Van der Merwe v Minister of Justice and Correctional Services and Others (89493/2015) [2015] ZAGPPHC 828 (9 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 89493/2015

Date: 9/12/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

PETRUS MATHEUS VAN DER MERWE

APPLICANT

And

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES

FIRST RESPONDENT

NATIONAL COMMISSIONER OF CORRECTIONAL SERVICES

SECOND RESPONDENT

CHAIRPERSON: CORRECTIONAL SUPERVISION AND

PAROLE BOARD, KGOSI MAMPURU II CORRECTIONAL

CENTRE, PRETORIA

THIRD RESPONDENT

CHAIRPERSON: CASE MANAGEMENT COMMITTEE

KGOSI MAMPURU II CORRECTIONAL CENTRE,

PRETORIA

FOURTH RESPONDENT

JUDGMENT

PRETORIUS J,

(1) In this urgent application the applicant requests the court to grant the following orders:

“1. That the applicant’s non-compliance with the rules and service be condoned and that this application be heard as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court

2. That the decision by the first respondent to decline the applicant’s application for placement on parole alternatively day parole on or about 19 August 2015, be reviewed and set aside by virtue of the provisions of the Promotion of Administrative Justice Act, 2000 (PAJA).

3. That the decision of the first respondent be substituted in terms of section 8(1)(c)(ii)(a) of PAJA with an order that the applicant be released unconditionally alternatively released on full parole alternatively day parole within 7 days from the date of this order upon conditions set by the Correctional Service Authorities.”

(2) The applicant was sentenced to death which was commuted to life imprisonment on 18 September 1986 and he has been imprisoned for more than 30 years as he was arrested for the offences on 31 August 1985.

(3) On 7 July 2015 the applicant launched an urgent application which resulted in the following order being granted:

“1. The respondents are to arrange that the applicant appears before the Parole Board, not later than 21 July 2015.

2. The Parole Board is to consider the applicant’s situation in terms of the applicable policy and regulations.

3. The third respondent is to furnish the first respondent with the Parole Board’s report not later than 23 July 2015.

4. The first respondent is to make his decision and provide written reasons consequent upon the report of the Parole Board, not later than 21 August 2015.”

The first respondent refused parole on 19 August 2015, despite the contrary recommendations of the third and fourth respondents.

(4) Attached to the decision of the first respondent were two affidavits made by the applicant’s brother and sister-in-law that the applicant had threatened them. These affidavits were never placed before the Parole Board to enable it to consider it, neither were the applicant afforded the opportunity to deal with these affidavits before the first respondent made his decision. On 30 October 2015 the deponent to the affidavit, the applicant’s brother, made a contradictory statement which set out:

“The truth is that I do fear for my safety and that of my family but my saying that he is”…a person of a very aggressive and violent nature…” is simply for the fact that the applicant had committed those crimes 30 years ago. I have no reason and as far as I know, none of our family members have any reason, to suspect that the applicant would commit any violent acts against any of us.

He has also not made any threats while in prison that he will come back and finish what he started. I am also not aware of him making any threats for the past 30 (thirty) years against any other family member.

I visited the applicant on a number of occasions, inter alia while he was in Waterval Prison in KwaZulu-Natal and together with our mother at Pretoria Central shortly before her passing away and also after her passing and before I got married.

I also introduced the applicant to my wife and our newly born daughter. We had a get-together about 4 (four) years ago at

Kgosi Mampuru at a family day in the presence of my wife and a Mr Engelbrecht and his wife. The atmosphere throughout these

meetings was always pleasant and amicable. We were always treated with respect and definitely never threatened.” (Court’s emphasis)

The brother further retracted the previous statement that the crimes were committed in his presence 30 years ago. He further retracted his statement that the applicant had never shown remorse and stated:

“I also believe that he is remorseful and know that he apologised to other family members after his sentencing and when he was on death row.”

(5) This affidavit was not brought to the attention of the first respondent. The argument submitted by counsel for the first respondent is that the first respondent is so inundated by more than 400 similar applications, that it cannot be expected from him to deal with this matter before 1 August 2017.

(6) The decision of the first respondent set out, inter alia, that a further profile is approved for 1 August 2017. He further noted the sworn statements of the brother and sister-in-law of the applicant. There was no indication from both the Case Management Committee (“the CMC”) and Correctional Supervision and Parole Board (“the CSPB”) on whether the victims had been consulted and that the applicant had been informed of these allegations which only surfaced after 29 years.

(7) It is clear that the first respondent did not enquire from the CMS and the CSPB whether they had consulted with the victims. Having regard to the statement of the brother of the applicant the recommendations by the first respondent:

“4.1 The Social Worker and/or relevant professionals are to urgently assist the victims/offenders’ family with family mediation and/or any relevant or appropriate support service.

4.2 Should the Department not be in a position to assist the victims, the Department of Social Development or any other relevant NGO’s should be contacted for further assistance.”

cannot be the reason for not granting the applicant parole. It is clear from his brother’s second statement that there is no reason for such an intervention, as the brother has been visiting the applicant in prison. If he regarded the applicant as such a danger he would not have exposed his wife and baby to him.

(8) The further recommendation that a psychiatrist should evaluate the applicant cannot be taken seriously, as the same recommendation had been made on 16 January 2014 which was never implemented. There is no guarantee that it will take place and that the second respondent will adhere to the first respondent’s recommendation, as in the last twenty months the second respondent failed to take any steps in this regard. In any event the applicant had been evaluated on 12 August 2013 after he had been incarcerated for 28 years. This court cannot find that it is necessary for a further evaluation.

(9) The recommendations by both the CMC and the CSPB were totally disregarded. The applicant had completed all the restorative justice programmes, as well as the anger management programmes.

(10) On 8 November 2006 the CSPB recommended day parole. On 11 July 2007 the CMC recommended day parole. On 11 July 2007 Judge Desai, acting in his capacity as Chairperson of the National Commissioner for Correctional Services (“the NCCS”) did not recommend parole, without giving any reasons. On 13 July 2007 the CSPB recommended day parole. On 15 January 2008 the Minister refused parole, calling for a psychiatrist’s report. On 29 September 2008 the CMC once more recommended that the applicant be placed on parole. On 15 September 2009 the CSPB referred the matter to the NCCS. On 15 June 2010 the Minister refused parole as the NCCS was of the view that the applicant is a risk to society and the next date was fixed for 15 June 2012. On 23 May 2011 the CSPB submitted a positive report to the Minister, without any recommendation. On 23 June 2011 the Minister’s decision was that a report from the psychiatrist was required regarding the mental state of the applicant. It was referred for a further profile to 21 June 2013.

(11) Having regard to the history of this matter, it seems as if the applicant is doomed to a life in prison.

(12) It is important to note that the applicant has been a model prisoner for 30 years with no blemishes on his record and became eligible for parole for the first time in 1996. However, he was only considered and recommended by the CMC and the CSPB in April 2006, 10 years after he had become eligible and was only considered by the first respondent on 15 January 2008.

(13) It is furthermore undisputed that the deponent to the answering affidavit, Mr Senekal, opposing the present review application was a member of the CMC who recommended that the applicant be granted parole. His present statement on behalf of the respondents is in total contradiction to his recommendation to the first respondent.

(14) The “further point” which Mr Senekal made in his affidavit that there are currently 408 inmates who should be considered for release or placement on parole by June 2018 has no bearing on the present matter. It is untenable that Mr Senekal deposed to the answering affidavit in circumstances where he had previously recommended that parole be granted to the applicant.

(15) The averment that the applicant has to participate in the Restorative Justice Programme is not a valid excuse, as according to the applicant’s brother he had gone so far as to introduce his wife and new born daughter at a get-together at the Kgosi Mampuru Prison. In any event the applicant had completed the Restorative Justice Programme previously.

(16) There is no indication from the CMC or the CSPB that they had investigated the serious allegations of the applicant’s brother and sister-in-law, before placing the matter before the Minister for his decision, although the court order ordered that “the third respondent is to furnish the first respondent with the Parole Board’s report not later than 23 July 2015”

(17) Under these circumstances, where it is blatantly clear that the applicant’s brother and sister-in-law lied in the statements placed before the Minister, it is reasonable to expect the CMC and/or the Parole Board to place the correct facts before the Minister. Due to the nature of the allegations it could reasonably be expected that the audi alterem partem doctrine should have been applied, which clearly was not the case and that the applicant had not been informed of these allegations prior to the decision by the first respondent.

(18) The further reason for prolonging the incarceration of the applicant is “it appears that the previous decision dated 16 January 2014 was never implemented” must be regarded in the context that the applicant should not be further punished due to the lack of diligence on the part of the

employees of the second, third and fourth respondents.

(19) The averment by the applicant that a further psychiatric report was rendered by the psychiatrist, Dr Lawrence, during October 2014, which did not form part of the 2015 parole profile report, has not been denied.

(20) The Department of Correctional Services’ manager of Psychological Services, Mr G de Bod’s report dated 9 July 2007 set out:

“Seeing that the offender was already recommended for day parole by the Correctional Supervision and Parole Board on 08/11/2006 based on his behaviour during incarceration as well as his attendance of programmes which addressed his criminal behaviour the need for further reports is being questioned.” (Court’s emphasis)

(21) A further five reports have been submitted by the Chief Psychologist who submitted reports on 3 September 2009 and 10 May 2011; by the social worker who submitted reports dated 18 March 2009 and 4 May 2012, respectively; the psychiatrist, Dr Lawrence who submitted a report dated August 2013. All the findings in the respective reports were that “future reoffending cannot be predicted”.

(22) The prolonging of the applicant’s incarceration due to the fact that a psychiatrist must once more assess him relating to future reoffending can take the matter no further, as it is clear that none of the above experts could predict “future reoffending”.

(23) The only sentence that has to be considered is the life sentence, as the other sentences have been served in full and should not be further taken into consideration at all.

(24) The applicant attended the first restorative justice programme and subsequently was utilized as a crime facilitator. Therefor the reason that he has to complete a restorative justice programme cannot be entertained, as he has also completed the CROWA Restorative Justice and Emotional, Ecological and Moral Intelligence Mentoring seminar, as well as the Ubuntu symposium, an AIDS facilitator program and the Intensive Care Leadership program.

(25) The chief psychologist, Ms Mtjekelo, had reported on 3 September 2009 and again on 10 May 2011 respectively:

“Despite the stressful death-row experience and spending long time in the Correctional Centre Petrus is still positive about life and very active. During his time in the Correctional Centers Petrus had voluntary enrolled for and took part in numerous rehabilitation and development programmes. He has enrolled for HIV/AIDS and Anger Management Facilitation and Counselling Course and has been very instrumental in Pretoria Central C.C. HIV/AIDS programmes and projects.

…His is focused and very positive about life and may add value to his family and community at large especially in the fight against

HIV/AIDS.” (Court’s emphasis)

(26) The applicant has been a group A prisoner for more than a period of 23 years, which was never taken away due to misconduct. The applicant has lived a crime free life since he had been sentenced for more than 29 years.

(27) Section 6 of the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”) provides in section 6(2):

“(2) A court or tribunal has the power to judicially review an administrative action if-

(a) …

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of law;

(e) the action was taken-

(i) for a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;

(iv) because of the unauthorised or unwarranted dictates of another person or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously;

(f) the action itself-

(i) contravenes a law or is not authorised by the empowering provision; or

(ii) is not rationally connected to-

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;

(g) the action concerned consists of a failure to take a decision;

(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or

(i) the action is otherwise unconstitutional or unlawful.” (Court’s emphasis)

It is clear to this court that the action taken was procedurally unfair as the audi alterem partem rule was not adhered to. Furthermore the retraction of the damning statement against the applicant was not placed before the first respondent.

(28) The question in the present application is what relief should be afforded the applicant, should the court decide in favour of the applicant. In Goldberg and Others v Minister of Prisons and Others 1979(1) SA 12 (A) at 39 C-D it was held:

“It seems to me that fundamentally a convicted and sentenced prisoner retains all the basic rights and liberties…of an ordinary citizen except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed.” (Court’s emphasis)

(29) In Chaskalson Kentridge et al Constitutional Law of South Africa the learned authors state at page 28-24:

“A key requirement of the principle of legality is that even those rights of prisoners which are restricted as a necessary consequence

of incarceration may only be limited if this is done by legislation, either expressly or by necessary implication. The laws

regulating prisons in South Africa must therefore be scrutinised to see whether they provide the necessary authority for the restriction

of prisoners’ rights. The restrictions must, in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary

powers which deny them protection of the law.” (Court’s emphasis)

(30) I am also mindful of the finding by Ackerman J in S v Dodo 2001(1) SACR 594 (CC) at paragraph 38:

“To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the

very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end…Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender's humanity.” (Court’s emphasis)

(31) This principle that human beings are not commodities, must apply in the present instance, although it was delivered in regard to life imprisonment in a criminal case.

(32) Counsel for the applicant requests the court to invoke section 8(1)(c)(ii) of PAJA which provides:

“(1) The court or tribunal, in proceedings for judicial review in terms of section 6 (1), may grant any order that is just and equitable, including orders-

(b) …

(c) setting aside the administrative action and-

(i) …

(ii) in exceptional cases-

(aa) substituting or varying the administrative action or correcting a defect resulting from the administrative action; or

(bb) directing the administrator or any other party to the proceedings to pay compensation;” (Court’s emphasis)

(33) Section 12(1)(e) of the Constitution of the Republic of South Africa Act No. 108 of 1996, provides:

“12 Freedom and security of the person

(1) Everyone has the right to freedom and security of the person, which includes the right-

(c) …

(d) …

(e) not to be treated or punished in a cruel, inhuman or degrading way.” (Court’s emphasis)

(34) It is evident that the first respondent did not have all the relevant information when he made his decision. It is imperative that all information must be placed before him to enable him to make an informed decision. It is, however, clear that the applicant has not been treated fairly in the past and drastic measures need to be implemented to rectify the present situation urgently.

(35) I therefor make the following order:

1. The respondents are to arrange that the applicant appears before the Parole Board not later than 22 December 2015. The respondents have to ensure that all relevant facts are placed before the Parole Board;

2. The Parole Board is to consider the applicant’s situation in terms of the applicable policy and regulations;

3. The third respondent is to furnish the first respondent with the Parole Board’s report not later than 4 January 2016;

4. The first respondent is to make his decision and provide written reasons consequent upon the report of the Parole Board not later than 22 January 2016;

5. The respondents are to pay the costs of this application including the costs of senior and junior counsel.

_____________________

Judge C Pretorius

Matter heard on: 2 December 2015

For the Applicant: Adv. Muller SC/Adv Badenhorst

Instructed by: Röntgen & Röntgen Inc

For the Respondent: Adv Moloisane SC

Instructed by: State Attorney

Date of Judgment: 9 December 2015