Zihlangu NO v Head of Centre: Correctional Services: Idutwa and Others (1894/09) [2010] ZAECMHC 10 (1 April 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION: MTHATHA)

In the matter between: CASE NO. 1894/09

ZIBELE ZIHLANGU, N.O Applicant

And

HEAD OF CENTRE: CORRECTIONAL

SERVICES, IDUTWA 1st Respondent

AREA COMMISSIONER: CORRECTION

SERVICES, SADA MANAGEMENT AREA 2nd Respondent

NATIONAL COMMISIONER:

CORRECTIONAL SERVICES 3rd Respondent

MINISTER OF CORRECTIONAL

SERVICES 4th Respondent

SIVATHO MAKHUNI ` 5th Respondent

CHAIRPERSON: MTHATHA

MANAGEMENT AREA CORRECTIONAL

SUPERVISION AND PAROLE BOARD 6th Respondent

CHAIRPERSON: CORRECTIONAL

SUPERVISION AND PAROLE REVIEW

BOARD 7th Respondent

______________________________________________________

JUDGMENT

DAWOOD, J:

The Applicant herein sought the following relief in the amended notice of motion:-

“

An order interdicting and restraining the 1st, 2nd, 3rd and 4th Respondent’s from implementing the 6th Respondent’s decision taken at the meeting held on the 24th of July 2009 to release the 5th Respondent on Parole on the 23rd of October 2009 and/or any date pending the finalisation of an application to review and set aside the 6th Respondent aforesaid decision of the 24th of July 2009 to release the 5th Respondent on parole to be brought by the Applicant to this Honourable Court.

That the Applicant shall commence the application to review mentioned in paragraph 2 above within a period of 40 days from date of this order.

That the 6th Respondent be ordered to pay the Applicant’s costs of this application on the attorney and own client scale.

That any party or person as opposes this application be ordered to pay the Applicant’s costs on the attorney and own client scale jointly and severally with the 6th Respondent.

Further and/or alternate relief.”

An order was taken by consent on the 21st of October 2009 Paragraph 6 of the order reads as follows:-

“That pending the finalisation of this application the Respondent’s are interdicted and restrained from implementing the 6th Respondent’s decision taken on the 24th of July 2009 to release the 5th Respondent on parole.”

The order that is now sought by the Applicant is that the Respondent be interdicted and restrained from releasing the Applicant on parole pending the finalisation of the review proceedings.

All the Respondents oppose the grant of the relief sought, although only the fifth and sixth Respondents have filed answering affidavits.

It is not prudent at this stage to deal with all the allegations raised by the respective parties as most of these form the subject matter of the review proceedings that have been brought by the Applicant.

The issue to be considered at this stage is whether or not the Applicant has made out a case warranting the grant of the interim relief sought in the amended notice of motion.

I accordingly at this stage simply need to consider whether or not the Applicant has satisfied the trite requirements for the grant of an interim order.

In considering whether or not the Applicant has made out a case for the grant of an interim order, I have very briefly taken due cognizance of inter alia the following factors:-

That there are clearly disputes of facts regarding whether or not the Applicant’s written representations were considered by the parole board prior to it reaching its decision.

That it is however common cause that the Applicant’s were not informed of the date of the hearing, and were not present at the hearing.

It is accordingly common cause that the board failed to afford the victims family an opportunity to make verbal representations to the Board on the date on which it sat to consider the matter.

The Applicant indicated that the Act, the Directives and the victim’s charter make it clear that the victim has a statutory right to be informed of the date, and to attend the hearing and make whatever verbal representations he may wish to make during the hearing.

The Sixth Respondent’s counsel in his heads of argument states that the provisions of section 75(1) (a) of the Correctional Services Act no 111 of 1998 (hereinafter referred to as the Act) makes it compulsory inter alia for the board to inform the relative in writing when and to whom they may make representations and where and when a meeting will take place.

This was not done in this case.

This point alone suffices to establish a prima facie case for the grant of the relief sought.

I accordingly do not propose going into any of the other issues raised by the Applicant.

The fifth respondent’s representative argued that the Applicant had not exhausted all other avenues available to it and that the Applicant was obliged to request the third and fourth Respondent to refer the matter to the Seventh Respondent for reconsideration in terms of section 75 (8) of the Act.

The Fifth Respondent’s representative argued that the letter written by the Applicant’s attorney of record on the 13th of October 2009 did not specifically make such a request.

There does not appear to be any provision in the Act for an aggrieved party to request the third and fourth respondents to follow the procedure set out in section 75 (8).

This recourse was, as correctly argued by counsel for the Applicant, not available to the Applicant and nor was the Applicant required to follow that procedure.

The section in fact precludes the applicant from following that procedure as this recourse is only available to the third and fourth respondents.

The Applicant accordingly had no recourse save to approach this court for the relief sought.

The relief sought is, in the circumstances, properly being sought in this forum.

The 5th and 6th Respondent’s representatives argued that the prejudice suffered by the 5th Respondent far outweighs any prejudice to the Applicant since he is being deprived of his liberty, by the failure to give effect to the decision of the parole board, and that the balance of convience accordingly favours the 5th Respondent.

This argument is premised on the basis that the decision was properly taken.

The Applicant is challenging the process whereby this decision was taken and if it is ultimately found to be flawed the 5th Respondent does not have a right to be released until and unless the proper procedure is followed.

The 5th Respondent’s rights is inextricably linked with the issue of whether or not the decision was properly taken.

Having regard to the fact that the Applicant has established a prima facie case, the 5th Respondent’s right cannot be said to be unassailable.

The 5th and 6th Respondents have furthermore conceded that the Applicant has raised triable issues.

The 5th Respondent is serving his term of imprisonment, and any regard to prejudice on his part has to be weighed up against whether or not the decision taken is prima facie assailable.

The balance of convenience and issue of prejudice appears to weigh more in favour of the Applicant who simply at this stage wishes to maintain the status quo, and prima facie have established a right to do so.

There appears to be sufficient justification to allow the status quo to remain until a decision has been reached by the court hearing the review application.

The Applicant has raised numerous grounds upon which the review would be grounded.

It is unnecessary to enumerate all of them at this stage, or to deal with the merits or demerits of the issues that were raised which would need to be adjudicated upon by the court hearing the review application.

It is imprudent and unnecessary to deal with issues that will be adjudicated upon by the court hearing the review.

It is sufficient to state, and it has correctly been conceded on behalf of the Respondent, that the grounds raised by the Applicant are triable issues on review and do not on the face of it appear to be spurious or untenable.

I am satisfied that the Applicant has made out a case for the grant of the relief that it seeks having regard to applicable onus and test to be applied for the grant of an interim order.

I was inclined to reserve all questions of costs since the issues raised herein will ultimately be determined by the court hearing the review application.

The problem appears to be that the 5th Respondent is not opposing that application and as it stands neither has the 6th Respondent filed papers therein.

I have accordingly been persuaded to deal with the issue of costs herein.

The real dispute appears to be between the Applicant and the 6th Respondent.

I accept the Applicant’s argument that the 5th Respondent in opposing the application and filing his affidavit late necessitated the incurring of additional costs.

I however also accept that the 5th Respondent had a substantial interest in having his side heard, and his opposition cannot be considered unreasonable.

I am in the circumstances disinclined to make a cost order against the fifth Respondent.

The order I accordingly make with regard to the 5th Respondent is that there shall be no order as to costs.

The 1st, 2nd,3rd, 4th and 7th Respondents have not filed any answering papers despite filing a notice of opposition.

It would accordingly be unjust to order them to pay costs of this Application.

The 6th Respondent ought to bear the costs of this application however not on the attorney and client scale sought by the Applicant but on the party and party scale, having regard to the fact that the Applicant has successfully interdicted the implementation of the 6th Respondent’s decision.

I accordingly make the following order:-

ORDER

The first, second, third and fourth Respondents are interdicted and restrained from implementing the Sixth Respondent’s decision taken at the meeting held on the 24th of July 2009 to release the Fifth Respondent on parole on any date pending the finalisation of the application launched by the Applicant to review and set aside the Sixth Respondent’s aforementioned decision to release the 5th Respondent on parole.

That no order as to costs is made as against the 1st, 2nd, 3rd, 4th, 5th and 7th Respondents.

That the 6th Respondent be and is hereby directed to pay the costs of this application on a party and party scale.

______________________

F.B.A Dawood

Judge of the High Court

DATE HEARD - 31 MARCH 2010

DATE JUDGMENT HANDED DOWN - 01 APRIL 2010

FOR THE APPLICANT - ADV ZILWA

APPLICANT’S ATTORNEY - MESSR KWINANA & PARTNERS

FOR THE 1ST, 2ND,3RD, 4TH,6TH

& 7TH RESPONDENTS - ADV HINANA

FOR THE 5TH RESPONDENT - MR MSINDO