SC.
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
RE POR TAB LE: N O
O F IN TE RES T TO O THER JUDGES: NO
E SED: N O
C ase number: 2022-019404
1 O December 2025
SJG r.::i,(TURE DAT E
MINISTER OF CORRECTIONAL SERVICES
And
MALELELE PHINEAS MAPOTE
In re:
MALELELE PHINEAS MAPOTE
And
MINISTER OF CORRECTIONAL SERVICES
ORDER
Applicant
Respondent
Applicant
Respondent
The application for leave to appeal is dismissed w ith costs, including the costs of
counsel, w here employed on Scale C.
JUDGMENT
This judgment has been delivered by uploading it to the Court online digital data base
of the Gauteng Division, Pretoria and by email to the attorneys of record of the parties.
The date of the delivery of the judgment is deemed to be 10 December 2025.
Chabedi AJ
Introduction
[1] This is an application by the Minister of Correctional Services for leave to
appeal the whole judgment and order of this Court granted on 24 October
2025 in an application to rescind and set aside two orders granted under the
above case number in his absence by the Honourable acting Justice Leso on 12 July
2023, and the Honourable Justice Nyathi on 3 November 2023 , in favour of the
respondent.
[2] The rescission application was brought in terms of Rule 31(2) of the Uniform
Rules of this Court, alternatively, Rule 42, alternatively, under common law and
it was opposed by the respondent.
[3] It is important to repeat the background history of this case for proper context.
The respondent is a prisoner currently serving a life sentence for murder in a
Johannesburg Correctional facility, under the Department of Correctional
Services since 22 March 2005.
[4] In the main application, the respondent sought an order directing the Minister
to release forthwith, the respondent and a group of long term prisoners whom,
it was alleged, qualified for parole by virtue of having served a third of their
imprisonment term in terms of the Correctional Services Act 8 of 1959.1 The
respondent acted as a representative of this class of individuals and sought
first, an order classifying the main application as a class action and that he is
designated as the representative of the class, and second, an order directing
the Minister to arrange for the release of all members of the class on parole
forthwith.
[5] The Minister opposed the main application but failed to file an answering
affidavit. On 12 July 2023 Leso AJ granted an order, in the absence of the
Minister, certifying the main application as a class action and designating the
respondent as the representative of the class of long -term prisoners. On 3
November 2023, Nyathi J ordered the release forthwith of the class of
individuals, including the respondent.
[6] The Minister’s application to rescind and set aside Leso AJ’s certification order
of 12 July 2023, and Nyathi J’s release order of 3 November 2023 , was
dismissed with costs by this court on 24 October 2025. The Minister now seeks
leave to appeal the whole judgment and orders of the court.
[7] The application for leave to appeal was filed out of time by some four days .
The applicants filed an application for condonation, which was not opposed.
Condonation is therefore granted, in the interests of justice.
Grounds of appeal
[8] The Minister has raised five (5) grounds of appeal. I point out that the grounds
of appeal presented on behalf of the Minister were not confined to the three
possible bases on which one may obtain rescission of a judgment, namely,
under rules 31(2)(b) and 42(1), and under common law. Counsel for the
Minister accepted however that rule 31(2)(b) does not apply , these being
application proceedings.
1 Read with Phaahla v Minister of Justuce and Correctional Services 2019 (2) SACR 88.
[9] For the rest, argument was made to sustain both a rescission under rule 42
and in common law, indiscriminately. As discussed later in this judgment, parts
of this argument raised new issues not initially presented as part of the
Minister’s case in the rescission application and some parts, constituted re -
argument of the rescission application itself. The argument also generally
vacillated between criticism of the judgment sought to be appealed against,
and Leso AJ’s order. I deal with the grounds of appeal in sequence hereunder.
[10] The first ground of appeal is that the court did not give due regard and
sufficient weight to the explanation given for the Minister’s absence, being that
the respondent’s attorneys failed to invite the State Attorney on Caselines and
the State Attorney lacked knowledge of the developments in the case
including set down of the hearings, hence the Minister’s absence.
[11] It was argued on behalf of the Minister that this was an adequate and
reasonable reason, and the judgment was silent on the respondent’s answer
to this explanation, which was a bare denial.
[12] In augmentation of this argument counsel for the Minister argued that Leso AJ
ought to have been made aware of the Minister’s notice to oppose, at the very
least, a nd should have considered the question whether in those
circumstances the matter was properly set down as unopposed. It was argued
that as such, the order would not have been granted.
[13] This argument is new and raised for the first time in the application for leave
to appeal. It was not contained in the Minister’s application for rescission and
did not form part of his argument at the hearing of this matter. The same goes
for the argument that the respondent deliberately held back the invitation and
only invited the Minister to Caselines after the two orders have been granted,
therefore acted improperly. It does not make sense why these facts were
therefore acted improperly. It does not make sense why these facts were
simply not included in the founding affidavit filed in the rescission application,
instead of being raised for the first time in the application for leave to appeal
from the Bar. As highlighted by counsel for the respondent and stated in the
judgment, there was also no replying affidavit to counter anything stated by
the respondent in his answering affidavit.
[14] Not only were these arguments a re-argument of the Minister’s case, because
they are new, there are no findings on these issues in the judgment, based on
which a further reconsideration by another court could yield a different
outcome. There was thus no basis to find that there was an error patent the
orders of Leso AJ and Nyathi J that warranted a rescission in terms of rule 42.
[15] In the judgment the court noted the Minister’s reason for his absence as the
lack of invitation to Caselines as above, however, held that it was wholly
inadequate as it did not properly account for the period when the notice to
oppose was filed in March 2023 and July 2023 when Leso AJ’s order was
granted, and November 2023 when Nyathi J’s order was granted.
[16] As the court found, beyond the issue of failure by the respondent to invite the
State Attorney on Caselines, there was no other explanation of the Minister’s
delay in filing an answering affidavit, or any steps taken on his behalf to secure
an invitation on Caselines or follow up on the developments of the case to
ensure that it is defended. Nothing of this sort was set out in the founding
affidavit supporting the rescission of judgment.
[17] It was stated on behalf of t he Minister in the founding affidavit that
considerable amount of time was taken collating information on the members
of the class, however, there was no explanation as to what then happened
after this process or when this process was completed . There was no
explanation, at the very least , why an answering affidavit was not filed after
this process. It was not even the Minister’s case that an answering affidavit
was prepared but could not be filed on account of lack of invitation to
Caselines. The purported answering affidavit was only filed in February 2024,
approximately two months after the two orders have been granted.
[18] To meet the requisite standard of reasonable and acceptable explanation for
the delay for purposes of rescission, a full and adequate explanation of how
the default came about must be given.
[19] The second ground of appeal is that the Minister has prospects of success as
contained in the answering affidavit filed in respect of the main application,
and the court was incorrect in adopting the approach that the content of that
affidavit ought to have been incorporated in the founding affidavit for the
rescission of application, because the Minister had requested the court to read
that affidavit as if it has been specifically incorporated in the rescission
application.
[20] The answering affidavit was only filed after the granting of the orders sought
to be rescinded. The affidavit was irregular and the court found as such. The
court had regard to the content of this affidavit to assess whether there could
be a bona fide defence on the part of the Minister in the interest of fairness.
Although counsel for the Minister on the one hand protested this approach, it
was submitted on the other that the answering affidavit fully sets out the
Minister’s defence.
[21] One of the main grounds of opposition advanced in the answering affidavit
was that to the extent that the respondents complained that the Minister failed
to make the decision to grant parole to members of the class, the Minister has
made the decisions which were communicated to the class members. These
decisions were made between March and April 2023, with the result that some
of the members of the class were released in June 2023.
[22] The court was therefore correct in assessing the affidavit and finding firstly,
that the Minister, represented by the State Attorney, had sufficient knowledge
of the application well before the certification order of 12 July 2023, and
subsequently the release order of 3 November 2023, but chose to not take
any steps to file an answering affidavit, and second, that the granting of parole
any steps to file an answering affidavit, and second, that the granting of parole
and releasing some of the members of the class, as he did, undermined any
attempt by the Minister to show a bona fide defence, which prima facie carries
some prospect of success. The submissions by counsel for the Minister that
the granting of parole and releasing of the affected members of the class had
nothing to do with the main application, and thus the court’s findings were pure
speculation, and conjecture are simply contradicted by the very same affidavit
sought to be relied on to show bona fide defence. These submissions are
therefore rejected.
[23] The third ground of appeal is that there was an irregularity on the part of the
respondents on the grounds that they filed two sets of heads of argument for
the same case, and the court ought to have found that this irregularity militated
against the respondents, in the same manner as it did the irregularities it found
on the part of the Minister on the authority Colyn.2 There is no merit to this
argument and it is therefore rejected. More so because counsel for the
Minister argu ed instead, that there were two answering affidavits, without
referring to any findings in the judgment on which the complaint was based .
When quizzed whether these affidavits were filed in the rescission or in the
main application, a clear response was not forthcoming.
[24] Fourth, the Minister complained that the court erred in finding that the granting
of parole by the Minister to some of the members of the class after the main
application was launched was evidence first, of his knowledge of the case ,
and second, that it undermined the existence of a bona fide defence, is pure
conjecture and speculation and not based on fact. This ground is similar in
essence to the second ground already discussed above . For the same
reasons as above, it also fails.
[25] Lastly, as regard the fifth ground, it was argued that it is in the interests of
justice to grant rescission so as to allow the main application to be heard on
its merits because the release of prisoners on the strength of an order obtained
by default may have the potential of endangering the public and therefore the
by default may have the potential of endangering the public and therefore the
court ought to have had regard to this eventuality as a bona fide defence. This
2 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 4A-B.
is a new issue, which did not form part of the Minister’s case in the recission
application.
[26] Whether the order s sought to be rescinded if implemented would result in
endangering the public, is a factual enquiry requiring evidence, which
evidence was not submitted by the Minister in the application for rescission.
This ground also fails.
Conclusion
[27] In MEC for Health, Eastern Cape v Mkhitha ,3 the SCA set a more stringent
test for an applicant for leave to appeal. It stated that:
“Once again it is necessary to say that leave to appeal, especially to this court,
must not be granted unless there truly is a reasonable prospect of success.
Section 17(1) (a) of the Superior Courts Act 10 of 2013 makes it clear that
leave to appeal may only be given where the judge concerned is of the opinion
that the appeal would have a reasonable prospect of success; or there is
some other compelling reason why it should be heard.
An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonable prospect or realistic chance of success on appeal.
A mere possibility of success, an arguable case or one that is not hopeless, is
not enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal.”
[28] In Ramakatsa and Others v ANC ,4 the SCA held that, “ Compelling reason
would of course include an important question of law or a discreet issue of
public importance that will have an effect on future disputes.”5
[29] This application fails on these two scores for all of the reasons discussed
above.
3 MEC for Health, Eastern Cape v Mkhitha 2016 JDR 2214 (SCA) at paras [16] - [17].
4 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31.
5 At para [10].
[29] Accordingly, I find that there are no reasonable prospects of success and there
are no compelling reasons w arranting the granting of leave to appeal. I further
find that there are no reasons w hy costs should not follow the course and w hy
the costs of counsel w here employed should not be recovered.
[22] In the prem ises, I make the follow ing order:
22.1 The application for leave to appeal is dismissed w ith costs, including the
costs of counsel w here employed on Scale C .
APPEARANCES
For the Applicant: T Mphahlw a
M Mhlanga
State Attorney Pretoria
For the respondent: M Marweshe (Attorney)
M Mthim khulu
Marweshe Attorneys
Sandton, Johannesburg
Date of hearing: 9 December 2025
Date of Judgment: 1 0 December 2025
MPD Chabedi
Acting Judge of the High Court
Gauteng Division, Pretoria