SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION, MAHIKENG
Case No:557/2018
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
DAVID GAONAMONG Plaintiff
and
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Defendant
CORAM: MFENYANA J
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date of handing down of the judgment is deemed
to be 05 January 2026.
JUDGMENT
MFENYANA J:
Introduction
[1] The plaintif f instituted action proceedings against the defen dant for
damages emanating from the plaintiff’s alleged unlawful detention from
18 May to 27 May 2015. The case proceeded as a stated case in terms
of Rule 33(1) of the Uniform Rules . In terms of Rule 33(2) (a), the parties
to a stated case must set forth the facts agreed upon, the question of law
in dispute between them and their respective contentions thereon.
[2] On 9 October 202 4, I issued an order separating merits and quantum
and that the issue of merits w ould be adjudicated on by way of a stated
case. Subsequent thereto, the parties delivered the stated case, followed
by their respective heads of argument.
Background facts
[3] The plaintiff was convicted on a charge of robbery with aggravated
circumstances and sentenced to 15 years imprisonment. He appealed
against his conviction and sentence , and on 18 May 20 15, Hendricks J
(as he was at the time) upheld the appeal against both conviction and
sentence and further ordered the immediate release of the plaintiff from
prison.
[4] On 27 May 20 15, Djaje J (as she was at the time) issued a warrant of
liberation for the plaintiff’s immediate release . The record indicates that
the details of the plaintiff's detention and his whereabouts were confirmed
by the registrar of this court on the same day. On the same day, the
plaintiff was released from prison.
Stated case
[5] In their stated case, the parties record the agreed facts as follows:
[5.1] “The Plaintiff is David Gaonamong an adult male person residing
at No 8[...] Gamodisanyane Section, Tlhaagameng Village
Ganyisa, North West Province.
[5.2] The Defendant is the Minister of Justice and Correctional
Services in his official capacity as Minister of Justice and
Correctional Services with his office situated at 1 [...] W[...] N[...]
Street. Poyntons Building (West Block) Pretoria with address of
service at the office of the State Attorney, situate at and care of
the State Attorney carrying on business at 1st Floor, East Gallery,
Corner S [...] Road & D [...] J[...] M[...] Drive, Mega City ,
Mmabatho, Nort West Pro vince and who is sued in his capacity
as the executive authority responsible for the Department of the
Department Correctional Services. (sic)
[5.3] The cause of action that gave rise to the Plaintiff’s claim against
the Defendant fall s within the above Honourable Court’s
jurisdiction.
[5.4] The Plaintiff was imprisoned at Rooigrond Correctio nal Centre
after being found guilty, convicted and sentenced to a period of
15 years on a charge of robbery with aggravating circumstances.
[5.5] Plaintiff brought an appeal against his conviction and sentence,
on 8 May 2025 the appeal was heard and judgment reserved.
The case number of the appeal being CA5/2015.
[5.6] On 18 May 2015 the judgment was handed down, as indicated
on the judgment of the Honourable Hendricks JP. The Plaintiff's
conviction and sentence were set aside.
[5.7] Plaintiff was released from Rooigrond on 27 May 2015.
[5.8] The Plaintiff and Defendant further agree t o the admissibility and
correctness of the following documents and concede thereto as
evidence and or proven fact:-
5.8.1. The judgment by the appeal court;
5.8.2. Order by the said court;
5.8.3. The warrant of liberation;
5.8.4. Release list;
5.8.5. Letter from legal aid;”
[6] The question of law in dispute between the parties is stated thus:
[6.1] “Whether the Plaintiff was unlawfully detained , and if so, whether
the Defendant is liable for such detention.”
Submissions
[7] The plaintiff contends that his continued detention from 18 May to 27 May
2025 was unlawful and that the defendant is liable for damages
occasioned by such incarceration.
[8] In support of his contention, the plaintiff states that because the
Department of Justice and the Department of Correctional Services at the
time fell under the same Minister, the defendant should be held liable,
regardless of whether the delay and liability stem from the registrar
(Justice) or the correctional services personnel (Corre ctional Services).
The plaintiff relies on Zealand1 for the argument that the plaintiff was
unjustifiably detained in a manner which violated his right not to be
deprived of freedom arbitrarily and without just cause.
[9] The defendant, on the other hand, avers that the plaintiff’s detention from
18 May to 27 May 2015 was not unlawful, and if it is found to be unlawful,
1 Zealand v Minister of Justice and Constitutional Development and Another 2008 (4) SA 458
(CC).
the defendant is not liable in that the plaintiff was released immediately
upon receipt of the warrant of liberation. The defendant points out that the
plaintiff’s contention that Correctional Services failed to release the
plaintiff on 18 May 2015 is baseless , as the record sho ws that
Correctional Services released the plaintiff immediately and in
accordance with prescribed procedures and immediately upon receipt of
the warrant of liberation.
[10] The defendant further contends that the plaintiff has not made out a case
that his detention was unlawful, as the warrant of liberation was issued on
27 May 2015 and bears an entry that there was a telephonic
conversation on the same day with the registrar confirming that the
plaintiff should be released. The plaintiff was released the same day.
[11] Notably, the defendant avers that within the context of a stated case, the
plaintiff’s case is against the defendant in his capacity as the executive
authority responsible for the Department of Correctional Services , in this
case, the correctional facility at Rooigrond. In the particulars of claim, the
plaintiff avers that despite the court order, the plaintiff was not released
and was further detained by the employees of the defendant, wrongfully
and unlawfully , from 18 May 2015 and was only released on 27 May
2015.
[12] The defendant contends further that in the notice in terms of section 3 2
the plaintiff clearly states t hat Correctional Services failed to release him
in accordance with the court order, and he was thus detained for a further
10 days.
[13] The defendant proceeds to argue that the particulars of claim do not
disclose any case against the registrar of this court; that he failed to
inform the correctional services facility of the plaintiff’s release. No liability
on the part of the registrar is pleaded , and as such, the plaintiff has failed
to make out a case for the relief sought, the defendant further avers.
[14] The defendant cites a decision of the Free State Division in Du Toit obo
Dikeni v Road Accident Fund3 as quoted in Erasmus4 that:
[14.1] “The object of pleading is to define the issues so as to enable the other
party to know what case he has to meet. The parties are, therefore,
limited to their pleadings : a pleader cannot be allowed direct the
attention of the other party to one issue , and then at the trial attempt to
canvass another. However, since pleadings are made for the court … it
is the duty of the court to determine what are the real issues between
the parties and, provided no possible prejudic e can be caused to
either party , to decide the case on the real is sues … The general
principle is that the parties will be held to the issues pleaded unless
there has been a full investigation of the matter falling outside the
pleadings …”
- my emphasis
2 Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
3 2016 (1) SA 367 (FB).
4 Superior Court Practice.
[15] The defenda nt thus avers that there has not been an invest igation or
evidence placed before this court regarding any aspect which falls
outside the particulars of claim , and the plaintiff is therefore bound by his
pleading.
[16] In terms of the p articulars of clai m, no case is pleaded against the
registrar, and the c orrectional services personnel complied with their
obligations, the defendant adds. He further argues that it is impermissible
for a party to rely on a constitutional complaint that was not pleaded .5
Given that the plaintiff’s pleaded case is that the correctional services
facility failed to release him , the defendant argues that it would be
prejudicial to read into the particulars of claim that the plaintiff has made
out a case against the registrar, as the details of the claim, as they stand,
contain no facta probanda in relation to the registrar.
Applicable legal principles
[17] The determination of special cases for adjudication in our jurisdiction is
governed by Rule 33 of the Uniform Rules , which allows parties to a
dispute to agree on a written statement of facts for the court’s
adjudication on a point of law, generally referred to as a stated case. In
the relevant part, Rule 33 provides:
“ (1) The parties to any dispute may, after the institution of proceedings
agree upon a written statement of facts in the form of a special case
for the adjudication of the court.
(2) (a) Such a statement shall set forth the facts agreed upon, the
questions of law in dispute between the parties and their
5 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614.
contentions thereon….”
[18] It is an established principle when considering a special case for
adjudication that the co urt is confined to the four corners of the stated
case. This approach was confirmed in Mtokonya6 where the
Constitutional Court noted that,
“ A court that is called upon to decide a special case under rule 33 is
required to decide the question of law presented to it and has no right to
travel outside the four corners of the agreed statement and decide a
different question that it wishes the parties had submitted to it to decide
but did not or that it may wish the parties had included as one of the
questions of law they had submitted to it to decide but did not.”7
[19] When applied to the facts of the present case, the legal question this
court is called to decide, as set out by the parties in the ir stated case, is
whether the plaintiff was unlawfully detained and , if so, whether the
defendant is liable for such detention.
[20] While a stated case narrows the focus to specific, agreed -upon facts, it
does not exist in a vacuum but is part of the broader legal action initiated
by the summons and particulars of claim, which the court must take into
account to properly determine the matter. Read with the particulars of
claim, the plaintiff contends that despite the court order of 1 8 May 2015,
setting aside his conviction and sentence, he was not released by
Correctional Services and was further wrongfully and unlawfully detained
by the employees of the defendant until 27 May 2025. This is not correct.
6 Mtokonya v Minister of Police CCT200/16 [2017] ZACC 33; 2017 (11) BCLR 1443 (CC); 2018
(5) SA 22 (CC) (19 September 2017).
7 Ibid, para 15.
It is common cause that while the judgment setting aside the plaintiff’s
conviction and sentence was handed down on 18 May 2015, the order
authorising the plaintiff’s release , together with the warrant of liberation
were issued on 27 May 2015. On the same day, and upon receipt of the
warrant of the order and the warrant of liberation, the responsible
personnel at Correctional Services released the plaintiff.
[21] The plaintiff’s argument that because the departments of Justice and
Correctional Services fall under the same minister, who is responsible for
both portfolios, it is immaterial whether the delay or negligence emanates
from the registrar of the court or the personnel at correctional service, is
without merit. No allegation has been made against the d efendant in his
capacity as the minister responsible for the Department of Justice , under
whose command the court administrative personnel fall. As such, no case
has been made out whatsoever in respect of the justice component of the
defendant’s responsibility. These circumstances, in my view, fall squarely
within the ambit of the issue contemplated in Mtokonya. This court does
not have the power to venture outside of the facts agreed on by the
parties and decide a question different from that which the par ties have
set out for themselves.
[22] This court also does not have the right to decide issues falling outside the
pleadings, in circumstances where prejudice would occur to one of the
parties. In this case, prejudice to the defendant is a certainty, were this
court to determine the real issues between the parties outside of the
pleaded facts without a full investigation of the matters falling outside the
pleadings. There is thus no factual basis for any finding in respect of the
registrar. At the risk of repetition, the issue before this court, as defined in
the stated case and the pleadings, that the correctional services facility at
Rooigrond failed to timeously act in accordance with the court order , is
unfounded. As such, the re was no delay stemming from these facts.
Consequently, no liability can be attributed to the defendant in this
regard.
[23] In the result, I make the following order:
a. The plaintiff’s claim is dismissed with costs.
S MFENYANA
Judge of the High Court
Northwest Division, Mahikeng
Appearances:
For the plaintiff:
Counsel: X Nyoka
Instructed by: Ntsamai Attorneys Inc.
For the defendant:
Counsel: D Smit
Instructed by: State Attorney- Mahikeng
Date reserved: 25 July 2025
Date of judgment: 05 January 2026