What in heaven's name is going on at the ministry and department of correctional services and the National Council for Correctional Services (NCCS)?

Do the ministry and department of correctional services, on the one hand, and the NCCS, on the other, know whether they are Arthur or Martha? For that matter, does the NCCS - the umbrella body of all parole boards and the minister's chief "adviser" - still exist? Or has it dissolved itself?

Is no one capable of understanding what seems to be a straightforward judgment issued by the highest court in the land? Or could it be that the judgment wasn't all that straightforward, even though it was signed off by a number of clear thinkers?

Is the constitutional court going to be forced to - as Wim Trengove SC once argued in the famous Grootboom case - "retain a supervisory jurisdiction" to ensure the executive and legislative branches of the government do what the court tells them to do? Or is it all a matter of incomprehension rather than naughtiness?

Paul Francious van Vuren is incarcerated in the Pretoria Central Correctional Centre (aka Pretoria jail).

He was convicted on 13 November 1992 on counts of murder, robbery with aggravating circumstances, and theft and possession of an unlicensed firearm and ammunition. Van Vuren was sentenced to death. On 20 September 2000, his death sentence was commuted to life incarceration and the sentence of life incarceration was antedated to 13 November 1992.

Following this - and I am going to cut short a very story that would have driven most human beings to suicide - Van Vuren ended up before the constitutional court. He asked- given that people sentenced to life before 1994 were entitled for parole eligibility after 15 years - he asked why he was still in jail? 

On 30 June of this year, to cut another long and complicated story short, Judge Nkabinde of the constitutional court wrote inter alia: "Although section 136(1) refers to the former Parole Boards, the nomenclature under Act 122 of 1991 does not. Thus, the logical interpretation of the words ‘former Parole Boards' in section 136 would be an adoption of a generic understanding of the phrase as referring to whichever authority would have been in charge of the parole regime at a particular time.

"It would then follow that the authorities that would be competent to consider Mr Van Vuren's application for parole would be the CMC [Case Management Committee], the Correctional Supervision and Parole Board and the Minister. A positive action must, therefore, be taken by the Department of Correctional Services, in particular, the CMC and the Correctional Supervision and Parole Board as well as the Minister.

"An effective remedy, in the circumstances of this case, would be an order directing the CMC to assess Mr Van Vuren and to submit a report to the Correctional Supervision and Parole Board. The latter, in turn, will make an appropriate recommendation to the Minister regarding the possible placement on parole of Mr Van Vuren. This consideration must be carried out in terms of the policy and guidelines in existence as at 13 November 1992."

And Judge Nkabinde - with Judges Moseneke, Cameron, Froneman, Jafta, Khampepe, Skweyiya and Mogoeng in agreement but with Chief Justice Ngcobo and Judge Yacoob disagreeing - made the following order inter alia:

"It is declared that the applicant is eligible to be considered for release and placement under community corrections in terms of the policy and guidelines that were applicable on 13 November 1992. The Case Management Committee, to the extent that it is statutorily authorised to do so, the Correctional Supervision and Parole Board and the Minister for Correctional Services are ordered to consider the applicant for release and placement under community corrections, with immediate effect.

"The consideration referred to above must comply the with the provisions of the Correctional Services, Act 8 of 1959 relating to placement under community corrections and also in terms of the policy and guidelines that were applied by the former Parole Boards as at 13 November 1992."

That was the order. I'll just repeat and emphasise part of the one sentence: "...and the Minister for Correctional Services are ordered to consider the applicant for release and placement under community corrections, with immediate effect."

Note: the court never said to the minister etc that she/they had to release Van Vuren immediately; but the court did say that the minister etc needed to shift their bottoms in terms of getting the man considered for parole. After all, he's been in chookie for 18 years.

And it doesn't matter whether you like him or don't; or whether I like him or don't; it's the law; as a very senior judge of this land, and former constitutional court judge, once said to me: "The thing about the constitution, Jeremy, is that it's for the bad guys as much as for the good ones."

Okay; so far, so good, for Van Vuren. Except that the order makes no mention of the NCCS, which, as I've said, is the umbrella body for all the country's parole board and the body that advises the minister on the tough issues.

Anyhow, by 18 November, less than zero had happened. So Van Vuren's attorney, Jaco du Plessis, wrote to the minister. On 24 November, he received a reply from one Dr L Louw, the minister's legal adviser. (I believe this is Lirette Louw - about whom, Pierre "constitutionally speaking" de Vos once remarked, one could feel only "luke warm".)

She said that action was being taken etc, that every one needed to chill, and that the NCSS would be handling it all soon. Du Plessis replied, noting that the NCCS did not have the authority to consider his client's application for parole - only (as the court said) the CMC, the parole board and the minister could do so.

No, no, wrote the learned Louw on 29 November, it had to be the NCCS which had to tell the minister what the right thing was to do.

Then yesterday I saw a letter dated 6 December from Louw to Du Plessis (see here).

In it she re-iterated that the minister could make a decision only after being advised by the NCCS -and added that the department and the minister "stood by this view".

She then announced - without so much as a "by your leave" - that "[t]he NCCS did not consider any lifers for placement on parole during its recent session from 1 to 2 December 2010, since it interprets the Court's order in the Van Vuuren [sic] judgment as having taken away its jurisdiction to consider the approximately 5 373 lifers sentenced before 1 October 2004 (of whom 385 are in the same position as Mr Van Vuuren)."

Do you know what Dr Louw is talking about? I don't either. What happened? Did all the members of NCCS - which includes judges - get up in a huff, muttering about the constitutional court, and then fly back to wherever they came from? Has the NCSS dissolved itself over Nkabinde's judgment?

Louw then continues - in one of the finest pieces of Kafkaesque reasoning that I have ever read: "In light of this development, the Minister has taken legal advice from senior Counsel ... [and] has been advised that in terms of the current legislative framework [sic], ... the Minister can only order the placement on parole of any offender ... based on a favourable recommendation by the NCCS [my emphasis]. [You do remember that one paragraph ago the NCCS decided it had no jurisdiction?]

"Since the NCCS has not considered your client for placement on parole, the Minister cannot act ultra vires [outside her powers] and take a decision regarding your client's placement on parole in absence of a recommendation by the NCCS."

In short, everyone's in the dark, everyone's grumpy - and Van Vuren's still in jail and likely to be left there right into 2011.

Jeremy Gordin is director of Wits Justice Project, which investigates miscarriages of justice.

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