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2021
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[2021] ZAMPMBHC 31
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Nkosi v Minister of Justice and Correctional Services and Others (1674/2021) [2021] ZAMPMBHC 31 (23 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION, MBOMBELA
(MAIN
SEAT)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES
: /NO
(3)
REVISED: YES
23
JULY 2021
Case
No: 1674/2021
In
the matter between:
IRVAN
BROWN NKOSI
Applicant
versus
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
First
Respondent
THE
NATIONAL COMMISSIONER OF CORRECTIONAL
SERVICES
Second
Respondent
THE
AREA COMMISSIONER OF CORRECTIONAL
SERVICES
Third
Respondent
JUDGMENT
BRAUCKMANN
AJ
[1]
This is an application launched by the
Applicant, which is not opposed, in terms whereof the Applicant
seeks, ostensibly on an urgent
basis, an interdict compelling the
Respondents to transfer him to Barberton Correctional Services, which
is within the jurisdiction
of this Court.
[2]
He applies to this Court to transfer him
in terms of Section 43 of the
Correctional
Services Act, Act 111 of 1998
(“the
Act”) within seven days from date of this order, together with
costs.
[3]
The Applicant provides reasons why this
Court should grant him an “interdict” and order the
Respondents to transfer
him to Barberton Correctional Services.
[4]
Applicant is currently incarcerated in the
Katama Sinthumule Prison in Louis Trichard, Limpopo Province. I am of
the view that this
court does not have jurisdiction over his person,
but in the event that I am wrong, the application stands to be
dismissed in any
way, for the reasons herein.
[5]
It will appear from this judgment, none of
the reasons proffered by applicant for his transfer are good enough
and that the Applicant
have followed the incorrect procedures.
[6]
The reasons for requesting a transfer are
as follows:
[6.1]
His family resides in Belfast Siyathuthuka in
Mpumalanga. He want to be closer to his family as he want them to
visit him and appoint
a legal representative to be able to consult
with him to file an appeal against his incarceration;
[6.2]
One of his co-accused in the trial that lead to
his conviction and incarceration is constantly “troubling”
him, and
[6.3]
He is under “parental support” of his
grandmother who cannot visit him as she only receives a social grant.
[7]
His case is based on Section 43 of the
Act. Section 43(1) reads as follows:
“
43(1)
A sentenced offender must be housed at the correctional centre
closest to the place where he or she is
to reside after release, with
due regard to the availability of accommodation and facilities to
meet his or her security requirements
and with reference to
availability of programs.”
[8]
The Applicant has certain rights as set
out in Section 35(2) of the
Constitution of
the Republic of South Africa, Act 108 of 1996
(“the Constitution”).
[9]
In terms of Section 21(1) of the Act the
following is stated:
“
21(1)
Every inmate must on admission and on a daily basis, be given the
opportunity of making complaints or requests
to the head of the
correctional centre or a correctional official authorized to
represent such head of the correctional centre.
(2)
The official referred to in subsection (1)
must –
(b)
deal with the complaints and requests promptly and inform the inmate
of the outcome; and
(c)
if the complaint concerns an alleged assault, ensure that the inmate
undergoes an immediate medical
examination and receives the treatment
prescribed by the correctional medical practitioner;
(3)
If an inmate is not satisfied with the response to his or her
complaint or request, the inmate
may indicate this together for the
reasons for the dissatisfaction to the head of the correctional
centre, who must refer the matter
to the National Commissioner.
(4)
The response of the National Commissioner must be conveyed to the
inmate.
(5)
If not satisfied with the response of the National Commissioner, the
inmate may refer the matter
to the Independent Correctional Centre
Visitor, who must deal with it in terms of the processes laid down in
section 93.”
[10]
In terms of Section 93 of the Act the
following is relevant:
“
93(1)
An Independent Prison Visitor shall deal with the complaints of
prisoners by –
(a)
regular visits;
(b)
interviewing prisoners in private;
(c)
recording complaints in an official diary
and monitoring the manner in which they have been dealt with; and
(d)
discussing complaints with the Head of
Prison or the relevant subordinate correctional official, with a view
to resolving the issues
internally.
(2)
An Independent Prison Visitor, in the
exercise and performance of such powers, functions and duties,
must
be given access to any part of the prison and to any document or
record.
(3)
The Head of Prison must assist an Independent Prison Visitor in the
performance of the assigned powers, functions
and duties.
(4)
should the Head of Prison refuse any request from an Independent
Prison Visitor relating to the functions and duties
of such a
Visitor, the dispute must be referred to the Inspecting Judge, whose
decision will be final.
(5)
An Independent Prison Visitor must report any unresolved complaint to
the Visitors’ Committee and mayo, in
cases of urgency or in the
absence of such a Committee, refer such complaint to the Inspecting
Judge.
(6)
The Inspecting Judge may make Rules concerning, or on the appointment
of an Independent Prison Visitor, specify,
the number of visits to be
made to the prison over a stated period of time and the minimum
duration of a visit, or any other aspect
of the work of an
Independent Prison Visitor.
(7) Each
Independent Prison Visitor must submit a quarterly report to the
Inspecting Judge, which shall include
the duration of visits, the
number and nature of complaints dealt with, and the number and nature
of the complaints referred to
the relevant Visitors’ Committee.
(8)
The Minister may, on the recommendation of the Department of Public
Service and Administration and with the concurrence
of the Minister
of Finance, determine remuneration and allowances to be paid to the
Independent Prison Visitors who are not in
the full-time service of
the State.”
[11]
What is also important is Regulation 25 in
terms of the Act. In terms of Regulation 25 an inmate must be
allowed an opportunity
to make a representation as well as an
opportunity to notify his spouse, partner, next of kin in a manner
prescribed by the order
to transfer him. The inmate is also
entitled to be informed of his proposed transfer as well as the
reasons therefor.
[12]
I am of the view that the Applicant was
supposed to bring a review application dealing with his transfer to
the current location
where he is held.
[13]
If he was not satisfied with the transfer,
he could have objected thereto. In terms of Section 21 and
Section 93 of the Act
certain measures are at the disposal of the
Applicant. He can apply for a transfer which is a request, and
if it is declined,
reasons for the dissatisfaction should be referred
to the Head of the Correctional Centre, who in turn must convey it to
the National
Commissioner. This Section also caters for the
complaints of an alleged “troubling”, as alleged by the
Applicant.
The Applicant may also lodge his complaints with the
Independent Correctional Centre Visitor.
[14]
In a judgment by Kollapen J. in
WP
v. Minister of Justice and Correctional Services
delivered on 4 March 2021, the Judge found
that the rights relating to conditions of incarceration and more
particular contact and
non-contact visits which the Applicant
submitted he is entitled to, are not part of the rights that the
Constitution guarantees
to prisoners and subsequently dismissed the
application.
[15]
The Applicant do not have a right to be
transferred to a facility of his choice. The refusal to
transfer him to a facility
of his choice, although in this
application it does not appear that he applied for such transfer,
does not amount to a violation
of his rights in terms of the
Constitution.
[16]
Section 35(2) of the Constitution, which
contains the rights afforded to a sentenced offender, does not go
that far. The rights
enshrined in the Constitution are also not
absolute and is limited to the extent that the limitation is
reasonable and justifiable
in an open and democratic society.
[17]
From the Applicant’s application it
is clear that the Respondents never prevented the Applicant’s
family to visit him
or prevented the Applicant to consult with
attorneys. An attorney can consult with the Applicant via telephone
in order to proceed
with his appeal and he does not need to consult
him or to be close to his family to proceed with the appeal. There
are also Legal
Aid offices all over the country with whom he can make
contact to proceed and process his appeal.
[18]
The contact that he does not have with his
family is not prevented by the Respondents, but rather the family
cannot visit him as
they are apparently too far away from him.
His rights in this regard is therefore not infringed upon by the
respondents.
[19]
I am therefore of the view that the
Applicant failed to make out a proper case for the relief sought and
the application is not
the correct way to approach this Court.
The Applicant should have applied for a transfer to Barberton
Correctional Facility
and in the event it was refused, the Applicant
could take the Respondents decision on review.
[20]
As the Applicant is incarcerated and any
cost award in this matter might be of an academic value, I do not
intend making a cost
award.
[21]
The following order is therefore made:
1.
The application is dismissed;
2.
No order as to costs.
DATED
AT MIDDELBURG, MPUMALANGA ON THIS 23
rd
DAY OF JULY 2021.
H.F.
BRAUCKMANN
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING: 23 JULY 2021
JUDGMENT
HANDED DOWN: 23 JULY 2021
(DUE
TO COVID – 19 JUDGMENT HANDED DOWN BY EMAIL)
APPLICANT
APPEARED IN PERSON – jphilleman@sacm.co