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2023
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[2023] ZAGPJHC 584
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Potgieter v Head of Correctional Centre Modderbee and Others (2023-049795) [2023] ZAGPJHC 584 (26 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO:
2023-049795
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
26.05.23
In the matter between:
JOHANNES
CHRISTOFFEL POTGIETER
APPLICANT
and
THE
HEAD OF CORRECTIONAL CENTRE MODDERBEE
1
ST
RESPONDENT
THE
NATIONAL COMMISIONER OF CORRECTIONAL SERVICES
2
ND
RESPONDENT
THE
ACTING DEPUTY REGIONAL COMMISSIONER OF CORRECTIONAL SERVICES
GAUTENG
3RD
RESPONDENT
THE
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
4TH
RESPONDENT
Neutral Citation
:
Johannes
Christoffel Potgieter v The Head of Correctional Centre Modderbee &
3 Others
(Case
No: 049795/2023) [2023] ZAGPJHC 584 (26 May 2023)
JUDGMENT
WRIGHT J
1.
The
applicant is a man who was convicted of fraud on 10 May 2023. He is
held at Modderbee prison awaiting sentence. He seeks an
order that he
be allowed compassionate leave, under section 44 of the Correctional
Services Act, to attend his daughter’s
wedding tomorrow,
Saturday 27 May 2023.
2.
At
the trial, the applicant was legally represented. In the present
application, the applicant is represented by the same attorney.
3.
The
application was launched yesterday, 25 May 2023, some 15 days after
conviction and the refusal of bail pending sentence. The
respondents
are presently legally represented but have not been given a fair
chance to file answering papers. The NPA has not been
cited as a
party as it should have been.
4.
He
says that he attended at court for his trial on some 30 occasions
prior to conviction and that he is not a flight risk.
5.
He
says that bail was revoked on conviction. It appears that a bail
application, brought after conviction, on 10 May 2023, was refused
on
that day. He says that the present case is neither a bail application
nor a bail appeal.
6.
He
says that section 44 should be read to include prisoners awaiting
sentence. The section seems expressly applicable only to sentenced
offenders, but I do not decide the point.
7.
The
founding affidavit is silent on details regarding the conviction.
From the bar, the attorney for the applicant said that it
was one
count, involving between R700 000 to R800 000, one
corporate victim and not from a position of trust. The statement
was
made from the bar that the applicant is a first offender.
8.
I
do not decide either the question of urgency or that of the merits.
9.
The
non-joinder of the NPA is a serious fault in the application. The
applicant’s attorney admitted from the bar that he has
the
relevant prosecutor’s email address. The application was not
even emailed to the prosecutor dealing with the matter.
10.
Adv
Chabane, for the respondents asked me to dismiss the application on
the ground of non-joinder but in the rushed circumstances
it is in my
view, preferable to remove the matter from the roll on the ground of
non-joinder.
ORDER
1.
The
matter is removed from the roll for lack of joinder of the NPA.
2.
The
applicant is to pay the respondents’ costs.
GC Wright
Judge of the High
Court
Gauteng Division,
Johannesburg
HEARD
: 26 May 2023
DELIVERED
: 26 May 2023
APPEARANCES
:
APPLICANT
Mr
L Nolte
Instructed
by
Nolte
Inc Attorneys
011 788
0188
nakka@couzyns.co.za
;
steff2@nolteinc.co.za
;
lourens@nolteinc.co.za
RESPONDENTS
Adv
VJ Chabane
Instructed
by
State
Attorney
Mmapula.makghamatha@dcs.gov.za
;
thembi.gwamanda@dcs.gov.za
;
luckyboy.mathiba@dcs.gov.za
;
CPrhiri@justice.gov.za