West v Min of Correctional Services & others (3789/2020) [2021] ZAFSHC 145 (15 April 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 3789/2020

In the matter between:

MERVIN

CHANKY WEST

Applicant

and

MINISTER

OF CORRECTIONAL

SERVICES

1st Respondent

NATIONAL

COMMISSIONER OF

CORRECTIONAL

CENTRE 2nd Respondent

PROVINCIAL

COMMISSIONER OF

CORRECTIONAL

CENTRE 3rd Respondent

HEAD

OF MANGAUNG

CORRECTIONAL

CENTRE 4th Respondent

JUDGEMENT BY: PARKS, AJ

HEARD ON: 25 MARCH 2021

DELIVERED ON: 15 APRIL 2021

[1] This is an application directing the respondents to grant the applicant his rights in terms of Sect 43(1) of the Correctional Services Act 111 of 1998 (the Act).

[2] The relief sought by the applicant is to be transferred from Mangaung Correctional Centre to Gauteng Correctional Centre.

[3] 1st – 4th respondents opposed this application.

[4] The applicant is a sentenced prisoner currently housed at Mangaung Correctional Centre. He was convicted, sentenced to life imprisonment on 17th February 2012 in the South-Gauteng High Court and detained thereafter in Johannesburg Correctional Centre (Medium B). He was subsequently classified as a maximum-security prisoner and was transferred to Mangaung Correctional Centre, which is a maximum-security facility.

[5] It must be mentioned that prior to proceeding with this application, I have enquired from the applicant since he is a lay person whether he would want legal representation in order for Legal Aid South Africa to assist with this application. The applicant however declined the offer.

[6] The applicant in his founding affidavit made several averments amongst others that he was transferred at night without informing his family and without their approval.

[7] The Director of Public Prosecutions influenced the transfer whereupon an instruction was issued to Correctional Service to execute same.

[8] The applicant agrees that he is classified as a maximum prisoner and avers that he is entitled to regular visits by his family. The applicant however avers a few paragraphs later that he has now been classified as a medium prisoner without divulging why the difference in his classification status.

[9] His family and the counsel whom he instructed to file his application for leave to appeal are unable to visit him due to financial constraints. The lack of visitation is an infringement of his constitutional rights in terms of section 35(2)(e) of the Constitution of the Republic of South Africa, 1996

[10] The applicant avers that because of the forceful transfer, is he treated in a manner that degrades his human dignity.

[11] He was deprived of the right to petition his conviction and sentence even though in his argument he stated that he had filed a petition.

[12] The respondents state several reasons for opposing the application. They are that the applicant was transferred after his classification as a maximum prisoner to a maximum-security facility. Mangaung Correctional Centre had met the applicant’s security needs and was able to accommodate the applicant.

[13] The correctional facilities based in Gauteng were overcrowded and was the conditions exacerbated by the covid-19 pandemic.

[14] The averment is made that the applicant has applied in 2014 for a transfer to Leeuwkop Correctional Centre in Gauteng and this request was denied. There was subsequently no request to review this decision nor any other application subsequent thereto by the applicant.

[15] The respondents deny that inmates are treated inhumanely at Mangaung Correctional Centre and deny that the Director of Public Prosecutions plays any role in the detention of inmates at Correctional Centres. They further deny that the location of the applicant does not prevent the applicant to consult with his legal representative.

[16] The respondents averred that the applicant is afforded the opportunity in terms of section 21 and section 93 of the Act to lodge a request and/or complaint with the Head of the Correctional Centre.

[17] The respondent in conclusion argued that the applicant seeks a mandamus. He has failed to prove the requisites for such relief and therefore his application should be dismissed.

[18] Does the applicant have a right to be transferred in terms of Sect 43(1) of the Act?

[19] Section 35 of the Constitution of the Republic of South Africa, 1996 contains the rights of a sentenced prisoner:

35 Arrested, detained and accused persons

(2) Everyone who is detained, including every sentenced prisoner, has the right-

(a) to be informed promptly of the reason for being detained;

(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

(e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and

(f) to communicate with, and be visited by, that person's-

(i) spouse or partner;

(ii) next of kin;

(iii) chosen religious counsellor; and

(iv) chosen medical practitioner.

[20] Section 43 of Correctional Services Act reads as follows :

43 Location and transfer of sentenced offenders

(1) A sentenced offender must be housed at the correctional centre, closest to the place where he or she is to reside after release, with due regard to the availability of accommodation and facilities to meet his or her security requirements and with reference to the availability of programmes.

[21] Section 21 of the Act states the following:

21. Complaints and requests—

(1)Every inmate must, on admission and on a daily basis, be given the opportunity of making complaints or requests to the Head of the Correctional Centre or a correctional official authorised to represent such Head of the Correctional Centre.

(2) The official referred to in subsection (1) must—

(a)record all such complaints and requests and any steps taken in dealing with them;

(b)deal with complaints and requests promptly and inform the inmate of the outcome; and

(c)if the complaint concerns an alleged assault, ensure that the inmate undergoes an immediate medical examination and receives the treatment prescribed by the correctional medical practitioner.

(3) If an inmate is not satisfied with the response to his or her complaint or request, the inmate may indicate this together with the reasons for the dissatisfaction to the Head of the Correctional Centre, who must refer the matter to the National Commissioner.

(4) The response of the National Commissioner must be conveyed to the inmate.

(5) If not satisfied with the response of the National Commissioner, the inmate may refer the matter to the Independent Correctional Centre Visitor, who must deal with it in terms of the procedures laid down in section 93.

[22] Section 29 of the Act stipulates:

29. Security classification —

Security classification is determined by the extent to which the inmate presents a security risk and so as to determine the correctional centre or part of a correctional centre in which he or she is to

be detained.

[23] Section 93 of the Act

93. Powers, functions and duties of Independent Correctional Centre Visitors —

(1) An Independent Correctional Centre Visitor shall deal with the complaints of inmates by—

(a) regular visits;

(b) interviewing offenders in private;

(c) recording complaints in an official diary and monitoring the manner in which they have been dealt with; and

(d) discussing complaints with the Head of the Correctional Centre, or the relevant subordinate correctional official, with a view to resolving the issues internally.

(2) An Independant Correctional Centre Visitor, in the exercise and performance of such powers, functions and duties, must be given access to any part of the correctional centre and to any document or record.

(3) The Head of the Correctional Centre must assist an Independent Correctional Centre Visitor in the performance of the assigned powers, functions and duties.

(4) Should the Head of the Correctional Centre refuse any request from an Independent Correctional CentreVisitor relating to the functions and duties of such a Visitor, the dispute must be referred to the Inspecting Judge, whose decision will be final.

(5) An Independent Correctional Centre Visitor must report any unresolved complaint to the Visitors’ Committee and may, in cases of urgency or in the absence of such a committee, refer such complaint to the Inspecting Judge.

(6) The Inspecting Judge may make rules concerning, or on the appointment of an Independant Correctional Centre Visitor, specify, the number of visits to be made to the correctional centre over a stated period of time and the minimum duration of a visit, or any other aspect of the work of an Independant Correctional Centre Visitor.

(7) Each Independent Correctional Centre Visitor must submit a quarterly report to the Inspecting Judge, which shall include the duration of visits, the number and nature of complaints dealt with, and the number and nature of the complaints referred to the relevant Visitors’ Committee.

[24] Regulation 25 of the Act

25 Location and transfer of inmates

(1)(a) When an inmate is transferred the Head of the Correctional Centre or a correctional official authorised by him or her must, subject to paragraph (b) convey the reason for the proposed transfer to the inmate and allow the inmate to make a representation in this regard, which must recorded in writing, where after the Head of the Correctional Centre or the authorised official may take a decision on the proposed transfer

(b) If the transfer is for security reasons the Head of the Correctional Centre or the authorised official need not inform the inmate of the proposed transfer, but the inmate must be informed of the reasons as soon as practicable after his or her admission to the place where he or she is transferred to and must be allowed an opportunity to make a representation in this regard as well as an opportunity to notify his or her spouse, partner or next of kin in the manner prescribed by the Order.

If an inmate or cared-for child is being transferred, his or her medical history file and any prescribed medication must be transferred with him or her.

The correctional official in charge of education and training must be consulted when the transfer of an inmate, who is a learner and involved in an education or training programme or who is involved in a final examination, is being considered.

[25] Section 73(6)(b)(iv) of the Act

73. Length and form of sentences

(6)(b) A person who has been sentenced to —

(iv) life incarceration, may not be placed on day parole or parole until he or she has served at least 25 years of the sentence

[26] In Goldberg and Other v Minister of Prisons and Others 1979 (1) SA 14 (A) Corbett, JA said in a dissenting judgement : “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. Of course, the inroads which incarceration necessarily make upon a prisoner's personal rights and liberties are very considerable. He no longer has freedom of movement and has no choice in the place of his imprisonment. His contact with the outside world is limited and regulated. He must submit to the discipline of prison life and to the rules and regulations which prescribe how he must conduct himself and how he is to be treated while in prison. Nevertheless, there is a substantial residuum of basic rights which he cannot be denied; and, if he is denied them, then he is entitled, in my view, to legal redress.”

[27] In Dippenaar v Minister of Correctional Services and Others, (569/2015) delivered on 31/03/2017, a review application in terms of Promotion of Administrative Justice Act 3 of 2000 was brought. The court set aside the decision to transfer the applicant to another centre due the transfer being procedurally and substantively unfair and referred the matter back for reconsideration.

[28] In Masilela and Others v Bouwers and Others, 2013 (2) SACR (GNP) Bertelsman J dismissed the applicant’s application for a transfer from a maximum security centre which was far from the applicants’ home to lesser security centres close to apllicants’ homes due to the applicants failure to establish the grounds for the relief of a mandamus sought. Neither did the applicants suggest that the administrative actions performed were unlawfully, irrationally or mala fide.

[29] In WP v Minister of Justice and Correctional Services delivered on 4 March 2021, Kollapen J found that the rights relating to conditions of incarceration and more in particular contact and non-contact visits which the applicant submitted he is entitled to, are not part of the rights that the Constitution guarantees to prisoners and subsequently dismissed the application.

[30] I do not agree with the applicant’s argument that the respondents have failed to comply with section 43(1) of the Act when his transfer was executed. Section 43(1) contains several conditions relating to where a sentenced offender must be accommodated such as where sentenced offender will reside after release, availability and security requirements.

[31] The applicant is currently serving a sentence of life imprisonment and according to Section 73(6)(b)(iv) of the Act will the applicant only be eligible for parole once he had served at least 25years of the sentence. The applicant was sentenced in 2012, he has to date of this application only served 9years of his sentence. This in essence means that when applicant is eligible to be released on parole, he should be housed close to the area where he would reside after his release.

[32] It is a well-known fact that correctional centres are over-crowded and with the Covid-19 pandemic circumstances are even worse. Mangaung Correctional Centre had accommodation available to house the applicant and the centre met his security needs due to his classification, which justified the transfer.

[33] I do not agree with applicant’s argument that he has a right to be transferred and failure to do so amounts to a violation of his rights enshrined in the Constitution. I have highlighted section 35(2) of the Constitution, which contains the rights afforded to a sentenced offender. However, one should not lose sight of the fact that the rights enshrined in the Constitution are not absolute and limited to the extent that the limitation is reasonable and justifiable in an open and democratic society.

[34] The respondents have never prohibited the applicant’s family and his counsel from visiting the applicant, it is rather their inability to visit him. Furthermore, it is not necessary for a legal representative to visit and/or see the applicant in order to file an appeal or petition. Telephonic consultations can be arranged or the services from the local Legal Aid South Africa offices can be secured to assist the applicant with same.

[35] In terms of Section 21 and Section 93 of the Act certain measures are at the disposal of the applicant. He can apply for a transfer, which is a request, and if same is declined, reasons for the dissatisfaction should be referred to the Head of the Correctional Centre who in turn must convey same to the National Commissioner. This section also caters for complaints of an alleged assault as alleged by the applicant to the relevant official who must ensure an immediate medical examination. Furthermore can the applicant lodge his complaints with the Independent Correctional Centre Visitor.

[36] It is not disputed that the applicant had filed a request for a transfer in 2014, but the applicant had failed to exercise the remedies available, if he was not satisfied with the outcome of the decision.

[37] Regulation 25 of the Act highlights the administrative process prior to the transfer as well as options available to the applicant indicating compliance with the audi alteram partem rule.

[38] I am of the view that the averments made by the applicant that his transfer was influenced or directed by the Director of Public Prosecutions is based on hearsay and unfounded.

[39] Furthermore, has the applicant failed to file a review of any of the decisions taken, be it the actual transfer or the decision by Correctional Services whom declined his request for a transfer.

[40] Regrettably, the applicant has failed to make out a proper case for the relief sought.

[41] The general rule is that costs follow the successful party. However, the applicant is a sentenced prisoner, which in my view warrants deviation, that will be reflected in my order below.

[42] In conclusion, I make the following order:

1. The application is dismissed.

2. No order is made as to costs.

C.S. PARKS, AJ

For the applicant:

In Person

For the 1st,

2nd, 3rd & 4th Respondent: Adv Mazibuko

Instructed by : State Attorney’s Office

BLOEMFONTEIN