Mwilima v Minister of Home Affairs, Immigration, Safety and Security and 3 others (SA 130-2023) [2024] NASC (22 May 2024)

Facts

The appellant (Mr Mwilima) is a 68-year-old Namibian male offender incarcerated at the Windhoek Correctional Facility. Having been convicted of serious crimes including murder and high treason, he was sentenced to an effective 18-year imprisonment on 8 December 2015, which was effectively reduced to 15 years imprisonment on appeal to the Supreme Court on 22 December 2021. 

The applicant instituted two proceedings in the High Court.

1. Application to declare regulation 274 ultra vires section 109 of the Correctional Facilities Act 9 of 2012

In this application, the appellant sought a declarator that regulation 274 of the Namibian Correctional Service Regulations made in terms of section 132 of the Act was ultra vires section 109 of the Act. This application was decided in his favour on 14 November 2022. The court in that case found regulation 274 to be ultra vires section 109 read with section 132 of the Act.

Additional to this order, the court directed the following: (a) that the medical officer determine within 15 days from the date of the order whether or not the appellant was afflicted by a dangerous disease ‘or whether or not [his] continued incarceration is detrimental to [his] health on the ground of his physical condition in terms of section 109 of the Correctional Service Act 9 of 2012’; (b) in the event that the medical officer determined that the appellant was suffering from one or more dangerous diseases, then the medical officer was ordered to make a recommendation to the Minister within 20 days of the order, and lastly; (c) if the medical officer declined to make a recommendation to the Minster, he was directed to so inform the appellant and provide reasons therefor within 15 days of the order. After this order, a medical examination was conducted on the appellant by the medical officer, and he confirmed the appellant’s existing diagnosis of diabetes mellitus and kidney disease (both classified as ‘dangerous diseases’ by the World Health Organisation). A letter of this determination was delivered to the Minister on 24 November 2022. The letter further stated that the continued incarceration of the appellant was not detrimental to his health ‘as he has access to regular dialysis sessions and also to his private doctors when needed. . .’.

The judgment and order of 14 November 2022 has not been appealed against. The appellant alleged that the respondents did not comply with that order and institution the following proceedings review proceedings.

2. Application to review medical officer’s decision. 

In this review application, the appellant sought two things: In Part A, he sought an interim mandatory interdict, on an urgent basis, pending the determination of Part B of the application, directing the minister to authorise the appellant’s release from the correctional facility on the ground that the appellant was suffering from a dangerous disease as contemplated in section 109 of the Act and as diagnosed by the medical officer.

In part B, he sought to review and set aside the minister’s decision refusing – as perceived by the appellant – and/or failing to release the appellant on medical grounds as allegedly recommended by the medical officer. As an alternative relief in Part B, the appellant sought, among others, orders holding the medical officer in contempt of court and directing him to recommend to the Minister the appellant’s release as well as to give reasons why he did not recommend the appellant’s release should he have declined to make such a recommendation.

The High Court dismissed Part A and held that the Minister may authorise the release of an offender in terms of section 109 only on the recommendation by a medical officer. The court noted that it was common cause between the parties that the medical officer had not made a recommendation to the Minister for the appellant’s release. 

It held further that the granting of a mandatory interim order in circumstances where there had not been a recommendation would have had the effect of compelling the Minister to act without the requisite authority in terms of the Act, which ordinarily would make such a decision a nullity in accordance with the principles set out in Sikunda. The appellant has not appealed against this judgment or order. On the contrary, it was positively asserted in the heads of argument that the decision was accepted without protest.

After the dismissal of Part A, the appellant amended Part B of his review application to only seek the review of the medical doctor’s decision, and: declaring the medical officer to be in contempt of court of the order made on 14 November 2022 for declining to recommend the appellant’s release, and for refusing to give the appellant reasons for his decision; for the medical officer to be convicted of contempt of court; for the medical officer to be directed to recommend to the Minister for the appellant’s release; for the issuance of a warrant for the medical officer’s arrest and committal to imprisonment for contempt of court until he had made the recommendation to the Minister, and for the Minister to be directed to authorise the appellant’s release within four calendar days. 

The High Court dismissed the application and the appellant appealed to the Supreme Court on several grounds. At the centre of the appeal was the interpretation of the section 109 of the Act. 

Issues for determination

To be determined on appeal was whether appellant’s interpretation of section 109 of the Act is correct. That interpretation is that an offender suffering from a dangerous disease in paragraph (a) of section 109 is a sufficient trigger for an obligation on the part of the Minister to consult the Commissioner-General and authorise the release of such offender. According to the appellant, the use of the disjunctive ‘or’ between the two paragraphs shows that each paragraph constitutes distinct legal bases upon which a recommendation could be made. Therefore, once the medical officer has determined that an offender is suffering from a dangerous disease, he or she is not required to further consider whether or not the continued incarceration of the offender will be detrimental to his health.

Discussion 

‘Section 109 of the Act

[46] The Act makes provision for the early release of an offender from a correctional facility on medical grounds. Section 109 is the relevant provision. It is to be found in Part XIII of the Act dealing with the release of offenders. It provides as follows:

“The Minister may, on the recommendation of the medical officer and after consultation with the Commissioner-General, authorise the release from the correctional facility of an offender serving any sentence in a correctional facility and –

(a) who is suffering from a dangerous, infectious or contagious disease; or

(b) whose continued incarceration is detrimental to his or her health on the grounds of his or her physical condition, either unconditionally or on such conditions as to parole or probation or as to special treatment as the Minister may determine.”

[47] A closer examination of the section shows that its apparent purpose is to facilitate the release of an offender who meets the jurisdictional facts set in the section. The section says that the Minister may – meaning in the context that the Minister has discretion, which of course is not unfettered – to authorise the release from the correctional facility, an offender serving any sentence. The use of ‘any sentence’ implies that the release of an offender is not confined to a particular sentence the offender is serving. Furthermore, the Minister may not authorise the release of an offender in terms of this section at his own discretion. 

[48] First, there must be a recommendation made by a medical officer, and secondly the Minister may release the offender after consultation with the Commissioner-General. An offender who may be released on medical grounds under this section is one suffering from a dangerous, infectious or contagious disease and whose continued incarceration is detrimental to his or her health on the basis of the offender’s physical condition. Moreover, the Minister may release the offender unconditionally or on such conditions as to parole or probation or as to special treatment as the Minister may determine.

The context and the subject matter of the legislation 

[50] Interpretation is an art of giving meaning to words contained in a document or legislation. A document or legislation may call for interpretation because the provision or phrase in question is obscure or ambiguous. In interpreting legislation, a court must pay attention to both the language and context of the legislation or document in question.

[55] In the context, it can safely be assumed that the legislator could never have intended to produce a result that an offender suffering from a dangerous, infectious or contagious disease should potentially not serve his or her sentence. To give the provision this meaning, contended for by the appellant, would simply undermine the correctional service regime and to that extent would be absurd.’

Findings 

Held that, the release of an offender from a correctional facility on medical grounds can be justified for several reasons. Those addressing humanitarian concerns; the foundational constitutional value of dignity of a human being (i.e. in cases of terminally ill offenders requiring specialised or palliative medical care not available in the correctional facilities) and those aimed at preventing the spread of infectious diseases within the overcrowded prison environment – protecting both the members of the correctional service and the incarcerated population.

Held that, in interpreting legislation, a court must pay attention to both the language and context of the legislation or document in question. In the context of this case, it can safely be assumed that the legislator could never have intended to produce a result that an offender suffering from a dangerous, infectious or contagious disease should potentially not serve his or her sentence. To give the provision this meaning as contended for by the appellant, would simply undermine the correctional service regime and to that extent would be absurd.

Held that, the word ‘or’ between the two paragraphs should be read to mean ‘and’. This is a sensible approach that would not render the meaning of the provision absurd.

Held that, the High Court erred when it found that section 109(a) should be understood to mean an offender ‘who is suffering from a dangerous infectious disease or a dangerous contagious disease’. The phrase ‘dangerous, infectious or contagious disease’ as contained in section 109 of the Act is clear and requires no interpretation. The reasoning behind the court a quo’s interpretation is not understood and this Court finds that that interpretation is not supported by the language or context of the provision.

Held that, there are no valid grounds for this Court to review the medical officer’s decision. 

Held that, the principles of natural justice do not require an administrative body to hold trial-type hearings when these are not prescribed by statute. What is required is that the administrative agency should act fairly in affording the affected individual a fair hearing. This Court finds that there was no arbitrariness, capriciousness, unreasonableness, or irrationality about the medical officer’s determination. If the appellant had any representations to make to the medical officer, that opportunity existed during the medical examination. 

Held that, a recommendation by the medical officer is a pre-condition for the Minister to exercise the power conferred on him by statute. The facts of the cases from a foreign jurisdiction relied upon by the appellant are distinguishable from the facts of this matter.

Held that, the Court could not make an order of substitution, because the Minister had not decided whether or not to authorise the appellant’s release, rightly so because he was not furnished with a recommendation by the medical officer as required by law.

Court order

The appeal was dismissed. No costs order was made. 

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