Goodwin v Minister of Justice and Another (22537/2010) [2011] ZAWCHC 80 (24 March 2011)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 22537/2010

DATE: 24 MARCH 2011

In the matter between:

STEVEN WILLIAM GOODWIN …................................................Applicant

and

MINISTER OF JUSTICE …................................................1s' Respondent

MINISTER OF CORRECTIONAL SERVICES …..............2nd Respondent

JUDGMENT DESAI, J: In this somewhat garbled, if not desperate, application. Steven William Goodwin seeks an order from this Court declaring him suitable to be placed under correctional supervision as contemplated in section 73(7)(c)(i) of Act 111 of 1998. He is inter alia a convicted fraudster and is currently serving an effective sentence of nine years' imprisonment at the Goodwood Correctional Centre. It emerged during the course of argument that he is also an unrehabilitated insolvent. Perhaps wisely, counsel appearing on behalf of the second respondent made no point about his status as an insolvent.

JUDGMENT

DESAI, J:

In this somewhat garbled, if not desperate, application. Steven William Goodwin seeks an order from this Court declaring him suitable to be placed under correctional supervision as contemplated in section 73(7)(c)(i) of Act 111 of 1998.

He is inter alia a convicted fraudster and is currently serving an effective sentence of nine years' imprisonment at the Goodwood Correctional Centre. It emerged during the course of argument that he is also an unrehabilitated insolvent. Perhaps wisely, counsel appearing on behalf of the second respondent made no point about his status as an insolvent.

The matter has already been on the court roll four times. On at least one occasion the Court found that this matter had been set down prematurely. It was once again placed on the motion roll as one of urgency. Although I have serious reservations as to whether this matter is in fact urgent, I elect to deal with it on its merits. It appears that the applicant was engaged in criminality on a large scale. This resulted in his arrest and subsequent indictment on charges of fraud, corruption and money laundering. The money referred to in the indictment exceeds R100 million. In any event, he pleaded guilty to several charges. This was the product of plea bargaining, which would also explain the convoluted sentence which was agreed upon and ultimately sanctioned by the Court. On the fraud charge to which he admitted receiving R32 million, he was sentenced to 20 years' imprisonment of which 10 years were conditionally suspended for five years. The sentences on the other charges all run concurrently with this sentence. The sentence was further mitigated by the agreement that the period of time spent in the United States of America - that is whilst the applicant was on the run -amounting to about a year, be deducted from the 10 years (and not the 20 years as would be the practice when deciding upon parole). The plea bargained sentence is thus nine years - an extraordinarily light sentence if one has regard simply to the serious nature of his criminal conduct. On the other hand, it seems that the State agreed upon these sentences in the hope that the applicant would testify against one or more of his accomplices. The applicant commenced serving his sentence on 20 April 2009. Although that was not the case when these proceedings were instituted, it is common cause that the applicant has now served more than a quarter of his sentence. What entitles the applicant to stridently assert a right to be released at this stage under correctional supervision is not entirely clear from his papers. In his affidavit the applicant alleges that he has to be outside of prison to collect and supply corroborating evidence in one of the trials in which he has to testify. This is specifically denied by the investigating officer under oath. Similarly, he does not confirm that the police or the National Prosecuting Authority (NPA) support the applicant's release under correctional supervision. That is what the applicant maintains, or rather implies. Furthermore the applicant places great emphasis on the law. or justice, being applied to all equally He says that a co-accused was released under correctional supervision after he had completed a quarter of his sentence. This allegation is patently incorrect. Firstly, the applicant appeared alone and did not have a co-accused Secondly, the application for the said offender, one Maddox, was brought by the Department of Correctional Services (DCS), unlike this case where the applicant brings his own application for his release- And, thirdly. Maddox received a lesser sentence than the applicant. More importantly, the factual allegations made by the applicant with regard to how the matter was dealt with by the Department of Correctional Services (DCS) are effectively refuted by Ms Koleka Mkuta. who is the chairperson of the Case Management Committee ('CMC") at the Goodwood Correctional Centre. Mr NM Arendse SC, who appeared with Mr GR Papier on behalf of the second respondent, contended that it was in the public interest that the applicant remains incarcerated until he has completed his testimony against two other alleged offenders. That is the opinion, apparently, of the principal investigator who alleges that the applicant might abscond to Australia prior to completing his testimony and that there might be an attempt on his life because of the evidence he is in a position to give. These cannot be weighty, if relevant, considerations either for the placement of the applicant under correctional supervision or for the purposes of this review and will be disregarded. This application was launched on 11 October 2010. It is unclear from the said application which decision he seeks to review. His case is that the chairperson of the CMC "steadfastly refuse(s) to even consider (him) as a candidate for correctional supervision" despite two meetings by his current attorney with the said chairperson. He was told, it is alleged, that as his release date is more than five years in the future, he will only be considered for release in 2013. His new affidavit does not take the matter much further in this regard. It seems that the case advanced by him is that the CMC's refusal to refer the matter to the Correctional Supervision and Parole Board (CSPB) amounts to a failure to take a decision within the meaning of section 6(2){g), read together with section 6(3)(a) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The second respondent contends that decisions were made by the CMC on 16 March 2010 and again on 10 January 2011 to not refer the matter to the CSPB for submission to the trial court for the reconsideration of his sentence. The circumstances leading up to the said decisions are as follows: On 21 March 2010 - when the applicant had not as yet completed one year of his sentence of imprisonment - his attorney wrote to the CMC that he had instructions to bring an application in the Cape High Court for the conversion of the applicant's sentence in terms of section 276(A) of the Criminal Procedure Act and sought the written approval of the DCS in this regard. The CMC met the applicant on 16 March 2010 and at this meeting the applicant made an ad hoc application for his release under correctional supervision. He was told that such application could not be made at that stage, as he had as yet not completed a quarter of his sentence and furthermore his release date was more than five years in the future. A full assessment, and interview with, the applicant took place on that date. Similarly, on 10 January 2011 the CMC convened a further meeting to assess, and conduct an interview with, the applicant. It followed upon a request by the applicant that as he had completed a quarter of his sentence, he was eligible for a conversion of his sentence, more especially in that he was a first-time economic offender with no adverse case reports. Pursuant to this meeting the applicant was informed that his application for conversion was not ripe for hearing and that he was not a suitable candidate for the conversion of his sentence at the time. Besides the technical reason - namely his release date being more than five years in the future - to which I shall refer shortly, the CMC has also advanced other compelling reasons why the applicant is not a suitable candidate for placement under correctional supervision. These are the following: 1. His convictions relate to very serious economic crimes and he has completed less than two years of a nine-year sentence. 2. It seems that he has no real family ties in South Africa, nor does he have money to support himself. His daughter will care for him in Australia, but for the purposes of correctional supervision he obviously has to remain in South Africa. 3. His purported potential employers South African Venom Suppliers CC do not as yet have a branch in operation in the Cape. 4. He proposes living in Thornton with friends of his family, and the CMC noted that he had not been in contact with them for a long time. 5. The suggestion that he would do his community service with the NPA is quite clearly untrue. It is rebutted by them under oath. On the facts of this matter the applicant would have problems being placed on parole, let alone being released under correctional supervision two years into his sentence. Moreover, the CMC, or the Commissioner, could cogently argue that the applicant is not a suitable candidate for the purposes of correctional supervision. It is apparent from the above that the CMC has made a decision not to refer this matter for reconsideration of his sentence at this stage. The applicant cannot compel it to come to a different conclusion. This was pointed out by Leach J, as he then was, in De Lanqe v Provisional Commissioner of Correctional Services 2002 Volume 2 SACR 185 ECD The Judge commented as follows: "This section provides a method whereby respondent, charged with the enforcement of the Court's criminal sanction imposed upon the applicant, can approach the Court for variation of that sanction. The applicant has no right enforceable against the respondent to oblige the latter to do so. It is a decision which lies at the discretion of the respondent. The proceedings under this section are therefore sui generis and not proceedings in which one party seeks relief against the other." I agree entirely with those comments. Underpinning applicant's case is his view of Price v The Minister of Correctional Services 2008 (2) SACR 64 SCA. It is the applicant's position that that case is applicable in his instance, namely that the date upon which he can be considered for possible release on parole is not more than five years in the future. In the Price case supra the "date of release" was based upon the provisions of section 63(1) of the Correctional Services Act 8 of 1959 (the 1959 Act), which in 63(1)(b)(i) reads as follows. "Provided that for purposes of such recommendations the prisoner's date of release contemplated in section 276(a)(3)(a)(2) of the Criminal Procedure Act, 1997, 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." The Correctional Services Act 111 of 1998, (the 1998 Act), which is applicable in this instance, does not contain a similar provision and is clearly distinguishable. As applicant's release date - that is the date on which his sentence expires - is more than five years in the future, he does not meet the jurisdictional requirements for the CMC to forward the matter to the CSPB for submission to the relevant court. The applicant simply does not meet the required criteria to permit a reconsideration of his sentence in terms of the relevant legislative framework. THE APPLICATION IS ACCORDINGLY DISMISSED WITH COSTS. SUCH COSTS TO INCLUDE THE COSTS OF TWO COUNSEL DESAI, J

The matter has already been on the court roll four times. On at least one occasion the Court found that this matter had been set down prematurely. It was once again placed on the motion roll as one of urgency. Although I have serious reservations as to whether this matter is in fact urgent, I elect to deal with it on its merits.

It appears that the applicant was engaged in criminality on a large scale. This resulted in his arrest and subsequent indictment on charges of fraud, corruption and money laundering. The money referred to in the indictment exceeds R100 million.

In any event, he pleaded guilty to several charges. This was the product of plea bargaining, which would also explain the convoluted sentence which was agreed upon and ultimately sanctioned by the Court.

On the fraud charge to which he admitted receiving R32 million, he was sentenced to 20 years' imprisonment of which

10 years were conditionally suspended for five years. The sentences on the other charges all run concurrently with this sentence. The sentence was further mitigated by the agreement that the period of time spent in the United States of America - that is whilst the applicant was on the run -amounting to about a year, be deducted from the 10 years (and not the 20 years as would be the practice when deciding upon parole).

The plea bargained sentence is thus nine years - an extraordinarily light sentence if one has regard simply to the serious nature of his criminal conduct. On the other hand, it seems that the State agreed upon these sentences in the hope that the applicant would testify against one or more of his accomplices.

The applicant commenced serving his sentence on 20 April 2009. Although that was not the case when these proceedings were instituted, it is common cause that the applicant has now served more than a quarter of his sentence. What entitles the applicant to stridently assert a right to be released at this stage under correctional supervision is not entirely clear from his papers.

In his affidavit the applicant alleges that he has to be outside of prison to collect and supply corroborating evidence in one of the trials in which he has to testify. This is specifically denied by the investigating officer under oath. Similarly, he does not confirm that the police or the National Prosecuting Authority (NPA) support the applicant's release under correctional supervision. That is what the applicant maintains, or rather implies.

Furthermore the applicant places great emphasis on the law. or justice, being applied to all equally He says that a co-accused was released under correctional supervision after he had completed a quarter of his sentence. This allegation is patently incorrect. Firstly, the applicant appeared alone and did not have a co-accused Secondly, the application for the said offender, one Maddox, was brought by the Department of Correctional Services (DCS), unlike this case where the applicant brings his own application for his release- And, thirdly. Maddox received a lesser sentence than the applicant.

More importantly, the factual allegations made by the applicant with regard to how the matter was dealt with by the Department of Correctional Services (DCS) are effectively refuted by Ms Koleka Mkuta. who is the chairperson of the Case Management Committee ('CMC") at the Goodwood Correctional Centre.

Mr NM Arendse SC, who appeared with Mr GR Papier on behalf of the second respondent, contended that it was in the public interest that the applicant remains incarcerated until he has completed his testimony against two other alleged offenders. That is the opinion, apparently, of the principal investigator who alleges that the applicant might abscond to Australia prior to completing his testimony and that there might be an attempt on his life because of the evidence he is in a position to give. These cannot be weighty, if relevant, considerations either for the placement of the applicant under correctional supervision or for the purposes of this review and will be disregarded.

This application was launched on 11 October 2010. It is unclear from the said application which decision he seeks to review. His case is that the chairperson of the CMC "steadfastly refuse(s) to even consider (him) as a candidate for correctional supervision" despite two meetings by his current attorney with the said chairperson. He was told, it is alleged, that as his release date is more than five years in the future, he will only be considered for release in 2013.

His new affidavit does not take the matter much further in this regard. It seems that the case advanced by him is that the

CMC's refusal to refer the matter to the Correctional Supervision and Parole Board (CSPB) amounts to a failure to take a decision within the meaning of section 6(2){g), read together with section 6(3)(a) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The second respondent contends that decisions were made by the CMC on 16 March 2010 and again on 10 January 2011 to not refer the matter to the CSPB for submission to the trial court for the reconsideration of his sentence.

The circumstances leading up to the said decisions are as follows:

On 21 March 2010 - when the applicant had not as yet completed one year of his sentence of imprisonment - his attorney wrote to the CMC that he had instructions to bring an application in the Cape High Court for the conversion of the applicant's sentence in terms of section 276(A) of the Criminal Procedure Act and sought the written approval of the DCS in this regard.

The CMC met the applicant on 16 March 2010 and at this meeting the applicant made an ad hoc application for his release under correctional supervision. He was told that such application could not be made at that stage, as he had as yet not completed a quarter of his sentence and furthermore his release date was more than five years in the future. A full assessment, and interview with, the applicant took place on that date.

Similarly, on 10 January 2011 the CMC convened a further meeting to assess, and conduct an interview with, the applicant. It followed upon a request by the applicant that as he had completed a quarter of his sentence, he was eligible for a conversion of his sentence, more especially in that he was a first-time economic offender with no adverse case reports.

Pursuant to this meeting the applicant was informed that his application for conversion was not ripe for hearing and that he was not a suitable candidate for the conversion of his sentence at the time.

Besides the technical reason - namely his release date being more than five years in the future - to which I shall refer shortly, the CMC has also advanced other compelling reasons why the applicant is not a suitable candidate for placement under correctional supervision. These are the following:

1. His convictions relate to very serious economic crimes and he has completed less than two years of a nine-year sentence.

2. It seems that he has no real family ties in South Africa, nor does he have money to support himself. His daughter will care for him in Australia, but for the purposes of correctional supervision he obviously has to remain in South Africa.

3. His purported potential employers South African Venom Suppliers CC do not as yet have a branch in operation in the Cape.

4. He proposes living in Thornton with friends of his family, and the CMC noted that he had not been in contact with them for a long time.

5. The suggestion that he would do his community service with the NPA is quite clearly untrue. It is rebutted by them under oath.

On the facts of this matter the applicant would have problems being placed on parole, let alone being released under correctional supervision two years into his sentence. Moreover, the CMC, or the Commissioner, could cogently argue that the applicant is not a suitable candidate for the purposes of correctional supervision.

It is apparent from the above that the CMC has made a decision not to refer this matter for reconsideration of his sentence at this stage.

The applicant cannot compel it to come to a different conclusion. This was pointed out by Leach J, as he then was, in De Lanqe v Provisional Commissioner of Correctional Services 2002 Volume 2 SACR 185 ECD The Judge commented as follows:

"This section provides a method whereby respondent, charged with the enforcement of the Court's criminal sanction imposed upon the applicant, can approach the Court for variation of that sanction. The applicant has no right enforceable against the respondent to oblige the latter to do so. It is a decision which lies at the discretion of the respondent. The proceedings under this section are therefore sui generis and not proceedings in which one party seeks relief against the other."

I agree entirely with those comments.

Underpinning applicant's case is his view of Price v The Minister of Correctional Services 2008 (2) SACR 64 SCA. It is the applicant's position that that case is applicable in his instance, namely that the date upon which he can be considered for possible release on parole is not more than five years in the future.

In the Price case supra the "date of release" was based upon the provisions of section 63(1) of the Correctional Services Act 8 of 1959 (the 1959 Act), which in 63(1)(b)(i) reads as follows.

"Provided that for purposes of such recommendations the prisoner's date of release contemplated in section 276(a)(3)(a)(2) of the Criminal Procedure Act, 1997, 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."

The Correctional Services Act 111 of 1998, (the 1998 Act), which is applicable in this instance, does not contain a similar provision and is clearly distinguishable.

As applicant's release date - that is the date on which his sentence expires - is more than five years in the future, he does not meet the jurisdictional requirements for the CMC to forward the matter to the CSPB for submission to the relevant court. The applicant simply does not meet the required criteria to permit a reconsideration of his sentence in terms of the relevant legislative framework.

THE APPLICATION IS ACCORDINGLY DISMISSED WITH COSTS. SUCH COSTS TO INCLUDE THE COSTS OF TWO COUNSEL

DESAI, J