REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-134587
DATE: 9 December 2024
In the matter between:
ZIGGY XOLANELE NDHLOVU Applicant
and
THE CORRECTIONAL SUPERVISION AND
PAROLE BOARD, KGOSI MAMPURU Il CENTRAL First Respondent
THE HEAD OF PRISON,
KGOSI MAMPURU Il CENTRAL Second Respondent
THE AREA COMMISSIONER,
KGOSI MAMPURU Il CENTRAL Third Respondent
THE NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES Fourth Respondent
THE MINISTER OF CORRECTIONAL SERVICES Fifth Respondent
THE MINISTER OF HOME AFFAIRS Sixth Respondent
THE DIRECTOR GENERAL,
DEPARTMENT OF HOME AFFAIRS Seventh Respondent
Neutral Citation: Ndhlovu v The Correctional Supervision and Parole Board,
Kgosi Mampuru II Central and Others (2024-134587) [2024]
ZAGPJHC --- (9 December 2024)
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Coram: Adams J
Heard: 28 November 2024
Delivered: 9 December 2024 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email, by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 12:30 on
9 December 2024.
Summary: Civil procedure – urgent application – for final relief –
Application for the judicial review and setting aside of decision by the Parole
Board not to release the applicant on parole – application furthermore for an
order directing the respondents to remove from his Correctional Services profile
the ‘foreign national’ classification and to replace same with the correct
classification, that being one of ‘South African national’ –
Factual dispute to be decided on the basis of the Plascon-Evans rule –
respondents’ version cannot and should not be rejected on the papers –
PAJA judicial review application not to be granted if available internal remedies
had not been exhausted –
Urgent application dismissed – applicant granted alternative relief to progress
his matter further.
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ORDER
(1) The first to fifth respondents are ordered and directed to comply fully
within one month from date of this order with the order of this Court (per
Du Plessis AJ) dated 22 August 2024.
(2) Save as aforesaid, the applicant’s urgent application is dismissed with no
order as to costs.
JUDGMENT
Adams J:
[1]. This is an opposed urgent application by the applicant , a serial urgent
applicant in this court, for an order reviewing and setting aside an alleged
decision taken by the first respondent (Parole Board) on 12 November 2024 in
terms of which the applicant’s application to be released on parole was
allegedly denied. The applicant is presently serving a sixteen -year sentence at
the Kgosi Mampuru Central (Medium) Prison in Pretoria , which sentence was
imposed during 201 4, after his conviction on charges of attempted murder ,
impersonating a police officer and possession of a n unlawful firearm. He also
applies for an order directing the second, third, fourth and fifth respondents to
remove from his Correctional Services profile the ‘foreign national’ classification
and to replace same with the correct classification, that being, according to the
applicant, one of ‘South African national’. Lastly, the application is for an order
that the first respondent be directed to release the applicant on parole within
seven days.
[2]. It is the case of the applicant that a meeting was scheduled for
12 November 2024 between himself and the Parole Board at which meeting he
was to be considered for release on parole after having served almost eleven
years of his sixteen years sentence. However, at the meeting he was informed
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that his parole application would not be considered because his address had
not been verified. Moreover, so the applicant was inf ormed, he could not be
considered for release on parole as he was still classified as a foreign national,
which disqualifies him from consideration for release on parole.
[3]. The applicant is aggrieved by the aforegoing stance of the Parole Board,
as, according to him, the real reason for him not being considered for release
on parole is the fact that, according to the records of the Correctional Services,
he is incorrectly classified as a foreign national. This means, according to the
Parole Board, that the applicant is not eligible for release on parole and that he
is to be deported to his country.
[4]. The applicant is adamant that he is a South African national and that the
records of Correctional Services incorrectly reflect him as being a foreign
national. In support of his aforegoing contention, the applicant drew the court’s
attention to the fact that during August 2024, this court (per Du Plessis AJ)
issued an order which ‘ required’ the respondents to verify whether the identity
document of the applicant is indeed a valid South African identity document.
Once the Applicant’s nationality is verified, so the order read s, this should
reflect correctly on the correctional services system.
[5]. The applicant alleges that such verification was in fact subsequently
done by an official from Kgosi Mampuru Prison, but despite such verification,
the respondents refuse to accept that he is indeed a South African National.
[6]. The difficulty with the applicant’s case is that, despite the tedious history
of the dispute between the applicant and the Correctional Services authorities,
there presently remains a factual dispute between them in relation to a material
aspect, that being the applicant’s nationality. Despite applicant’s protestations to
the contrary, that is not a dispute that can, without more, be decided on the
papers. The respondents aver that the documentary evidence in support of the
applicant’s claim – such as his a bridged birth certificate, his smart identity card
and the confirmation from the Department of Home Affairs that he is indeed a
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South African national – that he is a South African, born and bred , are
questionable. The allegation in the respondents’ answering affidavit in this
application is that the applicant’s claim that he is a South African national is
negated by the fact that, according to their records and presumably that of the
Department of Home Affairs, the person who the applicant alleges to be his
mother does not have a son by the name of that of the applicant. Therefore, so
the contention on behalf of the respondents goes, the applicant’s claim that he
is South African is false, despite all of the documentary evidence which the
applicant came up with in this and other applications before this court.
[7]. For this reason alone, the applicant’s application should fail. The simple
point being that , applying the so -called Plascon Evans1 rule, I have to accept
the version of the respondents as it cannot be said with any conviction that such
version in relation to the disputed issue is so far -fetched and untenable that it
can be rejected on the papers.
[8]. The second difficulty with the applicant’s cause, which he says is an
application for a judicial review of the decision by the Parole Board, is that, even
if one is to accept that they made a reviewable decision on 12 November 2024
not to consider that the applicant should be released on parole, the applicant
failed to exhaust the available internal remedies . This point is closely related to
the requirement that an applicant for final interdictory relief is required to
demonstrate that he or she has no alternative remedy available to him or her.
[9]. As correctly contended by the respondents, the Correctional Services Act
111 of 1998 (the Correctional Services Act) provides that inmates who are
1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) Sa 623 (A) at pp 634 and 635 held
as follows: -
‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those
facts averred in the applicant's affidavits which have been admitted by the respondent, together with
the facts alleged by the respondent, justify such an order. The power of the Court to give such final
relief on the papers before it is, however, not confined to such a situation. In certain instances the
denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or
bona fide dispute of fact … … Moreover, there may be exceptions to this general rule, as, for example,
where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court
is justified in rejecting them merely on the papers ...’.
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dissatisfied with any decision of the Parole Board should approach the Parole
Review Board to have reviewed such a decision . Section 75 of the said Act
deals with the powers, functions and duties of Correctional Supervision and
Parole Boards and s 75(8) provides as follows:
‘8 A decision of the Board is final except that the Minister, the National Commissioner or
the Inspecting Judge may refer the matter to the Correctional Supervision and Parole Review
Board for reconsideration in which case –
(a) the decision of the Board is suspended pending the outcome of the Correctional
Supervision and Parole Review Board; and
(b) the record of the proceedings before the Board must be submitted to the Correctional
Supervision and Parole review Board.’
[10]. Section 77 of the Act provides , under the heading ‘ Powers of
Correctional Supervision and Parole Review Board in respect of cases decided
by Correctional Supervision and Parole Board’, as follows: -
‘(1) On consideration of a record submitted in terms of section 75 and any submission
which the Minister, National Commissioner, Inspecting Judge or the sentenced offender
concerned may wish to place before the Correctional Supervision and Parole Review Board
must –
(a) confirm the decision; or
(b) substitute its own decision and make any order which the Correctional Supervision and
Parole Board ought to have made.
(2) … … …’.
[11]. The simple point is that, i n order for the matter to reach the Parole
Review Board, the Record and formal decision taken by the Parole Board must
be sent to the Parole Review Board to review the Parole Board's decision
substituting its own decision prior to approaching this Court. That applies even
in the case of the Parole Board refusing to take a decision as the applicant
alleges is the case in casu. The respondents, on the other hand, contend that
no such formal hearing by the Parole Board has taken place resulting in no
formal decision being made.
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[12]. Section 7(2) of the Promotion of Administrative Justice Act 2 (PAJA),
provides as follows: -
‘(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in
terms of this Act unless any internal remedy provided for in any other law has first been
exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy
referred to in paragraph (a) has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in
terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person
concerned, exempt such person from the obligation to exhaust any internal remedy if the court
or tribunal deems it in the interest of justice.’
[13]. On the basis of this provision of PAJA, the applicant is not entitled to the
relief sought by him.
[14]. Having said that, I am of the view that, under the heading ‘Further and/or
alternative relief’, the applicant is entitled to an order placing the first to fifth
respondents on terms to comply with the order of this Court (per Du Plessis AJ)
dated 22 August 2024. That order reads as follows: -
‘(1) The First to Fifth Respondents are required to verify whether the identity document of the
Applicant is indeed a valid South African identity document. Once the Applicant’s
nationality is verified, this should reflect correctly on the correctional services system.
(1) The application is postponed sine die for First to Fifth Respondents to provide proof
clarifying Applicant’s prison status, whether Applicant is classified as a medium or
maximum offender in terms of its Records.’
[15]. It is, as submitted by the applicant, that the respondents appear to be
dragging their heels in that some three months from the date on which the said
order was granted, there has been little progress in the verification of the
nationality of the applicant. I therefore think that the respondents should be
ordered to comply with Du Plessis AJ’s order within a reasonable specified
period of time, which, in my view, should be one month.
2 Promotion of Administrative Justice Act 3 of 2000.
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[16]. For all of these reasons, subject to the granting of the aforesaid
compelling order, the applicant’s urgent application must fail.
[17]. I conclude, in sum, that the applicant’s application falls to be dismissed.
Order
[18]. In the result, I make the following order:
(1) The first to fifth respondents are ordered and directed to comply fully
within one month from date of this order with the order of this Court (per
Du Plessis AJ) dated 22 August 2024.
(2) Save as aforesaid, the applicant’s urgent application is dismissed with no
order as to costs.
_______________________ __
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 28 November 2024
JUDGMENT DATE: 9 December 2024 – Judgment handed
down electronically
FOR THE APPLICANT: Q Khumalo
INSTRUCTED BY: Quinton Khumalo Incorporated,
Germiston
FOR THE RESPONDENTS: M Ali
INSTRUCTED BY: The State Attorney, Johannesburg