Kgatlhane v Minister of Correctional Services and Others (2595/10) [2011] ZANWHC 50 (1 September 2011)

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 2595/10

In the matter between:

SAMUEL KGATLHANE …............................................................APPLICANT

and

THE MINISTER OF CORRECTIONAL SERVICES …..............1ST RESPONDENT

COMMISSIONER OF CORRECTIONAL SERVICES ….......2ND RESPONDENT

HEAD OF PRISON (ROOIGROND) …...............................3RD RESPONDENT

CHAIRPERSON OF THE PAROLE BOARD

ROOIGROND PRISON …..................................................4TH RESPONDENT

HEAD OF CASE MANAGEMENT COMMITTEE

ROOIGROND PRISON …..................................................5TH RESPONDENT

DATE OF HEARING: 19 AUGUST 2011

DATE OF JUDGMENT: 01 SEPTEMBER 2011

FOR THE APPLICANT: ADV DIKOLOMELA

FOR THE RESPONDENT: DR SENATLE

JUDGMENT

LANDMAN J:

[1] Samuel Kgatlhane, the applicant, applies to be immediately released from the Rooigrond Correctional Facility where he is being detained. The first respondent is the Minister of correctional services. The second respondent is the Commissioner of Correctional Services. The third respondent is the Head of Prison (Rooigrond) and the fifth respondent is the Head of the Case Management Committee of that prison.

[2] The papers in this application were in disarray. Rules of procedure had been ignored but I overlooked all this in view of the fact that this matter involves the liberty of a person who is incarcerated.

[3] Both the applicant and the respondents have misconceived the essentials facts relating to the history of the matter. No purpose would be served in setting out how they understand the events which have unfolded.

History of the matter

[4] Briefly stated the following is the history of the matter:

(a) The applicant was charged with the rape of an under-aged girl in the Regional Magistrate’s Court sitting at Schweizer Reneke. The applicant was convicted of rape and sentenced on 23 November 2001 to 15 years’ imprisonment. The applicant was removed to Rooigrond in order to serve his sentence.

(b) The applicant appealed against his conviction and sentence imposed upon him in the Regional Magistrate’s Court to the North Gauteng High Court, which has jurisdiction over the district of Sweizer Reneke (even though it falls within the North West Province).

(c) The applicant remained in incarcerated and did not apply for bail pending his appeal.

(d) His appeal served in the North Gauteng Court before Bam and Msimeki AJJ. That court delivered a judgement on 17 June 2008. The court found that the sentence imposed by the Regional Magistrate was invalid and a nullity. The court decided that the case should be referred for sentence in terms of section 50(1) of Act 105 of 1997 to a judge of the High Court for the imposition of sentence.

(e) The applicant remained incarcerated; possibly as a convicted but unsentenced prisoner.

(f) The applicant appeared for purposes of sentence in the Circuit Court sitting at Klerksdorp.

(g) That court presumably confirmed the conviction of the applicant for the rape of the under-aged girl and sentenced the applicant to 8 years in prison. No information had been provided as to how this was arrived at. Possibly the time served was deducted from the period which the learned judge considered to be an otherwise appropriate sentence. Maybe other considerations prevailed.

(h) The applicant was removed to the Rooigrond prison where he currently remains.

Applicant’s contention

[5] It is the applicant's contention that, as the sentence of the North Gauteng High Court handed down on 18 November 2009, in terms of which he was sentenced to 8 years imprisonment, does not state that sentence should run from 18 November 2009, this means that the sentence runs from 23 November 2001. He has therefore served eight years of the sentence, he should be released as he has served his time. He says that he has not been released because the respondents assert that he should serve eight years imprisonment calculated from 18 November 2009 i.e. the date upon which the Circuit Court imposed sentence.

[6] There is no merit in this contention. His sentence runs from the date of its imposition namely 17 June 2009.

[7] Section 73(1)(a) of the Correctional Services Act 111 of 1998 provides that, subject to the provisions of the Act a sentenced offender “remains in correctional centre for the full period of the sentence”. Section 39(1) of the Act provides

“Subject to the provisions of subsection (2) sentence of incarceration 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 on which he or she submits to or is taken into custody." (Emphasis supplied.)

[8] The problem facing the applicant in this case is the following. Had he not appealed against his sentence of 15 years, then, in terms of the previous Act i.e. the Correctional Services Act 8 of 1959, he would have qualified for consideration for parole after serving one third of his sentence i.e. by November 2006.

[9] The current Correctional Services Act requires a sentenced prisoner to serve half of his or her sentence before qualifying for consideration for parole. Therefore, as he was sentenced to 8 years imprisonment on 18 November 2009, he must serve four years i.e. until November 2013 before he qualifies. In effect the applicant will have served about eleven years (as a sentenced prisoner and as a convicted prisoner)

before he may be considered for parole in November 2012.

[10] Clearly this situation is unfair and unjust. But it flows from an oversight or refusal (I do not know which) of the Circuit Court to have mero motu or on application backdated the sentence. The Circuit Court was the competent one to make such an order. See S v Seekoei 1997 1 ALL ER 40 (NC) at 46b-c. Had the Circuit Court backdated his sentence to 23 November 2001 the applicant would there and then have qualified to be considered for parole. See section 282 of the CPA which reads:

“Antedating sentence of imprisonment. – Whenever any sentence of imprisonment, imposed on any person on conviction for an offence, is set aside on appeal or review and any sentence of imprisonment or other sentence of imprisonment is thereafter imposed on such person in respect of such offence in place of the sentence of imprisonment imposed on conviction, or any other offence which is substituted for that offence on appeal or review, the sentence which was later imposed may, if the court imposing it is satisfied that the person concerned has served any part of the sentence of imprisonment imposed on conviction, be antedated by a court to a specific date, which shall not be earlier than the date on which the sentence of imprisonment imposed on conviction was imposed, and thereupon the sentence which was later imposed shall be deemed to have been imposed on the date so specified.”

[11] This Court has no power to afford the applicant the relief which he could have obtained from the court that imposed his sentence. It is undesirable for me to express an opinion on whether the situation can be remedied at this stage. But even if it can, it does not lie within the power of this Court to interfere with the sentence of the North Gauteng High Court which had jurisdiction in respect of the applicant. If he has any remedy, and I express no opinion on this, it may lie in an appeal to the full bench of the North Gauteng High Court.

[12] Both counsel agreed that the circumstances of the applicant should receive the sympathy of the respondents and that they should be urged to assist the applicant and ameliorate his predicament in so far as they are able to do so. I endorse their sentiments.

[13] The applicant has not been successful but I do not believe that it would be fair to make an order for costs against him.

[14] In the result the application is dismissed. There is to be no order for costs.

A A Landman

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : K J KETSE ATT

FOR THE RESPONDENT : STATE ATTORNEY

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