Court name
High Court Main Division
Title

Shigwedha v Commissioner General Hamunyela () [2020] NAHCMD 389 (03 September 2020);

Media neutral citation
[2020] NAHCMD 389
Case summary:

Criminal procedure – Sentence – imprisonment of more than 3 years – Parole – Sentences imposed under Prisons Act 17 of 1998 – Minimum period of incarceration half of imposed sentence – in terms of section 95(1)(a) such prisoners are generally entitled to be considered for parole after serving half of such sentence – these provisions however do not apply to prisoners who were sentenced to a term of imprisonment for any of the crimes or offences referred to in sections 92(2)(a), (b) or  (c) – such prisoners thus not eligible for release on parole or probation under section 97 as read with section 95.

Headnote and holding:

The third and fourth applicants where both sentenced to 20 and 18 years of imprisonment respectively – during 2008 – and at a time that the now repealed 1998 Prisons Act governed their parole dispensation. Section 95(1)(a) of that Act allows for prisoners sentenced to imprisonment of more than 3 years to be considered for parole after having served half their term and after having satisfied certain other jurisdictional requirements. In terms of Kamahere and Others v Government of the Republic of Namibia and Others 2016 (4) NR 919 (SC) the provisions of the repealed 1998 Act governed the applicable parole scheme of the applicants. At the time of the bringing of the application both had served more than half their sentences and they had also satisfied the other requirements. They thus sought an order to be considered for placement on parole in terms of section 95. Section 95 however cannot simply be read in isolation as becomes apparent from the cross- references to Sections 95(2) and Sections 92(2)(a), (b) and (c) as contained in Sections 97(1)(a) and 97(8) respectively and the parole scheme created by the legislature in the 1998 Prisons Act. Section 97(8) however provides that a prisoner who has been sentenced to a term of imprisonment for any of the crimes or offences referred to in Section 92(2) (c) shall not be eligible for release on parole or probation under this section. Both applicants were sentenced to crimes listed in section 92(2)(c) of the Prisons Act. Accordingly they failed to demonstrate their entitlement to the relief sought. Their applications were accordingly dismissed.

 

REPORTABLE

REPUBLIC OF NAMIBIA 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

                                                                                                                                                       

Case no: HC-MD-CIV-MOT-GEN-2019/00087

In the matter between:                                

 

 

JESAYA SHIGWEDHA                                                                       FIRST APPLICANT

ALBERTO DASILVA                                                                     SECOND APPLICANT

MOSES MAPANI                                                                                 THIRD APPLICANT

DOMINIC MWILIMA                                                                       FOURTH APPLICANT

 

and

                                                                                                                                                    

THE COMMISSIONER GENERAL NAMIBIAN CORRECTIONAL

SERVICE: RAPHAEL TUHAFENI HAMUNYELA                    FIRST RESPONDENT

THE MINISTER OF SAFETY AND SECURITY:

CHARLES NAMOLOH                                                             SECOND RESPONDENT

THE CHAIRPERSON OF NATIONAL RELEASE BOARD

WINDHOEK CORRECTIONAL FACILITY:

SENIOR SUPERINTENDENT VRIES                                         THIRD RESPONDENT

THE OFFICER IN CHARGE WINDHOEK

CORRECTIONAL FACILITY: YATAMUNWA                      FOURTH RESPONDENT

THE CHAIRPERSON OF THE INSTITUTIONAL

RELEASE COMMITTEE WINDHOEK

CORRECTIONAL FACILITY: HELMUT                                     FIFTH RESPONDENT

THE UNIT 2 MANAGER WINDHOEK CORRECTIONAL

FACILITY: SENIOR SUPERINTENDENT: SHIKESHO          SIXTH RESPONDENT

THE UNIT 3 MANAGER WINDHOEK CORRECTIONAL

FACILITY: SENIOR SUPERINTENDENT: SHAPWA      SEVENTH RESPONDENT

THE CASE MANAGEMENT OFFICERS ASSIGNED

TO THE APPLICANTS WINDHOEK CORRECTIONAL

FACILITY                                                                                      EIGHTH RESPONDENT

THE OFFICERS FOR COMPUTING OF SENTENCE

WINDHOEK CORRECTIONAL FACILITY                                NINTH RESPONDENT

 

Neutral citation:      Shigwedha v The Commissioner General Namibian Correctional Service: Raphael Tuhafeni Hamunyela (HC-MD-CIV-MOT-GEN-2019/00087) [2020] NAHCMD 389 (3 September 2020)

 

Coram:          GEIER J

Reserved:     19 May 2020

Delivered:     3 September 2020

 


ORDER


 

  1. The application is dismissed.

 


JUDGMENT


 

GEIER J:

 

 

[1]        The central issue in this application is which parole regime is applicable to offenders sentenced under the 1998 Prisons Act, serving sentences of longer than three years, and in particular, when they may become eligible for parole, if at all.

 

[2]        More particularly the main question that so has to be determined is whether the applicants should be considered for placement on parole in terms of the 1998 legislation after completing half of such term in detention or whether it is the less favourable 2012 Correctional Services Act that applies in terms of which an offender would only become eligible for release on full parole unless he or she has served two thirds of his or her term of imprisonment.

 

[3]        The determination of these questions is relevant to the applicants who are all sentenced offenders serving sentences of longer than three years.

 

[4]        The first and second applicants have subsequent to the institution of these proceedings been remitted. They are no longer seeking any relief against the Respondents.

 

[5]        The question thus remains whether the Prisons Act No. 17 of 1998 (Prisons Act) or the Correctional Services Act No. 9 of 2012 (Correctional Services Act) applies to the Third and Fourth Applicants, who would, in any event, become eligible for parole, in terms of the 2012 Act, on August 2022 and 01 June 2021 respectively.

 

The 3rd Applicant

 

 

[6]        On 02 June 2008, the 3rd Applicant was sentenced to 20 years imprisonment on a conviction of murder. He served more than half of his term of imprisonment.

 

[7]        He has apparently participated in various rehabilitation programmes designed to reform him for him to be a law-abiding citizen upon his release back into society. He has participated in various training courses, amongst others, in Bible Studies; Safety Management; and Carpentry. The 3rd Applicant has in addition assumed various responsibilities in the correctional facility which includes the mentoring of newly admitted inmates; training in general safety and in first aid.

 

[8]        Importantly the 3rd Applicant also has a clean disciplinary record. He has no ongoing or pending disciplinary actions.

 

The 4th Applicant

 

[9]        The 4th Applicant was sentenced on 22 October 2008 to 18 years imprisonment on a conviction of murder. He has thus served over half of his term of imprisonment. He has participated in various rehabilitation programmes designed to reform him. He attended various training courses in various disciplines such as Bible Studies and a Gender Based Violence programme. The 4th Applicant has worked as a postmaster at the correctional facility and as a gardener in the facilities’ garden. He has assumed the responsibility of mentoring inmates which apparently has helped fellow inmates to maintain a good disciplinary record.

 

[10]      Also he has a clean disciplinary record with no ongoing- or pending cases against him.

 

[11]      It is against this back ground that they are asking the court to order the Respondents to:

 

‘ … place them on parole or probation in terms of section 95 of the Prisons Act 17 of 1998 (“the Prison Act of 1998”); and

 

to commence such placement within 90 days from the date of the judgment.’

 

[12]      The parties then waived their right to oral argument - in accordance with the ‘Revised Road Map, dated 4 May 2020, for the High Court of Namibia, whilst the State of Emergency persists’ – and the case is accordingly determined on the papers only. 

 

Argument on behalf of the remaining applicants

 

[13]      In support of the relief so sought by the remaining applicants Mr Bangamwabo, on their behalf, firstly invited the Court to determine whether or not:

 

a. ‘the 3rd and 4th Applicant’s parole regime is regulated by the Prisons Act of 1998 or the Correctional Services Act 9 of 2012 (“the Correctional Services Act of 2012”); and

 

b. if found to be the Prisons Act of 1998, whether they satisfied the jurisdictional facts that will entitle them placement on parole.’

 

[14]      Reliance was in the main placed on the finding of the Supreme Court in Kamahere and Others v Government of the Republic of Namibia and Others 2016 (4) NR 919 (SC) where the court had stated that:

 

‘[48] Those offenders who had been sentenced to life imprisonment at the time when the 1959 Act applied acquired the right under that Act to be considered for placement on parole under that Act and the subordinate legislation issued under it.[1] This is because the 1959 Act governed the position at the time of sentencing. When the 1959 Act was repealed by the 1998 Act, there was no contrary intention expressed in the 1998 Act or in the 2012 Act or any implication which served to indicate the intention to take away that right, as provided for in the Interpretation Proclamation. In the absence of a contrary intention expressed or implied in a transitional provision or elsewhere in the 1998 Act, the repeal of the 1959 Act would not affect the right in respect of eligibility for placement on parole acquired under the regime provided for in the 1959 Act’...[2]

 

[15]      As it was common cause that the 3rd and 4th Applicant were sentenced when the Prisons Act of 1998 was in force, the Prisons Act of 1998, according to counsel, vested the 3rd and 4th Applicant with rights to be considered for possible placement on parole at this stage. This was so, so Mr Bangamwabo’s argument ran further, because there was no explicit or implied intention in the Correctional Services Act of 2012 to displace and do away with the rights so acquired. As the 3rd and 4th Applicant were sentenced to more than three (3) years in 2008, the 3rd Applicant, was sentenced to 20 years and the 4th Applicant, to 18 years, both therefore served half of their sentences. As both did also demonstrate meritorious conduct, self-discipline, responsibility and industry during that period, by engaging in various reformative and training programs, which evidence was not disputed, he submitted that the 3rd and 4th Applicant have met the jurisdictional requirements to be considered for placement on parole at this stage.

 

[16]      According to counsel for the applicants ‘the principle in Kamahere is very simple. It states that the right for placement on parole has been acquired during the operation of that parole regime and the new parole regime that repealed the previous one contains no express provision or with necessary implications, taking away that right. In short, such rights remains vested. This principle applies in this instant case.’

 

[17]      He concluded by submitting that as ‘the 3rd and 4th Applicant have met the jurisdictional requirements in terms of section 95 of the Prisons Act of 1998 for placement on parole they are entitled, as of right, to the orders as prayed for in the notice of motion.

 

Argument on behalf of the respondents

 

[18]      Save for an in limine point, to which I will return, it was submitted on behalf of the respondents that the only outstanding issue for determination was whether the Prisons Act No. 17 of 1998 (Prisons Act) or the Correctional Services Act No. 9 of 2012 (Correctional Services Act) applies to the Third and Fourth Applicants, who would in any event, and in terms of the 2012 legislation, become eligible for parole in August 2022 and on 01 June 2021 respectively.

 

[19]      In this regard it was accepted that the remaining respondents where sentenced at the time of the applicability of the 1998 Prisons Act and that the scheme, created by that Act for consideration on parole, applied to them. It was nevertheless contended that they are neither eligible for release on parole in terms of the Prisons Act nor under the Correctional Services Act at this stage.

 

[20]      Ms Meyer, who argued the case on behalf of the respondents, firstly referred the Court to Section 95 of the Prisons Act, where provision is made for the release on parole of offenders sentenced to three years or more and that, in effect, section 95(1)(a) states that where such offender has served half of his sentence, he may be released on full parole, provided that he satisfies the institutional committee on the requirements relating to his conduct and discipline during the period of his sentence.

 

[21]      She alluded further to Section 97 of the applicable Prisons Act which provides for further matters pertaining to parole or probation and that the section, inter alia, sets out the matters which the Minister must consider before approving the release of an offender on parole. She pointed out that section 97 (8) was of particular relevance as it provides as follows:

 

"(8) . . . a prisoner who after the commencement of the Act has been sentenced as contemplated in paragraph (a) or (b) of subsection (2) of section 92, or who has after the said commencement committed and has been sentenced to a term of imprisonment for any of the crimes or offences referred to in paragraph (c) of that subsection shall not be eligible for release on parole or probation under this section." (My emphasis added) …’

 

and that in subsection (1) of section 92 of the Prisons Act, provision is made for the remission of a third of the period of sentence where a sentenced offender has displayed meritorious conduct and industry during the period of his imprisonment but that Section 92 (2) contains - what she termed – ‘the limitation clause to subsection (1).’

 

[22]      Importantly Subsection (2) provides that subsection (1) shall not apply to a prisoner who, after the commencement of the Act, inter alia. has been sentenced to serve a term of imprisonment for

 

 '(i) any offence involving violence against a woman or a child;

   … 

 (iii) murder  

  …

 (iv) robbery'.

 

[23]      As the Applicants were sentenced after the commencement of the Prisons Act and for sentences referred to in Section 92(2)(c), they thus fall under the ‘limitation clause’ - Section 97(8) - and are thus not eligible for release on parole at this stage.

 

[24]      Counsel for the respondents contended accordingly that the Applicants therefore did not accrue any rights as to parole under the repealed 1998 Prisons Act and consequently fall within the ambit of the Correctional Services Act of 2012.

 

[25]      In conclusion it was submitted that the Applicants have wasted the Honourable Court’s time with instituting these proceedings nearly two years before any of them qualify to even be considered by the National Release Board as all the referred to sections read together render the Applicants ineligible for release on parole at this stage as they are required to complete two-thirds of their sentence in terms of the 2012 Act before such eligibility may arise.

 

Resolution

 

[26]      The arguments made on behalf of the respondents are compelling – they were not countered in any way by counsel for the applicants. The governing legislative scheme created by the 1998 Prisons Act is clear. The relied upon Section 95 cannot simply be read in isolation. So much becomes apparent already from the cross- references to Sections 95(2) and Sections 92(2)(a), (b) and (c) as contained in Sections 97(1)(a) and 97(8) respectively.

 

[27]      What the Act contemplates is that where convicted offenders, sentenced to three years or more, have served half of their sentences, they may be released on full parole, provided that they satisfy the institutional committee on the requirements relating to conduct and discipline during the period of their sentence and where such committee then, in a report – and - if satisfied - recommends such release on parole. Such recommendations are then to also state the suggested conditions for any such release to be submitted to the National Release Board.[3] The National Release Board may, in turn, submit a report to the Minister recommending the release on parole or probation of the prisoner concerned and the conditions relating to such release as the National Release Board may deem necessary.[4]

 

[28]      Section 97 of the Prisons Act then regulates how the Minister – that is the Minister responsible for prison services[5] - is to deal with such a report received in terms of Section 95(2).[6] It is clear that he or she has to consider it first.[7] He or she may then authorise the release on parole or probation of the prisoner concerned upon such conditions as the Minister[8] may determine and specify or cause to be specified in the warrant of release in question.

 

[29]      Subsections 97(2) to (7) then essentially regulate how the affairs of prisoners released on parole or probation are to be governed and how such placement on parole or probation may also be withdrawn.

 

[30]      This analysis already demonstrates how intricately sections 95[9] and 97 are interlinked and that it is impossible to read them in isolation.

 

[31]      Why would this position be different when it comes to subsection 97(8)? It clearly is not.

 

[32]      It so emerges that the legislature did not intend these general parole provisions to apply to all convicted prisoners serving sentences of three years or more, having served half of their sentences. They simply do not apply to those convicted for robbery or murder and the other serious offences listed in Section 92(2)(c) or to ‘habitual criminals’- section 92(2)(a). This exclusion squarely applies to the remaining applicants

 

[33]      The conclusion to be reached is inescapable – the remaining applicants have, in the circumstances, not been able to show – as was submitted on behalf of the respondents - that they have acquired any rights in terms of the repealed Prisons Act 1998 to be considered for placement on parole under that Act, the Act that governed their position at the time of sentencing.

 

[34]      It should possibly be added that when the 1998 Act was repealed by the 2012 Act, there was no contrary intention expressed in the 2012 Act[10] which affected the scheme or the rights acquired thereunder – or those not provided for, as in this instance - in respect of the eligibility for placement on parole of offenders sentenced to three years or more – under the regime provided for in the 1998 Act.

 

[35]      Ms Meyer has submitted that the Correctional Service Act 9 of 2012 has – in toto – repealed the 1998 Prisons Act and all its amendments[11] - and that the currently applicable 2012 Act - thus governs the position relating to parole of the remaining applicants in this case. Also this submission seems correct.

 

[36]      In the result – and in circumstances where the remaining third and fourth applicants have failed to show any right in terms of the relied upon legal position on which they base the relief sought, such relief cannot be granted.

 

[37]      This finding in my view also obviates the need to deal with- and consider the point in limine relating to judicial deference.

 

[38]      In the result, and as no costs order was sought, the application is thus dismissed.

 

----------------------------

H GEIER

Judge

 

APPEARANCES

 

APPLICANTS:                                             F X BANGAMWABO

                                                                    FB Law Chambers, Windhoek

 

RESPONDENTS:                                        M Meyer

                         Government Attorney, Windhoek 

 

 

 


[1] See Mohammaed v Minister of Correctional Services and others 2003 (6) SA 169 (E) at 188.

[2] This also accords with the common law presumption against retrospection, powerfully underpinned by the Constitution in embodying the rule of law in Art 1. See Pharmaceutical manufacturers Association of South Africa and others: In re Ex Parte Application of the President of the RSA and others 2000 (2) SA 674 (CC) para 39; Veldman v Director of Public Prosecutions 2007 (3) SA 210 (CC) para 26.

[3] Compare : ‘95 Parole or probation of prisoners serving imprisonment of three years and more

            (1) Where-

            (a)        a convicted prisoner who has been sentenced to a term of imprisonment of three years or more has served half of such term; and

            (b)        the relevant institutional committee is satisfied that such prisoner has displayed meritorious conduct, self discipline, responsibility and industry during the period referred to in paragraph (a),

that institutional committee may submit a report in respect of such prisoner to the National Release Board, in which it recommends that such prisoner be released on parole or probation and the conditions relating to such release as it may deem necessary.

[4] Compare Section ‘95 (2) The National Release Board may, after considering the report and recommendations referred to in subsection (1) submit a report to the Minister recommending the release on parole or probation of the prisoner concerned and the conditions relating to such release as the National Release Board may deem necessary.’

[5] See Section 1 – the definition of ‘minister’.

[6] It is to be kept in mind here that this concerns the process relating to convicted prisoners who have been sentenced to a term of imprisonment of three years or more and who have served half of such term.

[7] Compare Section 97(1).

[8] Here it is to be kept in mind that the question of parole and probation in regard to convicted prisoners who have been sentenced to a term of imprisonment of less than three years and have served half of such term is governed by section 96 as read with section 97.

[9] And obviously also section 96.

[10] As was also submitted by Mr Bangamwabo on the basis of the Kamahere judgment.

[11] See section 134 and the First Schedule.