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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-020851
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE SIGNATURE
In the matter between:-
NDHLOVU ZIGGY XOLANE Applicant
and
THE HEAD OF CASE MANAGEMENT COMMITTEE
KGOSI MAMPURU II CENTRAL 1st Respondent
THE HEAD OF PRISON KGOSI MAMPURU II CENTRAL 2nd Respondent
THE AREA COMMISSIONER GAUTENG, KGOSI
MAMPURU II CENTRAL 3rd Respondent
THE NATIONAL COMMISSIONER OF CORRECTIONAL
25/09/2025
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SERVICES 4th Respondent
THE MINISTER OF CORRECTIONAL SERVICES 5th Respondent
JUDGMENT
Mfenyana J
[1] The applicant seeks an order declaring the respondents in contempt of an
order issued by Du Plessis AJ (as she then was) on 22 August 2024 . The
reasons for the order were provided on 13 September 2024. The application
was brought on an urgent basis.
[2] The application is opposed by the respondents.
[3] In her order, Du Plessis AJ (as she then was), directed the respondents to
verify whether the identity document of the applicant is a valid South African
identity document of the applicant, and to correctly reflect the applicant’s
nationality, once verified. The learned judge postponed the application sine
die for the respondents to provide proof of the applicant’s prison
classification and whether he was classified as a medium or maximum
offender.
[4] The background facts to the application, which served before Du Plessis AJ
(as she then was), are that the applicant, currently serving a prison term at
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Kgosi Mampuru II Central Prison, instituted proceedings seeking to restrain
the respondents from classifying him as an immigrant, questioning him
about his nationality, or harassing and intimidating him. He had been
arrested in 2013, released on bail and rearrested in the same year on a
different matter. He states that on his arrival at the Modderbee prison,
where he was initially detained, Mangani, one of the prison officials, refused
to accept that he was a South African, telling him that he looked like a
Nigerian. According to the applicant, this was the beginning of his troubles,
which he continues to suffer to date, he contends.
[5] Following his conviction in 2014 and 2015, he was processed as a Nigerian,
as the prison authorities relied on information provided by Mangani, the
official who disputed his South African nationality and classified him as an
immigrant. He was consequently put on a deportation list, whereafter the
Department of Home Affairs confirmed that he was indeed a South African.
However, the respondents failed to update his status as a South African.
[6] Four years later, so the applicant avers, unnamed members of the SAPS and
the respondents confiscated his identity document, which led him to
approach the court in 2020 for relief. In May 2024, he was provided with a
new identity document, but despite this, in June 2024, he was given a
deportation form to sign. On 21 July 2024, he met the first respondent to
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discuss his release on parole as he believed he became eligible therefor,
three years earlier. This did not progress further as the respondents once
again questioned him about his nationality.
[7] It is noteworthy that Du Plessis AJ (as she then was) noted that the
applicant’s profile reflects that his release on parole was refused on the
basis that he was a maximum offender, held at the super-maximum prison
in Kokstad . The applicant, however, avers that this incarceration at
Ebongweni in Kokstad is unlawful and jeopardise s his chances of being
released on parole. He states that he ultimately refused to cooperate with
the respondents regarding any issue relating to his nationality.
[8] Du Plessis AJ did not grant the relief sought by the application in his notice
of motion, as it was not supported by any evidence, holding that the
respondent’s version should prevail. She, however, found that it was
necessary to get clarity on the issue of the applicant’s nationality. In this
regard, the learned judge ordered that the respondents should validate the
applicant’s identity document, and if found to be valid, reflect this on their
system. The respondent agreed to this, although stating that this was not a
simple issue. The present application is a sequel to that order.
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[9] The applicant avers that the matter is urgent in that the respondents’
conduct is not only wilful and mala fide, but also causes prejudice to him as
his status as a South African has not been verified. He argues that his
release on parole depends on this v erification. The applicant further
contends that there was no undue delay on his part in bringing the
application. Finally, the applicant avers that he would not be afforded
substantial redress if the matter is heard in due course, as it would take
several months for the application to be heard.
[10] The notice of motion required the respondents to deliver their answering
affidavit on 6 March 2025. It was only served on 11 March 2025. The
respondents seek condonation for the late filing of the answering affidavit,
which they state was due to unforeseen circumstances, as the deponent to
the answering affidavit was on leave and out of reach until 11 March 2025.
As she has personal knowledge of the matter, no other person could depose
to the answering affidavit.
[11] The respondents aver that there was still sufficient time to file a reply ahead
of the hearing. Although the applicant contends that this is not the case, I
am of the view that no prejudice was suffered by the applicant. It is not
uncommon in urgent applications for parties not to achieve strict compliance
with the rules, particularly in relation to timeframes. This less -than-perfect
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compliance applies to both the applicant and the respondents. Despite the
applicant’s assertions, the delay was not inordinate. In the circumstances,
condonation is granted.
[12] The respondents contend that the matter is not urgent , as this court does
not consider semi-urgent matters, and a matter can either be urgent or not
urgent. Notably, the respondents contend that they have already
commenced with their investigation, and the case management committee
has already compiled a profile which, according to the requirements of the
parole board, must include a reliable home address and a competent identity
document. Consequently, the parole board postponed the applicant’s matter
to June 2025 for further profiling.
[13] The respondents further state that the investigation revealed that the
applicant’s identity document was obtained fraudulently. They provide
details of the steps they have taken in complying with the Du Plessis order.
Having thus complied with the order, the respondents contend that there
can be no urgency to the application.
[14] On the merits, the respondents submitted that the applicant was classified
as a maximum offender following the findings of the disciplinary committee.
As this finding has not been properly challenged by the applicant, it remains
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in effect. As part of their investigation, the respondents included a letter
from Mr Ngele, the principal of Morewane P School in Driekop, Limpopo,
where the applicant allegedly attended in 1991. In the letter, Mr Ngele states
that the applicant provided a false record: the applicant's name does not
appear in the school records, and admission number 216, provided by the
applicant, actually belongs to another student.
[15] The respondents also submit a sworn statement from Mr Samuel Sebata
Mashiane (Mr Mashiane), the headman of Riba Central , deposed to on 17
February 2025 , in which he confirms that the applicant is not Ms Suzy
Ndhlovu’s (Ms Ndhlovu) child. Ms Ndhlovu resides in the village where Mr
Mashiane serves as headman. Furthermore, the headman asserts that the
applicant is from Nigeria, which contradicts a sworn statement made by Ms
Ndhlovu in 2016 affirming that the applicant is her son.
[16] On 13 February 2025, Mr Ntando George (Mr George), an official at the
Department of Home Affairs (the Department), deposed to an affidavit
stating that the Department had not issued any confirmation letter for the
applicant's identity number (8503126454086 ), and that the stamp on the
identity document in question is fraudulent and does not originate from their
office.
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[17] Further, Mr Solani Moses Msengi (Mr Msengi), another immigration officer
employed by the Department, states in his confirmatory affidavit that he
investigated issues relating to the applicant’s identity document and the
letter bearing a stamp of the Depart ment of Home Affairs as part of his
duties as an immigration and law enforcement officer. He states that, based
on his interview with the applicant, he concluded the applicant was not born
in South Africa. The applicant stated that he entered South Africa using the
name “Ekene Umeh,” with a date of birth of 1985 -03-12; however, the
Department’s movement control system contains no record of his entry.
Subsequently, Mr Msengi travelled to Limpopo to interview the applicant’s
alleged mother, Ms Ndhlovu.
[18] Mr Msengi further states that Ndhlovu informed him that the applicant was
born in Burgersfort, following a relationship with the applicant’s father,
whom she met while both were working at a shop in Kempton Park in 1985.
She said the applicant’s father was from Nigeria and was only known to her
as Richard. However, Mr Msengi discovered that the applicant was not born
in South Africa; instead, the applicant’s identity document was fraudulently
obtained through a late registration of birth process on 12 July 2006 at the
Home Affairs service point in Lebowakgomo. Home Affairs has no record of
the applicant’s birth, and the requirements for late registration of birth were
not met.
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[19] It is worth noting that the registration of birth document lists the applicant
as female. Mr Msengi also states he obtained a court order to collect DNA
samples from both the applicant and Ndhlovu. He concludes that the
applicant entered South Africa unlawfully, in contravention of the
Immigration Act.
[20] In reply, the applicant asserts that the respondents have unnecessarily
delayed their opposition to the current application. He criticises the time
taken in filing both the notice of opposition and the answering affidavit.
Notably, the applicant concedes t hat the respondents have complied with
the Du Plessis order but points out that this compliance was late and
occurred only after the present application was lodged. Nevertheless, the
applicant maintains that the respondents are in contempt, arguing that they
have not raised reasonable doubt that their non -compliance was neither
wilful nor in bad faith. Accordingly, the applicant submits that this
application became necessary solely due to the respondents' non -
compliance and their disregard for the court's orders. For these reasons, he
argues that the respondents should bear the costs of this application, even
if the court finds them not to be in contempt. He further requests that these
costs be awarded on a punitive attorney-and-client scale.
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[21] When the matter was heard, it was submitted on behalf of the applicant that
the committal of the respondents to prison for a period of 30 days was not
persisted with, the key issue being the finding of contempt against the
respondent and for the respondent s to comply with the Du Plessis. In this
regard, the respondents aver that in the notice of motion, the applicant only
seeks committal if the respondents do not comply with the Du Plessis order
and the order of this court, within seven days. There is no di spute that the
respondents complied with the order during February 2025.
[22] The issue is whether the applicant was entitled to bring this application. It
is common cause that, as of 17 February 202 5, the date on which this
application was instituted, the respondents had not informed the applicant
that they were taking any steps to comply with the Du Plessis order and as
such had not complied with the order. At that point, it had been five months
since the order was granted and two months since the Adams order .
Moreover, considering the nature of the application, there can be no
suggestion that the applicant acted hastily or recklessly in bringing this
application. Non-adherence to a court order is a serious issue which
engages the urgent attention of the court. Contempt proceedings serve to
vindicate the court’s honour and dignity and compel future compliance.
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[23] In Pheko v Ekurhuleni City1, the Constitutional Court noted that:
“(t)he rule of law, a fundamental value of the Constitution, requires that the dignity
of the courts be upheld. This is crucial as the capacity of the courts to carry out
their functions depends on it.”
[24] The court further highlighted that allowing litigants to disregard court orders
(to which they had agreed) would bring the administration of justice into
disrepute.
[25] It appears that at the time the application was enrolled, the applicant had a
reasonable apprehension of harm due to the respondents' non -compliance
with the court order. The relief sought by the applicant is conditional on the
respondents’ compliance with the Du Plessis order. There can thus be no
point in persisting with the contempt application save for the determination
of costs. To the extent that the respondents have purged their contempt,
there is no longer a need to hold them in contempt.
Costs
[26] The general rule is that costs follow the outcome. However, the court has a
discretion to depart from this rule if it would be fair and just to do so. The
applicant was entitled to institute these proceedings as the respondents had
not complied with the Du Plessis order, as well as the orders of 5 December
1 [2015] ZACC 10; 2015 (5) SA 600 (CC); 2016 (6) BCLR (CC).
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2024 by Allen AJ, and the judgment of Adams J on 9 December 2024 directing
them to provide the outcome of the verification process to the applicant.
[27] The applicant seeks costs against the respondents on an attorney -and-
client scale, arguing that the respondents defied three court orders, causing
him prejudice. I agree. The respondents’ non -compliance not only
prejudices the applicant but also undermines the honour and dignity of the
court. Moreover, it unnecessarily burdens the court roll, diverting scarce
judicial resources that could have been allocated to other matters had the
respondents complied with the orders timeously. Were it not for the
respondents’ delay in complying with the Du Plessis order, as well as the
subsequent orders, one of which was issued following agreement between
the parties, this application would have been obviated. In my view, that is
sufficient reason for this court to deviate from the general rule of costs.
Order
[28] In the result, I make the following order:
a. Condonation for the late filing of the answering affidavit is granted.
b. The application is dismissed.
c. The first to fifth respondents shall pay the costs of this application jointly
and severally, the one paying the other to be absolved on an attorney and
client scale.
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__________________________________________
S MFENYANA
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
For the applicant :
For the respondents :
Adv JC Erasmus instructed by Du Toit
Attorneys
okkerd@mweb.co.za
saserasmus3@gmail.com
Adv Naseera Ali instructed by The State
Attorney
Mkhampha@justice.gov.za
naseeraali@duma.nokwe.co.za
Date of hearing :
Date of judgment :
20 March 2025
25 September 2025
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