IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REP O RTAB LE :}¥/ NO
(2) OF INTERES T TO OT HER JUDGES : ~/NO
(3) REVISED
DATE : 4 Decembe r 2025
In the matter between:-
MALLELE PHINEAS MAPOTE
AND
MINISTER OF CORRECTIONAL SERVICES
MINISTER OF POLICE
NATIONAL POLICE COMMISSIONER
CASE NO: 019404/2022
HEARD ON: 25 November 2025
JUDGMENT: 4 December 2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
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JUDGMENT
Strijdom J
INTRODUCTION
1. This is an urgent application in which the applicant seeks an order to declare
the first respondent in contempt of a Court order, and to impose a sentence of
12 months imprisonment which is suspended on condition that the first
respondent complies with the Court order dated 3 November 2023 within 10
days of the service of this order.
BACKGROUND
2. The applicant and all members of class are prisoners currently serving a life
sentence for murder and other various crimes in a Johannesburg Correctional
facility, under the Department of Correctional Services.
3. In January 2023, the applicant pursued an application against the first
respondent ("Minister") for an order directing him to release forthwith a group
of long-term prisoners whom, it was alleged, qualified for parole by virtue of
having served a third of their imprisonment in terms of the Correctional Services
Act 8 of 1959.
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4. For these purposes, the applicant sought an order in terms of which the
application is classified as a class action and that he is designated as the
representative of the class of long-term prisoners (the "main application"). The
Minister filed a notice to oppose the main application, however failed to file an
answering affidavit.
5. On 12 July 2023, Justice Leso AJ granted an order in the absence of the
Minister, certifying the main application as a class action and designating the
applicant the representative of the class off long-term prisoners (the
"certification order").
6. On 3 November 2023, Justice Nyathi once again in the Minister's absence,
confirmed the certification and granted an order directing the Minister to
arrange for the release of all members of the class on parole forthwith (the
"release order").
7. In January 2024 the applicant brought an urgent application for an order
compelling the Minister and officials of the Department of Correctional
Services, with control over the facilities where the applicant and members of
the class were incarcerated to comply with Nyathi J's order and release on
parole or arrange the immediate release on parole of the applicant and all
members of the class. The application was struck from the roll.
8. The respondent launched an application seeking to rescind and set aside Leso
AJ':s certification order of 12 July 2013 , and Nyathi J's release order of 3
November 2023.
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9. The recission application was dismissed by Cahbedi AJ on 24 October 2025.
10. The application is opposed by the first respondent.
11 . At the commencement of the application, I ruled that the application is urgent.
ISSUES IN DISPUTE
12. It was submitted by the first respondent that the Nyathi order is the subject of
an application for recission of judgment and whilst the latter was dismissed by
Chabedi AJ on 24 October 2025 ("Chabedi judgment"), it remains the subject
of a pending application for leave to appeal.
13. It was further submitted by the first respondent that the following issues are
fatal to this application, namely, (i) the premature launching of this application
(ii) the applicant's failure to serve this application on the Minister in his personal
capacity and (iii) on the evidence before the Court, the applicant has not made
out a case of contempt of Court.
COMMON CAUSE FACTS
14. The following facts are common cause between the parties:
14.1 On 3 November 2023 Justice Nyathi granted an order directing the
Minister to arrange for the release of all members of the class on
parole forthwith.
14.2 A rescission application against the order of Justice Nyathi was
dismissed by Cahbedi AJ on 24 October 2025.
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14.3 On 19 November 2025, the legal representatives of the Minister filed
an application for leave to appeal the recission Judgement of
Cahbedi AJ.
14.4 The Minister had until 14 November 2025 to file an application for
leave to appeal.
14.5 This application was served at the offices of the Minister on 1 O
November 2025.
14.6 The order of Nyathi J and this application were not personally served
on the Minister.
14.7 There was non-compliance of the order of Nyathi J.
15. It was contended by the applicant that the order of Nyathi J was duly served on
the Minister as the Minister launched an application to rescind the order of
Nyathi J and such application was dismissed. It was argued that the Minister
was aware of the order and would not have instructed counsel to argue the
recission application and to pursue the leave to appeal on 19 November 2025.
16. The applicant further contended that the application for leave to appeal does
not suspend the operation of Nyathi J's order, but the judgment of Chabedi AJ.
THE APPLICATION IS PREMATURE
17. The Chabedi judgment was handed down on 24 October 2025.
18. In terms of Rule 49(1)(b) of the Uniform Rules of Court, leave to appeal is
requested within fifteen days after the date of the order appealed against. The
Minister had until 14 November 2025 to file an application for leave to appeal.
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19. This application was served at the offices of the Minister on 1 O November 2025 '
four days before the lapse of the dies prescribed by the Rule 49.
20. In my view the application is premature.
THE APPLICATION FOR LEAVE TO APPEAL
21 . On 19 November 2025, the legal representatives of the Minister filed an
application for leave to appeal the recission judgment of Chabedi AJ .
22. It is trite that the Minister could not appeal the order of Nyathi J as it was granted
unopposed and had to launch an application for recission of the order. The
application for recission of the order was dismissed by Chabedi AJ and an
application for leave to appeal was filed by the Minister on 19 November 2025.
23. Section 18 of the Superior Courts Act of 2013 provides as follows:
"(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is suspended pending the
decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwise, in addition proves on a balance
of probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders.
(5) For the purposes of subsections (1) and (2), a decision becomes the subject of
an application for leave to appeal or of an appeal, as soon as an application for leave
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to appeal or a notice of appeal is lodged with the registrar in terms of the rules."
24. Rule 45A states that a court may on application suspend the operation and
execution of any order for such period as it may deem fit provided that in the
case of an appeal, such suspension is in compliance with section 18 of the Act.
25. I conclude that when the application for leave to appeal was lodged with the
Registrar of this Court, the Nyathi order became the subject of an application
for leave to appeal and that the operation and execution of the order is
suspended pending the decision of the application for leave to appeal.
FAILURE TO EFFECT PERSONAL SERVICE ON THE MINISTER/NON-JOINDER
26. It is common cause that the Minister has only been served and joined in his
official capacity.
27. In Mjeni v Minister of Health and Welfare, Eastern Cape 1 Jafta J held:
"Contempt of Court proceedings can only succeed against a particular public
official or person if the order has been personally served on him or its
existence brought to his attention and it is his responsibility to take steps
necessary to comp ly with the order but he willfully and contemptuously
refuses to comply with the court order."
1 2000 (4) SA 446 (TKH)
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28. In Dilucu/o Properties (Ply) Ltd v City of Johannesburg and Another2:
Although the Municipal Manager was cited in the proceedings, he was not
formally joined or served in his personal capacity. This, the Court held to be
crucial in relation to contempt proceedings, given their potential for severe
sanctions. The Court held that any party against whom a contempt finding
is sought must be given proper personal notice and an opportunity to
respond thereto. The Court ultimately concluded that personal service is
indispensable when a contempt order might impose serious consequences.
29. In Matjhabeng Local Municipa/ity3 the Constitutional Court held:
30.
"Bearing in mind, that the persons targeted were officials concerned - the
Municipal Manager and Commissioner in their official capacities - the non
joinder in the circumstances of these cases, is thus fatal. Both Messrs.
Lepheana and Mkhonto should thus have been cited in their personal
capacities - by name - and not in their nominal capacities. They were not
informed, in their personal capacities, of the cases they were to face,
especially when their committal to prison was in the offing. It is thus
inconceivable how and to what extent Messrs. Lepheana and Mkhonto
could, in the circumstances, be said to have been in contempt and be
committed to prison."
2 (2021) 27206; 5576/20 18) [2022] ZAGP JHC 803 (18 October 2022).
3 Matjhabeng local Mun icipality v Eskom Holdings ltd and Others; M khonto and Others v Co m pensation
Solutions (Pty) ltd (CCT 217/15; CCT 99/16 [2017] ZA CC 35; 2017 (l) B CL R 1408 (CC); 20 18 (I) SA (CC)
(26 September 2017).
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31. In my view, the failure to join the Minister and/or effect personal service of the
Nyathi order and this application is fatal and defective for this application.
THECONTEMPTOFTHECOURTORDER
32. It is trite that an applicant who alleges contempt of Court must establish that (a)
an order was granted against the alleged contemnor; (b) the alleged contemnor
was served with the order or had knowledge of it; and (c) the alleged contemnor
failed to comply with the order. Once these elements are established,
willfulness and mala fides are presumed, and the respondent bears an
evidentiary burden to establish a reasonable doubt. Should the respondent fail
to discharge the burden, contempt will have been established. 4
33. In this matter the applicant must prove that there is a Court order that is
operational before this Court and non-compliance with the order. The
suspension of the operation and existence of the Nyathi order as a result of the
application for leave to appeal means that there can be no issue of non
compliance with the order. With no order that is operational, the element of
non-compliance is not satisfied.
34. On a conspectus of all the evidence before me, I am of the view that the
applicant has not made out a case for contempt of Court.
35. In the result, the application is dismissed with costs, including the costs of 2
counsels which costs are to be taxed in accordance with scale B.
4 Secretary of the Judicial Commission oflnquiry into allegations of State Capture, Corruption and Fraud in the
Public Sector including Organs of State v Zuma and Others [2021] ZACC 18 of para 37.
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Appearances:
For the applicant: Adv Mthimkhulu
Instructed by: Marwashe Attorneys
For the respondent: Adv T Mpahlwa
Adv T Mhlanga
Instructed by: State Attorney Pretoria
Judge of the Hight Court, South Africa
Gauteng Division, Pretoria