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[2015] ZANCHC 18
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Dippenaar v Minister of Correctional Services and Others (367/2015) [2015] ZANCHC 18 (28 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division, Kimberley)
Saakno
/ Case number:
367/2015
Datum
verhoor/Date heard:
21/08/2015
Datum
gelewer/Date delivered
28/08/2015
In
the matter between:
MARTIN
DIPPENAAR
Applicant
and
THE
MINISTER OF CORRECTIONAL SERVICES
First Respondent
THE
PROVINCIAL COMMISSIONER : CORRECTIONAL
SERVICES
: FREE STATE & NORTHERN CAPE
Second Respondent
THE
AREA COMMISSIONER : CORRECTIONAL
SERVICES
UPINGTON
Third Respondent
THE
HEAD OF THE CENTRE: CORRECTIONAL
SERVICES
UPINGTON
Fourth Respondent
THE
CHAIRPERSON: CASE MANAGEMENT
COMMITTEE:
CORRECTIONAL SERVICES UPINGTON
Fifth
Respondent
JUDGMENT
ERASMUS,
AJ
[1]
The applicant herein seeks confirmation of a rule
nisi,
issued on 27 February 2015, in terms of which the respondents were
interdicted from transferring the applicant from Upington
Correctional
Centre (‘Upington’), pending the outcome of
a review application to be filed on or before 27 March 2015.
Costs
of the application were ordered to be costs in the review
application. Paragraph 1 of the said rule
nisi
operated as an
interim
mandamus
against the respondents.
[2]
It is common cause between the parties that the review application,
as envisaged in the rule
nisi
,
was issued and is to be heard on 17 September 2015; that is just less
than a month from today. The purpose of the review application
is to
have the decision taken by one or more of the respondents to transfer
the applicant from the Upington to the Tswelopele Correctional
Centre
(‘Tswelopele’), situated in Kimberley, set aside.
[3]
It is common cause that the applicant made representations to the
third and fourth respondents to prevent being transferred
to
Tswelopele. On 25 February 2015 the applicant received a letter
from the Department of Correctional Services’ Legal
Department,
informing him that his representations were unsuccessful. The
applicant ascertained that he would be transferred
to Tswelopele on 2
March 2015, after which he immediately proceeded to lodge the urgent
application to prevent his transfer.
[4]
The basis for the opposition of the applicant’s transfer to
Tswelopele was and still is that it will have a negative impact
on
his studies the contact he has with his parents. They are both
elderly and reside in Springbok which is situated 400 km
from
Upington and approximately 800 km from Kimberley.
[5]
The applicant is in his 5
th
year of architectural studies through INTEC College, a distance
training college. It is common cause that he worked under
supervision of a mentor in Upington. The applicant had regular
contact with this mentor. The mentor has since passed away.
The applicant managed to obtain the guidance of a new mentor.
Although this mentor resides in Kathu, he agreed to mentor
the
applicant in his architectural studies. This mentor visits the
applicant in Upington whenever he visits his relatives
who reside in
Upington. He assists the applicant and visits him in prison
every two to three weeks. The mentor has
indicated that he will
not be able to assist the applicant if the applicant is transferred
to Kimberley. The applicant does
not know any architects in
Kimberley and states that it will be difficult for him to obtain the
services of a mentor if transferred
to Tswelopele.
[6] The opposing papers
of the respondents were filed on 8 April 2015. The respondents
aver that the applicant was provided
with the opportunity to make
submissions or representations in respect of the decision to transfer
him to Tswelopele. These
were unsuccessful. It is alleged
that the transfer to Tswelopele will not have a negative impact on
the applicant’s
studies as he is studying through a distance
training college. Tswelopele has a library, internet facilities
and computer
centre. The decision to transfer the applicant and
149 other inmates was based on the fact that Upington is over-crowded
and the transfer would alleviate such over-crowding. Only two
inmates, one being the applicant, opposed their transfer.
The
transfer was done in accordance with
section 43
of the
Correctional
Services Act, No. 111 of 1998
. Due regard was had of the family
ties of the Applicant, the availability of accommodation, the
facilities to meet his security
requirements and the integration into
rehabilitation programmes. The applicant will not be prevented
from having contact
and non-contact visits. It is further the
case of the respondents that the granting of the relief will
negatively impact
on the morale of the other detainees held at
Upington.
[7]
The applicant filed his replying affidavit, attaching thereto a copy
of a report of the Judicial Inspectorate for Correctional
Services
(‘JICS’), dated 23 March 2015. This report deals
with a complaint lodged on behalf of the applicant
and the other
inmate who opposed their transfer to Tswelopele. The
respondents, in their Heads of Argument, indicated that
application
would be made to strike out the report as it introduces new matter,
which the respondents were not afforded an opportunity
to address.
The respondents proceeded with this application at the hearing of the
main application. As stated earlier,
this report is dated 23
March 2015 and appears to have been addressed also to the Third and
Fourth respondents. This report
thus appears to have been
available to at least some of the respondents before the opposing
papers were filed. Even if it
wasn’t, the respondents
failed to apply to the Court for leave to file further affidavits in
terms of
Rule 6(5)(e).
Furthermore, even if this report
introduced new matter, the applicant could not have been aware of it
at the time that he
had filed his founding affidavit. This
report is relevant to the issues in this application. In
exercising my discretion,
I dismissed the application to strike out
the report.
[1]
[8]
The legal requirements for an
interim
interdict
are that the applicant must show that he has a
prima
facie
right
to the relief even though this right might be open to some doubt.
[2]
He must further show a well-grounded apprehension of irreparable harm
if the
interim
relief
is not granted and that the balance of convenience must favour the
granting of the
interim
relief.
The applicant must further show that he has no other satisfactory
remedy.
[3]
These
requisites must be considered in conjunction with one another when
considering whether to exercise discretion in favour
of granting the
interim relief.
[4]
The
proper approach is, as set out by Corbett J (as he then was) in
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
:
[5]
‘
Briefly
these requisites are that the applicant for such temporary relief
must show -
(a)
that
the right which is the subject-matter of the main action and which he
seeks to protect by means of interim relief is clear
or, if not
clear, is prima facie established, though open to some doubt;
(b)
that, if the right is only prima facie established, there is a
wellgrounded apprehension of irreparable harm to
the applicant if the
interim relief is not granted and he ultimately succeeds in
establishing his right;
(c) that
the balance of convenience favours the granting of interim relief;
and
(d)
that the applicant has no other satisfactory remedy.
(See
Gool v Minister of Justice and Another,
1955
(2) SA 682
(C)
at pp. 687 - 8; Pietermaritzburg City Council v Local Road
Transportation Board,
1959
(2) SA 758 (N)
at p. 772). Where the applicant cannot show a clear right, and more
particularly where there are disputes of fact, the Court's
approach
in determining whether the applicant's right is prima facie
established, though open to some doubt, is to take the facts
as set
out by the applicant, together with any facts set out by the
respondent which the applicant cannot dispute, and to
consider
whether, having regard to the inherent probabilities, the applicant
should on those facts obtain final relief at the trial
of the main
action (see Gool's case, supra).
’
[9]
In an application for an interdict
pendente
lite
,
as in this instance, the Court has discretion whether or not to grant
the application. The discretion must be exercised
upon
consideration of all the circumstances and the probabilities of
success of the applicant in the main action/application.
This
involves a consideration of the prospects of success and the balance
of convenience: The stronger the prospects of success,
the
lesser the need for the balance of convenience to favour the
applicant and, on the other hand; the weaker the prospects of
success, the greater the need for the balance of convenience to
favour the applicant.
[6]
[10]
The applicant challenges the decision of the first respondent in
terms of the
Promotion of Administrative Justice Act, No. 3 of 2000
,
hereinafter referred to as “
PAJA
”.
The grounds upon which the review application is based are,
inter
alia
,
that the decision to transfer the applicant to Tswelopele is not
rationally connected to the information which was placed before
the
decision taker or to the reasons for the decision and that the
decision was taken without proper consideration and consultation,
as
required in terms of section 43 of the Correctional Services Act, No.
111 of 1998 (‘the Act’) and Regulation 25
of the
regulations promulgated in terms of the Act. The applicant
specifically averred that his right to have proper relations
with his
next of kin was not taken into account when the decision was made.
He averred that his right to procedural fairness
was infringed
upon.
[11]
The respondents, in response to these allegations, aver that the
applicant was afforded opportunity to make submissions
before the
decision to transfer was made and that these were properly
considered. It is correct that the applicant made submissions
before the decision was taken. These were based on his studies
and the situation pertaining to contact with his elderly parents.
From the papers in this application, the effect of the transfer on
his rights to have contact with his elderly parents, appear
not to
have been considered.
[12]
The JICS have investigated the complaints of the applicant.
From the report it appears, at least
prima
facie
,
that the mandatory procedures, as prescribed in section 43 of the
Act, read with the provisions of Regulation 25, were not complied
with. I am satisfied that the applicant has established a
prima
facie
right,
though it might be open to some doubt.
[13]
I am further satisfied that the applicant has established a
well-grounded apprehension of irreparable harm if the relief
is not
granted. It is common cause that the applicant is currently
being assisted by a mentor in Upington. If the rule
nisi
is
discharged, the applicant will be moved to Tswelopele. If the
applicant is moved during this
interim
period pending the outcome of the review application, it will have a
negative impact on his studies as he will not have a mentor
to assist
him and/or will need to find a new mentor. He will not
immediately be able to obtain the services of a mentor while
in
Kimberley. If the review application is successful, he will
have to be returned to Upington and once again secure the
services of
his mentor in Upington.
[14]
This brings me to the issue of the balance of convenience. The
respondents averred that the overcrowding of the
centre at Upington
and the possibility of dissatisfaction amongst other inmates which
may result in a risk to security and good
order weigh heavily against
confirmation of the rule
nisi
in this instance. I fail to see how the
interim
relief
interdicting the transfer of one person will make a difference in
respect of the overcrowding at this centre. There
is no
evidence of such dissatisfaction amongst inmates and/or threats.
I fail to see what prejudice there is for the respondents
if the
interim
relief
is granted. The
status
quo
will remain intact pending the outcome of the review application
which is to be adjudicated in less than a month’s time.
[15]
In this instance I am satisfied that the balance of convenience
weighs heavily in favour of the applicant and that the
rule
nisi
should
be confirmed.
[16]
I find no reason why the order of Lacock J, in terms of which the
costs of this application are to be costs in the review
application,
should be discharged.
WHEREFOR I MAKE THE
FOLLOWING ORDER:
THE
RULE
NISI
ISSUED
ON 27 FEBRUARY 2015 IS CONFIRMED.
_________________________
S L ERASMUS, AJ
ACTING JUDGE
On
behalf of Appellant:
Adv. A.D. Olivier
(oio Hugo Mathewson & Oosthuizen Inc.)
On
behalf of Respondents:
Adv.B.S Mene (oio
The State Attorney, Kimberley)
[1]
Finishing Touch 163 (Pty) Ltd
v BHP Billiton Energy Coal SA Ltd
2013 (2) SA 204
(SCA) at par 26
[2]
Webster v Mitchell
1948 (1)
SA 1186
(W) at 1188-1189
[3]
Setlogelo v Setlogelo
1914 AD
221
at 227
[4]
Eriksen Moters (Welkom) Ltd v
Protea Motors, Warrenton 1973(3) SA 685 (A) at 691F
[5]
1369 (2) SA 256
(C) at 267A-F
[6]
Olympic Passenger Service
(Pty) Ltd v Ramlagan
1957 (2) SA 382
(D) at 383C-G