1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
SITTING AS AN EQUALITY COURT
(1) REP O RTABLE: YES
(2) O F INT ERE ST TO O T ER JU DGE S: YES
(3) RE VIS ED : NO
DATE : 10/11/2025
In the matter between:
NTHABISENG MOKOEN
And
HEAD OF JOHANNESBURG CORRECTIONAL
CENTRE: MEDIUM B
THE AREA COMMISSIONER FOR CORRECTIONAL
SERVICES
(JOHANNESBURG MANAGEMENT AREA )
NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
MEC: GAUTENG DEPARTMENT OF HEALTH
Case Numb er: 2024/070075
COMPLAINANT
First Re spondent
Second Re spondent
Third Re spondent
Fourth Re spondent
Fifth Re spondent
2
MINISTER OF HEALTH Sixth Respondent
JUDICIAL INSPECTORATE FOR Seventh Respondent
CORRECTIONAL SERVICES
ACCESS CHAPTER 2 LAW CLINIC Amicus Curiae
Summary:
Constitutional law - Human rights - Right of inmates to adequate medical treatment
in section 35(2)(e) of Constitution of the Republic of South Africa Act 108 of 1996
adequate health care to which inmates entitled under section 35(2) includes gender
affirming health care to transgender inmates for whom it has been prescribed.
Inmates diagnosed with Gender Dysphoria are entitled to access to a greater
standard of health care for their condition than that to which transgender persons
outside of a prison environment are entitled.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
failure to provide gender affirming health care to transgender inmate constitutes
unfair discrimination and harassment.
Refusal to allow transgender inmate to wear feminising clothing, accessories,
cosmetics and toiletries; the failure to use her chosen pronouns constitutes unfair
discrimination and harassment.
JUDGMENT
FISHER J
3
Prologue
1] Ancient civilizations and early philosophical thought were influenced by notions
of natural forces, myth, and polytheistic interventions which accommodated
gender fluidity and a broader and more nuanced view of human sexuality.
2] The movement towards monotheism in the Common Era (or AD) ultimately led to
doctrinal societal frameworks that prescribed binary heteronormative constructs
of gender and sexuality as the norm. These frameworks have served to suppress
non-conforming identities through moral and institutional mechanisms.
3] Contemporary scientific research has since challenged these assumptions. For
example, studies in neurobiology and endocrinology reveal that gender identity is
shaped by a complex interplay of genetic, hormonal, and environmental factors.
4] The extent to which a legal system accommodates gender diversity —through
constitutional protections, statutory frameworks, and judicial interpretation —
serves as a measure of its commitment to equality, dignity, and freedom. In
jurisdictions where, non-conformity is met with punitive responses, including
criminal sanction and social exclusion, the tension between biological diversity
and socio-political orthodoxy becomes starkly evident.
5] Regardless of whether the condition of Gender Dysphoria1 is approached on the
basis that it is an affliction which requires treatment, as the first to fourth
1 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), is the primary reference
manual used by mental health professionals to diagnose mental disorders. It contains the term Gender
Dysphoria and sets specific symptoms and conditions that must be met for diagnosis. It defines Gender
Dysphoria as: a marked incongruence between one’s experienced or expressed gender and
assigned gender, lasting at least six months, and accompanied by clinically significant distress
or impairment in social, occupational, or other important areas of functioning.
or impairment in social, occupational, or other important areas of functioning.
Another classification system, the International Classification of Diseases (IDC) was developed by the
World Health Organization ( WHO) and is used globally in public health systems, hospital discharge
4
respondents approach it in their opposition to this application, or on the basis that
it is a manifestation of the expectation of conformity and lack of acceptance and
respect for a naturally occurring human condition, the result is the same. The
profound misery and distress that is experienced by transgender persons whe n
their ability to exist in state of psychological and emotional integration is denied
them, is accepted by all parties in these proceedings and the examination of
rights proceeds in this context.
Introduction
6] The complainant and applicant for relief - I will refer to her as the applicant -
Nthabiseng Beverly Mokoena, is a transgender woman who is currently an
inmate of Johannesburg Central Prison (the Prison).
7] She approaches this court sitting as an Equality Court as constituted in terms in
terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4
of 2000 (PEPUDA).
8] The applicant alleges that she is being subjected to harassment and
discrimination as contemplated by PEPUDA at the hands of the State and
particularly the first to fourth respondents – who are collectively the Department
of Correctional Services (DCS).
data, and medical aid claims. In its latest version (ICD-11), the concept of gender dysphoria is replaced
with Gender Incongruence and it is not classified as a mental disorder.
5
9] She seeks, essentially, that the DCS be ordered to comply with and enforce its
own Standard Operating Procedures (SOPs) which apply to transgender inmates
and that she receives medical treatment of her diagnosed condition of gender
dysphoria at the expense of the State.
10] The medical relief sought is relatively modest. It is confined to gender affirming
hormonal therapy which has been prescribed to the applicant by her attending
clinicians.
11] The application is brought in the applicant's own interest and also in the public
interest in terms of section 20(a) and (d).
Background
12] The applicant, was assigned male at birth. She began expressing her gender
identity as female from the age of seven.
13] She chose to wear clothes traditionally associated with girls, used makeup, and
identified internally as a girl, despite lacking the vocabulary to articulate this.
14] She grew up in Honeydew in close proximity to h er grandmother and cousins
who reacted negatively to her behaviour. She was often beaten and bullied.
15] The community in Honeydew ostracized her for not conforming to traditional
gender norms.
16] The abuse and isolation extended into her school life, leading her to drop out at
age 17 while still in Grade 6.
6
17] As a teenager, she began spending time in secluded areas and associating with
desperate people who occupied the fringes of society. This led to her involvement
in criminal activities.
18] In 2010 she was arrested and later convicted of murder, robbery, and possession
of illegal firearms, for which she received a life sentence.
19] She was committed to Johannesburg Correctional Centre and initially housed in
Medium A section of the prison . Here she was allowed to express her gender
identity by keeping her hair long and wearing makeup and women’s clothes and
accessories.
20] She was later transferred to Medium C Section, where she alleges, she has faced
harassment and discrimination. She is currently housed in C Single Section
which is a segregated or solitary confinement unit within the broader Medium C
section of the prison.
21] This section is available to accommodate inmates in single-cell accommodation,
used for disciplinary custody, protective custody, or the housing of high -risk
inmates.
22] Inmates who were police officers before their incarceration are among those
regarded as high-risk inmates.
23] It is not disputed that there are former police inmates and other occupants of
single cells in this section. The applicant is not housed in a single cell despite
requests that she be so accommodated.
24] The applicant was diagnosed with gender dysphoria in March 2021 by Dr Frans
Lotz.
7
25] Multiple expert assessments by Dr Gérard Labuschagne, Dr Indhrin Chetty and
Dr Bruno Pauly have confirmed this diagnosis. She has , thus, been prescribed
gender-affirming health care which includes that she receives hormone therapy.
The DCS has refused to provide this treatment.
26] She has, out of desperation , begun self-medicating with oral contraceptives
(Triphasil) to simulate oestrogen effects. This has resulted in some physical
changes. She expresses a strong desire for surgical transition, including breast
augmentation and genital surgery in due course.
27] She does not seek, in terms of this application, that she receive treatment other
than hormone therapy. She accepts that transitioning is a process which requires
multidisciplinary interventions at appropriate stages and she asserts that what is
needed now is that she be allowed to be treated with gender affirming hormone
therapy with a view to complete transitioning.
28] It stands to reason that such hormone therapy must, of necessity, include all
ancillary treatments and protocols which are consistent with the proper and safe
prescription and dispensing of such treatment. This treatment , with all the se
necessary inclusions is referred to in this judgment as “gender affirming therapy”.
29] Despite multiple requests and legal correspondence from her attorneys, Lawyers
for Human Rights ( LHR), the applicant has been denied access to gender -
affirming therapy, with officials in the DCS initially claiming it is “cosmetic” and as
such specifically excluded from her right to health care.
8
30] The Judicial Inspectorate for Correctional Services (JICS ), which has as its
primary function the oversight and monitoring of inmate treatment and detention
conditions, received a complaint from the applicant on 12 April 2023.
31] On making inquiries of Head of the Centre (HOC) JICS was informed that
overcrowding precluded the applicant being accommodated in a single cell and
that the best that could be done for her was that she be accommodated in a
single cell with two cisgender gay men. It seems she is now accommodated with
only one cisgender male.
32] It was acknowledged by the H OC that she had been disallowed visits because
she did not wish to wear the male attire and was not allowed to wear gender
affirming clothing and other accoutrements outside of her section.
33] The DCS is the only opponent to the relief sought. It’s opposing affidavit is made
by the National Commissioner of Correctional Services and is confirmed by a
Director of the Prison.
34] JICS has been joined as the seventh respondent in the proceedings and Access
Chapter 2 Law clinic has been admitted as amicus curiae in terms of Rule 16A.
The relief claimed and the respective positions taken by the respondents
thereto
The applicant’s claim
35] The primary overarching submission by the applicant is that the anti-
discriminatory and harassment provisions of PEPUDA are implicated in the
manner in which she is being treated by the DCS.
9
36] The applicant seeks:
a. orders declaring that the DCS’ failure or refusal to allow her to express her
gender by not allowing her to wear feminising clothing, cosmetics and
toiletries at all times throughout the prison; the misgendering of her in the
failure to relate to her as a woman or using the "she/her" pronoun and the
bullying which she contends for constitutes unfair gender discrimination
under section 8 of PEPUDA and harassment;
b. that the relevant State respondents be ordered to assist her with changing
her gender marker in terms of section 2 of the Alternation of Sex Description
Act No. 49 of 2003 and to assist her with changing her forenames in terms
of section 24 of the Births and Deaths Registration Act No. 51 of 1992.
c. that the DCS accommodate her in a single cell , alternatively with
transgender persons;
d. That the State respondents be ordered to provide her with adequate health
care in the form of gender-affirming hormonal therapy at State expense.
37] The claim for medical relief is sought under PEPUDA and in terms of sections 35
of the Constitution and 12 of the Correctional Services Act 111 of 1998 (the CSA)
both of which oblig e the State to provide “adequate” health care to her at its
expense.
38] She argues that “adequate” health care includes the furnishing of the required
gender affirming therapy and that the failure to provide her with this therapy is
demeaning and creates a hostile and intimidating environment which is related
her gender and specifically her identification as a transgender woman.
10
39] She alleges that, considering her having been diagnosed with gender dysphoria
and the recognition by the State respondents that the condition causes her to be
vulnerable and suffer profound psycho-social and emotional harm, the refusal to
provide the therapy constitutes a form of harassment. Such harassment is, she
argues related to her gender and entails a refusal to accept that the condition
should not be distinguished from other medical suffering of inmates.
40] The applicant relies on September v Subramoney NO and Others 2 for the
proposition that failing to allow transgender inmates to express their chosen
gender identity and failing to treat them in accordance with such gender identity
constitutes unfair discrimination , offends against their section 9 constitutional
rights to equality and impacts on their right to be treated with dignity.
The DCS
41] The DCS does not join issue with the correctness of September. It argues,
however, that it has taken steps to prevent the discrimination found in September
to have taken place in the JHB Central Prison and generally and that, to this end,
it has adopted special SOPs relating , inter alia, to the rights of transgender
inmates. Under these SOPs, officials are required to respect, recognise, and
affirm diverse gender identities and expressions , use appropriate and inclusive
language when interacting with LGBTQI A+3 inmates; avoid derogatory and
hurtful words; not make assumptions about an inmate’s gender identity; and to
ask for and use an inmate’s preferred pronouns.
2 September v Subramoney NO and Others (EC10/2016) [2019] ZAEQC 4; [2019] 4 All SA 927 (WCC)
(23 September 2019).
3 LGBTQIA+ is an inclusive acronym that represents a diverse range of sexual orientations, gender identities,
and expressions. It stands for Lesbian; Gay; Bisexual; Transgender; Queer or Questioning; Intersex; Asexual
11
42] It agrees that , under the regulations to the CPA relating to accommodation of
vulnerable inmates and the SOPs , inmates should be accommodated in cells
appropriate to their gender identity, where feasible and safe.
43] It says that it has deal t with the applicant’s complaints and, to this end , it has
conducted an investigation and taken steps to remedy the infractions found. But
it also says that it denies that the conduct complained of occurred.
44] In relation to the change to the gender marker it concedes that it must facilitate
the application process to be undertaken by the Department of Home Affairs
which is not a party. It makes the point that it readily supports and accommodates
all processes required by inmates in relation to their requirements in relation to
Home Affairs.
45] Its approach to the order sought to the effect that gender affirming health care be
held to be part of the health care offering that the DCS is obliged to provide under
the Constitution and the CSA is somewhat jumbled and confusing. It must be said
that the manner in which the medical relief is framed 4 may be responsible for
some of the confusion. However, what is sought by the applicant is clear: that
the DCS be ordered to provide hormone therapy as part and parcel of its
obligation to provide adequate health care.
46] The case of the DCS in relation to the claim for health care is that there are three
levels of health care provided by the State which are primary health care (which
is a first point of contact with a patient); secondary health care (which provides
more specialized care); and tertiary health care which entails the offering of highly
specialized services).
4 It was sought that gender affirming health care be read into the definition of “primary health care” in the CSA
when there is no such definition.
12
47] The D epartment of Health (D OH) in its explanatory affidavit sets out a broad
overview of the structures that exist it in the national health care system with
reference to gender affirming health care.
48] The D OH explains that gender affirming therapy is available at tertiary -level
public hospitals. The treatment is specialist in nature and there are waiting lists .
It explains that these restraints are most pronounced at the stage of gender
transitioning that entails surgical intervention. It state s that in August 2019,
gender affirming hormones were approved by South African National Essential
Medicine List Committee (NEMLC) for tertiary -level care for the treatment of
gender dysphoria.
49] The DCS argues it is only obliged to provide primary health care at State
expense, that gender affirming health care in the form prayed for by the applicant
is obtained at a secondary or tertiary level and thus , to the extent that this
specialized treatment is required , it must be sourced at the expense of the
applicant.
50] The DCS also argues that the principles of progressive realisation contemplated
in section 27 of the Constitution are relevant limiting factors in relation to its
obligations under section 35(2)(e) of the Constitution and section 12 of the CSA.
51] It argues further that the complexity of the process of diagnosis and treatment is
such that it is not practicable for this form of treatment to be undertaken within
the correctional centre, although it does not explain why this is the case.
52] In relation to accommodation in a single cell, whilst the DCS admits that the
accommodation claimed is prescribed by its SOPs, it states that it is not possible
to accommodate the complainant for two reasons : over-crowding and the fact
that the complainant is the only transgender person in the centre. The suggestion
13
appears to be that the lack of space requires that a minimum of two inmates be
accommodated per cell. But it concedes that inmates who were previously police
officers and inmates who are students are accommodated alone in the same
section where the applicant is being housed.
53] The DCS states that the complainant has “characteri sed her wish to be female
as transphobia and gender dysphoria” and that these conditions are mental
illnesses which “require treatment accordingly”.
54] It invokes the Mental Health Care Act 17 of 2002 in this regard and admits that ,
to the extent necessary, inmates suffering from mental illness are entitled to
specialist psychiatric care.
55] This characterisation of the condition suggest s a lack of understanding of what
gender dysphoria entails and how it is treated. It, however, concedes to an
understanding, at least, that the treatment involves important psychological
considerations which must be sensitively approached.
56] It is important that the applicant has been diagnosed with the condition and does
has not herself “characterised” the condition. This is not seriously disputed.
57] The particular psychological vulnerability of the transgender inmate is
acknowledged generally and specifically by the State respondents with reference
to the complainant’s condition.
58] The DCS argues that a change of the definition in the CSA to include gender
affirming health care would require a redesignation of the DCS health care
centres and an amendment of the CSA. It must be stated up front that there is
no merit in this contention, mainly because there is no such definition. More on
this later.
14
59] A low point in the affidavit of the DCS is the following statement: “there are families
affected by her conduct, she is not a victim, the victims are the families affected by her
conduct, Nevertheless, although she may have lost some of her rights, our Constitution
enjoins the DCS to maintain some of her rights”.
60] The DCS , despite its apparent lack of sensitivity, accepts that the gender
affirming treatment which is recommended to treat the applicant is the standard
form of treatment for persons suffering from gender dysphoria.
61] It also, now, accepts in these proceedings that the treatment is not “cosmetic” in
nature having, initially, characterised it as such.
62] Essentially then, the DCS denies that it has unfairly discriminated against the
applicant. In the alternative to this denial, it raise s that the discrimination has a
legitimate purpose and that there are no less restrictive means to achieve its
purpose which is to preserve the safety and security of the complainant. In the
words of PEPUDA its defence is that the discrimination is “fair”.
The DOH
63] The sixth respondent, the Department of Health (DOH) does not oppose the
application. It provides a n overview of the health care structures that exist in
South Africa generally and in relation to gender affirming health care.
64] It states that the health services are provided to the public through a tiered system
that is structured to ensure access to services at different levels of need and
complexity and that these levels of care are generally categori sed as primary
health care which is the first point of contact for individuals within the health care
system generally at clinics; secondary health care which provides specialist
15
services and more advanced care at district and regional hospitals on a referral
basis from primary structures and tertiary health care which is specialised care
provided at central hospitals and academic or teaching hospitals and which is,
generally accessed on referral from the secondary tier.
JICS
65] The seventh respondent, JICS has provided valuable background information
both from a general and case specific perspective.
66] In terms of section 85(2) of the CSA, JICS' primary statutory mandate is to
facilitate the inspection of correctional centres and remand detention facilities so
that the Inspecting Judge - currently retired Constitutional Court justice Edwin
Cameron - may report on the treatment of inmates, the conditions under which
they are detained in these facilities, and any corrupt or dishonest practices there.
It does this by , inter alia, discussing complaints with the Head s of Correctional
Centres and monitoring how these complaints have been dealt with.
67] From the perspective of JICS, it is noted that despite the adoption of SOPs it has
observed that the rights of LGBTQIA+ inmates are frequently violated in practice.
It reports that JICS has received complaints from LGBTQI A+ inmates alleging
discrimination and misgendering , assault, denial of access to gender -affirming
health care, and cruel, inhuman, and degrading treatment.
68] JICS has identified systemic contributors to such violations which include lack of
compliance by DCS with its own SOPs and lack of sensitivity and awareness
among officials.
---
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69] I note that an investigative report put up by the DCS in this application makes the
recommendation that the LGBTQIA+ be brought to the attention of officials. This
suggests that there may be a lack of sensitisation of officials on the subject.
70] JICs opines that, properly implemented, the SOPs have the potential to ensure
dignified, equal treatment for LGBTQI A+ inmates. JICS has documented
successful implementation at facilities such as Durban Medium B Correctional
Centre, where a dedicated LGBTQIA+ unit has fostered a respectful and affirming
environment.
Issues arising
71] From these respective positions the following issues arise for determination by
this court:
a. whether the applicant has made out her case for discrimination and
harassment and , linked to this , whether the DCS has shown that the
discrimination which has been established is fair, that it has a legitimate
purpose and that there are no less restrictive means to achieve its purpose
which is to preserve the safety and security of the applicant.
b. whether hormone treatment for the condition of gender dysphoria
constitutes “adequate” treatment under the Constitution and the CPA.
72] The process of evaluation under PEPUDA takes place in the context of the
principles which relate to the operation of respective onuses of proof. I turn now
briefly to explain the operation of these onuses.
The onus of proof under PEPUDA
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73] Section 13 of PEPUDA requires only that the complainant makes out a prima
facie case of discrimination on one or more of the prohibited grounds of race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language, birth
and HIV/AIDS status (the listed grounds) or on any other ground where the
discrimination complained of causes or perpetuates systemic disadvantage,
undermines human dignity or adversely affects the equal enjoyment of a person's
rights and freedoms in a serious manner that is comparable to discrimination on
a listed ground (a comparable ground).
74] Once an applicant has established, prima facie, that there has been
discrimination on one or more of such grounds then the respondent must prove,
that such discrimination did not, in fact, take place as alleged or that the conduct
is not based on one or more of the listed grounds or a comparable ground.5
75] If, the discrimination on a listed or comparable ground is established to have
taken place then it is unfair, unless the respondent proves it is fair.6
76] Thus, in sum , when it is established by an applicant that there has been
discrimination on a listed or comparable ground then the respondent must prove
that the discrimination is fair.
77] Section 11 of PEPUDA probits harassment which is defined to mean unwanted
conduct which is persistent or serious and demeans, humiliates or creates a
hostile or intimidating environment or is calculated to induce submission by actual
or threatened adverse consequences and which is related to sex, gender or
5 Section 13(1) of PEPUDA
6 Id Section 13(2)
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sexual orientation, or a person's membership of a group identified by one or more
of the prohibited grounds or a characteristic associated with such group.
78] The applicant’s complaint falls within the definition of harassment. The subjecting
her to confinement with cisgender males , albeit that they are queer , when the
DCS acknowledges that this is a source of deep distress which is caused by her
identification as a woman and is disproportionate to mere inconvenience of
sharing a confined space serves to humiliate her and profoundly impacts her right
to privacy.
79] The refusal or neglecting to acknowledge the applicant’s gender identification by
misgendering her is experienced by her as hostile and the limitations placed on
the areas of the prison where the applicant can dress and groom herself in
feminine attire is experienced by her as hostile and calculated unreasonably to
induce her submission to a condition which she finds intolerable.
80] She argues that the conduct she contends for constitutes unfair discrimination
under section 8 of PEPUDA which deals with gender discrimination.
81] In September7 the respondent argued against the applicant’s submission that the
definition of gender as a listed ground "includes transgender identity". It argued
that the Constitution does not prohibit unfair discrimination on the ground of
transgender identity, but only on the grounds of gender and sex.
82] In her assessment of the kind of discrimination which the complaint entailed,
Fortuin J was careful to emphasize that her judgment should not be read to
7 September supra n.2 at para 103
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suggest that the binary model used in South Africa should be expanded to include
a third gender.8
83] Much has been said in foreign jurisdictions on the application of this binary
gender model. Fascinating as the subject is, an analysis of these principles is
beyond the scope of this judgment.
84] The fact is that the relief sought by the applicant is not dependent on a finding
that the applicant is being subjected to discrimination of the ground of gender ; it
suffices that she establish that the conduct is such that it relates to gender and
causes and perpetuates disadvantage in the prison system; that it undermines
her dignity; and adversely affects the equal enjoyment of her rights and freedoms
in a serious manner that is comparable to gender discrimination.
85] Once she has done so, the DCS bears the onus to prove that the discrimination
is fair.
Discussion
86] The diagnosis of gender dysphoria is admitted as is the fact that this condition is
characterised by profound distress. It is , furthermore, not in dispute that this
distress is worsened by the privations suffered by the systemic withholding from
her or limiting her rights to gender affirming expression and accommodations,
including treatment for the condition and accommodation in a single cell.
87] To my mind, the applicant has established the discrimination and harassment
contended for.
8 Id para 159.
20
88] The DCS does not dispute that not allowing her to wear the clothing, cosmetics
and toiletries that express her gender identity; the misgendering of her in the
failure to relate to her as a woman or using the "she/her" pronoun would
constitute discrimination and or harassment if it were not shown by it to be fair.
89] The approach of the DCS is contradictory. It both concedes that it has received
complaints from the applicant which it has had to deal with through its disciplinary
and other formal structures but seems to suggest that it has fulfilled its
responsibilities to the applicant and , generally, simply by the adoption of the
SOPs.
90] JICS’ explanatory affidavit notes that , despite the adoption of the SOPs it has
observed that the rights of LGBTQIA+ inmates are frequently violated in practice
because the SOPs are not enforced. As I have said, the DCS’s own investigations
have suggested a lack of awareness in relation to the SOPs and the DCS ’
responses to JICS’ queries themselves admit of failure to comply with the SOPs.
91] The DCS alleges that it is entitled to place restrictions on where the applicant is
entitled to wear gender affirming attire and make -up for what it claims are
“security reasons ”. However , it provides no details as to what the security
concerns entail or how they can be alleviated.
92] It is difficult to conceive of any dangers which are not taken account of on the
basis that the the applicant and other inmates are properly supervised whilst
outside of their sections. The applicant, for her part, states that she perceives no
threat to her safety outside of the confines of her section.
93] The DCS concedes that it is obliged to facilitate the formal interaction with the
Department of Home Affairs relating to changing her recorded gender marker in
terms of section 2 of the Alternation of Sex Description and Sex Status Act 49 of
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2003 in due course, but it does not agree that this entails that it provides the
health care sought at state expense. It agrees also that it is obliged to facilitate
the applicant’s approach to The Department of Home Affairs to assist her with
changing her forenames in terms of section 24 of the Births and Deaths
Registration Act 51 of 1992. It denies that it has been obstructive in facilitating
this access and it explains that it facilitates such access to all inmates who require
it.
94] To my mind , the undertaking by the DCS to facilitate such access to the
Department of Home affairs suffices. The applicant is represented by attorneys
and will have medical practitioners assisting her as well.
95] In relation to her accommodation in a single cell, alternatively with transgender
inmates, it is conceded by the DCS that single cells are made available to
accommodate students and inmates who were police officers.
96] There is no basis established by the DCS for the inability to provide single
accommodation in respect of the applicant. There is also no reason why her
needs should not be prioritized over those of others who are accommodated in
single cells.
Conclusion on fairness
97] The limitations placed on the applicant by the DCS are, to my mind, unreasonable
and obstructive. They evidence a cynical disregard for the rights of the applicant
as they are framed under the DCS’ own SOPs.
98] I accept the evidence of JICs that, despite the SOPs , it has observed that the
rights of LGBTQIA+ inmates are frequently violated in practice. I accept also that
22
the DCS is able to create an environment which is conducive to fairness by simply
observing and enforcing the SOPs.
99] The applicant has , to my mind , established that because of her transgender
status, her treatment at the hands of the DCS and the resultant symptoms of
gender dysphoria, she is subject to systemic disadvantage; her dignity is
undermined and her enjoyment of her rights and freedoms are seriously
compromised in a manner that is, at least, comparable to gender discrimination.
100] The DCS has, to my mind, not established that the treatment of the applicant is
fair.
101] The refusal to provide gender affirming hormone treatment is discriminatory in
relation to her condition which relates to her gender identity and, thus, is properly
dealt with under PEPUDA.
102] The defence raised is that the gender affirming health care falls outside of the
obligation to provide adequate health care under the Constitution and the CSA.
103] The fact that the DCS acknowledges that the therapy sought is standard to treat
a condition which it does not dispute the applicant suffers from, and yet withholds
such treatment suggests a disregard for the severity of the distress which the
applicant is enduring.
104] The withholding of gender affirming health care amounts to unfair discrimination
if it is refused when the State has the obligation to provide it.
105] The question whether the right to adequate medical treatment includes the right
to gender affirming health care is also a subject on its own. I turn now to deal with
this issue.
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The right to adequate health care and gender affirming treatment
106] Section 35(2)(e) of the Constitution guarantees that “everyone who is detained,
including every sentenced prisoner, has the right to conditions of detention that
are consistent with human dignity, including at least exercise and the provision,
at State expense, of adequate medical treatment.” (Emphasis added)
107] The CSA puts into operation this constitutional imperative by imposing a duty on
the DCS to provide adequate health care.
108] The DCS does not cogently raise any impediment to the furnishing of hormonal
treatment based on limited resources or otherwise. It merely argues that the
applicant is not entitled to such treatment based on its argument that it need do
no more tha n provide primary health care services which gender affirming
hormone therapy is not.
109] Brand J, as he was, in van Biljon v Minister of Correctional Services 9, examined
the right to adequate health care in the context of treatment of inmates in the
HIV/AIDS epidemic.
110] The court found that all that it is necessary for the applicant to establish is that
anything less than a particular form of medical treatment would not be adequate.
Once this is established the applicant has the constitutional right to that form of
treatment.10 I am in agreement with this finding and it applies with equal force in
this case.
9 Van Biljon v Minister of Correctional Services 1997 (4) SA 441 (C).
10 Id para 60
24
111] In van Biljon there were questions of the State’s ability to roll out a treatment
programme of the kind envisaged from a costs and resources perspective. The
court held that whilst, in principle, the right to adequate health care by inmates
was absolute in that it was not limited concepts such a progressive realization as
in the case of rights in section 27 , the ability of the State to provide the health
care was not entirely irrelevant.
112] I do not accept that a case has been made out by the State that the ability to
provide the gender affirming care sought is affected by lack of resources or ability.
The DCS simply argues that the treatment is not of a type or category which is
routinely made available to inmates on the basis of its invocation of the three-tier
health care system argument.
113] The argument on the primary healthcare limitation goes as follows: section 12(1)
of the CSA prescribes an internal limitation of access only to primary health care
services; the gender affirming health care prayed for does not fall into the
category of primary health care; thus, the applicant is not entitled to gender
affirming health care.
114] The DCS’ resort to this primary health care limitation is fallacious on two fronts:
First, it entails reliance on section 12(1) which is not currently in operation;
Second, even if section 12(1) were in operation, properly construed, it does not
impose a limitation of the right of inmates to only primary health care services on
the facts of this case or generally.
115] Section 12(1) does not state that only primary health care services need be
offered, it merely makes reference to “primary health care principles” which is not
defined. Neither, for that matter is, “primary health care services”.
25
116] I deal with each of these fallacies in the argument below.
Section 12(1) is not in operation.
117] Although the parties have dealt with section 12 of the CSA on the basis that the
whole of it is operational, this is not the case.
118] The National Health Insurance Act 20 of 2023 (NHIA) which brings about
amendments to the CSA, although it was assented to on 15 May 2024 and
published in the Government Gazette on 16 May 2024 , has not, as of yet, been
proclaimed to be in force in relation to the amendments to section 12 of the CSA.
The NH IA is to take effect by staged proclamation and the stage of
implementation of the amendments to section 12 of the CSA has not been
reached.
119] Section 12 of the CSA reads as follows but the stricken parts of the section are
not yet proclaimed:
“12 Health care
(1) The Department must provide, within its available resources, adequate health care
services, based on the principles of primary health care, in order to allow every inmate
to lead a healthy life.”
(2) (a) Every inmate has the right to adequate medical treatment but no inmate is
entitled to cosmetic medical treatment at State expense.
(b) Medical treatment must be provided by a correctional medical practitioner, medical
practitioners or by a specialist or health care institution or person or institution identified
by such correctional medical practitioner except where the medical treatment is
provided by a medical practitioner in terms of subsection (3).
26
(3) Every inmate may be visited and examined by a medical practitioner of his or her
choice and, subject to the permission of the Head of the Correctional Centre, may be
treated by such practitioner, in which event the inmate is personally liable for the costs
of any such consultation, examination, service or treatment.
(4) Every inmate should be encouraged to undergo medical treatment necessary for
the maintenance or recovery of his or her health.
120] In sum, only the following currently operative principles emerge from section 12
of CSA:
• Every inmate has the right to adequate medical treatment but no inmate is
entitled to cosmetic medical treatment at State expense.
• Medical treatment must be provided by a correctional medical practitioner,
medical practitioner, medical practitioners or by a specialist or health care
institution or person or institution identified by such correctional medical
practitioner.
• Every inmate should be encouraged to undergo medical treatment necessary
for the maintenance or recovery of his or her health.
121] Thus, the section specifically makes provision for specialist health care to be
provided and requires that inmates be encouraged to undergo medical treatment
necessary for the maintenance their health.
122] The applicant has, to my mind, established that the treatment prescribed to her
and recommended by the clinicians attending to her condition is necessary to
maintain her health.
Even if it were operational, section 12(1) does not serve to limit the obligation to
provide gender affirming health care.
27
123] This is because a reference to the obligation to provide health care “in
accordance with primary health care principles” cannot be read as limiting the
right to adequate health care.
124] The applicant has asked that this court declare that hormone treatment falls
within the definition of primary health care in the CSA . The DCS resists this
declaration.
125] However, these respective positions add a non-existent hurdle to the overall
dispute. There is no such definition in the CSA.
126] The National Health Act, 2003 Act 61 of 2003 (NHA) establishes a national health
system aimed at achieving equitable and quality health services for all, including
inmates. The DOH has set out , in broad overview , the nature and scope of
services provided by the State.
127] Sections 2(a)(ii) and 21(2)(b)(vi) of the NHA explicitly require the State to ensure
that such health services are extended to persons in detention.
128] Primary Health Care Services are defined in the N HA to mean such health
services as may be prescribed by the Minister to be primary health care services.
129] Indeed, the NHA , far from restricting the type and scope of health services,
provides for the creation of holistic system which is accessible to all. No case is
made out for the Minister having made any prescription in relation to the limitation
which is argued for by the DCS.
130] There certainly is no statutory provision which can be construed as limiting
access to the health system in the case of inmates to the primary tier of that
system. On the contrary, inmates are singled out in the Constitution and the CSA
28
as having absolute rights to the health care that is needed by them because of
their inherent vulnerability.
131] All the, as yet, un-proclaimed section 12(1) provides for is that the DCS must
provide, “within its available resources, adequate health care services, based on
the principles of primary health care, in order to allow every inmate to lead a
healthy life”.
132] It seems that the DCS has seized on this provision for its argument that only
primary health care has to be provided to inmates. This is a central fallacy in its
case.
133] “health status ” is defined in the regulations under the CSA to mean the
“assessment of the health of a person in terms of the absence of disease or
disability and also of personal health habits, family history, occupational and
environmental conditions and influences or a combination thereof which affect
long-term health”.
134] Regulations under the CSA define ‘primary health services’ to mean “universally
accessible, first-level contact, clinic-based health services essential to enable the
prisoner population to acquire, maintain and promote health”.
135] These definitions go no way to supporting the proposition that such services are
all that inmates are entitled to.
136] On the contrary; “Health care service” is defined in CSA as: “All services providing
any or all of preventive, promotive, curative or rehabilitative services.” (Emphasis
added)
29
137] It is also not even established for that matter that the treatment sought by the
applicant is not available at a primary health care level in the DOH once there
has been a diagnosis of the condition and a prescription of a course of treatment.
138] At common law it has been held repeatedly that prisoners retain all basic rights
not temporarily taken away or necessarily inconsistent with being prisoners.
139] As long ago as 1912, in Innes J in Whittaker v Roos & Bateman; Morant v Roos
& Bateman11 dealt as follows with a contention on behalf of the prison authorities
that a prisoner may only claim such rights as the prison regulations confer:
“(T)he directly opposite view is surely the correct one. They were entitled to all their
personal rights and personal dignity not temporarily taken away by law, or necessarily
inconsistent with the circumstances in which they had been placed.”12
140] This principle was restated by Corbett JA in Goldberg and Others v Minister of
Prisons and Others 13 where it was explained that, although there are
infringements which incarceration necessarily makes on a prisoner's rights,
“there is a substantial residuum of basic rights which he cannot be denied.”
141] This residuum principle was approved and adopted in van Biljon.14
11 Whittaker v Roos & Bateman; Morant v Roos & Bateman 1912 AD 92
12 Id at 122-123.
13 Goldberg v The Minister of Prisons 1979 (1) SA 14 (A).
14 Van Biljon n. 8 supra at para 41 to 49.
30
142] In my view, in a prison environment, gender dysphoria is likely to require more
complex treatment protoc ols than those required by the general populace who
suffer from the condition. The facilities of freedom of movement and expression
which are, obviously, palliating factors are unavailable to an inmate.
143] To my mind, t hese privations are such that transgender inmates, such as the
applicant are entitled to a ccess to a greater standard of health care for their
condition than that to which transgender persons outside of a prison environment
are entitled.
144] It was held in van Biljon15 that the State owed a higher duty of care to HIV positive
prisoners than to citizens outside prison suffering the same affliction. To my mind,
a similar position maintains in this case.
145] The Constitution itself draws a distinction between prisoners and those outside
prison on the basis that the rights of prisoners are, in principle, absolute, and not,
as contended for by the DCS, subject to internal limitations16. Furthermore, no
case is made out by the DCS as to the impossibility of the immediate realisation
of this prescribed treatment for the applicant’s diagnosed condition.
146] In Minister of Correctional Services v Lee17 the court held:
“A civilised and humane society demands that when the state takes away the autonomy of an
individual by imprisonment it must assume the obligation to see to the physical welfare of its
prisoner.”
15 Id at para 52
16 Id at para 49
17 Minister of Correctional Services v Lee (2012 (3) SA 617 (SCA),
31
147] The fact that the DCS acknowledges that the therapy required is the standard to
treat the condition and that it does not raise with any cogency that its available
resources prevent it from making the treatment available , suggests an inherent
disregard of the severity of the distress suffered which, to my mind, is based on
a failure to accommodate the applicant’s gender identity.
148] Thus, I find that adequate health care as envisaged under the Constitution and
the CSA includes the providing of hormone replacement therapy and all the
supportive and associated treatment that this therapy entails and that the DCS is
obliged forthwith to take all steps to accommodate access to such treatment at
the cost of the State.
149] It was argued behalf of the applicant that, if it is found that she is entitled to such
health care, such entitlement would endure at every stage of restriction to which
she was subjected arising from her conviction and sentencing, including periods
of parole and other forms of incarceration. This was not disputed by the DCS.
Costs
150] The applicant seeks costs against the DCS. To my mind, given that the litigation
is under PEPUDA and concerns public interest litigation which is foundational to
State obligations generally, costs are unwarranted.
Order
151] I grant an order in the following terms:
1. The DCS is ordered to allow the applicant to wear the clothing, accessories,
cosmetics and toiletries that express her gender identity at all times throughout
the Johannesburg Correctional Centre and to ensure that the applicant will be
addressed as a woman or using the "she/her" pronoun and to take all
reasonable steps to enforce the SOPs as they relate to transgender inmates,
including by means of appropriate disciplinary interventions.
2. The DCS is ordered to accommodate the applicant in a single cell or in the
same cell w ith inmates of the same gender identity.
3. The State is ordered to provide the applicant w ith gender affirming health care
in the form of hormonal treatment and all other treatments and assessments
w hich are essential to the prescription, adm inistration and support of a
transgender person undergoing such hormona l treatment.
4. Such health care is to be provided during all forms of restriction to w hich the
applicant is subjected arising from her conviction and sent cin , eluding
periods of parole and other forms of lim itation on her freedom.
32
J
FISHER J
HE HIGH COURT
JOHANNESBURG
This Judgment wa s handed down electronically by circulation to the
parties/their legal representatives by email and by uploading to the electronic
file on Ca se Lines. The date for hand-down is deemed to be 1 O November 2025.
Heard:
Delivered:
12 September 2025
10 November 2025
33
APPEARANCES:
Applicant’s counsel: Adv L Mokgoroane
Applicant’s Attorneys: Lawyers for Human Rights
Counsel for the First to Fourth
Respondents: Adv S Poswa-Lerotholi SC
Adv Z Mokatsane
Attorneys for the First to Fourth
Respondents: State Attorney, Johannesburg
Counsel for the Seventh Respondent: Adv B Mazibuko
Attorneys for the Seventh Respondent: Fairbridges Weitherm Becker
Attorney for the Amicus Curiae: Webber Wentzel Attorneys