The Supreme Court of Appeal (SCA) has found the parole board erred in its decision to release a repeat sex offender on parole when there was a “significant” risk in doing so.

The appeal court ruling comes after Nandi Jacobs approached it to appeal a Pretoria high court order granting the minister of justice and correctional services absolution of the instance [free from blame] in her case in which she wanted the court to find the parole board erroneously released Ivan Botha on parole.

Jacobs claimed just over R2m from the minister for pain and suffering. The minister defended the action.

Before the high court, Jacobs alleged that on April 1 2012, Botha attacked her and attempted to assault, rape and rob her. At the time, Botha was a convicted criminal who had committed, among other offences, rape and indecent assault.

He was placed on parole on November 1 2010, and the attack on Jacobs took place during the period of his parole in April 2012.

Botha attempted to assault, rape and rob Jacobs. He was subsequently prosecuted and convicted of robbery, conspiracy and enticement to commit a sexual offence.

Jacobs argued in court that given Botha’s criminal record and the information before the parole board, he should not have been released on parole.

She contended that Botha violated his parole conditions but was not sent back to prison.

She said the department of correctional services should, in the circumstances, have foreseen that by allowing Botha’s release on parole, the public might be endangered. That risk materialised when Botha attacked her.

The high court considered there to be no evidence that demonstrated the decision to place Botha on parole was tainted or flawed. This is despite records showing Botha had violated his parole conditions on five occasions. He was, as a result of the violations, given four verbal warnings and on one occasion was placed under parole supervision.

According to court papers, Botha’s release on parole was based on his conduct in prison,  which was considered good.

He was said to have completed a number of rehabilitative courses, he was reported to have shown remorse for his crimes and showed a desire to act differently. His family was supportive of him, he had a home to go to with his mother, and the social worker’s report was favourable.

In his judgment, acting judge of the SCA David Unterhalter found there was “certainly” a case to answer as to why the parole board considered releasing Botha on parole without a report from a psychologist.

“In my view, on the documentary evidence placed before the high court, a court could find the parole board acted wrongfully and negligently in releasing Mr Botha on parole,” he said.

“Convicted of three sexual offences, the superficial commentary offered in the social worker’s report, the vagueness of what was said by the case management committee and the lack of a psychologist’s report, make out a case on the basis of which it could be said the parole board decided to release Mr Botha on parole when there was significant risk attached to their decision,” said Unterhalter.

The SCA said the high court’s decision that there was no error in granting Botha parole  could not stand.

“On the evidence before the high court, there was reason for the parole board to proceed with caution,” Unterhalter found.

He upheld Jacobs’ appeal with costs and set aside the high court order which granted the minister absolution from the instance.

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