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[2015] ZAGPPHC 882
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Okah and Another v Minister of Justice and Correctional Services and Another (40959/14) [2015] ZAGPPHC 882 (5 August 2015)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
CASE NUMBER: 40959/14
DATE: 05 AUGUST 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 applicant applies for leave to
appeal to the Supreme Court of Appeal alternatively to the Full Bench
of this Division against
the judgment of this Court delivered on 27
February 2015, dismissing with costs including the costs of two
counsel his urgent application.
[2] The grounds upon which the
application if founded are that the Court erred:
2.1 In finding that the Court was
approached by the applicant by way of urgency;
2.2 In finding that the Court was
requested to adjudicate the review of the disciplinary hearing on
urgent basis and erred by refusing
to adjudicate the review of the
disciplinary hearing on that basis;
2.3 In refusing to interpret
section
43(3)
of the
Correctional Services Act 111 of 1998
and to make a
finding whether the Respondents were entitled to transfer the first
applicant to Kokstatd prison without complying
with the requirements
of
section 43(3)
of the abovementioned Act;
24. in finding that the respondents
were entitled to transfer the first applicant to Kokstad despite the
common cause facts that
the first applicant was being treated by a
medical practitioner and was not discharged from treatment when the
first applicant
was transferred to Kokstad prison;
2.5 in finding that
section 43(1)
overrides the provisions of
s43
(3) and that
section 43(3)
has no
effect whatsoever when a decision was made to transfer an inmate due
to security requirements;
2.6 in finding that the first applicant
applied for a mandamus;
2.7 in not finding that the first
applicant relied on the doctrine of legality with regard to the
transfer of the first applicant
to Kokstad contrary to the provisions
of
section 43(3)
;
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2.8 in not finding that the respondents
acted ultra vires the provisions of
section 43(3)
when the first
applicant was transferred to Kpskstad prison; and
2.9 in not finding that the provisions
of
section 43(3)
are peremptory.
[3] It is trite that in an application
for leave to appeal, the question to be asked is whether there are
reasonable prospects of
success on appeal.
[4] The applicant's notice of motion
was issued on 9 June 2014 and served on the respondents on 9 June
2014, seeking inter alia,
that:
"1. The forms and service provided
for in the Uniform Rules of this Court are dispensed with and this
matter disposed of urgently
against in terms of rule 6(12)(a);
2. an order in terms of which the
disciplinary hearing held against the first applicant on the 3rd
April together with its findings
and sanctions be reviewed and set
aside;
3. the consequent decision of the
respondent to transfer the first applicant to Embonweni Maximum
Correctional Centre 'Kokstad prison"
in Kwa Zulu Natal be
reviewed and set aside;"
[5] The applicant's application was
issued on 9 June 2014, and served on the respondents on 9 June 2014,
calling upon the respondents
to file:
5.1 "copy of the transcripts of
the hearing and sanctions imposed that was conducted against Henry
Emomotimi Okah, prison number
21328945 on the 3rd April 2014 on or
before Friday the 13 June 2014;
5.2 to "notify the applicant's
Attorney in writing, alternatively via email on or before Wednesday
the 11th June 2014 at 08h00;
(b) and after you have given notice of
your intention to oppose the application, file your answering
affidavit, if any, on or before
Friday 13th June at 12h00." The
respondents were afforded 2 days to inform the applicant's attorneys
of their intention to
oppose the application, and thereafter another
two days to file their answering affidavit, contrary to five days and
fifteen days
respectively prescribed time frames in terms of Rule
6(5). These time frames may be abridged, depending on the degree of
urgency
in terms of Rule 6(12); vide Gallagher v Norman's Transport
Lines (Pty) Ltd 1992 (3)SA 500 at 502E-503.
[6] In paragraph 8 of his founding
affidavit the applicant stated that "This matter should be
regarded as being extremely urgent
and ...that the normal Rules of
Court should be dispensed with..."
[7] The applicant in paragraph 7 of his
founding affidavit stated that:
"7.1 In general terms this
application is aimed at restoring the status quo ante and as such to
return the prisoner Mr Henry
Okah to Newlock Prison Pretoria..."
[8] The paragraphs cited herein above,
clearly demonstrate that the applicant deviated from the time frames
referred to in rule
6(5) and resorted to rule 6(12), which permits
him to truncate the time frames, depending on the perceived urgency,
as he deemed
fit; vide Luna Meubel Vervaardigers (Edms) Bpk v Makin
and Another (t/a Makin's Furniture Manufacturers)
1977 (4) SA 135
(W)
at 136H-137A-F. In my view, there are no reasonable prospects that
another Court will find otherwise.
[9] In so far as the question of the
transfer of the applicant to another facility far removed from his
next of kin is concerned,
once the respondents regarded the applicant
as a high risk prisoner, he could be transferred to another security,
with reasons
advanced at a later stage. This was also confirmed in
the Masilela v Bouwers
2013 (2) SACR 350
(GNP) decision, which
was also cited in the judgment leave to appeal against is sought.
[10] I deem it not necessary to
traverse all the other points raised by the applicant. I am of the
view that there are no prospects
of success on appeal and therefore
the application stands to be dismissed with costs.
[11] It is trite that costs follow the
event. Both parties engaged the services of senior counsel. The
respondent employed two counsel.
In my view the respondent is
entitled to the costs of both counsel.
[12] In the result the application for
leave to appeal is dismissed with costs inclusive the costs of two
counsel.
N.M. MAVUNDLA
Date of Judgment: 05/08/2015
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