In the High Court of South Africa (South Eastern Cape Local Division) (Port Elizabeth High Court) Case No 945/2008 Delivered: In the matter between

Transcription

1 In the High Court of South Africa (South Eastern Cape Local Division) (Port Elizabeth High Court) Case No 945/2008 Delivered: In the matter between EARL GODFREY APPOLIS Applicant and COMMISSIONER FOR CORRECTIONAL SERVICES CHAIRPERSON OF THE CORRECTIONAL SUPER VISION AND PAROLE BOARD, St ALBAN S MEDIUM B CORRECTIONAL CENTRE 1 st Respondent 2 nd Respondent CORRECTIONAL SUPERVISION AND PAROLE REVIEW BOARD 3 rd Respondent MINISTER OF CORRECTIONAL SERVICES 4 th Respondent SUMMARY: Parole the release of a sentenced prisoner on parole was authorized by a parole board the parole board s decision was taken on review before the correctional supervision and parole review board the prisoner s continued detention pending the decision of the review board was not unlawful an order for the immediate release of the prisoner pending the review board s decision was refused. JUDGMENT JONES J: [1] In 1996 the applicant was found guilty of murder, and also housebreaking with intent to steal and theft. He was sentenced to an effective sentence of 23½ years imprisonment. While in prison he received the benefit of special remission and amnesty which reduced his effective sentence to approximately 22

2 years. He was transferred to St Alban s Medium B Correctional Centre in Port Elizabeth, where he is presently serving his sentence. [2] On 1 February 2008 the applicant appeared before the correctional supervision and parole board (the parole board) for St Alban s Medium B correctional centre, whose chairperson is 2 nd respondent, for consideration of an application for his release on parole. Despite a recommendation by the case management committee at St Alban s Medium B that the applicant was not yet ready for parole by reason of the gravity of the offences of which he had been convicted and the period of imprisonment still to be served,1 the parole board authorized his release on parole with effect from 2 May The applicant alleged that this date was altered to 30 April 2008 because 2 May 2008 was declared to be a public holiday. The contention on his behalf was that this was the date which the parole board determined for his release on parole in terms of section 73(5)(a)(i) of the Correctional Services Act No 111 of [3] The applicant was advised by the prison authorities of his release date; he received counselling and was prepared for his release on that date; he accepted the conditions stipulated by the prison authorities for his release; and, on 27 April 2008, he was given his civilian clothing and a bag in which to pack his belongings. Employment for him had been arranged with a church organization which works with sentenced prisoners called Damascus Ministries. But 30 April 2008 came and went, and the applicant was not released. So, also, 2 May The case management committee is made up or members of the Department of Justice. Its recommendations are not binding on a correctional supervision and parole board.

3 [4] This was not unexpected. The applicant had been told by one Stander, a member of the Department and chairman of the case management committee, that his case had been, or would or might be, sent on review, and he was aware therefore that he might not in fact be released on 30 April This led to an exchange of correspondence between the applicant s attorneys and officials of the Department of Correctional Services at St Alban s. On 28 April 2008 one Venter, a member of the Department, telephoned the applicant s attorney to say that the parole board s decision was to be taken on review. On 30 April 2008 Stander advised the applicant orally that he would not be released because the Department intended to take his case on review. The applicant was subsequently invited to make representations to the review board by 12 May Although a contrary argument has been submitted by counsel for the applicant, a realistic consideration of the facts leads inevitably to the conclusion that the Department has indeed submitted the parole board s decision on review, and that the question of the applicant s release on parole is now before the correctional supervision and parole review board (the review board), which is the 3 rd respondent. This is indeed accepted by the applicant in the way in which he has formulated his relief. [5] The applicant takes the view that the decision of the parole board gave him a right to be released on parole from the date determined by the board, 30

4 April 2008, and that his present detention within the confines of St Alban s correctional centre is consequently unlawful. He therefore brought an application as a matter of urgency for an order for his release on parole in terms of the board s decision on 1 February 2008 pending the decision of the review board, and for order that the suspension of the parole board s decision should be declared invalid and set aside. The relief was in the form of a rule nisi. The notice of motion was dated 5 May 2008 and set the application down for hearing on 6 May The hearing was postponed to 9 May 2008 to enable the respondents to file affidavits in opposition. When the matter was called on 9 May 2008, the parties were in agreement that a rule nisi was no longer apposite, and that any relief should be of a final nature. No relief was sought against the 2 nd and 3 rd respondents. [6] The applicant s case is that in terms of section 73 of the Correctional Services Act No 111 of 1998 he has a right to be released on parole and that his continued incarceration in St Alban s is a violation of that right. Section 73 regulates the length and form of sentences. Section 73(1)(a) provides that subject to the provisions of the Act a sentenced prisoner remains in prison for the full period of the sentence, and section 73(3) provides that a sentenced prisoner must be released from prison, and from any form of community corrections imposed in lieu of part of a sentence of imprisonment, when the term of imprisonment imposed has expired. Section 73(4) permits the release of a prisoner on correctional supervision or day parole or parole before the expiration of the term of imprisonment. The applicant relies specifically on the provisions of section 73(5)(a)(i) which says: Subject to the conditions of community corrections set by such Board or court (i) a prisoner must be placed under correctional supervision or on day parole or on parole on a date determined by the Correctional Supervision

5 and Parole Board. His argument was that when viewed against the provisions of section 12(1)(a) of the Constitution which affirms that everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause and the way in which the Constitutional Court has interpreted and applied this section in the context of sentenced prisoners under the Correctional Services Act in Zealand v Minister for Justice and Constitutional Development and Minister of Correctional Services,2 the plain meaning of section 73(5)(a)(i), which makes no reference to any suspension of the implementation of the parole board s decision, and, in particular, its peremptory language (the use of the word must ) gives him the right to be released on parole on the date determined by the parole board, regardless of possible review proceedings to reconsider it. The section, it was submitted by Ms Hartle for the applicant, not only expressly and peremptorily authorizes his release; it brings about a fundamental alteration of his status as a prisoner from a prisoner serving a sentence of imprisonment to a prisoner who is allowed out on parole. Ms Hartle argued that this must be reflected in an interpretation of the section consonant with constitutional values, an interpretation which recognizes that a prisoner in the position of the applicant is entitled to his liberty as a parolee, and which precludes an interpretation that depends on reading into the 2 Not yet reported. [2008] ZACC 3, Case CCT 54/07, decided on 11 March 2008

6 section a suspension of the operation of the decision of a parole board pending the outcome of a review. [7] In my view, however, Mr Dala correctly argued on behalf of the respondents that the applicant s submission looks at the subsection in isolation, that a piecemeal consideration of its meaning and effect is not appropriate, that such an approach leads to absurdity and possibly inconsequential results, and that the subsection should be interpreted in its context within the Act read as a whole. In particular, the subsection must be considered in the light of the wording of section 75(8), which provides for the review of the parole board s decision by a review board, and section 77(1), which sets out the powers of the review board. These sections provide 75(8) A decision of the Board is final except that the Minister or the Commissioner may refer the matter to the Correctional Supervision and Parole Review Board for reconsideration, in which case the record of the proceedings before the Board must be submitted to the Correctional Supervision and Parole Review Board. 77(1) On consideration of a record submitted in terms of section 75 and any submission which the Minister, Commissioner or person concerned may wish to place before the Correctional Supervision and Parole Review Board, as well as such other evidence or argument as is allowed, the Correctional Supervision and Parole Review Board must (a) (b) confirm the decision; or substitute its own decision and make any order which the Correctional Supervision and Parole Board ought to have made. In my view, the plain, common sense meaning of these two sections and section 73(5)(a)(i) read together requires recognition of the finality of the parole board s decision. Subsection 75(8) specifically states when the decision of a parole is final. It is final except when taken on review. If it is submitted on review to a review board, it is not final and binding unless it is confirmed by the review board. If it is not confirmed but instead substituted by the review board s decision, the review board s decision becomes the final decision of the parole board. The

7 result is that the initial decision of the parole board is only a final decision and is only capable of being brought into operation if it is not taken on review. Once it is taken on review there is no decision of the parole board within the meaning of section 73(5)(a)(i) which is capable of implementation. There is no final decision of the parole board determining the date upon which a prisoner must be released in terms of section 73(5)(a)(i), until such time as the initial decision is confirmed or substituted. [8] This interpretation is, as I have said, based upon a common sense understanding of the words used in the sections read in context as part of the Act as a whole. It is not necessary to read into section 73(5)(a)(i) a provision suspending the operation of the parole board s decision because the decision stops being a decision within the meaning of the section once it is taken on review. There is nothing to suspend. This subsection must be contrasted with the circumstances envisaged in section 75(5)3 where, after the parole board has made its decision but prior to its implementation, circumstances change to the point that it is no longer advisable to implement the decision. In that event, new facts make a review impossible and it was necessary for the legislator to make an express provision for deferment of the parole board s decision until that decision is subsequently authorised by the board. It is clear from the Act as a 3 Section 75(5) reads: If, after the Board has approved a prisoner being placed under correctional supervision or be[ing] granted day parole or parole, and, prior to the implementation of the decision of the Board, the Case Management Committee reports to the Board that the circumstances of the prisoner have changed to such an extent that it is not advisable to implement the decision, the implementation shall be deferred until the Board authorises it.

8 whole, therefore, that the legislator realised the necessity for providing for deferment or suspension where this is called for. It is not called for in the case of a review. [9] In the result the applicant has not established that he was entitled to be released on parole on 30 April The application is dismissed with costs. RJW JONES Judge of the High Court 10 May 2008