REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2026-011761
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
13 FEBRUARY 2026
In the matter between:
ORPHAN MOTSWERE
and
NATIONAL COMMISSIONER FRO CORRECTIONAL
SERVICE
THE MINISTER OF CORRECTIONAL SERVICE
HEAD PRISON: KGOSI MAMPURU II CORRECTIONAL
SERVICE C-MAX
Applicant
First Respondent
Second Respondent
Third Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 13 February 2026.
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JUDGMENT
KUBUSHI, J
[1] The applicant’s complaint is t hat t he decision of the first respondent (the
National Commissioner) to transfer him to the maximum security unit of the Kgosi
Mampuru Il Correctional Centre (C-Max), alternatively, the continuous and prolonged
detention thereat, is unlawful, arbitrary, and unconstitutional. H e has, as a result ,
approached this Court, on an urgent basis, for an order declaring the said decision as
such and that it be set aside. He further seeks to be immediately transferred to the
Medium Section of the Kgosi Mampuru Il Correctional Centre (A-Unit). Alternatively,
that he be charged and subjected to a disciplinary hearing in relation to the allegation
of being in possession of a cell phone, within 14 (fourteen) days of the order sought.
[2] The application is opposed by the respondents on the basis that the decision
of the National Commissioner to transfer the applicant to C-Max, is lawful, in that: first,
the applicant consented to the transfer; second, the National Commissioner’s decision
was an immediate corrective action; and last, the applicant pleaded guilty to the charge
of possession of a cell phone and charger, at an informal disciplinary hearing , and
upon conviction he was declassified from A-Unit (Medium unit) prisoner to C -Max. In
addition, the respondents are attacking the application on an in limine point of urgency.
[3] The applicant was originally convicted for an offence of theft, possession of
suspected stolen goods, fraud and forgery and was accordingly sentenced to an
effective imprisonment of 29 years on 20 August 2012. Immediately before the
occurrence of the issues that brought him before this Court, he was serving sentence
at Baviaanspoort Correctional Centre (Baviaanspoort). He is currently incarcerated at
C-Max, by the decision of the National Commissioner on the basis of the different
reasons proffered by the parties.
[4] According to the applicant, he is detained at C-Max for the wrong reasons and
[4] According to the applicant, he is detained at C-Max for the wrong reasons and
under misleading circumstances. His story is that during June/July 2025 , whilst
detained at Baviaanspoort, he was a victim of identity fraud at the hands of his fellow
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inmates who stole his identity document and used it to scam the public. He decided to
expose these inmates and other illegal activities taking place at Baviaanspoort. The
information pertaining to these crimes was leaked to e -TV and as a result a raid was
carried out by the Department of Correctional Services, where cell phones and various
contraband items were found and confiscated. In order to hide his identity as a
whistleblower, he was interrogated together with the implicated inmates. An
arrangement w as made that he be transferred to C -Max where he will spen d a
maximum of a month and thereafter be transferred to another medium correctional
centre to avoid being returned to Baviaanspoort. He was transferred to C-Max as per
arrangement between him and the National Commissioner. Five months later he still
had not been transferred from C-Max as per that arrangement, and when in November
2025 he enquired about the transfer, he was informed that he can only be transferred
after 18 months as per the Standard Operating Procedures of C-Max because he was
part of the inmates who were found in possession of cell phones.
[5] In accordance with the evidence tendered by the respondents, the applicant is
one of the inmates who were found in possession of cell phones and other contraband
items. This was as a result of a raid that was carried out at Baviaanspoort emanating
from intelligence provided by a civilian whistleblower which indicated that a group of
inmates had phones which they were actively using to scam members of the public.
The raid, which was carried out on 4 July 2025, resulted in the confiscation of several
phones and other contraband items. A s part of the immediate corrective action, all
inmates who were found to be involved in the scam were , as per the decision of the
National Commissioner, transferred to C-Max. The applicant was one of those alleged
to have been found with cell phones and transferred to C-Max.
to have been found with cell phones and transferred to C-Max.
[6] On 5 July 2025, the applicant was, in an informal disciplinary process, charged
with the unlawful possession of a cell phone and a charger, and having pleaded guilty
and convicted as such, he was reclassified as a high-risk offender and recommended
for placement at C-Max. The applicant is denying that he was involved in these
proceedings on the grounds that first, on 5 July 2025 he had already been transferred
to C-Max, and that the signatures on the charge sheet purporting to be his, are not.
[7] At the commencement of the hearing counsel for the respondents , with the
consent of counsel for the applicant, sought a postponement of the matter to the urgent
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court roll of next week in order to get an opportunity to file the confirmatory affidavit of
the National Commissioner. The postponement could not be granted on the basis of
the practice of this court of not allowing matters on the urgent court roll to be postponed
to the next court roll. What ought to happen was for the applicant to remove the matter
from this week’s roll and set it down in the next week’s urgent court roll. However, the
applicant’s counsel was not amenable to taking that risk. He as a result requested the
court to decide the matter on the point of law of the unlawfulness of the decision of the
National Commissioner. This, then was how the matter was approached in court.
[8] Although counsel went at length to argue the alleged informal disciplinary
process, it became evident during that argument that the disciplinary process was
undertaken in support of the decision of the National Commissioner that was already
taken. It also became common cause that the applicant was transferred to C-Max per
the decision of the National Commissioner that was taken on 4 July 2025 whilst the
disciplinary process was carried out on 5 July 2025. It was also not in dispute that the
applicant was transferred to C Max on 4 July 2025 which is the same day that the
National Commissioner made his decision. Both counsel were, thus, ad idem that the
decision that should be assailed is that taken by the National Commissioner on 4 July
2025.
[9] Counsel for the applicant’s contention, in this regard, was that nothing in the
Correctional Services Act 111 of 1998 (the Act) empowered the National
Commissioner to transfer the applicant to C -Max without following proper process.
Counsel’s argument was that the proper procedure of transferring the applicant to C-
Max was in terms of section 24(4) read with section 24(5)(e) of the Act. This as counsel
argued was after a penalty of segregation is imposed at a formal disciplinary hearing
argued was after a penalty of segregation is imposed at a formal disciplinary hearing
in terms of section 24(4) of the Act. The National Commissioner could only come into
the picture where there was a review of the decision of the formal disciplinary process
in terms of section 24 (7) of the Act . As this process did not take place before the
National Commissioner made the 4 July 2025 decision, the decision was therefore
unlawful, so the argument went.
[10] In opposition, counsel for the respondents argued that the decision taken by
the National Commissioner was lawful as he was empowered by the Act, even though
counsel could not remember the empowering section at the time of argument. He
further argued that the decision, whether correctly or wrongly taken, would remain
extant until set aside lawfully.
[11] I am persuaded by the argument raised by the applicant's counsel that the
decision of the National Commissioner is unlawful and ought to be set aside. There is
no evidence before this Court to support the respondents' contention that the National
Commissioner ought to have taken that decision. It became common cause during
argument that the decision to transfer the applicant to C-Max could only be done after
formal disciplinary proceedings and if the penalty imposed was that of segregation as
contemplated in section 24(5)(e) of the Act. In terms of the Act, the National
Commissioner has no power to transfer an inmate to C-Max except under section 7(2)
of the Act which is not applicable in this matter.
[12] Even if the applicant's version that he consented to be transferred to C-Max
can be accepted, the transfer remains unlawful. There is nothing in the Act and/or
Regulations promulgated in terms thereof empowering the National Commissioner to
transfer an inmate, by consent, to C-Max. The decision of the National Commissioner
having been found to be unlawful, renders the matter urgent. In the premises, the relief
sought by the applicant ought to be granted.
[13] The following order is made
1. The draft order marked with "XX" is made an order of court.
APPEARANCES:
For the Applicant:
Instructed by:
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JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv D Melaphi - (061 495 8006)
M E Makgapa Attorneys
Tel: 012 320 0124
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For the Respondent: Adv O Mulibana – (061 910 8395)
Instructed by: State Attorneys
Date of the hearing: 13 February 2026
Date of judgment: 13 February 2026