Moodley v Minister of Justice and Correctional Services and Others (21/53385) [2023] ZAGPJHC 1447 (13 December 2023)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Case No. 21/53385

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

13/12/23

In the matter between:

DONOVAN SAMUEL MOODLEY Applicant And MINISTER OF JUSTICE AND CORRECTIONAL SERVICES First Respondent DIRECTOR-GENERAL: DEPARTMENT OF JUSTICE AND CORRECTIONAL SERVICES Second Respondent NATIONAL COMMISSIONER: DEPARTMENT OF JUSTICE AND CORRECTIONAL SERVICES Third Respondent JOHANNESBURG AREA COMMISSIONER: DEPARTMENT OF CORRECTIONAL SERVICES Fourth Respondent HEAD OF PRISON: JOHANNESBURG CORRECTIONAL CENTRE B Fifth Respondent PAROLE BOARD: JOHANNESBURG CORRECTIONAL CENTRE B Sixth Respondent ROBERT WILLIAM MATTHEWS Seventh Respondent

JUDGMENT

WILSON J:

1 The applicant, Mr. Moodley, is serving a life sentence for the murder of Leigh Matthews. He seeks an order reviewing and setting

aside the decision of the sixth respondent, the Parole Board, to recommend that his application for parole be deferred, and that he undergoes additional treatment from a psychotherapist before being considered for parole again. That decision was taken on 29 March 2023, after a lengthy hearing.

2 This is the second time Mr. Moodley has impugned the decision of the Parole Board before me. A year ago, almost to the day, I set

aside the Parole Board’s first decision to defer Mr. Moodley’s parole application. I made that decision because no adequate record of the Parole Board’s hearing had been kept, and it was impossible to discern any rational basis for the Board’s decision as a result (see Moodley v Minister of Justice and Correctional Services (21/53385) [2022] ZAGPJHC 1041 (15 December 2022)).

3 On this occasion, an exhaustive record of the parole hearing was placed before me, but what that record reveals about the 29 March

2023 hearing is damning.

4 Mr. Moodley’s counsel characterised the 29 March 2023 decision as irrational. Both Mr. Moodley and the amicus curiae also sought to persuade me that I ought to infer from the record that the Parole Board is biased against Mr. Moodley. Although both of these arguments had considerable merit, the dispiriting truth is that I need go no further, in granting Mr. Moodley relief, than to observe that, on the undisputed facts, Mr. Moodley’s legal representative was treated so badly that he was prevented from providing any meaningful assistance to his client at the hearing. If that were not enough to vitiate the Board’s decision (it is) it would be necessary to point out, again on the undisputed facts, that a voting member of the Parole Board slept his way through a significant portion of the 29 March 2023 hearing. That, too, means that the 29 March 2023 decision cannot stand.

5 Mr. Malema, who appeared for the first to sixth respondents, did not attempt to dispute either of these facts or to defend the deplorable conduct of the Board that they disclose. Nor did he seriously contend that the 29 March 2023 decision can stand in light of them. This means that, yet again, the Parole Board’s decision must be reviewed and set aside. In what follows, I explain why that is so, before turning to what Mr. Vally, who appeared for Mr. Moodley, rightly contended was the real issue in this case. That issue is whether the Parole Board should be afforded a third opportunity to give Mr. Moodley the fair hearing to which he has now

been entitled for several years, or whether I should substitute the 29 March 2023 decision for a recommendation that Mr. Moodley be released on parole.

The 29 March 2023 hearing

6 A Parole Board takes its powers from sections 74 and 75 of the Correctional Services Act 111 of 1998 (“the Act”). Section 74 of the Act requires the first respondent, the Minister, to appoint one or more Parole Boards, with a particular seat and area of jurisdiction. Each Board must consist of a chairperson, a vice-chairperson, a member nominated by the National Commissioner of Correctional Services (that member must serve as the secretary to the Board), and two members of the community. In terms of section 74 (7A) of the Act, a person nominated by either or both of the National Commissioner of Police and the Director-General of the Department of Justice may also be co-opted onto the Board. Parole Board members serve for a period determined by the Minister and on such terms and conditions as the Minister sets. The Minister may remove any member of a Parole Board for misbehaviour, incapacity or incompetence. Section 74 (6) of the Act requires that

“[a]ny decision of a Board must be taken by resolution of the majority of the members present at any meeting of that Board and, in the event of equality of votes, the person presiding shall have the casting vote as well as a deliberative vote”.

7 Under section 75 of the Act, a Parole Board considers the fitness for parole of a prisoner sentenced to a determinate term of 24 months or more. It does so having considered a report compiled on that prisoner by a “case management committee”, which

supervises the prisoner’s process of rehabilitation and oversees the services made available to a prisoner to enable that

process. In most cases, a Parole Board is empowered to grant parole itself. However, in respect of a prisoner serving a life sentence,

like Mr. Moodley, section 75 (1) (c) of the Act empowers the Board only to recommend the prisoner’s release to the Minister.

Section 75 (3) of the Act requires the Board, before making its decision, to consider written or oral representations. If the Board

decides to have the prisoner appear before it in person, section 75 (3) provides that the prisoner may be represented by “any

person” who is not themselves a sentenced prisoner. It is not clear from the text of the Act whether representation is only

permitted if the prisoner does not themself appear, but that issue need not be resolved in this case. Nevertheless, I think that once a Parole Board permits legal representation, it follows naturally that the Board must conduct itself in a manner that does not unreasonably impede a legal representative’s performance of their duty to represent a prisoner before the Board.

The treatment of Mr. Moodley’s legal representative

8 Mr. Moodley sought and obtained the Parole Board’s permission to be assisted by a legal representative. That permission

was given in a letter dated 24 March 2023, addressed to Mr. Moodley’s then attorney, in which up to two representatives were permitted to attend the hearing, but were told they would only be permitted to read out a pre-prepared written representation.

9 I do not think it was open to the Board to fetter Mr. Moodley’s attorney in that way. Once legal representation is permitted, a legal representative may not be impeded from doing all that can fairly and ethically be done to represent their client’s

interests. Courts, Parole Boards and domestic tribunals act improperly if they seek to prevent a legal representative from doing

all that is reasonably necessary to advance their client’s case. That does not mean, of course, that a presiding officer is not entitled to control the proceedings before them, to subject a legal representative to reasonable time limits or robust questioning, or to do anything else that is reasonably necessary to ensure fairness between the parties before them, and to mature the facts and issues of law that they must decide.

10 The Board’s conduct in this case does not require me to consider the finer detail of a Board’s obligation to refrain

from obstructing a legal representative in the course of their duties. From the outset of the 29 March 2023 hearing, the Chairperson

of the Parole Board in this case demonstrated no appreciation of his duties to ensure that Mr. Moodley had reasonable assistance from his legal representative. The Chairperson’s attitude to Mr. Moodley’s legal representative ranged from the high-handed to the belligerent. Mr. Moodley was not allowed to sit with his legal representative. He was told that he may only consult with his legal representative during breaks. Mr. Moodley’s legal representative’s attempts to intervene on his client’s

behalf were summarily shut down. A fair hearing was impossible in these circumstances.

The somnolent Parole Board member

11 Present as a member of the Parole Board on 29 March 2023 was a representative of the South African Police Services, a Colonel van

Straten. He had been co-opted onto the Board under section 74 (7A) of the Act. In his papers, Mr. Moodley complained that Colonel van Straten fell asleep for a significant portion of the hearing. Colonel van Straten’s phone buzzed at least twice, but that did not stir him from his slumber. Eventually, after what, from Mr. Moodley’s account, must have been at least several minutes, Colonel van Straten woke up once he was tapped on the shoulder by another Board member.

12 Mr. Moodley’s account of Colonel van Straten’s somnolence was not disputed in the respondents’ answering affidavit. Colonel van Straten did not himself depose to an affidavit to dispute it. The facts Mr. Moodley alleges are accordingly uncontested.

13 They are also damning. Mr. Malema argued that the burden was on Mr. Moodley to show that Colonel van Straten’s nap made a difference to the outcome of the hearing. I do not think that is the correct approach. Section 74 (6) of the Act requires the Parole Board to take its decisions by a majority of “deliberative” votes. That places the burden on the Board to demonstrate that the vote of the every member of the Parole Board was truly deliberative. Where it is demonstrated on the facts that a member of the Board was absent or unconscious for any significant part of the hearing, the Board bears the onus of demonstrating that this made no difference. In this case, that onus has not been discharged.

14 It follows from all this that Mr. Moodley did not get a fair hearing. That renders it unnecessary for me to consider the substantive rationality of the Parole Board’s recommendation, or whether the Board was reasonably apprehended of bias.

Internal remedies

15 It is, though, necessary to deal briefly with a submission from the seventh respondent, Mr. Matthews. Although Mr. Matthews was himself critical of the way the Parole Board discharged its functions, he also argued that Mr. Moodley should not have brought this review without exhausting the internal remedy provided by section 75 (8) of the Act. Section 75 (8) allows the Minister, the

National Commissioner of Correctional Services, or the Judicial Inspector of Correctional Services to refer a Parole Board’s

decision back to it for reconsideration.

16 Ms. Theart-Hofmeyr, who appeared for Mr. Matthews, argued that this was an “internal remedy”, for the purposes of section 7 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), that had to be exhausted before Mr. Moodley approached me. I do not think that is correct. The remedy in section 75 (8) is not one that can be activated by the prisoner, but by the Minster, the Commissioner or the Inspecting Judge. I do not think that is really changed by the fact that the parole board manual

creates a procedure to allow a prisoner to ask the Minister, the Commissioner or the Inspecting Judge to exercise their powers under the provision. The “remedy”, such as it is, remains beyond the prisoner’s direct control.

17 Moreover, the purpose of section 7 of PAJA is to prevent an applicant for judicial review from approaching a court for relief that they could just as easily, perhaps more easily, obtain from an internal remedy. The classic instance of such a remedy is the internal appeal, in which a person aggrieved by a decision can have it reconsidered and substituted by another decision-maker. I do not think the referral back provided for in section 75 (8) of the Act is a remedy of that nature.

18 In any event, in these proceedings, Mr. Moodley seeks the substitution of the Parole Board’s decision, or, at the very least, the consideration of his parole application by a reconstituted Parole Board. Ms. Theart-Hofmeyr found herself unable to submit that

this relief is realistically available from an approach to the Commissioner, the Minister or the Inspecting Judge, and a referral

back to the Board. It seems to me, therefore, that, at least in this case, section 75 (8) is not a true “internal remedy” as defined in section 7 of PAJA. Mr. Moodley was not required to exhaust it, or to explain why he did not, before seeking relief from me.

Remedy

19 It follows from all of this that the decision of the Parole Board cannot stand. It must be reviewed and set aside. The question now is what further relief should follow. The decision cannot be referred back to the Parole Board as presently constituted. Having

been given two opportunities to afford Mr. Moodley a fair hearing followed by a demonstrably rational decision, the Board has shown

itself incapable of doing so. It does not matter whether, as Mr. Vally and Mr. May, who delivered oral argument for the amicus, argued, the Board has shown itself to be biased. The Board has shown itself to be incompetent to process Mr. Moodley’s case. I cannot say whether this bespeaks a more fundamental problem with the way the Johannesburg Correctional Supervision and Parole Board operates, or whether there is something about Mr. Moodley’s case (its high profile, perhaps, or the deeply disturbing nature of Mr. Moodley’s crime) that is just too much to handle. Whatever the truth, it would not be “just and equitable”, within the meaning of section 8 of PAJA, for me to subject Mr. Moodley, or the Matthews family, to the Parole Board’s mismanagement of its functions once again. The Matthews family, in particular, must look upon this process with anguish and disbelief. They, too, have a right to a rational and fair hearing before the Parole Board. They, too, have been victims of its failure to fulfil its most basic functions in this case.

20 The choice before me, therefore, is whether to substitute the Parole Board’s decision, or to refer Mr. Moodley’s application back for consideration by a differently constituted Board. All the parties agreed that both options are open to me. Section 74 of the Act seems to me to be flexible enough to allow the Minister to provide Mr. Moodley with a differently constituted panel,

whether by replacing the members of the Board that considered Mr. Moodley’s application in this case, or by appointing a new Board to exercise its functions in parallel with the existing Board, perhaps only for the purpose of considering Mr. Moodley’s

application.

21 Section 8 of PAJA permits a court to substitute its decision for that of the decision maker where there are “exceptional circumstances” that justify its doing so. Such circumstances have been held to exist in four classes of case. These are: first, where the court is in as good a position and thus as well qualified as the original authority to make the decision (see Gauteng Gambling Board v Silverstar Development (Pty) Ltd 2005 (40 SA 67 (SCA), paragraphs 28 and 39); where the end result is a foregone conclusion and it would merely be a waste of time to order the

decision-maker reconsider the matter (see Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T) at 76 F-G); where additional delay would cause unjustifiable prejudice (see ICS Pension Fund v Sithole NO 2010 (3) SA 419 (T) at paragraph 97); or where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again (see University of the Western Cape v Member of Executive Committee for Health and Social Services 1998 (3) SA 124 (C), 131E-F).

22 I do not think that any of these circumstances truly applies here. I am not convinced that I have the information necessary to give the decision that the Parole Board should have reached. While Mr. Moodley appears to have done a great deal of work towards his

rehabilitation in prison, there remain questions about whether he is truly remorseful for what he has done, and whether he ever fully disclosed the details of his crime. These questions are material to any decision to release him. They have not been explored before me.

23 Moreover, the Act itself prescribes that parole decisions must be reached by balancing a range of considerations and views, including those of community representatives appointed to the Board. Those representatives face a particularly difficult task. They need to assess and reconcile the retributive sentiments of a citizenry which is no doubt revolted by the crime that Mr. Moodley committed;

any considerations, such as remorse, that may tend towards mercy; and, perhaps most importantly, the information that may tend towards the conclusion that Mr. Moodley is now ready “to lead a socially responsible and crime-free life in the future”

(section 36 of the Act). I am not, at least for now, in as good a position as a Parole Board to make any of these assessments.

24 Nor, for the reasons I have given, is the outcome of Mr. Moodley’s parole application a foregone conclusion. Precisely because the Parole Board has failed fairly to explore the evidence before it, there are questions of Mr. Moodley’s entitlement to

parole that remain unexplored. I am unable to say how the proper examination of his remorse and of his account of the manner in which his crime was committed would affect the outcome of a fair inquiry into his suitability for parole.

25 I do not think that a further attempt to consider Mr. Moodley’s entitlement for parole will cause an unjustifiable delay. He is, after all, serving a life sentence. That means that he must spend the rest of his natural life in prison unless his release

on parole can be justified. If the Parole Board’s present record of incompetence is sustained, there will come a point at which the delay in considering Mr. Moodley’s entitlement for parole may naturally outweigh any other consideration. But I do not think that point has yet been reached. For the time being, the burden remains on Mr. Moodley to show that he should be released. In any event, I intend to direct the Minister to ensure that Mr. Moodley’s entitlement to parole be reconsidered by the end of March 2024. That will ameliorate the delay that Mr. Moodley has endured.

26 Finally, it seems to me that remitting Mr. Moodley’s case to a differently constituted Parole Board compensates for the pattern of incompetence I have identified in this judgment. If that incompetence repeats itself before a different Board, then a strong

case for substitution may well be made out. However, for the reasons I have given, the need to give effect to the statute, and

particularly the emphasis it places on community participation in parole proceedings, tips the balance in favour of referring Mr.

Moodley’s case back to the parole authorities, albeit to a differently constituted Parole Board.

27 For these reasons, substitution would be inappropriate.

Order

28 Accordingly, I will order that the matter be referred back for reconsideration before a differently constituted Parole Board. The

amicus curiae asked me to recommend to the Minister that he appoints a retired Judge to chair the reconstituted Board. I do not think that would be appropriate. Judges do not generally “recommend” courses of action. We make orders justified by law. There is no law that prescribes to the Minister that a retired Judge should be appointed to a Parole Board in any given set of circumstances. Still, that possibility having been raised, the Minister will no doubt give it due consideration.

29 Mr. Vally did not press for costs in the event that Mr. Moodley was substantially successful. This was no doubt because he was instructed very late in the proceedings, and because Mr. Moodley had represented himself until then.

30 For all these reasons –

30.1 The recommendation made by the sixth respondent on 29 March 2023 in respect of the applicant’s fitness for parole is reviewed and set aside.

30.2 The first respondent is directed to ensure that the applicant’s entitlement to be released on parole is reconsidered by an entirely reconstituted Correctional Supervision and Parole Board, by no later than 29 March 2024.

30.3 Each party will pay their own costs.

S D J WILSON

Judge of the High Court

This judgment was prepared and authored by Judge Wilson. It is handed down electronically by circulation to the parties or their legal representatives by email, by uploading it to the electronic file of this matter on Caselines, and by publication of the judgment to the South African Legal Information Institute. The date for hand-down is deemed to be 13 December 2023.

HEARD ON: 29 November 2023

DECIDED ON: 13 December 2023

For the Applicant:

M Vally

MY Razak

Instructed by

Muhammed Vally Attorneys Inc

For the First to Sixth Respondents:

JMV Malema

The State Attorney

For the Seventh Respondent:

A Theart-Hofemeyer

Tania Keon Attorneys

For the amicus curiae:

GE Kerr-Phillips

SG May

At the request of the court