Murderer wants prison boss to comply with court order or face prison time

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Opens in new windowOpens in new windowOpens in new windowOpens in new windowEnter fullscreen mode displaying this image.ExpandCorrectional services commissioner Makgothi Thobakgale testifies before the Madlanga commission in Pretoria. Picture: Freddy Mavunda/Business Day Story audio is generated using AI

Carrington Laughton, convicted a decade ago for the murder of restaurant chef Betty Ketani, wants correctional services boss Makgothi Thobakgale to face jail time unless he complies with a court order to consider whether he is fit to serve the rest of his sentence at home under correctional supervision.

Laughton was sentenced in 2016 to 30 years’ imprisonment for the murder of Ketani. His sentencing dominated headlines over a breakthrough in the 1999 cold case after the discovery of a confession letter, resulting in the discovery of Ketani’s remains and the unravelling of her murder 13 years after her death.

Laughton turned to the high court in Johannesburg seeking a court order to convert the sentence of direct imprisonment into correctional supervision.

Correctional supervision means Laughton would serve the remainder of his sentence at home under the supervision of correctional services. His application is based on provisions of the Criminal Procedure Act.

In July, his application before judge Lebogang Modiba failed on the basis that the first request had to be sent to commissioner Thobakgale or a parole board to consider whether he is fit for his sentence to be converted.

In the judgment, Modiba ordered the state to consider Laughton’s request in 30 days.

The Criminal Procedure Act provides that if a person has been sentenced by a court to imprisonment for a period not exceeding five years or exceeding five years but his date of release under the Correctional Services Act (1959) and the regulations “is not more than five years in the future”, the commissioner or a parole board may deem if the applicant is fit for correctional supervision.

The court, however, has the last say in the process.

The provision is interpreted to include the date on which such prisoner may be considered for placement on parole.

Laughton contended he qualified for consideration because the offences for which he was convicted were committed during May 1999, and in determining his parole eligibility and release date, the provisions of the Correctional Services Act applied. He contended the parole consideration in his circumstances was May 2026 after serving one-third of his sentence.

While Modiba dismissed Laughton’s relief for the court to convert his sentence, she ruled parole eligibility must be determined with reference to the law applicable at the time the offences were committed. The court found Laughton accordingly falls to be considered under the transitional provisions relating to the 1959 Act.

On Tuesday, Laughton turned to the high court again in a case against Thobakgale and correctional services minister Pieter Groenewald.

Other respondents include five correctional services management officials, including Ruth Magakwe of the case management committee (CMC) and Luckyboy Mathiba, chair of correctional supervision.

In court papers, Laughton’s legal representative, Paige Ferreira, argued the state is in contempt of the Modiba court order.

Modiba’s order required compliance in 30 days for consideration of her client’s request to serve the remainder of his sentence at home under supervision. Ferreira argued that did not occur.

She said that on September 11, after a CMC sitting, Laughton was informed he was not a suitable candidate for consideration of the conversion of the sentence, with the committee citing the nature of the crimes committed and that his sentence exceeds five years.

“The applicant [Laughton] asks that the respondents [correctional service officials] be ordered to comply, failing which the individual office bearers responsible be committed to prison, and that they personally bear the costs of having to bring this application,” the court papers read.

Ferreira argued that the report did not recommend her client for conversion of sentence falls short of what the court had ordered the officials to do.

“The respondents failed to deliver their report within the 30 days. Some 14 days after the period expired, a one-page letter was given to the applicant which falls dismally short of what the respondents were ordered to do in terms of the order.

“The letter does not confirm the applicant’s release date, repeats the very contention that this court had rejected and records no decision by the commissioner or any duly authorised functionary. The applicant asks that the respondents be ordered to comply.”

Ferreira argued the first reason proffered in the report for the applicant’s lack of eligibility for consideration of the conversion of his sentence, that his sentence “exceeds five years”, is not a ground for disqualification.

Another shortcoming in the report is that the law required the consideration of the conversion of the sentence to be decided by the commissioner or a parole board, but in Laughton’s case the report was signed by the CMC assistant director.

“The purported report records no decision by the person on whom the statute and the order place the decision. Section 276A(3)(a) vests that opinion in the commissioner or a parole board. The letter is signed by an assistant director of the CMC and says only that the CMC ‘cannot recommend’ the applicant,” she argued.

“The respondents’ actions have been a failure, resulting in severe prejudice to the applicant. The respondents ought to be held personally responsible for the payment of the applicant’s costs in this matter, considering their personal conduct and failure,” argued Ferreira.

Zane Matiwane, correctional services legal officer, argues in an affidavit that even if the court finds further steps are required to comply fully with Modiba’s order, that does not automatically establish wilful and bad faith disobedience by Thobakgale and five other officials in correctional services management in their personal capacities.

“The available records reflect the applicant’s profile, and the request was considered within the correctional services processes, including a sitting of the case management committee; correctional supervision and parole board minutes reflecting that the board considered the offender for conversion of sentence and recorded a decision that he does not qualify for conversion of sentence,” Matiwane says.

It is the state’s case that the order was complied with.

“The respondents submit that records demonstrate the applicant’s case or request was not simply ignored. Therefore, the allegations of wilful noncompliance with the court order of this honourable court are, it is contended, unfounded and without basis,” Matiwane contended.

“I am advised that before a contempt of court order can be granted, an applicant must first demonstrate the existence of the requirements for contempt.”

Matiwane described the application, which seeks an order for Thobakgale and five other correctional services officials personally to be in contempt, committing them to imprisonment or imposing fines, and directing them to pay costs, as “exceptional relief and requires a proper factual and legal basis in respect of each official”.

“The fact that an official holds a particular office does not, by itself, establish personal wilfulness and mala fides. The respondents submit the applicant has not established a sufficient basis for the collective personal sanctions sought against all the officials cited.”

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