, . IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
o) 7 (IY.!~~.. 0 °' s-
o.ATE
In the matter between:
ROTONDWA JETHRO RALIPHASWA
MINISTER OF CORRECTIONAL SERVICES
NATIONAL COMMISSIONER OF CORRECTIONAL
SERVICES
HEAD OF C-MAX KGOSI MAMPURU
CORRECTIONAL CENTRE CASE NO.: 073384/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT 000-1
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I REGIONAL COMMISSIONER OF
GAUTENG REGION 2
HEAD OF ODI CORRECTIONAL CENTRE
JUDGMENT
CORAM NTHAMBELENI, AJ
HEARD: 17 June 2025
DELIVERED : 27 June 2024
INTRODUCTION FOURTH RESPONDENT
FIFTH RESPONDENT
[1] This is an urgent review application , whereby the applicant seeks various relief1
as well as a costs order against the respondents . The applicant is an inmate
serving a sentence for murder and was transferred to the C-Max Kgosi
Mampuru from ODI Correctional Services Facility. The basis of this urgent
review application was brought due to the transfer of the applicant from the ODI
Correctional Services Facility in January 2025 to Kgosi Mampuru II Correctional
Centre C-Max Section (Kgosi Mampuru) .
[2] The Applicant was found guilty and convicted of murder in 2021. The court
imposed a sentenced of 15 years imprisonment on him with half thereof
1 See prayers contained in the applicant's Notice of Motion at 02; 02-2 to 02-5.
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suspended . He was detained at 001 Correctional Centre (001). In December
2024, while conducting a routine search of the prisoners and the prison cells,
the Department 's prison officials found a cellular device (cell-phone) in the
applicant's possession . This allegation is not denied by the applicant and it is
also common cause between the parties that a prison inmate is prohibited from
being in possession of a cell-phone.
[3] The contents of the cell-phone were searched by the prison officials and therein
they discovered the pictures of some of the Department 's officials as well as
some conversations between the Applicant and some prison officials.
[4] The applicant was then moved to the C Section of the ODI Correctional Centre,
and detained in a single cell to allow for further investigation to be carried out.
In scrutinising the applicant's offence, which negatively impacted the well-being
of some prison officials in the facility, it was deemed appropriate , for safety
reasons, to transfer the Applicant from ODI to Kgosi Mampuru II Correctional
Centre C-Max Section (Kgosi Mampuru) .
[5] The applicant had been found in possession of a cell phone in the cells before .
In this regard we refer to annexure A2 to the answering affidavit. His continued
acquisition of cell phones and the capturing of the pictures of some of the prison
officials and contact with some of the prison officials posed a s~rious security
threat to the correctional facility and its officials as well as to the safekeeping of
his person.
2 See annexure A to the Answering Affidavit at page 06-24.
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[6] The Department took a security conscious decision to transfer the applicant to
Kgosi Mampuru . Kgosi Mampuru (C-Max) in a single cell section. It was
submitted that the facility is similar to the C-Section at ODI.
THE URGENT REVIEW APPLICATION
[7] In an urgent review application such as this, the rules require the absence of
substantial redress3. Once such prejudice is established , other factors to be
considered include, but are not limited to: whether the respondents can
adequately present their cases in the time available between notice of the
application to them and the actual hearing, other prejudice to the respondents
and the administration of justice, the strength of the case made by the applicant
and any delay by the applicant in asserting its rights4. Each case should be
determined based on its own merits.
[8] The applicant submits that this application is urgent in terms of Rule 6(12) of
the Uniform Rules of Court5 and warrants immediate judicial intervention .
Rule 53 has to be read in conjunction with Uniform Rule 6, the long form of
which can be departed from in cases of urgency and it does not have to be
coupled with a prayer for interim relief.6
3 East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [2011) ZAGPJHC 196 (23 September 2011) at
par 6-7.
4 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo 2016 (4) SA 99 (GP) at par 64.
5 See Applicant's Heads of Arguments at page paragraph 2 (unnumbered pages).
6 Safcor Forwarding (Pty) Ltd v NTC 1982 (3) SA 654 (A) at 6758-H.
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[9] The applicant has been detained in C-Max since 13 January 2025, enduring
conditions of extreme isolation, and restricted human contact for over four
months. These conditions, described in detail in the Founding Affidavit
(paragraphs 5.2-5.9), amount to solitary confinement , which is recognised as
causing severe psychological and physical harm7.
[1 OJ The applicant is locked in a small cell approximately 2m x 2.3m for at least 23
hours a day, with no windows, no sunlight, and no concept of time. He is not
allowed to have a watch or a calendar. The only human interaction he has is
when food is pushed through a small latch in his door. He does not see people
or are able to speak to anyone in a meaningful way.
[11] The detention exceeds the 30-day limit for segregation prescribed by section
30(3) of the Act, rendering it unlawful and necessitating urgent relief. The
absence of periodic reviews or justifications, as required by section 30(4),
exacerbates the urgency.
[12] It is noteworthy to point out that the practice at C-max Kgosi Mampuru is that of
solitary confinement which was abolished under the new legislation . The Judicial
Inspectorate for Correctional Services has raised these issues in every annual
report. Page 9 of the 2023 2024 Annual Report states as follows:
"Unlawful solitary confinement- This practice persists at Ebongwen i Supermaximum
Correctional Centre and Kgosi Mampuru II C-Max. JIGS initiated a study and hosted
a seminar that vividly showed solitary confinement 's adverse mental health effects.
This resulted in reinvigorated engagements with DCS. Regrettably , JICS's reports on
7 See Minister of Justice v Hofmeyr 1993 (3) SA 131 (A); Mahlangu v Area Commissioner at para [52)).
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solitary confinement to the previous Parliamentary Portfolio Committee have not
produced interventions .to the previous Parliamentary Portfolio Committee have not
produced interventions ."
[13] The applicant's rights under sections 10 (dignity), 12 (freedom and security of
the person), and 35(2)(e) (humane detention conditions) of the Constitution are
being violated daily. Each additional day in these conditions aggravates the
harm and entrenches the unlawfulness . 8
[14] The applicant is eligible for parole consideration in July 2025.9 However, his
detention in C-Max precludes him from appearing before the parole board,
effectively extending his incarceration without lawful justification This
constitutes immediate prejudice requiring urgent relief.
[15] The respondent 's contention that urgency is self-created is misplaced . The
urgency stems not from the date of transfer but from the ongoing and cumulative
harm caused by prolonged solitary confinement10. The applicant acted promptly
upon securing legal representation , as evidenced by his attorneys ' letter to the
Department on 14 May 2025. 11
APPLICABLE LEGISLATION
[16] The Correctional Services Act 111 of 1998 intends:
8 See Stanfield v Minister of Correctional Services 2004 (4) SA 43 (C); Mahlangu v Area Commiss ioner at
para [391).
9 (Founding Affidavit. para 5.15)
10 (Mahlangu v Area Commissioner at para [56)) supra
11 (Founding Affidavit, para 10.1)
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16.1 to provide for a correctional system;
16.2 the establishment, functions and control of the Department of
Correctiona l Services;
16.3 the custody of all prisoners under conditions of human dignity; and
16.4 the rights and obligations of sentenced prisoners .
[17] The Bill of Rights contained in Chapter 2 of the Constitution protects the rights
of all, including those of prisoners. Section 35 protects detainees , including
sentenced prisoners, against conditions that are inconsistent with human
dignity.
[18] The Correctional Services Act, its regulations and the Standard Operating
Procedures for C-Max ("SOP") provide for certain standards that must be
adhered to in detention centers. Specific standards and procedures have been
laid down for the treatment of prisoners in maximum security facilities such as
C-Max.
The SOP provides that prisoners are subjected to a mandatory three-phase
treatment program for a minimum of 12 to 18 months. The intention with a
prisoner's incarceration at C-Max is to prepare them for integration into another
maximum correctional facility and not to detain him at C-Max indefinitely .12
[19] "No offender may be kept at C-Max Correctional Facility for more than 12 to 18
months unless risks posed dictate otherwise and pre-approval is granted ...
(Clause 4.2.3.2). In exceptional circumstances , where it is required for an
12 Caselines: AA p02-127 para 2.5
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offender to be incarcerated at C-Max Correctional Facility for a period longer
than 12 to 18 months, written application must be submitted by the center 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 center/region of
origin" (Clause 4.2.3.3).
In terms of the SOP, the applicant can be detained for (18) months in C-Max.
It is now approximately (6) months since the applicant has been transferred . If
the interdictory relief sought is interim in effect, form and substance the
applicant must establish the following to succeed:
(a) A prima facie right, even though open to some doubt;
(b) A well-grounded apprehension of irreparable harm if interim relief is not
granted;
(c) A balance of convenience in their favour; and
(d) The lack of another remedy is adequate in the circumstance .
PRIMA FACIE RIGHT
[21] The manner in which a Court should evaluate whether a prima facie right has
been established was set out in Simon NO v Air Operation of Europe ABE
and Others 13 , as follows:
"Insofar as the appellant also sought an interim interdict pendente lite, it was incumbent
upon him to establish, as one of the requirements for the relief sought; a prima facie
right, even though open to some doubt. The accepted test for a prima facie right in the
131999 (1) SA 217 (SCA) at 228 F-1
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context of an interim interdict is to take the facts averred by the applicant together with
such facts set out by the respondent that are not or cannot be disputed and to consider
whether, having regard to the inherent probabilities , the applicant should on those facts
obtain final relief at the trial. The facts set up in contradiction by the respondent should
then be considered and, if serious doubt is thrown upon the case of the applicant, he
cannot succeed."
[22] For the applicant it was contended that the applicant has the right to dignity, the
right to be protected against inhumane treatment and the right to fair and just
detention which were all infringed upon for a continuous duration.
[23] A reasonable prospect of success in the main action is a useful indication when
considering applications for interim interdicts. In my view the applicant must, in
order to bring prima facie proof of a right, establish a case founded on the
greatest probabilities .
[24] The rights in terms of the Constitution are limited in terms of section 36. The
applicant is a prisoner and does not have the right to live freely as he wants or
as he wishes. He cannot dictate to how his incarceration should be. The
Correctional Services Act, the Regulations and the SOP is a tool used to limit
the inmate's rights.
[25] The applicant relies on the decision in Mahlangu v Area Commissioner of
Kgosi Mampuru II Prison 14. The facts in Mahlangu are distinguishable from
14 Mahlangu v Area Commissioner of Kgosi Mampuru II Prison14 (Case No. 093770/2024, Gauteng Division,
Pretoria, 4 October 2024).
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the present matter. The Mahlangu matter dealt with the issues pertaining the
diet of a prisoner and right to adequate nutrition, which has nothing to do with
the matter before this Court.
[26] The respondents in this matter deny that the applicant has been in solitary
confinement as the CSA provides for segregation and not solitary confinement ,
"The Applicant is not kept in segregation or in solitary confinement C-Max is a
single cell facility where all inmates are accommodated under similar conditions
and are all treated the same. They are all allowed limited activities such as
exercise, visitation hours and taking a shower. In a prison context, segregation
means isolating an inmate from the general prison population, typically in a
separate unit or cell. Segregation , as contemplated in section 30 of the Act,
h does not apply to C-Max"15.
I-
[27] I conclude that the SOP provides that the applicant can be kept in C-Max for a
period of between twelve to eighteen months. He is still within the period
prescribed and there are no exceptional circumstances which warrant his
release at the C-Max. The Act read with the regulations provide for measures
to cater for the applicant's wellbeing .
IRREPARABLE HARM
[28] A reasonable apprehension of injury is one which a reasonable man might
entertain when faced with certain facts. The test is objective.16
•• See paragraph 10 or the Re:spondent:i ' Head& of Arguments under Heodin9s Merit" at pages 10-11_
16 See National Council of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA
339 (SCA).
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[29) It was argued by the applicant that he stands to suffer irreparable harm should
the respondents continue to ignore their obligations and ccntinue to unlawfully
detain the applicant in C-Max in segregation .
[30) It was pointed out by the respondents that C-Max was specifically designed as
a single cell for all high-security profile inmates and its specification has been
approved by the legislation . The treatment that is given to the applicant is given
to all the inmates, which is acceptable according to the standards stated in the
Act.
[31] In my view the applicant is not unlawfully detained in C-Max. The SOP provides
that the applicant should stay at C-Max for a period of between 12 to 18 months.
I am not persuaded that under the circumstances the applicant will suffer any
prejudice pending the review application. The infringement of his rights is not
proved based on substantial grounds.
BALANCE OF CONVENIENCE
[32) The essence of the balance of convenience is to assess which of the parties
will be least seriously inconvenienced by being compelled to endure what may
prove to be a temporary injustice until the answer can be found at the end of
the trial.
[33) The balance of convenience is inextricably bound up with the discretion of the
Court. I am of the view that there is a greater possible prejudice to the
respondents than that of the applicant if an interim interdict is granted ..
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An interim interdict will open a floodgate for inmates who are kept in prison to
be transferred to different sections in C-Max. The applicant in his own version
is eligible for parole in July 2025 and thus if he is considered for release, his
period of detention will be limited.
ALTERNATIVE REMEDY
[34] "It is also clear that the grant of an interdict is a discretionary remedy. One of
the main factors which the Court is enjoined to take into account in deciding
whether to exercise its jurisdiction is whether there is any other remedy open to
the applicant which can adequately protect him in his rights."18
[35] The respondents have argued that even though the applicant does not
challenge the findings that resulted in his transfer to C-Max, he has alternative
internal remedies to exhaust and failed to exhaust before approach ing this
Court for urgent relief.19
[36] In my view there is a remedy open to the applicant which can adequatel y protect
him and his rights. If the applicant succeeds in the exhaustion of internal
remedies, he might be transferred back to the center/region of origin.
18 See Johannesburg Consolidated Investment Co Ltd v Mitchmor Investments (Pty) Ltd and
Another 1971 (2) SA (WLD) 404 E-F.
19 See paragraphs 5.9 to 5.16 of the Respondent 's Heads of Arguments.
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ANALYSIS OF THE MATTER BEFORE COURT
[37] It is clear on the applicant's own version that the urgency of this matter
commences from a transfer that started in December and the applicant has
been detained with the third respondent since 13 January 2025. The
respondents provided the reasons for the transfer which are not disputed or
denied by the applicant anywhere in his papers. The applicant has been living
under the same conditions since the 13th January 2025 and nothing has
changed according to the applicant's own version.
[38] The period from the 13 January 2025 to the date of the hearing of this
application before me being the 17 June 2025 is six (6) months and the
applicant has been living under the same conditions and on his own papers it
is the same conditions and nothing change that may have triggered the urgent
application to have been brought in June 2025.
(39] In Roets N.O and another v SB Guarantee Company (RF) (Pty) Ltd and
others20 the court found that the applicant had sat "on its laurels" and had
unduly taken its time to approach the urgent court claiming irre,parable harm.
This led to the application being struck from the roll on the basis of "self-created
urgency".
(40] There is no explanation whatsoever provided by the applicant as to why his
detention in C-Max has suddenly become a matter to be looked at on an urgent
basis. The applicant does not allege any changes in the C-Max prison
20 [2022) JOL 55628 (GJ) at (26)
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conditions between January 2025 when he was transferred therein to the date
of bringing this urgent application .
[41] The high watermark of Counsel for the applicant's submissions is that the
applicant is an inmate who is imprisoned and therefore a different criterion
should be applied as he had difficulties in seeking legal representation to bring
the urgent review application . Even on this argument the time-period of 6
months is unreasonable if the case of the applicant was urgent as alleged.
[42] It is thus the finding of this Court that the applicant has thus sat "on its laurels"
and had unduly taken its time to approach the urgent court and claiming
irreparable harm, as was found in the Roets N.O21 case. Accordingly , this
application stands to be struck from the roll on account of "self-created
urgency" ..
(43] On the applicant's own papers, there is nowhere where the applicant alleges a
new threat, either actual or implied from the respondents that will violate his
rights that are already subject to limitation due to the fact that he is an inmate
in prison. Once again when his Counsel was pressed in court, he made the
submission that the applicant will become eligible for parole and as such his
conditions should be improved for his re-integration within society.
• [44] It is trite law that parole is not a right, it is a rather a privilege and not a right
that offenders can lay a claim to, "A parolee remains at all times a sentenced
21 Supra footnote 12.
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prisoner and has no right to parole"22. Therefore , the statement that the
applicant is eligible for parole doesn't render the matter urgent at all. It confirms
that his case is that of self-created urgency that this Court should not entertain.
(45] Therefore, based on the applicant's own papers the urgent application before
me must fail as the urgency is clearly self-made as the transfer was made in
January 2025 and the applicant brings this application in June 2025. It is
important to also state that the statutory required period in this matter has not
been exceed at all as that may have justified the case of the applicant, however
it is common cause between the parties that the transfer only happened in
January 2025 and the application before me was brought in June.
CONCLUSION
(46] This urgent application was brought in terms of the provisions of the Promotion
of Administrative Justice Act No. 3 of 2000 (PAJA).23 PAJA emphasises the
importance of exhausting internal remedies before a person can seek judicial
review of an administrative action.24 Therefore , the law requires that where a
law provides for review or appeal mechanism within the administration, these
must be utilised before a person can approach the court. The objective is to
allow for internal correction of decisions before they are subjected to a court's
scrutiny.
22 See Du Preez v Minister of Justice and Correctional Services 2015 (1) SACR 478 (GP) para 12.
23 See: paragraph 4 of the founding affidavit, at Caselines pagination 02-10
2• Section 7(2) of PAJA
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The Correctional Services Act No. 111 of 1998 ("the Act") provides that an
inmate should be subjected to a disciplinary hearing if he commits a disciplinary
infringement. It is a disciplinary infringeme nt for an inmate to be in a possession
of an unauthorised article such as a cell phone.25 It is also a disciplinary
infringement for an inmate to communicate with any person at a time when or
place where it is prohibited26. This offence would include the inmate's
communication with the officials of the Department on a cell phone.
[48] Where the inmate undergoes a disciplinary process and he is found guilty as
the applicant in this matter, he has a right to appeal the decision to the National
Commissioner .27 The National Commissioner may confirm the decision or set it
aside or make any appropriate order he deems fit.
[49] The applicant in this matter has undergone a disciplinary process for his
infringement and was found guilty as charged. This court was referred to
annexures ' "A" and "A" to the answering affidavit in this regard and the contents
of the annexures are undisputed .
[50] The applicant, having been found guilty, and if aggrieved by such a decision,
was left with an internal remedy in the form of an appeal to the National
Commissioner . The applicant failed to appeal the decision for review to the
National Commiss ioner as contemplated by the Act. In doing so the applicant
has failed to exhaust the internal remedies available within the Department.
25
26
27 Section 23(1 )(m) of the Act
Section 23(1 )(i) of the Act
Section 24(7) of the Act
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[51] The applicant does not advance any reason before this Court or prevailing
circumstances which would result in him suffering an irreparable harm if the
matter is not heard on an urgent basis. The applicant alleges that his dignity is
violated, he is tormented and psychologically stressed by the conditions in C
Max. However, he provides no evidence whatsoever to substantiate his
allegations .
THE PAPERS AND COMPLIANCE WITH THE RULES AND PRACTICE
DIRECTIVES
[52] In this matter there was non-compliance with the practice directive of this
division by both the applicant and the respondents . The respondents failed to
comply with time frames to file their answering papers before this Court. They
sought condonation that is set out at paragraph 7 of their heads of arguments .
Due to the nature of this matter and the strict time frames in terms of the Practice
Manual and my practice directives . The condonat ion is granted.
[53] The applicant on the other hand filed a certificate of urgency that does not
comply with the Practice Manual of this Division that set out in clear terms what
should be contained in a certificate of urgency. As if that was not enough, the
replying affidavit was filed by the attorney instead of the applicant. This Court
despite the patch up explanation by Counsel of the applicant cannot
countenance such a non-compliance with the rules of this Court.
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[54] This Court is not a fire extinguisher of poorly conceived timelines, courts are
constitutional platforms of justice and fairness and that is applicable on both
sides of the parties before it. Therefore , this matter is not urgent and fails to fall
within the ambit of Rule 6(12) (b) read with the Practice Manual, and directives
of this Court.
[55] It is common cause between the parties that the applicant did not dispose the
replying affidavit, but that his attorneys has done so on his behalf, for reasons
which I do not intend to repeat herein. It is trite law that a replying affidavit must
be deposed by the applicant himself/herself . I have raised my concerns in this
respect with the applicant's Counsel. Therefore , the finding of this court is that
the replying affidavit carries no probative value under the rules of evidence.
Therefore , there is no reply before this Court, it is thus my considered view
seeing that the replying affidavit has not been disposed to by the applicant
himself, that there is was no replying affidavit before me, For this reason I am
in agreement that
"In the absence of a replying affidavit in the present application it was the
applicant's submission that the applicant's version, as it stands in the answering
affidavit, stands to be accepted as uncontested on those allegations that have
challenged the content of the founding affidavit this much is trite. "28
ORDER
[57] 1. The application is struck from the roll for lack of urgency;
28 See Nedbank Limited v Ramparsad and Another (58806/2018) (2021] ZAGPPH C 746 (4 November 2021 ).
' .,
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2. Applicants are ordered to pay costs on party to party scale B.
RR NTHAMBELENI
ACTING JUDGE GAUTENG DIVISION
PRETORIA
REPRESENTATION AND COUNSEL FOR THE PARTIES
FOR THE APPLICANTS : Adv Ruan Britz
INSTRUCTED BY: Brandon-Swanepoel Attorneys
REF NJ009
FOR THE RESPONDENTS · Adv M T11ana
INSTRUCTED BY. STATE ATTORNEYS , PRETORIA
ENQ: MS MMB MASIA 000-19
000-19