Jacobs v Minister of Justice and Correctional Services

• Jurisdiction: South Africa
• Judge: Mavundla J
• Judgment Date: 18 September 2019
• Docket Number: 57523/14
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 18 September 2019
• Citation: 2019 JDR 2119 (GP)

Mavundla J:

[1]

On or about 1 April 2012 and at Vrede street, Oudtshoorn, in Western Cape the plaintiff, an adult female born in 1989, attended a festival with her friends. In the early hours, she decided to leave the festival, with the

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intention to go to her vehicle, so that she could drive to the place where she was to be directed by her friends to spend the night. She was accosted by an unknown male person she had mistaken to be one of the car guards, who attacked and attempted to assault, rape and rob her. She valiantly struggled and managed to wrench free and ran to a lit street where she was rescued and taken to safety. The culprit was fortunately arrested that very night.

[2]

The unknown assailant, she later came to know during his criminal trial, as one Ivan Botha who was subsequently convicted of common robbery and attempt, conspiracy and enticement to commit a sexual offence under MAS 11/04/2012, OSG 126/12.

[3]

Botha had been granted parole, prior to the above mentioned attack on the plaintiff, after having been incarcerated for numerous crimes listed herein below by the Department of Correctional Services Oudtshoorn:

3.1 06 August 1996 for theft	3.5 15 February 2003 indecent assault;
3.2 02 December 1996 for theft	3.6 13 October 2003 rape;
3.3 30 December 1996 for theft	3.7 06 May possession of dangerous producing substance/ any undesirable dependence producing substance
3.4 19 May 1997 housebreaking

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[4]

The plaintiff subsequently sued the defendant for payment of R2 million which she alleged were damages she suffered as the result of the aforementioned attack, contending that the defendant was negligent in releasing Botha on parole, regard being had to his record of previous convictions, it was foreseeable that he would commit another offence, such as the one committed on her. Botha had not complied with the conditions of parole and the Department of Correctional Services did not re-incarcerate him after such conditions were not complied with.

[5]

In her particulars of claim plaintiff alleged inter alia, that:

5.1

she has constitutionally enshrined and protected rights, such as right to human dignity, right to life; right to freedom and security of person, right to privacy.

5.2

the Department of Correctional Services, as an organ of state, has a duty:

5.2.1

to effect the aforesaid human rights, and to protect women against violent crimes;

5.2.2

to develop, enforce and maintain laws, regulations and structures to realise the duty to protect society and effect the constitutional rights of individuals entrusted to their specific functionary at the best of their ability.

5.3

the Department of Correctional Services:

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5.3.1

by granting Ivan Botha, a criminal with an appalling criminal record including multiple sexual offences, parole;

5.3.2

by not seeing to it that the parole conditions on which said parole was granted be enforced;

5.3.3

failed to perform its duty to protect the public and to protect women against violent crimes, more in particular the plaintiff's human rights; and

5.3.4

failed to adhere to the objectives of the Correctional Services Act, 111 of 1998 by not giving effect to the Bill of Rights in the Constitution, 1996 and by not adequately regulating the release of inmates and system of community corrections.

5.4

Due to the defendant's failure to perform its duty to protect the mentioned human rights of plaintiff and the defendant's non-compliance to the objectives of the Correctional Services Act 111 of 1998, Ivan Botha was free to rob, assault and attempt to rape plaintiff.

5.5

It was at all material times foreseeable by the Department of Correctional Services, Oudtshoorn, a department failing under the Defendant:

5.5.1

that should a criminal not suitable for parole, being granted same, the public may be endangered; alternatively, reasonable officials would have foreseen that granting a

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criminal not suitable for parole, same the public may be endangered;

5.5.2

that should a criminal previously convicted of rape and indecent assault, the said criminal will commit a sexual crime whilst out on parole and by committing said crime, endanger the public and/ or commit a violent crime against a woman; alternatively, reasonable officials would have foreseen that should a criminal convicted of rape and indecent assault, said criminal; will commit a sexual crime whilst out on parole, andaa by committing said crime, endanger the public and / or commit a violent crime against a woman.

5.6

should not have granted Ivan Botha parole in the light of his criminal history and reasonable officials would not have granted Ivan Botha parole and the defendant by so doing acted negligently and against the expectations of the public, rendering the defendant's decision to grant Botha parole, alternatively defendant's failure to foresee that by granting Botha parole, the public may be endangered wrongfully.

5.7

In the light of the defendant's aforesaid wrongful conduct and culpable failure to its duty to protect plaintiff and uphold the objectives of the Correctional Services Act, 111 of 1998, the plaintiff:

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5.7.1

experienced stress, physical pain, emotional scarring, pain and suffering,

5.7.2

the monetary amount thereof estimated at R2 000 000. 00, for which the defendant is liable.

[6]

The following:

6.1

is common cause, that:

6.1.1

Botha was a convicted criminal, with numerous previous convictions as alleged;

6.1.2

was released on parole;

6.1.3

breached on several occasions his parole conditions;

6.1.4

was not re-incarcerated for the parole conditions violation;

6.1.5

whilst on parole attacked, attempted to assault, rape and rob the plaintiff on 1 April 2012.

6.2

it is denied that:

6.2.1

by not re-incarcerating Botha on account of the violations, the defendant failed to perform his duties in terms of the Act, its policies and the Constitution

6.2.2

defendant and its employees could have foreseen that Botha would commit the attack on the plaintiff;

6.3 as pleaded by defendant that:

6.3.1

the alleged violations were, in the discretion of its responsible employees who exercised it bona fide and in

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accordance with its Act, policies and Constitution, relatively minor to warrant re-incarceration.

[7]

The evidence of the plaintiff: her case was based, inter alia, that:

7.1

Botha was placed on parole on 01/11/2010 to 19/09/2017 by Peterson, the chairperson of the Parole Board, who recommended that in Phase I Botha had to be strictly monitored and that pre-release report is compulsory. [1] The Minutes of the Correctional and Parole board on 24 November 2009 show that the parole of Botha was approved by the Chairperson Petersen CJ; N Vange a community member, L Squire Community...