REPUBLIC OF SOUTH AFRICA
' •
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( l) REPORT AB LE: NO
(2) OF INTEREST TO OTHER JUDG ES·
(3) REVISED: NO
In the matter between
BO N GA NI G IVE N MAS HININI
and
TH E MINISTE R O F CO RR E C TIO N AL S ER V ICES
NATIO NA L CO UN CIL FO R CO RR ECT IO N AL SE RV ICE
EXTE MP ORE JUDG MEN T
Van der Schyff J
Introduction
CASE NO.: 2023-098939
Applicant
First Respondent
Second R espondent
2
[1] The applicant obtained a court order on 20 January 2025 in terms of which the first
respondent was ordered to release the applicant on parole. On 29 April 2025, an
order was granted by agreement between the parties that the applicant would be
released on parole on 18 June 2025. The applicant, who has not yet been released
on parole, approached the urgent court to hold the first respondent in contempt for
failing to comply with an order that was reached by agreement. The applicant seeks
that the Minister of Correctional Services be imprisoned for twelve months for failure
to comply with the order.
[2] As for the submission that the matter is not inherently urgent, I disagree. Where an
agreement was reached that a person would be released on parole on a particular
date, and that date passes without the person being released, each day the person
spends in prison is a day they can never spend outside of prison. He can never get
that day back, and in that sense, he is not able to obtain substantial redress in due
course.
[3] The applicant, however, faces other insurmountable obstacles, both procedural and
substantive.
[4] In Speqtrum (Pty) Ltd and Others v City of Johannesburg Metropolitan Municipality
and Another, 1 the court confirmed that a contempt of court application stands alone,
although flowing from the same case number as the main application. Based on the
principle set out in this judgment, the first respondent ought to have been cited in his
personal capacity in this contempt application as he undoubtedly has a direct and
substantial interest in his personal capacity in the relief that is sought. Without him
being cited in his personal capacity, the applicants have no remedy of any force.
[5] In Maljhabeng Local Municipality v Eskom Holdings Ltd and Others2The
Constitutional Court confirmed that respondents against whom a contempt of court
order that could result in their committal was sought had to be cited in their personal,
order that could result in their committal was sought had to be cited in their personal,
and not nominal, capacities. The court held that 'it was inconceivable how they could
1 (28694/2020) (2024] ZAGPJHC 929 (17 September 2024) at para (15].
2 2018 (1) SA 1 (CC).
2
3
have been committ_ed to prison when they were not informed in their personal
capacities of the cases they were to face.'
[6) Contempt of court is a criminal offence. It can only be committed deliberately and
ma/a fide.3 The order granted by agreement on 29 April 2025 provides that the
Parole Board of Kgosi Mampuru Correctional Centre shall, within a period mentioned
in paragraph (b) of the order, subject the applicant to pre-release programmes and
set conditions for his placement on parole. The Parole Board, however, was not a
party to the proceedings before the urgent court when the order was granted.
[7] If regard is had to the. documents filed in the application that culminated in the order
granted on 29 April ·2025, it is evident that the applicant's release on parole is
conditional on him being subjected to pre-release programmes' and that conditions
be set for his releas~ o.n parole. In the absence of these conditions being met, it
cannot be found that -the first respondent was ma/a fide and deliberate in not
effecting the applicant's release.
[8] The question of whether the first respondent would be successful in a rescission
application where a court order was reached by agreement is not for this court to
answer. The fact, however, that the first respondent is of the view that reasons.exist
that would move a court to rescind an order reached by agreement, is indicative that
there are no ma/a tides in the failure to comply with the order.
[9] In these circumstances, the application stands to be dismissed. Having regard to the
circumstances of the case and the existence of the order, I am , however, not inclined
to grant a costs order against the applicant.
ORDER
In the result, the following order is granted:
1. The application is dismissed, each party to carry its own costs.
3 Jayiya v Member of the Executive Council for Welfare, Eastern Cape and Another2004 (2) SA
611 (SCA) at para [19]
3
For the applicant:
Instructed by:
For the respondent:
Instructed by:
Date of the hearing:
Date of judgment:
4
E van der Schyff
Judge of the High Court
Mr. M.T . Mokgara
MOKGARA ATTORNEYS
Adv. M.I. Boko
State Attorney
4
29 July 2025
30 July 2025