Ugochukwa v Minister of Correctional Services and Others (4655/06) [2007] ZAGPHC 106 (20 June 2007)

Not reportable

Delivered 20 June 2007

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 4655/06

In the matter between:

IKENNA UGOCHUKWA APPLICANT

AND

MINISTER OF CORRTECTIONAL SERVICES 1ST RESPONDENT

COMMISSIONERT OF CORRECTIONALSERVICES 2ND RESPONDENT

CHARPERSON OF THE PAROLE BOARD: 3RD RESPONDENT

PRETORIA CENTRAL BOARD.

CASE MANAGEMNET COMMITTEE:

PRETORIA CENTRAL PRISON 4TH RESPONDENT

JUDGMENT

MAVUNDLA, J.

The applicant brought an application against the respondents in terms whereby he sought various relief, inter alia that:

1.1. “The decision of the Third Respondent of approving a further profile to be submitted during February 2007 be reviewed and be set aside;

1.2. The Third Respondent be ordered to consider the Applicant for placement on parole in terms of section 65 (4) of Act 8 of 1959 forthwith;

1.3. The acting chairperson of the third respondent be prohibited from sitting at the consideration of the applicant for replacement on parole referred to in paragraph 1.2 above forthwith;

1.4. The requirement that the applicant serve 2/3 of his sentence before being considered and indeed placed on parole be reviewed and set aside;

1.5. Respondent be directed to make a decision as to the applicant’s date of release on parole in terms of section 56 (8) of Act 8 of 1959 and to inform the applicant of the decision made and the date of his placement on parole;

1.6. The respondents are directed to disregard the policy of 23 April 1998 and subsequent policies in consideration of the applicant’s placement on parole;

1.7. Respondent’s release policy be declared to find similar application to all prisoners, including the applicant, irrespective of the crime committed and the date of sentence;

1.8. The respondent be directed to promote, respect and fulfil the applicant’s rights in the Bill of Rights, Chapter II of the Constitution, 1996 when performing their functions in terms of the above orders;

1.9 This Court make a determination as to the applicant’s placement date on parole.

The applicant who is from Federal Republic of Nigeria was convicted at Magistrates’ Court in Johannesburg on dealing in cocaine and was sentenced on the 22 April 1998 to an imprisonment term of 15 years, which he is currently serving at Pretoria Central Prison. It is common cause that he received two presidential amnesties in 1998 and 2005 for a period of 6 months respectively (12 months in total). The applicant contends that the practical effect thereof is that he is serving 14 years imprisonment. He says that he has served almost 8 years of the 15 years imprisonment, which is more than half of the 14 years imprisonment he is now supposed to serve. He says that he has met the minimum requirement for placement on parole in terms of section 65(4) and (8) of Act 8 of 1959. He further states that respondents have placed prisoners who have committed so- called ‘non-aggressive crimes’ and habitual criminals on parole to, or upon completing half of their respective sentences and yet require the applicant to serve more than half of his sentence. He says that by so doing the respondents have penalised the him and that this emanates from an impugned policy directive. He says further that the respondents have acted ultra vires the empowering provisions by exercising a power for an unauthorised purpose in that they failed to consider the applicant for placement on parole in terms of Act 8 of 1959 despite the fact that he qualifies to be so placed since he has served more than half of his sentence.

He contends that on the 4 August 2005 the third respondent failed to inform him well in advance that he would have to appear before the Case Management Committee (CMC) for assessment for purposes of making a recommendation to the Parole Board. As the result he did not have an opportunity to have his documents ready for presentation before the CMC. as a result he was unable to obtain from his file the necessary programmes for submission to the CMC. The chairperson refused to accept documents which the applicant tried to hand to the committee. He was not furnished with the policy documents of the respondents upon which the decision was taken, recommending that he be further profiled for February 2007 for the reconsideration by the parole board. He says that the result of this failure to be so furnished with this policy document deprived him of an opportunity to show why he says that he qualifies for certain advantages. In support of this contention he relies on the matter of Tselang v Chairperson , Unemployment Insurance Board 1995 (2) BCLR 138T.

He contends that the failure by Mr. Hlalethoa, the former head of prison, to inform him of the approved placement date upon which a decision to have him released on parole violates section 65 (4) and (8) of Act 8 of 1959 as well as his right to equality, right not to be subjected to cruel, inhuman and degrading punishment and the right to administrative justice as enshrined in sections 9(1), (2) and (3);12(1)(e) and 33 of the Constitution.

The applicant further contends that he has been prejudiced inter alia by the decision for the date of 27 February 2007 because the date is too far; in that he could gather within six months whatever outstanding information was required. He further says that the decision on the 4 August 2005 to have him sent to another section (different unit manager) where he does not belong, amounts to a disciplinary measure against him and this lead to a consideration of irrelevant facts thus negating, by implication, the legislative terrain and objective assessment of his true rehabilitation as required by the Promotion of Just Administrative Act (PAJA) and that this departure is not a justifiable limitation in the light of prison circumstances. The applicant has further complained of Mr. Hlalethoa sitting as the chairperson notwithstanding the fact that the chairperson was present. He contends further that the parole

It has been submitted by the applicant that the parole Board to which he was invited on 25 August 2005 was not properly constituted. It is stated that Mr. Hlalethoa, the former head of prison acted as the chairperson although the chairperson was present, and that he could not act as such in the presence of the chairperson. He further submits that there was a legitimate expectation on his part that through the credit system created by section 65 (4) (a) of Act 8 of 1959 he had credits amounting to four years, which should have been taken into account in deciding the date upon which he should be referred for consideration to be released on parole. He submits that he had been given a date for the 21 October 2005, which date was not adhered to. This clearly demonstrates that the Board has not applied its mind, so contends the applicant.

The respondents have stated in their replying affidavit that the applicant who was sentenced in 1998 falls to be dealt with in terms of the then regime of Act 8 of 1959, as stipulated in section 136(1) of Act 111 of 1998, which latter Act only came into effect in 2004. It is further stated that the fourth respondent was properly constituted in terms of the Act and saw the applicant on the 25 August 2005 in accordance with the procedure and substantive requirements of the Act . It is further stated that it was decided that the applicant is not to be released on parole alternatively he did not receive a date upon which he would be released on parole, but rather the question of whether or not the applicant is a suitable candidate to be released on parole will be revisited and reconsidered on 25 February 2007. The reason for such decision is because the applicant is a deportation case of Nigeria and has to attend rehabilitation programmes and his warrant for deportation is still outstanding. His warrant for deportation should it be available will have to be presented during his re-evaluation. It is further stated that the appellant was informed of this decision.

For purposes of the consideration of this review application, it is apposite to refer to the matter of Stanfield v Correctional Services and Others where the learned 1Van Zyl J, with respect, succinctly set out the considerations and applicable principles in review proceedings. At page 70I-71B he says:

“The standard of review

[93] the judicial review of decisions taken by executive and other functionaries in the exercise of public power has long been recognized by our common law and in the far-reaching jurisprudence arising therefrom. In general terms, with a view to establishing grounds of review, it must be shown that the decision-maker failed to apply his mind to the relevant issues in accordance with the applicable statutory provisions and requirements of natural justice. See National Transport Commission and Another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735F-G; Johannesburg Local Road Transportation Board and Others v David Morton Transport 9Pty) Ltd 1976 (1) SA 887 (A) at 895B-C; Theron en Andere v Ring van Wellington van die NG Sendinkerk in Siud-Afrika en Andere 1976 (2) SA 1 (A) at 14F-G.”

[94] These authorities, and the principles demonstrated by them, were cited with approval by Corbett JA in Johannesburg Stock Exchange and Another v Witwatersrand and Another 1988 (3) SA (3) 132 (A) at 152A-B.” In assessing whether the decision of the president of Johannesburg Stock Exchange to suspend the listing of securities should be set aside on review, the learned Judge considered the allegation that the president had failed to apply his mind as aforesaid, continued (at 152B-D )that:

“ Such failure may be shown by proof, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principled or in order to further an ulterior or improper purpose; or that the president misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the president was grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforesaid….Some of these grounds tend to overlap.

[95] ‘The common-law ground of review have been bolstered by s33(1) of the Constitution, which provides, under the heading ‘Just administrative action”, that ‘(e)very one has the right to administrative action that is lawful , reasonable and procedurally fair’. This emphasis on lawfulness (or legality), reasonableness (or rationality) and fairness (or equity) has not rendered the common law grounds of review redundant. On the contrary, they have come firmly interlinked with the constitutional norms, having been ‘subsumed under the Constitution’ and deriving their force from the Constitution. See Pharmarceutical Manufactures Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC) (2000 (3) BCLR 241) at para [33]. Chaskalson P explains this in paras [50]-[51]:

“[50] What would have been ultra vires under the common law by reason of a functionary exceeding a statutory power is invalid under the Constitution according to the doctrine of legality. In this respect, at least, constitutional law and common law are intertwined and there can be no difference between them. What is “lawful administrative action”, “procedurally fair administrative action”, “procedurally fair administrative action” and administrative action “justified in relation to the reasons given for it”, cannot mean one thing under the Constitution, and another thing under the common law.

[51] Although the common law remains relevant to this process, judicial review of the exercise of public power is a constitutional matte that takes under the constitution and in accordance with its provisions…’

[96] As required by s 33(3) of the Constitution, national legislation has, in the meantime, been enacted to give effect to these rights. I speak of the Promotion of Administrative Justice Act of 2000 (PJA) and, more particularly, to ss 3 to 6 thereof. See Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty )Ltd and Another; See Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 where (6) SA 407 (SCA) ([2003]2 B ALL SA 616) at 631j para [46], where Schultz JA opined that the common law and the said sections of PAJA give content to the standards required by s33 (1) of the Constitution for administrative actions.

“[97] The unfairness of a decision as such cannot constitute a ground for review unless the unfairness is of such a nature and degree that it may justify the inference that the decision-maker has erred to an extent rendering the decision reviewable. Such inference is not easily drawn. See Bel Porto School Governing Body and Others v Premier, Western and Another [2002] ZACC 2; 2002 (3) SA 265 9CC) at para [86]. In para[87], Chaskalson CJ continues to say:

‘[87] The role of the Courts has always been to ensure that the administrative process is conducted fairly and that decisions are taken in accordance with the law and consistently with the requirements of the controlling legislation. If these requirements are met, and if the decision is one that a reasonable authority could make, Courts would not interfere with the decision.’

[98] The need for administrative action to be reasonable, in terms of s33 (1) of the Constitution, gives rise to what has probably become the essential standard of review, namely, the rationality of the action, conduct or decision in question. This must be assessed objectively and dispassionately, since the counter-side of rationality is usually arbitrariness and even capriciousness; justifying the review and setting aside of the administrative act in question.”

It is also necessary to refer to 65 (4) of Act 8 of 1959.

Section 65(4)(a) provides as follows:

“(4) (a) A prisoner serving a determinate sentence shall-

if a non-parole-period was fixed, not be considered for placement on parole unless he has served the non-parole-period or half of his term of imprisonment, whichever is the longer;

if a non-parole-period was not fixed, not be considered for placement on parole unless he has served half of his term of imprisonment

Provided that no such prisoner shall serve more than 25 years before being considered for placement on parole.”

As earlier indicated herein above the applicant contends that he has since served almost 8 years of his 15 years imprisonment sentence. He says that because of the 12 months amnesties the practical effect thereof is that he has served 7 years of his sentence of 15 years and that as he has served more than half of his sentence, he has met the minimum requirement for placement on parole in terms of section 65(4) and (8) of Act 1959. He says that the respondents have acted ultra vires the empowering provisions by exercising a power for an unauthorized purpose in that they failed to consider the placement of the applicant on parole in terms of Act 8 of 1959.

The applicant falls within the old dispensation created by Act 8 of 1959., as is confirmed by section 136 of the Correctional Service Act, 111 of 1998, which provides as follows:

“(1) Any person serving a sentence of imprisonment immediately before the commencement of Chapters IV, VI and VIII is subject to the provisions of the Correctional Services Act, 1959 Act no 8 of 1959), relating to his or her placement under community corrections, and is to be considered for such release and 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.” The commencement date of the Correctional Service Act is the 31 July 2004.

I therefore assume that in the case of the applicants65(4)(a)(ii) is applicable. In view of the fact that the word “shall” has been employed in the introductory part of subsection (4)(a), the prison authorities do not have a discretion in dealing with the applicant either than as prescribed by this section.

The respondents say that the applicant has served 8 years and 10 months (taking into account 2 presidential amnesties granted in 1998 and 2005 for a period of 6 months respectively) of the 15 year sentence imposed upon the applicant on 22 April 1998. Because the applicant had served at least one third of his sentence and as required by the Act, the applicant saw the respondent on the 4 August 2005 in accordance with relevant procedure and it was recommended that he not be placed on parole at that stage, but that a further profile (having the practical effect of reconsidering the applicant’s case) be submitted for reconsideration on 1 December 2006. On the 25 August 2005 the fourth respondent after having heard the applicant’s presentation, decided that applicant is not to be released for parole and that his case will be revisited on 25 February 2007 and that this decision was conveyed to the applicant.

In an unreported judgment of Gerrit Reiner Steenkamp v The Commissioner of Correctional Service Case No: 21018 and the matter of Joseph Sebote Maaga and two Others v The Minister of Correctional Service and Five Others, case no 1614 /03 which both cases were combined, in its judgment which was delivered on 7 February 2005, the Full Court Bench per Van Der Merwe J said that: ”Section 32(1) of the Act provides, subject to certain provisions which are not relevant for present purposes, that a sentence of imprisonment shall take effect from the day on which that sentence was passed. Section 65(1) of the Act provides that a prisoner shall be released upon the expiration of the term of imprisonment imposed on him/her. A convicted person is therefore intended to serve the whole of the sentence imposed. The date of a prisoner’s release will therefore be on the expiration of the last day of the term of imprisonment.”

A convicted person has no right to be placed on parole, the parole was a privilege.2

In Sebe v Minister of Correctional Services and Others3 the Court said that:

“It is of relevance to draw a distinction between parole and remission of sentence.

Historically, parole is a prisoner’s promise, of good behaviour in return for release before the expiration of a custodial sentence or, in the modern usage, granting of a convicted prisoner a conditional release on the basis of a promise to adhere to stipulated conditions in return. The phrase ‘on parole’ is, therefore, the situation of the prisoner being conditionally released from goal against an undertaking to abide by specific terms and conditions. An example of these terms and conditions is to be found in s9 of the Parole and Correctional Supervision Amendment Act 87 of 1997 which, in turn, amends s65 of the Correctional Services Act 8 of 1959, as amended. An internal administrative procedure involving the parole board must first take place before the release of a prisoner on parole.

Remission of sentence, on the other hand, is a privilege and not aright, the purpose of which being to serve as an incentive to encourage, if nothing else, good , disciplined behaviour and adherence to prison procedures.”

The contention of the applicant that the decision of the fourth respondent that the applicant would be considered for parole during February 2007 violated section 65 (4) of Act 8 of 1959 is misconceived. The applicant, as a convicted person has no right to be placed on parole, the parole was a privilege.4 Besides, before he can be placed on parole there must be an internal administrative decision in that regard.

In the aforesaid Full Bench decision at page 16 the Court stated that: “The dates for the consideration/or for the actual placement of a prisoner on parole have nothing to do with the “date of release” in section 276A(3)(a)(ii)of the CPA. The date deemed to be the date of release referred to in section 63(1)(b) of the Act is only for purposes of recommendation referred to in that section.”

Act 87 of 1997 provide as follows:

“9. Amendment of section 65 of Act 8 of 1959, as inserted by section 21 of Act 68 of1993—Section 65 of the principal Act is hereby amended—

by the substitution for subsection (2) with the following subsection:

“(2) A prisoner may, in accordance with the provisions of this section be placed on parole before the expiration of his term of imprisonment if he accepts the conditions of such placement.”

In Sebe v Minister of Correctional Services and Others5 the Court said that:

“It is of relevance to draw a distinction between parole and remission of sentence.

Historically, parole is a prisoner’s promise, of good behaviour in return for release before the expiration of a custodial sentence or, in the modern usage, granting of a convicted prisoner a conditional release on the basis of a promise to adhere to stipulated conditions in return. The phrase ‘on parole’ is, therefore, the situation of the prisoner being conditionally released from goal against an undertaking to abide by specific terms and conditions. An example of these terms and conditions is to be found in s9 of the Parole and Correctional Supervision Amendment Act 87 of 1997 which, in turn, amends s65 of the Correctional Services Act 8 of 1959, as amended. An internal administrative procedure involving the parole board must first take place before the release of prisoners on parole. Remission of sentence, on the other hand, is a privilege and not a right, the purpose of which being to serve as an incentive to encourage, if nothing else, good, disciplined behaviour and adherence to prison procedures.”

The aforesaid Full Bench6 decision at page 16 the Court says that: “The dates for the consideration/or for the actual release have nothing to do with the “date of release” in section 276A(3)(a)(ii)of the CPA. The date deemed to be the date of release referred to in section 63(1)(b) of the Act is only for purposes of recommendation referred to in that section.

The contention by the applicant that the respondent exercised their power ultra vires and that he has met the minimum requirement that he must serve half of his sentence and must be placed on parole cannot be correct. As indicated herein above, he does not have a right to be placed on parole. It is a privilege. Each and every case of a prisoner whether he must be placed on parole must be considered on its own merit7. I am unable to find that the fourth respondent, in his decision that the applicant must be reconsidered in February 2007 is to be faulted. I am further unable to find that the fourth and the third respondent acted ultra vires when they considered the case of the applicant. They are empowered to consider whether a prisoner should be considered to be placed on parole or not. The fact that a prisoner has served a particular minimum sentence required for being considered on parole, does not mean that that particular prisoner must automatically be placed on parole. Neither does it mean that if it is decided that such person be not placed on parole , therefore respondents have acted ultra vires their powers..

In the matter of Stanfield v Minister of Correctional Services and Others 2004 (4)SA 43 at 70I-71B the Court said:

“[93]The judicial review of a decision taken by executive and other functionaries in the exercise of public power has long been recognised by our common law and in the far-reaching jurisprudence arising there-from. In general terms, with a view to establishing grounds of review, it must be shown that the decision-maker failed to apply his mind to the relevant issues in accordance with the applicable statutory provisions and the requirements of natural justice. See National Transport Commission and Another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735F-G; Johannesburg Local Road Transportation Board and Others v David Morton Transport 9Pty) Ltd 1976 (1) SA 887 (A) at 895B-C; Theron en Andere v Ring van Wellington van die NG Sendinkerk in Siud-Afrika en Andere 1976 (2) SA 1 (A) at 14F-G.

[94] These authorities, and principles demonstrated by them, were cited with approval by Corbett JA in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (30 SA 132 (A) AT 152A-B. ”

In the matter of Sasol Oil (Pty) Ltd and Another v Metcalfe NO 2004 (5) SA 161 (WLD ) at 165E-I the Court pointed out that PAJA cannot be regarded as an ordinary legislation, although a general useful tool which confers rights, although guaranteed and enshrined in our Constitution, to every one living in the Republic of South Africa who is dealing with the State or organs of the State, to a lawful, fair and reasonable administrative action and to be furnished with reasons to a decision taken in such administrative action.

Having regard to the authorities cited herein above for the applicant to succeed in his application, he must show that “the decision-maker failed to apply his mind to the relevant issues in accordance with the applicable statutory provisions and the requirements of natural justice.”8

In the matter of Osojnak v South Africa Railways and Harbours 1955 (4)SA 429 (NPD) where the chairman of a disciplinary board had absented himself for 20 per cent of the time during which the appeal was heard, it was held that as such absence constituted substantial portion of the time devoted to the appeal that it constituted an irregularity. It was however held that the applicant was not prejudiced by such absence. At 436A-B the Court said that: “In my opinion the absence of the chairman for over 20 per cent of the time of the proceedings on appeal was an irregularity and in conflict with the principles of natural justice. In many cases such an irregularity might prejudice an appellant and would entitle him to set aside the proceedings concerned (see Jockey Club of South Africa and Others v Feldman, 1942 A.D. 340 at p.359) but not if the Court is satisfied that the irregularity did not prejudice him.”

As indicated herein above, the respondents, state that the fourth respondent was properly constituted in terms of the Act and saw the applicant on the 25 August 2005 in accordance with the procedure and substantive requirements of the Act. Mr Hlalethoa states in his affidavit that he is the chairperson of the Correctional Supervision and Parole Board. There is nothing to gainsay this averment and accordingly I am obliged to accept this as such. Section 136(1) of Act 111 of 1998 provides that::

“Any prisoner serving a sentence of imprisonment immediately before the commencement of Chapters IV, VI and VII is subject to the provisions of the Correctional Service Act, 1959, relating to his or her placement under community or 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.”

28. In my view, Mr. Hlalethoa was therefore as the chairperson of the Parole Board entitled to be present at the relevant meeting complained of by the applicant. Besides, the applicant has not demonstrated in what way was he prejudiced by the sitting of Mr. Hlalethoa as a chairperson.

The applicant has not demonstrated, in my view, that the decision taken by the third respondent that a further profile be submitted for purposes of consideration on 1 December 2006 was arrived at without the third respondent having applied his mind. The fourth respondent states that all the documents that were at its disposal were taken into consideration before such decision was arrived at.

With regard to the complaint of the applicant that he was not given an opportunity to present documentation before the fourth respondent, the applicant has not stated what other documents did he want to place before the fourth respondent, which the fourth respondent did not already have in his file and to what extent those documents would have influenced the decision of the fourth respondent to be different from the one taken by the fourth respondent on the relevant date. It is inconceivable that a prisoner in the custody of the respondents can have material in his possession without the prison authorities not being aware thereof. Certainly, with regard to whatever document that is necessary for the consideration of either the recommendation of parole or release of such prisoner, one would expect that such documents must be kept in the file of that prisoner and that the prison authorities would have access to it.

On the other hand, the respondent states that what motivated the decision which the applicant complains of, is the fact that “The applicant is a deportation case of Nigeria serving 15 years for dealing in cocaine. He must attend more rehabilitation programmes. His deportation warrant is still outstanding. Should his deportation warrant be available [(it) (my insertion)] must be attached during next consideration.” The respondents further state that the fourth respondent was mindful of the duration of the sentence the applicant is serving; the fact that he is a deportation case of Nigeria; he has done an Aids awareness programme as well as an investment in excellence programme; he is an LLB degree student. It needs mention that attached to the record submitted in terms of Rule 53(3) on the Uniform Rules of this Court, is a deportation order Home Affairs dated the 23 December 2000 which states that “In accordance with section 45 of the Liens Control Act, 1991 (Act 96 of 1991) the removal of the-named person has been ordered. This certainly confirms that indeed the applicant is a deportation case. There is also attached an Acknowledgement for meritorious work memorandum relating to the applicant; his commendation for good behaviour and his academic performance record at Unisa and various other documents relating to the good character of the applicant. I am satisfied that the respondent took into consideration all these documents in the consideration of the case of the applicant. Whatever other documents the applicant avers that he was not afforded an opportunity to present before the fourth respondent, he could not have been prejudiced thereby since there were already other documents that clearly demonstrate that he is on the course of rehabilitating himself. He could therefore not have been prejudiced by the absence of whatever documents he still wanted to present.

From the reasons advanced by the fourth respondent in the consideration of the applicants case, I am unable to find that the third respondent has failed to exercise his mind, nor am I in a position to find that in exercising his mind, he did so capriciously or mala fide.

I need also refer to the matter of S v Suliman 1968 (3) SA 219 (AD) where the Appeal Court stated that “Prison Boards, it seems follow no hard and fast rule as to the time when they proceed to make a recommendation for the release of such prisoner. Each individual case is considered on its merits, and the relevant factors relating to that case determined the attitude and approach of the board.”

The fact that a prisoner at any given instance is being evaluated, it does not necessarily mean that he must automatically be recommended for parole. There is also no merit that because the applicant was not given a date when in future would he be placed on parole, has therefore his rights been violated. It is to be expected that such decision would have to be taken premised on various factors, like, inter alia, the conduct of the applicant at the time when such consideration is being made.

The applicant was convicted and sentenced before the Correctional Service Act , No. 111 came into effect on 31 July 2004. The determination of his case whether he must be placed within the old dispensation created by Act 8 of 1959. There is therefore no substance on the contention of the applicant that the respondents acted ultra vires. The respondents, in my view, acted within the powers accorded them by section 65 (4) of Act 8 of 1959. The respondents were conscious of the fact that the applicant’s falls to be dealt with within the provisions of s65(4). A vague allegation that they acted ultre vires, without a factual basis being laid for such, does not justify a setting aside of the decision complained of. I am of the view that the respondents considered the case of the applicant within the legislative frame work accorded them. The mere fact that it was decided that his case should be reconsidered in February 2007 does not mean that they acted ultre vires.

The applicant further contends that the failure by the respondents to make available to him of their policy has deprived him of the opportunity to show why he says that he qualifies to benefits.

In view of the fact that the respondents in deciding that the case of the applicant must be reconsidered in February2007, they took into account the fact that his case is a deportation case, I consider it not necessary to deal with the rest of the other aspects that have been raised by the applicant.

In the premises I am of the view, and so do I order that the application must be dismissed with costs.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE: 14TH JUNE 2007

DATE OF JUDGMENT: 20 JUNE 2007

APPICANTS ATT: IN PERSON

APPLICANT`S ADV: J ROUX

DEFENDANT`S ATT: STATE ATTORNEY

1 2004 (4) SA 43 (CPD)

2 Combrink v Minister of Correctional Services 2001 SA 338 (D & CLD) at 341D-F.

3 1999 (1) SACR 244at 249e-i.

4 Combrink v Minister of Correctional Services 2001 SA 338 (D & CLD) at 341D-F.

5 1999 (1) SACR 244at 249e-i.

6 Gerrit Reiner Steenkamp v The Commissioner of Correctional Service Case No: 21018 and the matter of Joseph Sebote Maaga and two Others v The Minister of Correctional Service and Five Others, case no 1614 /03.

7 S v Suliman 1968 (3) SA 219 (AD

8 Stanfield v Minister of Correctional Services and Others (supra) at 70I-71B

19