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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 2970/2009

Date Heard: 25/11/10

Date Delivered:2/12/10

In the matter between:

NQAPELA NTEMBEKO …..........................................1^ST APPLICANT

SIJADU ZALISILE …................................................2^ND APPLICANT

MNCEWUKANA BANQILE ….....................................3^RD APPLICANT

SAMBU GCOBANI …................................................4^TH APPLICANT

KABANE MAHLUBI …...............................................5^TH APPLICANT

SIKWESY SIYABULELA …........................................6^TH APPLICANT

Versus

MINISTER OF CORRECTIONAL SERVICES ….........1^ST RESPONDENT

COMMISSIONER OF CORRECTIONAL …...............2^ND RESPONDENT

SERVICES

HEAD OF CENTRE: MDANTSANE ….......................3^RD RESPONDENT

CORRECTIONAL CENTRE

HEAD OF DEVELOPMENT AND CARE

MDANTSANE CORRECTIONAL SERVICES …..........4^TH RESPONDENT

JUDGMENT

SMITH J:

[1] The applicants are all inmates of the Mdantsane Correctional Centre. They seek an order declaring the Vukani Development Drive Project as “a supplement to the department’s national planning programme in line with s. 16(1) and 37(A) of the Correctional Services Act 111 of 1998”, compelling the respondents to approve the implementation of the aforesaid project and other ancillary relief.

[2] The applicant’s papers were obviously drafted by themselves. At the hearing of the matter however they were represented by Mr Brooks. Unfortunately, having been drafted by lay persons, the application papers made for difficult reading. With the able assistance of Mr Brooks however I was eventually able to distil the pith and substance of their case from an intimidating myriad of verbiage.

[3] The procedure adopted by the applicants was unsurprisingly not entirely within the four corners of the Uniform Rules of Court. It was for example not clear on the first reading of the papers whether they were proceeding on an urgent basis or on the long form. While the notice of motion and supporting affidavits attempt to make out a case for the truncation of the time periods provided for in the Rules, the notice periods in the notice of motion were more indicative of proceedings in the long form. Be that as it may, I am of the view that it would have been unreasonably harsh to dismiss the application solely on that basis. On a generous approach there was in my view substantial compliance with the Rules. In the event, Mr Wolmarans who appeared for the respondents, has stated that the respondents were not persisting with their in limine point regarding urgency.

[4] The applicants' replying affidavit was unsigned and not properly commissioned. Mr Brooks has therefore conceded that no reliance could be placed thereon.

[5] It is trite law that in proceedings such as these the matter must be decided on the basis of the facts as stated by the respondents in their answering papers together with admitted facts contained in the applicants' affidavit. See: Plascon Evans Paints Ltd v Van Riebiek Paints Pty Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-I.

[6] While it was possible for the court to adopt a generous approach in respect of the issue of non-compliance with the court rules and to condone such non compliance insofar as there may have been substantive compliance, it was still incumbent on the applicants to place the requisite facts before the court to entitle them to the relief which they seek. The fact that they are lay people can unfortunately not assist them in this regard.

[7] The applicants appear to seek relief on the following bases:

7.1 The lack of skills development at the Mdantsane Correctional Centre motivated the applicants to formulate a poverty alleviation and skills development project which mainly seeks to curb recidivism, empower inmates and provide scarce skills to the inmates;

7.2 The department of Correctional Service’s White Paper ("the White Paper") envisages the need for such projects;

7.3 The Vukani Development Drive Project was then established for this purpose;

7.4 It appears that certain correctional officials were involved in discussions with the applicants in the formation stages of the project and when the constitution was drafted;

7.5 The proposed constitution was thereafter presented to various correctional officers and eventually to a unit head, one Mr Mlenze, who provided further input;

6. Before the constitution could be presented to the centre’s acting head, Mr Plaatjies, the third respondent had taken over his position;

7.7 On 2 March 2009 a meeting was held which was attended by the applicants, various correctional officials including the third respondent. At that meeting the chairperson of the project, Mr Sijadu, introduced the project as well as the project executive to the third respondent.

7.8 It is not clear from the papers whether or not the third respondent made any undertakings or commitment in this regard. The third respondent apparently shook hands with them and told them that they should contact him through a correctional official as he did not allow any inmates in his office.

7.9 It appears however that the third respondent subsequently refused to engage with the applicants regarding the implementation of the project, persisting with his attitude that he did not communicate with the inmates directly but only through the correctional officials.

[8] The third respondent filed an affidavit on behalf of all the respondents wherein he stated that overcrowding at the Mdantsane Correctional Centre is a serious problem. The prison is currently equipped to accommodate 582 prisoners but there are presently 1 365 incarcerated there. This excludes approximately 180 other prisoners who have been transferred to other centres in an attempt to alleviate the problem.

[9] Due to the fact that other correctional centres throughout the country are also overcrowded, it would not be possible to bring the inmate numbers within the limits for which the prison was designed. They are however targeting to bring the numbers down to 1 000.

[10] He denies that there is presently no skills development at the Mdantsane Correctional Centre. He states that a great number of the inmates are illiterate and cannot read or write. The department focuses on these inmates and endeavours to ensure that at the very least they have some basic literacy skills and are able to read and write when they are eventually are released.

[11] Skills development is done on a rotational basis by the Department of Labour. Finance had been approved for numerous Development programmes which will be presented by that department. The department decides on programmes for inmates with due regard to the available financial and human resources. The Vukani Development Drive project has not been approved or initiated by the department.

[12] The applicants are in this matter effectively seeking a mandatory interdict. It is trite law that in order to succeed they have to establish:

(a) a clear right;

(b) an injury actually committed or reasonably apprehended; or

(c) the absence of similar protection by any other remedy.

[13] It is not apparent from their papers what the clear right or legitimate expectation is that the applicants are relying on. In their founding papers they appear to suggest that they were entitled to initiate the project in accordance with the provisions of the White Paper. There are however fundamental difficulties with the applicant’s attempt to rely on this document. Firstly the White Paper is a policy document meant as a precursor to legislation and to inform the public about the departmental policies. Secondly, and more importantly, nowhere in the White Paper can one discern any basis for the applicants’ contention that there was an obligation on the part of the department to implement a programme conceived and initiated by the inmates.

[14] In the event Mr Brooks has conceded that the applicant’s reliance on this document was misplaced. That leaves the purported reliance on ss. 16(1) and 37(a) of the Correctional Services Act 111 of 1998 ("the Act"). These sections read as follows:

“16 Correction, development and care programmes and services

(1) The Department may provide correction, development and care programmes and services even when not required to do so by this Act.”

“37     General principles

(1) In addition to the obligations which apply to all inmates every sentenced offender must-

(a) participate in the assessment process and the design and implementation of any development plan or programme aimed at achieving the said objective.”

[15] It is however abundantly clear from the aforesaid provisions that the Department of Correctional Services is vested with a discretion regarding the form and content of the projects envisaged by the aforementioned sections. These will be devised and initiated by the department depending on the financial, human and other resources available both within the Department of Correctional Services and other government departments or agencies which may be required to participate and commit resources for this purpose.

[16] These are considerations which are clearly within the executive margin of appreciation of the department and our courts are reluctant to interfere with decisions of this nature. The court will only do so where the decision is arbitrary, unreasonable or discriminatory. See in this regard Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 430 (D). See also Government of RSA v Grootboom 2001 (1) SA 46 (CC).

[17] The reasons provided by the third respondent are in may view adequate and compelling. While the recognition and protection of fundamental rights are cornerstones of our constitution, the doctrine of the separation of powers is similarly entrenched. A decision to devise and implement projects in accordance with the Act is a complicated one involving different government department and attendant budgetary planning. The core function of the Department of Correctional Services being the safe custody of prisoners, it is to be expected that it would be heavily reliant on other departments for the provision of the necessary resources and skills. As I have said earlier, these are policy decisions which fall within the executive domain and are not justiciable unless it can be shown that they are unreasonable, capricious or discriminatory. I am satisfied that this is not the case here. While the applicants are to be commended for taking positive steps to improve their and other inmate’s skills, they cannot foist upon the department a project of their own making. Their interest would be better served through enthusiastic participation in those projects which are initiated and implemented by the department.

[18] In the result I am of the view that the applicants have not established any basis for the relief for which they seek and that the application must therefore fail.

[19] Mr Wolmarans has understandably not asked for cost against the applicants.

[20] In the result I make the following order:

(1) The application is dismissed.

______________________

J.E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicants : Advocate Brooks

Attorney for the Applicants : Neville Borman and Botha

22 Hill Street

GRAHAMSTOWN

6140

Ref: Mr J Powers/ Rene

Counsel for the Respondents : Mr. Wolmarans

N.N. Dullabh

53 African Street

GRAHAMSTOWN

6140

Ref: Mr. N. Dullabh

Date Heard : 25 November 2010

Date Delivered : 02 December 2010

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