Sibiya and Others v The Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Satchwell J
• Judgment Date: 02 November 2004
• Docket Number: 3675/02
• Court: Witwatersrand Local Division
• Hearing Date: 02 November 2004
• Citation: 2004 JDR 0646 (W)

Satchwell J:

INTRODUCTION:

1.

The four applicants are all men who, over the period 14 June 1991 to 29 July 1993, were sentenced to death. The sentences of death were not carried out. Subsequent to the decision of the Constitutional Court in S v Makwanyane and Another 1995 (3) SA 31 (CC) they will never be carried out. The applicants all remain in the custody in various of the prisons operated by the Department of Correctional Services. The applicants seek a number of orders. They ask that they be released from their continuing incarceration. They ask that the provisions of

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the legislation which provide for substitution of the death sentence, Section 1 of Act 105 of 1997, be declared constitutionally invalid.

2.

This application has a long and tortuous history. Difficulties within the Department of Justice and the Department of Correctional Services will be dealt with later in the judgment. As far as progress (or lack thereof) in this application is concerned:

a)

On receiving this file I discovered that this application had been set down for hearing on no less than the 12 June 2002, 26 July 2002, 11 September 2002, 9 October 2002, 11 February 2003, 25 March 2003, 8 May 2003, 14 May 2003, 4 June 2003, 27 June 2003, 26 August 2003, 9 September 2003, 22 September 2003, 6 October 2003, 10 October 2003. These many court appearances were occasioned by, in the main, administrative inefficiencies in a number of Departments and resulted in orders that the matter be struck off the roll on the basis that there was non-compliance with the practice manual; that the Director of Public Prosecutions (first respondent) and the Minister of Justice (second respondent) file and serve their out-of-time answering affidavits; that the applicants (who were representing themselves and appearing in person) were to be requisitioned by the first respondent to appear in court on a number of occasions; that the first respondents (again on a number of occasions) was directed to arrange legal aid for the applicants; that the applicants were enabled to consult with their legal representative personally and to make telephonic contact; that the first respondent was to tend to indexing and paginating the papers; that the State President of the Republic of South Africa was joined as third respondent and granted time within which to file an out-of-time answering affidavit.

b)

On 23 February 2004 this matter was allocated to myself. It was arranged with the Acting Deputy Judge President that I would remain seized of this matter until finality and that this application would be subjected to case management by myself.

c)

The four applicants, whilst all were incarcerated in Leeuwkop Maximum Prison, prepared the papers comprising this application, citing the Director of Public Prosecutions and the Minister of Justice as first and second respondents. The Director of Public Prosecutions (as first respondent) filed a notice of intention to oppose and an answering affidavit. The Minister of Justice (as second respondent) gave notice through the office of the State Attorney of his intention to oppose the application (28 March 2002). Five months later (8 August 2002), the Minister of Justice withdrew his opposition and gave notice that: "The second respondent will abide by the decision of the above honourable court".

d)

At this hearing I was informed that the Director-General in the Department of Justice and Constitutional Development had communicated to the Director of Public Prosecutions that: "I am astonished to be informed by you that this application had been launched and it is thus further not correct if the State Attorney indicated to you that the Minister will not oppose this application. The State Attorney has no power to give such an instruction on its own. I have

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perused my registers and am certain that I have not been informed by the State Attorney about this application. It therefore follows that we did not inform the State Attorney to abide." (undated letter telefaxed 24 February 2004.) Accordingly, the Minister of Justice was given leave to file and serve a notice of intention to oppose and an answering affidavit.

c)

Thereafter, it emerged that the office of the State Attorney had completely failed to notify the office of the State President of service of this application and accordingly, the State President had had no opportunity to oppose (if he so wished) and to file an answering affidavit. In order to achieve some movement in this matter, I ordered that the State President be joined as the third respondent and that time be given to file such Answering Affidavits as he chose. This was eventually done. Further, the Minister of Correctional Services was joined as the fourth respondent. The second to fourth respondents were given time within which to file notices of intention to oppose and answering affidavits if so desired.

f)

It was also directed that the applicants were to be brought to court on various dates to enable discussion of the respondent's answering affidavits and for preparation of any replying affidavits. The matter was stood down or postponed on more than one occasion by reason of either the failure to requisition the applicants and bring them to court or alternatively the removal of one of the applicants to another province to appear before another court apparently in order to remedy the complaints made in this application.

g)

The Director of Public Prosecutions (first respondent) filed an answering affidavit on 4 July 2002 to which the applicants replied on 22 August 2002. The applicants filed a further hand-written affidavit on 11 February 2003. The applicants filed a supplementary affidavit dated October 2003 (No date of filing appears on the court papers but in is common cause that parties received these papers as did the court). Thereafter the second to fourth Respondents filed their answering affidavits on 9 March 2004. The applicants filed a replying affidavit which was handed up to court on 16 March 2004 (For administrative reasons, the various applicants were unable to depose thereto. All parties agreed that, in the light of subsequent information, the applicants would not depose thereto, although the affidavit was accepted as the applicant's replying affidavit.) Finally, the second to fourth respondents filed a supplementary answering affidavit, dated 18 March 2004.

3.

The history of this application is indicative of the incompetence which has frustrated access to justice in this particular application but which also currently plagues the administration of justice. The office of the State Attorney failed to inform clients of a constitutional challenge which could conceivably have resulted in an order being granted on an unopposed basis setting aside certain important legislation. The same office withdrew the opposition of the Minister of Justice to this application when no instruction so to do had been received from client and which again might have led to the result that significant legislation would be declared invalid without any input from either the State President or the relevant Ministers. The failure of the Correctional Centres (prisons) to respond to written, telefaxed and telephonic requisitions of the applicants to court resulted in the

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matter being stood down or postponed on several occasions, inconveniencing legal representatives, wasting scarce resources, (in terms of court rooms and judicial officers) and possibly prejudicing the applicant's rights. There has been the most disconcerting removal of one of the applicants to another court in another province, on the day of the hearing of this application, apparently with the intention of rectifying the defects of which the applicant had complained in his founding papers. There is without doubt a phantasmagoric world within which these applicants and approximately 130 other former "death-row" prisoners are obliged to exist as a result of bureaucratic incompetence and bungling on a most distressing scale.

4.

The State Attorney, Mr Lekabe, himself came to court to explain the deplorable state of affairs in the offices of the State Attorney. He advised that it is a regular problem that pleadings served on that office are frequently mislaid or simply not attended to. I was informed that the State Attorney had been experiencing a great many difficulties but that it was hoped that they would be overcome and the court was asked to report any further difficulties to Mr Lekabe personally. Regrettably, the situation has not improved. In the past month I have heard approximately 140 applications involving sentenced prisoners where, in many cases, the office of the State Attorney mislaid pleadings, failed to respond thereto or simply ignored court orders requiring filing of pleadings or heads of argument.

5.

For nearly eighteen months, these applicants pursued their application entirely unaided, save for the administrative assistance provide by the Department of Correctional Services and, at the request of the court, the Directorate of Public Prosecutions. The Department and the DPP are to be commended for their prompt assistance in many important respects.

6.

The applicants are themselves to be commended. The first applicant repeatedly stated "... I bring this application in person as a layman in the law" yet the court papers are clearly drafted and raise pertinent issues of fact and of law. The applicants have meaningfully illustrated the impact of their legal predicament:

"We have, since our death sentences were declared unlawful, been treated, not as human beings, but as ghosts who should count ourselves lucky to be alive. When the death sentence was declared unlawful, we became entitled to be sentenced lawfully. Our years hereafter as ghosts still on death row can never be...