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2024
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[2024] ZAGPPHC 1099
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Maraba and Others v Head of Prison: Kgosi Mampuru Correctional Facility and Another (Leave to Appeal) (095695/2024) [2024] ZAGPPHC 1099 (23 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: 095695/2024
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 23/10/2024
In the matter between:
BETHUEL MARABA & 5
ORS
Applicants
and
THE HEAD OF PRISON: KGOSI
MAMPURU
First Respondent
CORRECTIONAL
FACILITY
THE MINISTER OF
CORRECTIONAL SERVICES
Second Respondent
JUDGEMENT
- APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1
The applicants are prisoners serving
long-term sentences. The respondents transferred the applicants from
the Kgosi Mampuru prison
to prisons at Baviaanspoort and at Leeuwkop.
The court made the following order in relation to the applicants:
1.
The matter is heard as urgent and
non-compliance with rules of court pertaining to service of process
and time limits be dispensed
with in terms of Rule 6(12).
2.
The decision of the Respondents to transfer
the Applicants from Medium Prison Section to the Maximum B Section of
Kgosi Mampuru
II Correctional Facility on 15 August 2024 is declared
unlawful, irrational and unconstitutional, and consequently is hereby
set
aside.
3.
The decision of the Respondents to transfer
the Applicants from Kgosi Mampuru II Correctional Facility to
Baviaanspoort and Leeuwkop
Prison facilities on 9 September 2024 is
declared unlawful, irrational and unconstitutional, and consequently
is hereby set aside.
4.
The Respondents are ordered to take
necessary steps to ensure that the Applicants are returned to Medium
B section, Kgosi Mampuru
Correctional Centre within 5 (Five) days
from the date of this order.
5.
The Respondents are ordered to pay costs of
this application, jointly and severally the one paying the other to
be absolved.
2
The respondents seek leave to appeal.
They raise the following grounds:
2.1
The court erred by allowing the applicants to cure a defective
founding affidavit in affording the
applicants the opportunity to
have the document commissioned.
2.2
The court did not determine urgency on 12 September 2024.
2.3
The relief sought by the applicants was moot on 12 September 2024
because the applicants had been transferred
on 9 September 2024.
2.4
The relief granted in prayer 3 of the order was not pleaded.
2.5
The court ought not have granted costs against the respondents.
3
The respondents did not seek reasons for
the order before making this application. I therefore set-out the
background in some detail.
The background is essential for addressing
the grounds advanced for the application.
4
The applicants were transferred from the
medium section at the Kgosi Mampuru prison to the high security
section of that prison
on 15 August 2024. The applicants launched
urgent proceedings on 5 September 2024, seeking relief, among others,
that they be returned
to the medium section of the prison. The
application was set-down for 10 September 2024. The respondents
transferred the applicants
on 9 September 2024, with some transferred
to Baviaanspoort prison and others to Leeukop prison.
5
The applicants were not told why they were
transferred. They were not afforded the opportunity to make
representations pertaining
to the transfers. They contend that the
respondents breached Regulation 25(1), which stipulates prisoners be
given reasons whenever
a prisoner is transferred.
6
The court did not hear the application on
10 September 2024. There was no founding affidavit in the
application. That is because
the document relied upon by the
applicants was not commissioned before a Commissioner of Oaths. The
applicants explained that prison
officials refused them access to a
commissioner of oaths. The respondents had not filed an answering
affidavit when the matter
was called.
7
The court stood the matter down to be heard
on 12 September 2024. This was to allow the applicants to present a
founding affidavit.
This was also to allow the respondents to file an
answering affidavit, if so minded. The matter was recalled on 12
September 2024.
8
The respondents contended that the matter
was not urgent. They pointed out that the applicants were serving
long term sentences.
The respondents pointed out that prisoners are
classified into various categories, such as medium prison for medium
offender sentences
and maximum prison for maximum offenders.
9
The applicants were originally classified
as maximum offenders. They were not placed in a maximum facility due
to non-availability
of accommodation in the maximum facility.
10
The
respondents contended that the relief that the decision to transfer
the applicants be declared unlawful and that they be returned
to the
medium section of the prison was moot. That was because, according to
the respondents, the applicants were transferred from
the maximum
facility at Kgosi Mampuru on 9 September 2024 to the medium
facilities at Baviaanspoort and at
Leeuwkop prisons.
11
The
respondents further contended that the applicants have no choice of
where they are to be incarcerated, with the result that
the
applicants are not competent to seek to be imprisoned at the Kgosi
Mampuru prison.
12
The
respondents referenced Regulation 25 in their answering affidavit.
They pointed out that Regulation 25(1)(a) required that a
prisoner be
informed of the reasons for a proposed transfer and that a prisoner
also be afforded the opportunity to make representations.
Regulation
25(1)(a) is qualified where a prisoner is transferred for security
reasons. A prisoner, in this instance, is not given
reasons for a
transfer before a transfer. A prisoner is told the reasons as soon as
practicable after the transfer. A prisoner
is to be allowed to make
representations and is further given the opportunity to notify their
family.
13
The
respondents explained that transfers of prisoners are justified on
the grounds of maintaining safety and security within the
prison
system. A transfer to a more secure facility is warranted where a
prisoner poses a significant risk to other inmates, staff
or
themselves. An inmate can also be transferred to maximum security
prisons as a result of behavioural issues , such as where
an inmate
exhibits violent or disruptive behaviour.
14
The
respondents denied that they refused to give reasons for the
transfer, and that Regulation 25(b) stipulated that an inmate need
not be informed of the proposed transfer until after the transfer “if
the transfer is for security reasons…”.
15
The
respondents filed a supplementary affidavit in which they raised
three issues. First, they contended that the application ought
to
have been struck from the roll because the applicants had not filed
an affidavit when the matter came before court on 10 September.
Second, that the matter was moot. Third, that a finding in favour of
the applicants would result in prisoners “being ungovernable.
The decision will set a precedent that may make it difficult for
respondents to manage and control sentenced prisoners.”
Analysis
16
The
respondents did not allege any “security reasons”
concerning the transfer of the applicants. The applicants pleaded
that they had not, throughout their stay at Kgosi Mampuru prison,
demonstrated any violent behaviour or risk of escape. The respondents
did not dispute this assertion.
17
The
respondents make a throw-away statement that Regulation 25(1)(b)
provides that reasons are to be given as soon as practicable.
The applicants were never given reasons for their transfer. They were
not afforded to make representations. They were not given
opportunities to inform their families of their transfer.
18
The
respondents did not comply with Regulation 25, be it Regulation
25(1)(a) or 25 (1)(b). It makes no sense for the respondents
to
transfer the applicants from a medium facility to a maximum facility
on 15 August 2024, and then transfer them from a maximum
facility to
a medium facility on 9 September if the applicants were transferred
for “security reasons.” The respondents
explained that
“security reasons” include instances where a prisoner
poses a significant risk to other inmates, staff
or themselves or
where a prisoner exhibits violent or disruptive behaviour. The
respondents did not aver or show evidence that
the applicants fell in
either category. The respondents thus failed to show that the
transfer of the applicants was for “security
reasons.”
19
There
is no merit to the respondents saying prisoners would be
“ungovernable” in the court granting relief to the
applicants.
The applicants do not dispute that the respondents have
the right to determine where a prisoner is incarcerated. The
applicants’
complain is that the respondents did not comply
with Regulation 25. Granting relief does not detract from prison
authorities determining
the housing of prisoners, including whether a
prisoner is to be moved within a facility or where a prisoner is
moved from one prison
to another. The rule of law requires that
prison authorities comply with governing instruments when determining
where a prisoner
is to be kept. Prison authorities are obliged to
comply with Regulation 25 when transferring a prisoner.
20
The
application for leave to appeal is unmeritorious.
21
The
application came before the urgent court. The court determined that
the matter was urgent. Whether a matter is urgent or not
is in the
discretion of a court, with a court permitting the hearing of a
matter without a party having to comply with the usual
rules on how a
matter is placed before a court.
22
It
was submitted on behalf of the respondents that the court ought to
have struck the application from the roll because it was not
accompanied by an affidavit on 10 September and therefore there was
“no application” for the court to consider.
23
It
behooves public officials, in this case, prison officials responsible
for the upkeep of the applicants, not to deny prisoners
access to a
commissioner of oaths when those prisoners seek redress in courts of
law. It reflects poorly on prison officials to
say a prisoner should
be denied access to courts because a prisoner came to court with an
unsworn document, when the self-same
prison official denied a
prisoner access to a commissioner of oaths. The court is duty-bound
to ensure that any person is allowed
through the doors of courts, for
the law to determine whether such a person merits redress.
24
The
relief sought by the applicants was not moot when the court heard the
matter on 12 September 2024. The applicants were transferred
internally within Kgosi Mampuru prison. They were later transferred
from that prison to the Leeuwkop and Baviaanspoort prisons.
The
respondents labour under the mistaken view that the applicants had,
by 12 September 2024, been transferred to a medium facility
and that,
as a result, the issue of their transfer from the Kgosi Mampuru
prison had become academic. It was not.
25
The
issue is not the moving of the applicants from a medium facility to a
medium facility, or from a maximum facility to a medium
facility. The
applicants’ primary complaint is that they were transferred
without the respondents having complied with Regulation
25. The
applicants were entitled to insist on such compliance when the court
heard the matter on 12 September.
26
The
applicants pleaded that they sought an order to be returned to
Pretoria central prison with immediate effect. The respondents
are
wrong in saying the relief granted in prayer 3 was not pleaded.
Paragraph 3 of the notice of motion seeks relief that the applicants
be returned to the medium section of the Prison immediately.
“Prison” means the Kgosi Mampuru Correctional Facility,
where applicants were incarcerated before their transfer.
27
The
respondents say the court ought to have ordered each party to pay its
own costs because the application was not properly before
court on 10
September (on account of the absence of a founding affidavit by the
applicants) and that the dispute was moot when
the matter was called
on 12 September 2024. I am not persuaded that the court erred in
granting costs in favour of the applicants.
28
The
court’s duty is to ensure that justice is done between
parties. It would be unjust to have non-suited the applicants
because they did not have an affidavit when they came to court on 10
September 2024. Officials of the respondents denied the applicants
access to a commissioner of oaths. It is poor form of the respondents
to now say the applicants are not due the costs of being
in court on
10 September. The dispute remained live on 12 September. The
applicants succeeded in their claim. They are entitled
to their
costs.
29
The
respondents seek leave to appeal in terms of
s
17(1)(a)(i) of Act 10 of 2013.
They
say the appeal has reasonable prospects of success and that another
court may come to a different conclusion.
‘The
test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law that a court
of appeal could
reasonably arrive at a conclusion different to that of the trial
court . . . A sound rational basis for the conclusion
that there are
prospects of success must be shown to exist.’
[1]
The respondents have not met this test. I therefore decline the
application.
30
I
make the following order:
(a)
The application is dismissed.
(b)
The respondents are ordered to pay costs.
O
MOOKI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Counsel for the
applicant (leave to appeal):
G Khumalo
Instructed by:
The State Attorney,
Pretoria
Counsel for the
respondents (leave to appeal)
V Mukwevho
Instructed by:
M E Makgopa
Attorneys
Heard:
17 October 2024
Delivered:
23 October 2024
[1]
Ramakatsa
and Others v African National Congress and Another
(Case
No. 724/2019)
[2021]
ZASCA 31
(31 March 2021), para 10