ordered to pay the costs of the applicant.

Date of Hearing: 19 May 2008

Date of Judgment: 21 October 2008

The applicant (in person): Joseph Glen Esau (Applicant)

Prison No. 201183991

Westville Medium B (C302)

Private Bag X01

Westville, 3630

Counsel for the respondents’: Adv B J Buthelezi

Instructed by: Ms K Kisten (Senior Assistant State Attorneys)

State Attorney (Kwazulu-Natal)

6th Floor, Metropolitan Building

391 Smith Street, Durban

1 2008(2) SACR 64 (SCA) at 72g-i

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