2 Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand -down is deemed to be 27 March 2025.
JUDGMENT
KUBUSHI, J
[1] The purpose of this application is said to be to remove the Applicant from the
unlawful segregation where he is currently detained. The application is brought in two
parts, namely, Part A and Part B. Part A of the application entails the unlawful
segregation or solitary confinement of the Applicant where he is currently held at C
Max section of the Kgosi Mampuru Correctional Centre (“C Max”). Part B of the
application has to do with the transfer back to his remand centre and will only be
adjudicated in due course.
[2] Essentially, in Part A of the application, the Applicant seeks interim interdictory
relief for an order to the effect that pending the final determination of the relief sought
under Part B of the application, the First and/or Second and/or Third Respondents be
ordered to transfer the Applicant from C Max or detention cells to the local remand
centre of Kgosi Mampuru Correctional Centre (“local remand centre”) within 24 hours
of service of the order.
[3] In Part B of the application, the Applicant seeks to review and set aside a
decision by the Fourth and Fifth Respondents to firstly, transfer the Applicant from
Johannesburg Correctional Centre to C Max; secondly, to extend the Applicant’s C
Max detention to longer than 18 months in terms of the Standard Operating
Procedures; and thirdly, to continuously detain the Applicant in solitary confinement
and/or segregation.
3 [4] This court is ceased only with Part A of the application. Part B of the application
is to be determined in due course.
[5] The Applicant is said to be an awaiting trial inmate,1 currently detained at C
Max, where he has been awaiting trial for almost two years now. Prior to his
incarceration there, he was detained and was awaiting trial at Johannesburg
Correctional Centre for almost four years.
[6] The Applicant was transferred from Johannesburg Correctional Centre to C Max
after he was, on two occasions, found in possession of unauthorised contrabands in
the form of three cell phones. It was also discovered that he used the said devices to
victimize and threaten some members of the community from Eldorado Park. As a
result, his profile was classified as high risk. A decision was taken by the National
Commissioner to transfer him to C Max, where he was to be detained until the
finalisation of the cases against him.
[7] The Applicant has approached court on an urgent basis on the ground that he
is kept in solitary confinement or is segregated, particularly because he has no human
interaction. It is said that he is kept in a single cell, which are the only cells that C Max
has, for 23 hours without any meaningful human interaction. According to the
Applicant, the only human interaction he has is when food is pushed through a small
latch in his door; he does not see people; he does not speak to anyone in a meaningful
way; and has been cut off from the outside world. His so-called exercise is one hour in
a cage, and his two-minute shower each day is also in a cage. This, he says, is solitary
confinement, which is unlawful. Thus, he requires to be moved to the local remand
1 An inmate is defined in section 1 of the Correctional Services Act 111 of 1998 as meaning “any person, whether
convicted or not, who is detained in custody in any correctional centre or remand detention facility or who is being
transferred in custody or is en route from one correctional centre or remand detention facility to another correctional
centre or remand detention facility" .
4 centre pending the outcome of Part B of the application, so that he can have that
meaningful human interaction.
[8] The Respondents are opposing the application, and have, in addition to the
defence on the merits, raised a number of in limine points like urgency, failure to adhere
to internal remedies before approaching court, and approaching court for interdictory
relief instead of by means of the Promotion of Administrative Justice Act (“PAJA”)2
since the decisions sought to be set aside are administrative decisions.
[9] In argument for and against the grant of the relief sought by the Applicant, I was
referred to the judgments in Mncube and Another v Minister of Correctional Services
and Others (“Mncube”) , 3 by the Applicant’s counsel and in Modack v Regional
Commissioner, Western Cape, of the Department of Correctional Services and
Another (“Modack”) ,4 by the Respondents’ counsel.
[10] This being the urgent court, urgency must be decided first. Urgency is regulated
in terms of rule 6(12) of the Uniform Rules of Court, which provides as follows:
“Rule 6(12)
a. In urgent applications the court or a judge may dispense with the forms and
service provided for in these rules and may dispose of such matter at such time
and place and is such manner and in accordance with such procedure (which shall
as far as practicable be in terms of these rules) as it deems fit.
b. In every affidavit filed in support of any application under paragraph (a) of this
subrule, the applicant shall set forth explicitly the circumstances which is averred
render the matter urgent and the reasons why the applicant claims that applicant
could not be afforded substantial redress at a hearing in due course.”
2 Act 3 of 2000.
3 [2024] ZAGPPHC 1157.
4 [2022] JOL 54621 (WCC).
5 [11] For the Applicant to succeed in this application, he must show why this
application should be heard in the urgent court, and why he claims he cannot be
afforded substantial redress in due course.
[12] Based on the reasons that follow hereunder, it is my view that this matter is not
urgent, and that the Applicant will be afforded substantial redress in due course.
[13] The Applicant contends that the urgency in this application stems from his
continued unlawful detention in C-Max under segregation or solitary confinement. The
court in Mncube , correctly so in my view, held that “if a prisoner is incarcerated
unlawfully, an application to rectify the position is inherently urgent” .5 It is therefore, for
the Applicant to show that he is unlawfully incarcerated in order to found urgency in
this matter.
Section 30 of the Correctional Services Act
[14] According to the Applicant, it is clear from the founding papers that the current
interdict is specifically brought under section 30 of the Correctional Services Act, in
that the Applicant may not be segregated for longer than 30 days. The Applicant
argues that he has now been in segregation for more than 2 years and his detention
conditions currently amount to torture.
[15] Section 30 of the Correctional Services Act provides, in relevance, that –
“30 Segregation
(1) Segregation of an inmate for a period of time, which may be for part of or the
whole day and which may include detention in a single cell, other than normal
5 Above n 3 at para 14.
6 accommodation in a single cell as contemplated in section 7(2)(e), is
permissible —
(a) upon the written request of an inmate;
(b) to give effect to the penalty of the restriction of amenities
imposed in terms of section 24(3)(c) or (5)(c) to the extent
necessary to achieve this objective;
(c) if such detention is prescribed by the correctional medical
practitioner on medical grounds;
(d) when an inmate displays violence or is threatened with violence;
(e) if an inmate has been recaptured after escape and there is a
reasonable suspicion that such inmate will again escape or
attempt to escape; and
(f) if at the request of the South African Police Service, the Head of
the Correctional Centre considers that it is in the interests of the
administration of justice.
(2) (a) An inmate who is segregated in terms of subsection (1)(b) to (f)—
(i) must be visited by a correctional official at least once
every four hours and by the Head of the Correctional
Centre at least once a day; and
(ii) must have his or her health assessed by a registered
nurse, psychologist or a correctional medical practitioner
at least once a day.
(b) Segregation must be discontinued if the registered nurse, psychologist
or correctional medical practitioner determines that it poses a threat to the
health of the inmate.
(3) A request for segregation in terms of subsection (1)(a) may be withdrawn at
any time.
(4) Segregation in terms of subsection (1)(c) to (f) may only be enforced for the
minimum period that is necessary and this period may not, subject to the
provisions of subsection (5), exceed seven days.
7 (5) If the Head of the Correctional Centre believes that it is necessary to extend
the period of segregation in terms of subsection (1)(c) to (f) and if the
correctional medical practitioner or psychologist certifies that such an extension
would not be harmful to the health of the inmate, he or she may, with the
permission of the National Commissioner, extend the period of segregation for
a period not exceeding 30 days. . . ”
[16] From a proper reading of the section as set out above, reliance by the Applicant
on this section is misplaced. The section provides that segregation of an inmate for a
period of time may include detention in a single cell other than normal accommodation
in a single cell as contemplated in section 7(2)(e) of the Correctional Services Act.
Section 7(2)(e) provides that the National Commissioner may accommodate inmates
in single or communal cells depending on the availability of accommodation. It means
that inmates may be kept in single cells as normal accommodation.
[17] It is common cause that C Max is a single cell facility. All the inmates at C Max
are detained in single cells. Therefore, single cells are normal accommodation at C
Max. Section 30 of the Correctional Services Act, when read together with section
7(2)(e) thereof, makes it clear that other than C Max, where inmates are only
accommodated in single cells, there are other facilities like the Johannesburg
Correctional Centre and the local remand centre where there are common cells in
which more than one inmate may be accommodated in the same cell. Those facilities
also have single cells where, for example, inmates who have been found with
contrabands or have offended, are placed as punishment for a specific duration of
time. The duration of such incarceration may normally be part of or the whole day and
may not exceed a period of seven days.6 The period of segregation can, also, be
extended to a period not exceeding 30 days, with the permission of the Commissioner
if the correctional medical practitioner or psychologist has certified that such an
extension will not be harmful to the health of the inmate.7
6 Section 30(4) of the Correctional Services Act.
7 See section 30(5) of the Correctional Services Act.
8 [18] Therefore, section 30 of the Correctional Services Act does provide for
segregation of inmates. However, the segregation in terms of that section, does not
relate to inmates held at C Max. It is in respect of inmates who are detained in facilities
that have communal cells as well as single cells.8 Furthermore, segregation in terms
of section 30 of the Correctional Services Act is granted only for the various reasons
that are tabulated in subsection 1(a) to (f) of that section. At C Max, inmates are
detained for security reasons and security is not one of the reasons proffered in section
30 of the Correctional Services Act. In terms of section 7(2)(d) of the Correctional
Services Act, the National Commissioner may detain inmates of specific age, health
or security risk categories separately. This is where C Max comes in. Undoubtedly,
section 30 of the Correctional Services Act does not pertain to the detention of inmates
at C Max. It can, therefore, not be said that the Applicant has been segregated in
contravention of section 30 of the Correctional Services Act. Reliance on this section
by the Applicant is misplaced.
[19] In terms of the Correctional Services Act, accommodation in a single cell at C
Max is not regarded as segregation or solitary confinement, as the Applicant seeks to
argue. C Max is a single cell facility where the duration of incarceration may not be
longer than 18 months as per the Standard Operating Procedures thereof. At C Max,
there are no other cells, accommodation in a single cell is normal accommodation.
Inmates are incarcerated there for security reasons.
[20] It can be said that since the inmates at C Max have been removed from their
respective centres of origin and kept in single cells at C Max, they are in segregation
or solitary confinement. However, such segregation or solitary confinement is lawful
since it is not in contravention of the provisions of the Correctional Services Act. This
is not in dispute.
8 See section 7(2)(e) of the Correctional Services Act.
9 Standard Operating Procedures
[21] Nevertheless, the Applicant argues that his continued detention at C Max is
unlawful as it does not comply with the Standard Operating Procedures of the
Respondents, which require that an offender should not be kept at C Max for a period
in excess of 18 months without prior application for the extension of the period of
detention.
[22] On the evidence before this court, the Applicant was transferred to C Max on 8
November 2022. The period of 18 months expired roughly in May 2023. The Standard
Operating Procedures require the centre of origin to have applied for the extension of
the incarceration period before its expiry if it had wished for the period to be extended.
No such application was ever made. In the absence of such an application, the
Standard Operating Procedures enjoin the centre of origin to collect the inmate from
C Max before the expiry of 14 days after the expiry of the 18 months. This was also
not done.
[23] In the meanwhile, the Applicant’s mother, Bridget Prim, lodged a complaint with
the National Commissioner. An executive report was prepared for the National
Commissioner with a recommendation that the National Commissioner approve the
recommendation that the Applicant be detained and kept at C Max until his cases are
finalised. On 18 September 2024, the National Commissioner approved the
recommendation. It is the Respondents’ submission that in approving the
recommendation, the National Commissioner took a decision to extend the Applicant’s
incarceration period in excess of 18 months.
[24] The Applicant ignores the decision of 18 September 2024 by the National
Commissioner, which is annexed to the Respondents’ answering affidavit. The
decision specifically states that the Applicant must be detained and kept at C Max until
10 his cases have been finalised. The question is, does this decision extend the
Applicant’s period of detention at C Max in excess of 18 months?
[25] As per the Respondents' Standard Operating Procedures, an offender may not
be detained at C Max for a period longer than 12 to 18 months. However, in
exceptional circumstances, where it is required for an offender to be incarcerated at
C-Max for a period in excess of 18 months, written application must be submitted by
the centre/ region of origin, to be approved by the National Commissioner or his/ her
delegate. Should this rule not be applied, the offender must be collected by the centre/
region of origin. In the Mncube case, to which I was referred by the Applicant’s counsel,
the court held that failure by the centre/region of origin to apply for the extension of
the detention period in excess of 18 months, rendered further detention unlawful.
[26] However, in this instance, there is a decision which was taken by the National
Commissioner extending the incarceration of the Applicant at C Max. The said
decision was not taken based on an application made by the centre /region of origin
nor was it made prior to the expiration of the period of eighteen months. However,
such a decision is in existence. It is still extant as it has not been set aside by a
competent court.
[27] The Constitutional Court, in the case of MEC for Health, Eastern Cape and
Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute (“Kirland”) ,9 held that
the essential basis of Oudekraal was that invalid administrative action may not simply
be ignored, but may be valid and effectual, and continue to have legal consequences,
until set aside by proper process. The court further found that formally applying to a
court to set aside a decision, gives the reviewing court the opportunity to properly
consider all the effects of that decision on those subject to it.10 Therefore, it is my view
that until set aside, the National Commissioner’s decision of 18 September 2024
9 2014 (3) SA 481 (CC) at para 101.
10 Id at para 64. See also Modack above n 4 at para 13.
11 remains extant. That decision has extended the Applicant’s incarceration in excess of
18 months. The Applicant’s continued incarceration at C Max cannot be said to be
unlawful.
[28] The decision that I come to in this regard differs from that taken by Snyman J
in Mncube . In that judgment, there was a decision that was made by the Acting Deputy
Regional Commissioner refusing that the first applicant be returned to the centre of
origin because he was attending a critical case. That decision, I agree, was wrongly
taken and did not comply with the provisions of the Standard Operating Procedures
on many facets. First and foremost, it is correct, as Snyman J found, that there was
no application made by the centre of origin as required by the Standard Operating
Procedures, secondly, the decision was not made by the National Commissioner as
enjoined by the Standard Operating Procedures, and lastly, the reason for the
extension of the incarceration period was not in terms of either the Correctional
Services Act or the Standard Operating Procedures. Nonetheless, a decision had
been made, whether wrongfully or otherwise, it had been taken. Following on Kirland,
such decision remained extant until set aside by proper process. Snyman J declared
the incarceration of the first applicant unlawful despite that decision. I do not align
myself with the decision of Snyman J, in that regard.
[29] Where I agree with Snyman J is in refusing to make any findings in relation to
the circumstances in C Max, and correctly so, left same for determination by the
reviewing court. This is a similar route that this court takes because the National
Commissioner’s decision of 18 September 2024 is an administrative decision that
ought to be reviewed in order to be set aside.
[30] As demonstrated, neither section 30 of the Correctional Services Act nor the
Standard Operating Procedures of the Respondents come to the assistance of the
Applicant’s case, which shows that this matter is not urgent. The Applicant is still to be
afforded substantial redress in due course.
12 The type of relief sought
[31] What further makes this application not urgent, is the type of relief the Applicant
seeks. The relief, if granted, will have the effect of tempering with the decision of the
of 18 September 2024 by the National Commissioner that the Applicant seeks to
review and set aside in Part B of the application.
[32] The relief the Applicant seeks in prayers 2 and 2.1 of the notice of motion is for
this court, pending the final determination of the relief sought in Part B of the notice of
motion, to order the First and/or Second and/or Third Respondents to transfer the
Applicant from the C Max section or detention cells to the local remand centre of Kgosi
Mampuru Correctional Centre within 24 hours of service of the order. Yet, there is a
decision of the National Commissioner which transferred the Applicant from the
Johannesburg Correctional Centre to C Max. There is, as well, a decision of the
National Commissioner, as I have found, that extended the Applicant’s detention
beyond the cut off period of 18 months. The challenge for the Applicant is that the
relief cannot be granted whilst the decision of the National Commissioner, is still
extant.
[33] The Constitutional Court, in Economic Freedom Fighters v Gordhan and
Others; Public Protector and Another v Gordhan and Others (“Economic Freedom
Fighters”),11remarked that
“[47] Turning to the present matter, it should be borne in mind that both applicants
seek urgently to appeal an interim interdict, which is purely interlocutory in nature. An
interim interdict is a temporary order that aims to protect the rights of an applicant,
pending the outcome of a main application or action. It attempts to preserve or restore
the status quo until a final decision relating to the rights of the parties can be made by
the review court in the main application. As a result, it is not a final determination of
the rights of the parties. It bears stressing that the grant of an interim interdict does
not, and should not, affect the review court’s decision when making its final decision
11 2020 (6) SA 325 (CC).
14 APPEARANCES:
For the Applicant: Adv R Britz
Instructed by: Brandon -Swanepoel Attorneys
For the Respondents: Adv Z Mokatsane
Instructed by: State Attorney
Date of the hearing: 11 March 2025
Date of judgment: 27 March 2025