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NO
NO
NO
NO
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2025/123747
In the matter between:-
ZIGGY XOLANE NDHLOVU Applicant
and
THE HEAD OF THE KGOSI MAMPURU II
CORRECTIONAL CENTRE
1st Respondent
THE AREA COMMISSIONER, GAUTENG:
DEPARTMENT OF CORRECTIONAL SERVICES
2nd Respondent
THE NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES
3rd Respondent
THE MINISTER OF CORRECTIONAL SERVICES 4th Respondent
This judgment is handed down electronically to the email addresses of the
parties as indicated in the practice notes. The date of the handing down is
deemed to be 25 September 2025.
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Court Order dated 4 June 2024
[3] A court order under case number: 2024/00096 has been handed down
in the Gauteng Division, Johannesburg on 4 June 2024 by du Plessis AJ
(“the 2024 court order”) . The applicant argues that this Court has
jurisdiction by virtue of the concurrent jurisdiction that this Court has with
the Gauteng Local Division, Johannesburg. This is disputed by the
respondents.
[4] The 2024 court order reads as follows:
“1. The applicant be granted an opportunity to resume his
studies at C -Max Section, Kgosi Mampuru Correctional
Facility for the duration of his stay at the said maximum
correctional facility, which includes his study material and
includes a laptop.
2. The urgent court cannot deal with the remaining prayers in
the application and in this regard the remaining prayers are
to be postponed sine die.
3. No order as to costs.
[5] The content of the remaining prayers, and the basis on which the prayers
were made in the 2024, are not before this Court.
[6] In Els v Weideman 2009 JDR 0213 (WCC) the application for contempt
brought in a different court than the court that originally issued the order,
was dismissed. It was found on Pages 8, 9 and 10 that:
“It is clear that divorce proceedings could be instituted in either
Court. The Plaintiff would be dominus litis and could elect in which
4
Court to proceed. What is now in issue is whether once the
Plaintiff has made such an election any subsequent
proceedings in enforcement of the judgment must be taken
in the same Court or whether he has the right to proceed in
the other Court. If the Applicant had asked only for the committal
of the Respondent for contempt of court there would have been
no doubt as to the answer. For insofar as the contempt consisted
in a wilful disobedience of a Court's order, it is to that Court
that application would have to be made. (See Herbstein & Van
Winsen, Civil Practice of Superior Courts, p.513 and decisions
cited under Note 7).”
(own emphasis)
[7] The relief sought that this Court declare the respondents in contempt of
court is thus incompetent on 2 grounds: (a) the content of the relief that
was postponed sine die is not before this Court, and (b) the applicant is
bound to proceed with contempt proceedings in the court it elected as
dominus litis.
[8] The prayers in relation to contempt of court stand to be dismissed.
Summary of material events
[9] The sequence of events goes back to 2022 when the Applicant was
transferred from Leeuwkop Correctiona l Centre ("Leeuwkop") to
Ebongweni Correctional Centre ("Ebongweni"). A violent incident
occurred at Leeuwkop where the applicant allegedly played a key role in
the violence, where loss of lives had taken place. For the greater part of
2022 and 2023, the applicant was accommodated at Ebongweni when
the applicant launched applications to both this Division of the High Court
as well as the South Gauteng High Court Johannesburg, for a transfer
out of Ebongweni.
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[10] The applicant launched an application in 2022 in the South Gauteng High
Court under case number 038179/2022, seeking the review and setting
aside of the decision taken by the respondents on 18 May 2022 to
transfer the applicant from Leeuwkop Medium C Prison to Ebongweni
Correctional Centre. On 17 January 2024 j udgment was delivered by
Mia J dismissing the application on the basis that the applicant has not
exhausted the internal remedies available and the court was able to
consider the matter in terms of PAJA until the applicant has exhausted
internal remedies.
[11] The implication of the transfer to Ebongweni was as a result of the
applicant being re -classified as a maximum offender with loss of
privileges such as appearing before the Correctional Supervision and the
Parole Board ("the Parole Board"). Later in 2024 and while at Kgosi
Mampuru, the applicant was re-classified as a medium offender. During
2024, the applicant was transferred to Kgosi Mampuru to attend court in
the Magisterial District of Benoni. He applied for a conversion of his
sentence to one of correctional supervision under the Criminal
Procedure Act 51 of 1977 . The a pplication for conversion was not
successful. During 2024, the applicant was re-categorised as a medium
offender which entitled him to appear before the Parole Board. The
hearing at the Parole Board was postponed several times.
[12] The parole hearing was postponed on the basis that the validity of the
applicant’s identity status in South Africa could not be verified by the
Parole Board.
[13] The applicant approached the court and judgment was granted in South
Gauteng High Court, Johannesburg on 13 September 2024 under case
number 2024/00410 by du Plessis AJ to the effect that (i) t he 1st to 5th
respondents is required to verify whether the identity document of the
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applicant is indeed a valid South African identity document. (ii) Once the
applicant's nationality is verified, this should reflect correctly on the
correctional services system. (ii) The remainder of the application is
postponed sine die for the 1 st to 5th respondents to provide proof
clarifying applicant's prison status, whether applicant is classified as a
medium or maximum offender in terms of its records.
[14] The investigation has revealed that the identity document belonging to
the applicant was obtained through fraudulent means. The applicant is
currently facing charges of fraud in this regard. He is required to appear
in the Burgersfort Magistrates Court on charges of fraud.
[15] The 2024 court order was handed down ordering that the applicant be
placed in possession of his laptop. A laptop was handed to the applicant
on or around 26 July 2024. On or around 8 October 2024 the Acting
Head of Operational Support, responsible for safety and security at the
Central Correctional Centre confiscated the applicant’s laptop on
grounds of allegations made in respect of the a pplicant conducting
fraudulent activities on his laptop. The laptop was handed to the
Cybercrime Unit of the South Afric an Police Services (SAPS) for
investigation and for purposes of down-loading the content of the laptop
in order to detect any fraudulent activities. A report was sent from SAPS
to the Acting Head of Operational Support wherein was stated, inter alia,
and for purposes of this application, that "no study material was found
on the laptop". It is important to bear in mind that the laptop was intended
to be used for study purposes only.
[16] On 5 June 2025, information was received by the Area Commissioner
pertaining to the applicant's use of a cell-phone to contact people outside
the Correctional Centre. The applicant was searched and was found in
possession of a cell phone (this is denied by the applicant) which
resulted in the applicant being transferred to C -Max, further resulting in
7
the applicant's offender category being re -classified to a maximum
offender.
[17] The respondents state that the applicant's offender status was changed
following a disciplinary hearing held on account of the cell-phone found
in the applicant's single cell. Th e respondents claim, and the applicant
denies, that the procedure is in accordance with the terms of the
Standard Operating Procedures ("SOPS").
[18] The Minutes of the Disciplinary Hearing reflect that the a pplicant had
pleaded not guilty to the charges and that he refused to sign the Minutes
of the hearing. The penalty resulted in applicant being transferred to C-
Max with the resultant change in his offender status to a maximum
offender.
[19] If unsatisfied with the outcome of the disciplinary enquiry, the applicant
is entitled to refer to the outcome of the disciplinary enquiry proceeding
to the National Commissioner in terms of section 24(7) of the
Correctional Services Act 111 of 1998 (“the Act”).
[20] The respondents argue that there is no indication that this decision was
referred in terms of section 24(7) of the Act. The applicant is aware ,
alternatively ought to be aware that internal remedies ought to have been
utilised before approaching this Court.
[21] To the contrary, the applicant argues that he was never subjected to a
disciplinary hearing and the avenue of an internal referral was thus not
8
available to him.
[22] The applicant questions the legality of the disciplinary hearing. The
disciplinary hearing appeared to have been held after the transfer of the
applicant to the maximum security centre.
Legal arguments
[23] The respondents argue that the review application is not duly before this
Court and should not be adjudicated on an urgent basis.
[24] The applicant argues that he was never charged disciplinary , and that
the documents indicating a disciplinary hearing is fabricated. He also
states that the cellular telephone was not found in his possession, but in
a cell that he shares with 19 other inmates.
[25] The applicant states that he has not been afforded any form of natural
justice by the respondents, as specifically ordained by the Act, such
failure having resulted in respondents having taken the decision and
pursuant action whereby his status was re -classified and transferred to
the C - Max maximum facility . The applicant states that this action
constituted an administrative action which materially and adversely
affected his constitutional rights and legitimate expectations of
procedural fairness, particularly having offended section 33 of the
Constitution of the RSA, 1996, which guarantees administra tive action
that is lawful, reasonable and procedurally fair.
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[26] It is argued on behalf of the applicant that the dispute as to whether or
not a proper disciplinary process had been duly implemented, lies at the
heart of the issue as to whether applicant's re-classification and transfer
to C-Max had been effected lawful and procedurally fair. The applicant's
review application relies on sections 6(2)(a)(iii), 6(2)(b), 6(2)(c), 6(2)(d),
6(2)(e)(i),(ii),(v) and (vi), 6(2)(f)(i) and 6(2)(i) of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”).
[27] The question of whether a disciplinary hearing has been instituted or not,
is a factual question that cannot be answered by this Court , given the
conflicting statements.
[28] Furthermore, this Court need not answer the issue of an administrative
action due to the finding made on urgency, set out here under.
Urgency
[29] The applicant had already been transferred to C -Max on 6 June 2025,
the very next day after the alleged transgression on 5 June 2025.
[30] The applicant’s attorney of record has addressed a letter of demand
dated 17 June 2025 to the respondents.
[31] Service of the application has taken place on the respondents on 30 July
2025 and 1 August 2025 respectively.
11
DATE OF ARGUMENT: 9 SEPTEMBER 2025
DATE OF JUDGMENT: 25 SEPTEMBER 2025
APPEARANCES
FOR APPLICANT: Adv JC Erasmus
INSTRUCTED BY: Mr. O du Toit
Du Toit Attorneys
Tel: 082 687 2188
E-Mail: okkerd@mweb.co.za
FOR RESPONDENT: Adv N Ali
INSTRUCTED BY: Respondent's Attorney
State Attorney
Mr M Khampha
076 879 1067
naseeraali@duma.nokwe.co.za