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[2018] ZAGPPHC 152
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Nagoato v Minister of Justice and Constitutional Development and Another (14674/18) [2018] ZAGPPHC 152 (26 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 14674/18
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
NGOATO
THOMO
MICHAEL
APPLICANT
vs
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
1st RESPONDENT
HEAD
OF PRISON, KGOSI MAMPURU II
CORRECTIONAL
CENTRE
2ND RESPONDENT
JUDGMENT
KUBUSHI
J
[1]
The purpose of this application is to seek an order reviewing and
setting aside the decision of
the second respondent, the Head of
Prison, Kgosi Mampuru II Correctional Center II , to place the
applicant, Mr Thome Michael Ngoato,
in a single cell or segregated
from other prisoners and to direct the 2nd respondent to place the
applicant in a communal cell.
[2]
The matter was placed before me in the urgent court. The respondents
have raised issues
with urgency contending that the matter is not
urgent. The application is, in my view, inherently urgent because the
applicant's
right of freedom has been curtailed by his incarceration
in a single cell.
[3]
In his founding papers, the applicant relies on section 30 of the
Correctional Services
Act 111 of 1998 ("the Act). Section 30 of
the Act provides for the segregation of prisoners and may entail
detention in a
single cell. The applicant contents in his founding
affidavit that he has been placed in a single cell in terms of
section 30,
that is, he has been segregated. The respondents concede,
in their answering affidavit, that the applicant is detained in a
single
cell but argues that such detention is pursuant to the
provisions of section 7 of the Act and not section 30 as claimed by
the
applicant. Section 7 of the Act provides for the accommodation of
prisoners at a prison facility. This necessitated the applicant
to
change his stance in his replying affidavit and base his case on the
provisions of section 7 of the Act. The respondents' counsel
argues
for the dismissal of the application on the ground that all the
necessary allegations upon which the applicant relies must
appear in
the applicant's founding affidavit failing which the applicant' s
case should be dismissed. Counsel further submits that
if the
replying affidavit is accept ed, the respondents will be prejudiced
in that they will not have an opportunity to respond
to issues raised
in the replying affidavit.
[4]
It
is trite that all the necessary allegations upon which the
application relies must appear in the founding affidavit, as the
applicant will not generally be allowed to supplement the affidavit
by adducing supporting facts in a replying affidavit. This is,
however, not an absolute rule, for the court has discretion to allow
new matters in a replying affidavit, giving the respondent
the
opportunity to deal with it in a second set of answering affidavits.
Thus, a distinction must be drawn between a case in which
the new
material is first brought to light by the applicant who knew of it at
the time when her/his founding affidavit was prepared
and a case in
which facts alleged in the respondent ' s answering affidavit reveal
the existence or possible existence of further
ground for relief
sought by the applicant . In the latter type of case the court would
obviously more readily allow an applicant
in her/his replying
affidavit to utilize and enlarge upon what has been revealed by the
respondent and to set up such additional
ground for relief as might
arise therefrom. The court will however not allow the introduction of
new matter if the new matter sought
to be introduced amounts to an
abandonment of the existing claim and the substitution therefor of a
fresh and completely different
claim based on a different cause of
action. Nor will the court permit an applicant to make a case in
reply when no case at all
was made in the original applicat ion.
[1]
[5]
It
is said that the right to personal freedom is so fundamental that a
detainee should be allowed to seek in motion proceedings
an order for
her/his release based on a founding affidavit in which she/he alleges
that she/he is being held by the respondent,
notwithstanding the
general requirement that an application must disclose a complete case
in the founding affidavit and the restriction
on the number of sets
of affidavits usually accepted in motion procee dings.
[2]
[6]
On the basis of the principles of law enunciated above, I am inclined
to allow the
applicant's case as expounded in the replying affidavit.
It is clear from the reading of the replying affidavit that the
applicant
was not aware that the section applicable in the
circumstances of his case was section 7 and not section 30 of the
Act. On his
request to be removed from a single cell, the second
respondent disapproved the request without stating reasons and
without making
the applicant aware that he was detained in terms of
section 7. The applicant was made aware of the application of section
7 on
7 March 2018 a day after the application was launched. The
respondents will not be prejudiced, I think. Section 7 was raised by
the respondents in their answering affidavit and they have
comprehensively dealt with it therein.
[7]
I turn now to the merits of the application.
[8]
The applicant is an awaiting trial prisoner currently incarcerated at
the Remand
Centre in the Kgosi Mampuru II Correctional Centre ("the
Correctional Cent re"). He was previously an employee of the
first respondent . He was arrested on allegations of murder on 31
January 2018. At the time of the hearing of this application
I was
informed that his bail application was scheduled to be heard on 16
March 2018, which was the following day. As I was to reserve
judgment
in this matter I requested that I be informed about the outcome of
the bail application. I was later informed that the
bail application
did not proceed. The applicant has another unrelated pending criminal
case of dealing in drugs as contemplated
in the Drug and Drug
Trafficking Act 140 of 1992. He has been granted bail in respect of
this charge and was due to make his appearance
on 16 March 2018 at
the Cullinan Magistrate Court .
[9]
The applicant was arrested together with two co-accused persons,
namely, Mr Paulos Fourie
and Mr Thate Maringa. The two are accused
number 2 and accused number 3, respectively, in the murder charge. Mr
Fourie and Mr Maringa
are also incarcerated at the Correctional
Centre.
[10]
The applicant and the two co-accused persons were initially detained
at Bronkhorstpruit
Police Station before they were transferred to the
Correctional Centre on 12 February 2018. Upon arrival at the
Correctional Centre
they were all admitted and accommodated in a
communal cell known as admission cell where they spent the night. The
following d
y, 13 February 2018, they were accommodated at the G3/1
section of the Correctional Centre where they spent the night. On 14
February
2018 they were assessed and based on the assessment the
applicant was accommodated in a single cell.
[11]
According to the respondents, as part of the process to admit an
offender to
the Correctional Centre, the prison officials conduct a
classification and assessment process. In terms of the assessment
tool
used, all remand detainees with scores between 17 and 21 are
regarded as High Risk detainees and are treated differently from
other
inmates for security purposes. Immediately after profiling an
awaiting trial detainee a decision will be taken whether to
accommodate
him either in a single/separate cell or in the communal
cell.
[12]
The applicant's score rating when assessed came out at 20 which
indicated that
he was a High Risk detainee qualifying to be
accommodated in the environment regulated by section 7 (2)
(d)
of
the Act as amended by
section 6
of the
Correctional Services
Amendment Act 25 of 2008
. All inmates, including the applicant,
accommodated in terms of section 7 (2) (d) of the Act are not treated
differently from other
awaiting trial detainees except that they are
placed in a single cell because of their High Risk profile.
[13]
The respondents contend that the applicant has been lawfully placed
in a single
cell in terms of section 7 (2)
(d)
read with
(e)
of the Act. It should be mentioned that subsection (2)
(e)
was
only brought
! to
the equation by the respondents in their
heads of argument. It was not raised in their answering affidavit.
But for the decision
I come to, I find it not necessary to deal with
subsection 2
{e)
of the Act in this judgment.
[14]
It is the contention of the applicant that: firstly, the 2nd
respondent does not have the power
to place or hold the applicant in
a single cell in the circumstances of this case; secondly , if the 2n
d respondent has the power
he claims to have, then in that regard,
the 2nd respondent has exercised the powers arbitrarily, capriciously
and in a procedurally
unfair manner. In essence the applicant's
complaint is that the respondents' interpretation of section 7 (2)
{d)
read with section 7 (2)
{e)
of the Act is
fallacious as it does not take into account the mischief that the
legislature sought to address in promulgating that
subsect ion. The
correct reading of the subsection, according to applicant, is that
the provision empowers the National Commissioner
to classify inmates
in terms of age group , health or risk categories. This reading is
made clear by the provisions of section
7 (2)
{e)
of the Act
which empowers the National Commissioner to accommodate inmates in
single or communal cells depending on the availability
of
accommodation.
[15]
The salient provisions of the subsections in issue are the following:
"section
7
Accommodation
(1)
(2)
(a)
(d)
The National Commissioner may detain inmates of specific age,
health or security risk categories separately.
(e)
The National Commissioner may accommodate inmates is single or
communal cells depending on the availability of accommodation.
(!)
. . . ,,
[16]
In terms of section 6 of the Act, on admission the National
Commissioner must
make a preliminary security classification of the
inmate. The security classification of inmates is provided for in
section 29
of the Act. In terms of this section security
classification is determined by the extent to which the inmate
presents a security
risk and so as to determine the correctional
centre or part of a correctional centre in which he or she is to be
detained. This
would mean that once an inmate is classified as a
security risk the National Commissioner must determine the part of a
correctional
centre in which such inmate is to be accommodated.
According to the second respondent, awaiting trial inmates of the
profile of
the applicant are accommodated in single/separate cells.
[17]
I am in agreement with the submission by the applicant's counsel that
the provision
of section 7 (2)
(d)
of the Act empowers the
National Commissioner to classify inmates in terms of age group,
health or risk categories. But, as far
as risk is concerned, section
7 (2)
(d)
of the Act must be read together with section 29 of
the Act which authorises the National Commissioner to determine the
part of
a correctional centre in which to accommodate inmates once
they have been classified as security risk. It appears from the
assessment
tool that there are different degrees of classification -
high, medium and low. It goes without saying that the National
Commissioner
has to determine the part of the correctional centre in
which high, medium or low risk classified inmates have to be
accommodated.
In this instance, the second respondent ' evidence is
that inmates who have been assessed and classified as High Risk are
accommodated
in single cells. That to me is the part of the
Correctional Centre where High Risk inmates are accommodated. It
might be that other
categories of inmates are placed in communal
cells but High Risk inmates are accommodated in single cells. I hold
therefore that
section 7 (2) (d) read with section 29 of the Act
empowers the National Commissioner or her/his delegate, in this
instance the
2n d respondent, to detain an inmate in a single cell.
[18]
I, however, have to agree, as argued by the applicant, that the power
was not exercised
rationally, lawfully and is not procedurally fair.
I say so on the basis of the grounds raised by the applicant in his
papers.
Some of the factors considered when assessing the applicant
were not administered correct ly. For instance:
18.1
Firstly, the applicant has been erroneously rated as an inmate facing
more than two charges
mentioned in Schedule 1 of the
Criminal
Procedure Act 51 of 1977
. It is clear from the evidence that the
applicant is facing only one charge mentioned in Schedule 1, that of
murder. The other
charge of dealing in drugs is a Schedule 2 charge.
18.2
Secondly, the applicant has been erroneously rated as a member of a
gang because he has tattoos
on his body. Whilst conceding that he has
tattoos on his body, the applicant has vehemently denied that he is
affiliated to any
gang, whether a street gang or prison gang.
[19]
Having found in favour of the applicant to have the decision to place
him in
a single cell reviewed and set aside, the applicant further
seeks an order directing the second respondent to place him in a
communal
cell. The implication is that I must substitute the 2nd
respondent's decision with my decision.
[20]
In
Trencon
Construction {Pty) Ltd v Industrial Development Corporation of South
Africa Ltd
&
Another,
[3]
the following remarks were made:
"The
administrative review context of
section 8
(1) of PAJA and the
wording under subsection 1
(c)
(ii) (aa) make it perspicuous
that substitution remains an extraordinary remedy. Remittal still
almost always the prudent and proper
course . . . a court considering
what constitutes exceptional circumstances must be guided by an
approach tha t is consonant with
the Constitution . Indeed, the idea
that courts ought to recognise their own limitations still rings
true. It is informed not only
by the deference courts have to afford
an administrator but also by the appreciation that courts are
ordinarily not vested with
the skills and expertise required of an
administrator ."
[21]
In order for the applicant to be afforded the relief he seeks
he must first comply with the requirements of section 8 (1)
(c)
(ii) (aa) of PAJA which requires the applicant to indicate that
exceptional circumstances exist to justify the substitution of the
administrative action taken. The applicant has not, in the papers
before me, made out a case for exceptional circumstances and
can as
such not be granted the relief he seeks. The matter has to be
remitted to the second respondent for reconsideration.
[22]
I make the following order -
1.
The decision of the Head Prison, Kgosi Mampuru II Correctional Centre
to place the applicant in a single
cell is reviewed and set aside.
2.
The matter is remitted to the Head Prison, Kgosi Mampuru II
Correctional Centre to reassess the
applicant for classification in
terms of
section 29
of the
Correctional Services Act 111 of 1998
as
amended.
3.
The respondents are ordered to pay the applicant's costs jointly and
severally the one paying the other
to be absolved.
E.
M. KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES
HEARD
ON
THE
:
15 MARCH 2018
DATE
OF JUDGMENT
: 26 MARCH 2018
APPLICANT'S
COUNSEL
ADV. P.R MSAULE
APPLICANT'S
ATTORNEY
MOKGARA ATTORNEYS
RESPONDENT'S
COUNSEL
ADV. S. MOLOMBO
RESPONDENT'S
ATTORNEY
: STATE ATTORNEY
[1]
See Erasmus: Superior Court Practice vol2 page Dl-65 - Dl -66.
[2]
See Minister van Wet en Orde v Matshoba
1990 (1) SA 280
(A) at 286C.
[3]
(2015) ZACC 22
par 42.