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2023
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[2023] ZAGPPHC 1963
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Simon v National Commissioner, DCS and Others (116396/2023) [2023] ZAGPPHC 1963 (29 November 2023)
IN THE HIGH COURT OF
SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE NO: 116396/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS
JUDGES: NO
(3) REVISED
29 NOVEMBER 2023
In the matter between:
SIMON,
YANIV NOSSI
BEN
Applicant
and
NATIONAL
COMMISSIONER,
DCS
First Respondent
MINISTER
OF JUSTICE & CORRECTIONAL SERVICE
Second
Respondent
REGINAL
COMMISSIONER, GAUTENG
Third Respondent
AREA
COMMISSIONER, KGOSI MAMPURU II AREA
Fourth
Respondent
HEAD
OFFICE, KGOSI MAPURU II CORRECTIONAL
CENTRE
Fifth Respondent
HEAD OF C-MAX, KGOSI
MAPURU II CORRECTIONAL
CENTRE
Sixth Respondent
INDEPENDENT CORRECTIONAL
CENTRE VISITOR,
KGOSI
MAPURU II CORRECTIONAL CENTRE
Seventh Respondent
JUDICIAL INSPECTOR FOR
CORRECTIONAL
SERVICES
Eighth Respondent
JUDGMENT
NGALWANA AJ
[1]
This is an application
for the transfer of an unsentenced inmate from the C-max
part to the remand
centre part of the Kgosi Mampuru Correctional Centre, pending the
outcome of the review
of that decision.
[2]
The application is
brought on an urgent basis essentially on the ground that being
held in solitary
confinement constitutes torture, cruel, degrading and inhumane
punishment. The submission is that interim relief
to be released from
such punishment
is
always
urgent.
[3]
The first respondent
says the application is not urgent as the decision to transfer
the applicant was made
in January 2023 and he threatened legal action in February 2023.
There is no explanation for the delay of
9 months. In any event, says
the first respondent,
an interdict is a
remedy that is available to stop conduct that has not yet occurred,
not to stop conduct that has already occurred.
He says what the
applicant is inviting this court to do is usurp the functions of the
correctional services, thereby trenching
on the separation of powers
doctrine.
[4]
In reply, the applicant
says delay in bringing the application cannot trump his right not to
be subjected to torture.
[5]
Then he says he has
made out a case for interim relief, largely because the respondents
have not denied his allegations that tend
to prove a
prima
facie
case, balance
of convenience in his favour and apprehension of irreparable harm.
[6]
In my view, this case
falls to be disposed of on urgency. There is no adequate explanation
for the delay in the bringing of this
application for a period of 9
months.
The applicant was
transferred to C-max in January 2023. He threatened legal challenge
in February 2023. He only launched this application
in November 2023.
His Counsel says an application to stop torture is always urgent.
Well, it might have been in January or February
2023 when the
applicant threatened to challenge his transfer. That it took him 9
months to realise that this was torture places
the element of urgency
in doubt.
[7]
In any event, I agree
with Counsel for the first respondent that an urgent court is
not suited for dealing
with complex and novel matters of law. This case engages complex
issues of international law including the
treatment of inmates and
turture. It engages the power of the correctional services to
classify inmates by their risk profile and
house them accordingly.
Whether the exercise of such powers, or the manner of their exercise,
breaches an inmate’s constitutional
rights is not a matter that
founds urgency or can be determined in urgent court. These are issues
that can best be debated
in the review court
which will have sufficient time to consider them intimately.
[8]
I am not persuaded that
the applicant cannot obtain substantial relief in due course. In any
event, the applicant has created his
own urgency by delaying his
challenge for over 9 months.
Order
In the result, I make the
following order:
1.
The application is
struck off the roll for lack of urgency.
2.
The applicant is to pay
the costs of this application on a party and party scale.
V NGALWANA
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION OF
THE HIGH COURT, PRETORIA
Delivered: This judgement
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand-down is deemed to be
29 November 2023.
Date of hearing: 28
November 2023
Date of judgment: 29
November 2023
Appearances:
Attorneys
for the Applicants:
Ian
Levitt Attorneys
Counsel
for the Applicant:
A Katz
SC (082 706 1744) E Cohen (076 905 2342)
Attorneys
for First Respondent:
State
Attorney, Pretoria
Counsel
for First Respondent:
M
Vimbi (083 269 9465)