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[2015] ZAGPPHC 144
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Emomotimi and Another v Minister of Justice and Correctional Services and Another (40959/2014) [2015] ZAGPPHC 144 (27 February 2015)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF
SOUTH AFRICA]
CASE NUMBER:
40959/2014
DATE: 27 FEBRUARY
2015
In the matter
between:
OKAH HENRY
EMOMOTIMI
..............................................................................
FIRST
APPLICANT
OKAH AZUKA
STELLA
..................................................................................
SECOND
APPLICANT
And
MINISTER OF JUSTICE
AND CORRECTIONAL
..........................................
FIRST
RESPONDENT
SERVICES
NATIONAL
COMMISSIONER
OF
..............................................................
SECOND
RESPONDENT
CORRECTIONAL
SERVICES
JUDGMENT
MAVUNDLA J;
[1]
The first applicant was convicted of thirteen (13) charges relating
to terrorism and effectively sentenced to twenty four (24)
years
imprisonment on 26 March 2013. He is currently incarcerated at
Ebhongweni Kokstad Maximum Security facility in Kwa-Zulu Natal.
The
second applicant is the wife of the first applicant, and relied on
s38 of the Constitution to bring these proceedings on behalf
of the
first applicant. In my view, the question of
locus
standi
in
this matter is not in issue.
[2] The applicants
approach this court by way of urgency seeking the following relief:
2.1 That the forms
and service provided in the Uniform Rules of this Court are dispensed
with and this matter be disposed of in
terms of Rule 6(12)(a);
2.2 An order in
terms of which the disciplinary hearing held against the first
respondent on the 3rd April 2014 together with its
findings and
sanctions be reviewed and set aside;
2.3 The consequent
decision of the Respondent to transfer the first respondent to
Ebhongweni Maximum Correctional Centre "Kokstad
prison" in
Kwa Zulu Natal be reviewed and set aside;
2.4. Directing the
respondents to return the first applicant to the Kgosi Mampuru II
Maximum Security Centre "New Lock Prison"
in Pretoria
within 48 hours of this order being granted;
2.5 Directing the
respondents' actions, in terms of which the first applicant was
downgraded from A-group to C-group inmate, is
set aside;
2.6 Directing the
respondents to reinstate all rights and privileges accorded such
inmates by virtue of their A-group status as
to the applicant;
2.7 That the
respondents allow the first applicant's doctor, Dr. Omoniyi Akerele
to have contact visitation and to administer the
first applicant's
medication to him within 24 hours of his return to Newlock Prison;
2.8 Directing the
respondent to bear the costs of this application on a scale as
between attorney and own client.
[3]
The applicants contend in their papers that the purpose of the
application is to restore the
status
quo ante
and
as such to have the first applicant returned to Newlock Prison in
Pretoria in order for him to be consulted by his private practitioner
and restoring the attorney and client relationship between the first
applicant and his attorney which the respondent is currently
frustrating and unlawfully and maliciously preventing.
[4] The applicants
contended further that the matter is urgent because the first
applicant will not be afforded substantial redress
at the hearing of
the matter in due course as the matter would in all likelihood be
opposed by the respondents thus necessitating
that it be placed on
the opposed roll at the end of August. Were this to happen the
respondent would have succeeded in depriving
the first applicant from
having his private medical practitioner to administer the necessary
medication to him.
[5] The applicant
contended further that the first applicant suffers from a condition
known as Keloids. During the period of April
2014 the respondent,
through its employees, allowed the first applicant to have his own
private doctor to administer and treat
this condition. The second
applicant further alleged that neither the Leeuwkop nor Newlock
prisons' facilities where the first
applicant was incarcerated
previously have any know-how to treat the condition of the first
applicant. The second respondent averred
further that she learnt
telephonically from the first applicant that neither does the Kokstad
prison have know-how to treat his
condition.
[6] Although it is
conceded by the respondents that the first applicant suffers from a
condition known as Keloids, his medical doctor
can access and treat
him at Kokstad, if he so wished. Otherwise, the medical doctor
serving the Correctional Centre at Kokstad
where the first applicant
is incarcerated is available to attend and treat him. His condition
can be treated by any dermatologist.
I am inclined to accept the
version of the respondent and conclude that the first applicant's
condition does not necessarily require
a particular medical
practitioner of the applicant's choice.
[7] The second
applicant further alleged that the respondents frustrated any effort
on the part of the applicants to bring review
proceedings against the
decision to downgrade the status of the first applicant from A-group
to C- group inmate much earlier by
not responding to their inquiries.
[8]
The further essence of the applicants' contention,
inter
alia,
is
that in transferring the first applicant to Kokstad, the respondent
failed to have regard to subsections (1), (2), and (3) of
section 43
of the Correctional Service Act (CSA) in not incarcerating the first
applicant at the nearest centre to his home and
or relatives, which
is would be Kgosi Mampuru II in Pretoria.
[9] It is common
cause that a disciplinary hearing was conducted against the first
applicant by the department of correctional services
wherein, after
he walked out of the proceedings, was in absentia, found guilty on
the 3
rd
April 2014. The first applicant brought an urgent
application before De Vries J to have the aforesaid disciplinary
hearing set
aside. However that application was opposed and
subsequently withdrawn in court and both parties were ordered to pay
their own
costs. It needs mentioning that according to the second
applicant, the first applicant had already been downgraded and
effectively
to a C-group as from January 2014. In my view, once the
applicant withdrew the aforesaid urgent application, assuming that
the
matter was indeed then urgent, that urgency was lost. The present
application was brought in June 2014. The applicant cannot again
seek
to have the disciplinary decision of the 3rd April 2014 to be
adjudicated upon on urgent basis after they had withdrawn the
initial
application.
[10] In so far as
the applicant seeks an order that the respondents be directed to have
him returned to and incarcerated at a place
nearest to his next of
kin in Pretoria, he in fact seeks a mandamus which is of final
interdictory nature. The applicant must meet
the requirements of a
final interdict, namely:
(i) that he has a
clear right to the issues raised in the prayer sought;
(ii) an injury
committed or reasonable apprehended in relation to the issues raised
in (i); and
(iii) absence of any
other satisfactory remedy in settling these matters.
[11]
It is trite that a convicted and sentenced inmate's incarceration is
governed by the Act 111 of 1998 and does not have absolute
rights.
Section 43 of CSA provides that a sentenced offender must be
incarcerated at a correctional centre closest to the place
where he
is to reside after his release, with regard to the availability of
accommodation and facilities to meet his security requirements
in
consideration of available programmes. This section also empowers the
second respondent to transfer a sentenced inmate to another
correctional centre. In this regard Bertelsmann J in the matter of
Masilela v Bouwers
2013
(2) SACR 350
(GNP) held that:
"12]
It is therefore clear that, upon admission to a correctional
institution, an inmate may lawfully be assessed and placed
in a
correctional centre that provides the appropriate level of security,
considering the risk the sentenced offender poses at
that stage. The
locality of the correctional centre best equipped to accommodate the
offender must be considered with reference
with which the offender's
next of kin or friends may be able to visit him. It is clear that,
however, that an offender may lawfully
be placed in a centre that is
far removed from his family's residence, if it is necessary to do so
in the
bona fide
opinion
of the responsible official in the respondent's centre."
[12] When the
applicant was convicted and sentenced on the 26 March 2013 he was
incarcerated at the Leuwkop prison but was subsequently
transferred
from Leuwkop Prison to Pretoria. Whilst at Pretoria a disciplinary
hearing was conducted on the 3 April 2014 in terms
whereof he was
found guilty and transferred to Kokstad. The applicant did not
exhaust the internal remedies available to him, before
turning to the
court. In this regard Bertelsmann J held in the Masilela matter
(supra) that: "[13] Should an offender be of
the view that his
classification is incorrect or that his placement in a particular
centre is unreasonable, irrational or mala
fide, the complainant's
procedure provided for in s21 must be followed.”
[13]
I am of the view that the applicant, as a sentenced inmate, does not
have a right to demand where he must be held. The respondents
contend
in their paper's that the first applicant is a high security risk
inmate. The Pretoria Local Correctional Centre where
he wants to be
returned to, has no capacity to deal with high risk inmates, whereas
the correctional centre where he is presently
housed does, according
to the respondents. In this regard, the version of the respondents
must in the circumstances prevail,
vide
Townsend Productions (PTY) Ltd v Leech and Others
2001
(4) SA 33
(CPDO at 40 D-F;
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at 375E.
[14]
I am of the
view that, this application stand to be dismissed, without the need
of traversing all the issues other issues raised
by the applicants in
their papers. In so far as the costs are concerned there is no reason
why the general principle that costs
follow the event, should not
apply. The respondent was represented by senior counsel assisted by a
junior. There is no reason why
the respondents should be put out of
pocket at all.
[15] In the result
the application is dismissed with costs including the costs of two
counsel.
N.M.MAVUNDLA
Date of Hearing: 10
/ 11 / 2014
Date of Judgment :
27/02/2015
APPLICANTS'
ADVOCATE: ADV G. C. MULLER SC
INSTRUCTED BY: P.I.
URIESI ATTORNEYS
RESPONDENT'S ADV :
ADV MTK MOERANE SC, with ADV E B NDEBELE
INSTRUCTED
BY: STATE ATTORNEY PRETORIA