IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 203913/2025
REPORTABLE: ~ /NO (l )
(2)
(3)
O F INTEREST TO OTHER JUDGES: ~ /NO
REVISED.
10/ 02/ 2026
SIGNATURE DATE
In the matter between:
JERMAINE PRIM
and
Applicant
THE MINISTER OF CORRECTIONAL SERVICES First Respondent
THE NATIONAL COMMISSIONER OF CORRECTIONAL
SERVICES Second Respondent
THE HEAD OF C-MAX KGOSI MAMPURU II
CORRECTIONAL CENTRE Third Respondent
THE AREA COMMISSIONER JOHANNESBURG
MANAGEMENT AREA Fourth Respondent
THE REGIONAL COMMISSIONER OF GAUTENG REGION Fifth Respondent
JUDGMENT
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LABUSCHAGNE J:
[1] The applicant is a remand prisoner who is incarcerated at the C -Max Kgosi
Mampuru II Correctional Centre (“C-Max”). As its name denotes, it is a
maximum security facility.
[2] The applicant is challenging his detention in review proceedings, Part B of
which serve before this court. Part A proceedings failed due a finding of a lack
of urgency. In Part B proceedings the applicant seeks an order in terms of
section 9(1)(b) of the Promotion of Administrative Justice Act, 3 of 2000
condoning the lateness of the application in respect of two decision, namely
the decision of the second and/or fifth respondent to extend the applicant’s
detention in C-Max beyond a period of 18 months; and secondly the decision
by the respondents to continuously detain the applicant in C -Max. He seeks
an order exempting the applicant from exhausting internal remedies, if they
are found to exist.
[3] The applicant also seeks to challenge on review a decision of the fourth and/or
fifth respondent to transfer the applicant from Johannesburg Correctional
Centre to Kgosi Mampuru Correctional Centre (hereafter “C-Max”).
[4] As will appear from the chronology below, the applicant has been in C -Max
for more than 3 years. In the absence of a condonation application pertaining
to the decision to transfer the applicant from Johannesburg Correctional
Centre to Kgosi Mampuru Correctional Centre, this court’s review jurisdiction
is not engaged. The decision to transfer the applicant constitutes
administrative action in terms of PAJA, and proceedings had to be instituted
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within 180 days of the decision to transfer. There is no such application and
no condonation application. Prayer 3 of the notice of motion is consequently
stillborn.
BACKGROUND FACTS
[5] The applicant is a rema nd prisoner awaiting trial. On 8 November 2022 the
applicant was transferred from the Johannesburg Management Area to C -
Max.
[6] The cause for the transfer is that complaints were being received from the
community of E ldorado Park that the applicant was making threats to
members of the community. These threats could be made because the
applicant had access to cell phones. Cell phones were found in his
possession, and this prompted the decision to transfer him to a maximum
security facility. As indicated above, that decision to transfer him cannot be
assailed in these proceedings due to the lapsing of time and the absence of a
condonation application.
[7] Prior to the institution of the current proceedings, the applicant under case
number 150033/24 brought proceedings against the respondents. That
application was however withdrawn on 17 February 2025.
[8] The applicant was arrested on charges of theft of a motor vehicle and fraud
and has been in custody since October 2017. There is no explanation before
this court for the long delay in finalisation of these criminal proceedings.
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THE APPLICANT’S CONTENTIONS
[9] The applicant contends that he is being in carcerated in circumstances
amounting to solitary confinement , in breach of sec 30 of the Correctional
Services Act, since arriving at C-Max approximately 3 years ago. He is kept
in a single cell with no human contact for 23 hours per day. The deprivation
of human contact, fresh air and meaningful activity is adversely affecting his
physical, mental and emotional health. He describes the prolong ed solitary
confinement as a severe form of psychological torture.
[10] The applicant relies on an infringement of his constitutional right to liberty,
dignity and bodily integrity.
[11] C-Max has two phases. Phase 1 has approximately 50 inmates and Phase 2
has approximately 60 inmates. The applicant is in Phase 1. He is permanently
cuffed by the hands and feet whenever he is outside of his cell. The cuffs are
removed when he is a n exercise cage, or when he is permitted to have a
shower. He receives two phone calls per month of 10 minutes each and he is
allowed two visits per month of 30 minutes each. He is not allowed to partake
in any programmes.
[12] In Phase 2 prisoners are not permanently cuffed when they are taken to the
exercise and shower cage. They get one extra phone call per month of 10
minutes each. Whether in Phase 1 or in Phase 2, the only practice in C -Max
is of one of segregation or solitary confinement for at least 23 hours per day.
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[13] On 27 January 2025 the applicant engaged the Head of the C-Max section of
the prison as he was walking by, enquiring when he would be transferred out
of C-Max. A harsh exchange of words took place and the Head of C-Max, Mr
Qebengu told the applicant that he would stay in C-Max until he died.
[14] The next day he was informed that he was sanctioned to no phone calls and
no visits for 30 days. This was without affording the applicant an opportunity
to make representations or a hearing on the issue of sanction.
[15] After the filing of a record in terms of rule 53, the applicant filed a
supplementary affidavit. The Standard Operating Procedures (SOP) in
respect of C-Max provide for a maximum stay of 18 months unless there are
exceptional circumstances which would require the approval of the National
Commissioner of Correctional Services for an extended stay.
[16] After the applicant’s mother has raised a complaint with the Department of
Correctional Services, a report was prepared dated 06 August 2024. A
recommendation for the extension of stay of the applicant at C -Max was
approved by the National Commissioner on 18 September 2024. However,
the applicant had already been in C -Max for more than 18 months, which
period had expired in May 2024. The applicant therefore contends that the
extension of his incarceration for longer than 18 months at C -Max and his
continued detention is unlawful.
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THE DEFENCE
[17] The deponent for the respondents is Mr Qebengu, Head of Prison at Kgosi
Mampuru Correctional Centre, who is also cited as the third respondent.
FAILURE TO EXHAUST INTERNAL REMEDIES
[18] The third respondent contends that the applicant failed to exhaust remedies
provided to him in terms of section 21 of the Correctional Services Act, 111 of
1998 (“the Act”) and section 93 of the Act.
[19] It is trite that judicial review is available as a remedy once internal remedies
have been exhausted or if an application for exemption succeeds.
[20] The remedy created by section 21 is a grievance procedure which permits an
inmate an opportunity on admission and on a daily basis, of making complaints
or requests to the Head of the Correctional Centre or a Correctional Official
(section 21(1)). The complaint requests must be recorded and be dealt with
promptly (section 21(2)(a) and (b)). If dissatisfied with the response, the
inmate may indicate his dissatisfaction together with reasons to the Head of
the Correctional Centre, who must refer th e matter to the National
Commissioner (section 23(3)). If dissatisfied with the response from the
National Commissioner, the inmate may refer the matter to the Independent
Correctional Centre Visitor (section 21(5), read with section 93). The statutory
process prescribed in section 91(1) is a mediation process following an
investigation, resulting in discussions with the Head of Correctional Service s
or the relevant Subordinate Correctional Official, with a view to resolving the
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issues internally. If such mediation process fails, a dispute must be referred
to the Inspecting Judge, whose decision will be final.
[21] The question whether the applicant should have been transferred or not was
raised by him directly with the third respondent and he received a rebuttal and
response. Following the internal complaints procedure in such circumstances
would be pointless. Further, the continued detention of the applicant is a
matter of legality and even the Inspecting Judge does not sit as a court of law
in assessing such legality. Legality is the province of the High Court. In such
circumstances, a failure to follow interna l remed ies would not have been
avoided in the inquiry into the legality of the detention of the applicant which
serves before this court.
[22] The exemption application set out in the notice of motion is therefore justified
and the exemption is granted.
[23] The respondents justify the transfer of the applicant to C-Max due to the high
security risk that he posed at his centre of origin, Johannesburg Correctional
Centre (Medium C). The fact that he was in possession of cell phones was in
itself a contravention of Correctional Services’ Policy. The applicant further
used the devices to victimise and threaten community members from Eldorado
Park.
[24] As stated supra, the decision to transfer him to C -Max is not a decision on
which the court must review jurisdiction, in the absence of a condonation
application.
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[25] The third respondent contends that offenders are kept in single cells between
18 and 19 hours per day.
[26] The third respondent denies that the applicant is kept in solitary confinement.
He contends that C-Max does not have solitary confinement cells.
[27] The deponent further contends that awaiting trial offenders like the applicant
get four phone calls in a week and get two visits in a week, which last up to 30
minutes per visit. He denies that the prisoners are kept in solitary confinement
for 23 hours a day.
[28] With reference to the altercation between the deponent and the applicant, the
deponent denies the allegations made by the applicant, save for stating that
the applicant verbally insulted him and was sanctioned for his conduct.
[29] The deponent denies that the Standard Operating Procedures are being
unlawfully utilised and denies that the SOP is not being complied with.
DISCUSSION
[30] The period of the applicant’s daily detention in the cell is disputed by the third
respondent. The applicant has questioned the veracity of the response by the
third respondent as to the duration of lock -up and the number of social visits
afforded to the applicant. A report by the office of the Inspecting Judge (JICS)
confirmed in its annual report of 2023/2024 that the detention practice at C-
Max is that of solitary confinement. There is therefore reason to doubt the
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correctness of the response of the third respondent as to the conditions under
which inmates are held at C-Max.
[31] The standard operating procedures pertaining to C-Max places a limitation on
the period for which an inmate may be kept at C-Max. The paragraphs dealing
with this reading are as follow:
“4.2.3.2 No offender may be kept at C -Max Correctional Facility for more
than 12 to 18 months unless risks posed dictate otherwise and pre-
approval is granted. Offenders to be collected by the
centre/region of origin within 14 (fourteen) days of receiving
communication from GP Region and after completing the 3 Phase
and/or minimum detention period. All costs related to the collection
of the offender to be incurred by the Centre/Region of origin.
4.2.3.3 In exceptional circumstances, where it is required by an offender to
be incarcerated at C -Max correctional facility for a period longer
than 12 to 18 months, written application must be submitted by the
Centre/Regional of origin to be approved by the Natio nal
Commissioner or his/her delegate. Should this rule not be applied
the offender must be collected by the Centre/Region of origin.”
[32] The facts of this matter indicate that, regardless of the duration of daily
detention in a cell, the applicant has been in detention at C-Max for more than
the maximum of 18 months. There was no “pre -approval” for an extension.
The extension by the National Commissioner was ex post facto, after a period
of six months had expired from the cut -off period of 18 months. On the
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respondent’s version, the applicant’s detention from May 2024 would be
illegal. It is further not competent to ratify an illegality. The National
Commissioner could therefore not ratify the extended stay of the applicant
after the 18 month period of his detention at C -Max had expired (see De
Villiers v …, as confirmed by the Constitutional Court in AAA Investments ….).
[33] It is also apparent that there has been no request from the applicant ’s centre
of origin or an attempt to collect him from C-Max as required by the Standard
Operating Procedures referred to.
[34] In these circumstances it is not necessary to decide the dispute on how long
the applicant spends in his cell per day, despite there are reasons to doubt the
version put forward by the third respondent.
[35] It is the failure by C -Max to comply with its own SOP(standard operating
procedures) that decides this matter. It is not without moment that this was
also the ratio of Swanepoel J in deciding Mncube and Another v Minister of
Correctional Services and Others (119373/2024– In this division)
[36] In Mncube Swanepoel J, on similar facts, concluded:
“[27] In consequence, not only has the first applicant been incarcerated at
C-Max longer than the SOP’s provide for, also, no application has bee
brought to extend the period. The first applicant has, in my view, been
detained unlawfully in C-Max beyond the 18-month period.”
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[37] I agree with the reasoning of the Court in Mncube. Further, in this instance
the extension of the applicant’s stay is invalid as it was granted ex post facto
and not before the expiry of the 18 month period (as required by the SOP).
[38] In Mahlangu v Area Commissioner of Kgosi Mampuru II Prison and
Another (Case Number 093770/2024 – this division), Lenyai J referred to the
constitutional obligations of the respondents . She was critical of the
respondents for failing to uphold and respect the law and to obey the obligation
of the State to respect, protect, promote and fulfil the rights in the Bill of Rights
(paragraphs 67 to 68).
[39] Compliance by Kgosi Mampuru with its own SOP is not an onerous matter.
One would expect proactive conduct on the part of C -Max in ensuring
compliance with its own SOP. Organs of state are under a constitutional
obligation in terms of section 237 to perform their constitutional obligations
diligently and promptly. The persistent failure to do so , as is evident in the
current matter, is not only cause for concern but warrants further action.
[40] The applicant’s case for detention in circumstances amounting to solidary
confinement is compelling. I have considered doing an inspection in loco to
determine the veracity of his contentions, particularly in the face of an outright
denial by the third respondent and the contention that detention in cells is for
18 to 19 hours per day. However, it is not necessary to resolve this dispute
as the failure to comply with the Standard Operating Procedures is in itself an
indicator that the continued detention of the applicant is unlawful.
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[41] The respondent s have suggested that coming to the assistance of the
applicant would open floodgates of litigation. Where the respondents are
complicit in the breaching of the constitutional rights, such floodgates should
be opened. However, it is for the respondents to monitor their own compliance
with the Standard Operating Procedures and to act proactively to ensure
compliance with the law.
[42] In the premises I decline to decide the matter on the basis of a breach of the
provisions of section 30 of the Correctional Services Act insofar as they relate
to solidary confinement. I do, however, find that the continued detention of
the applicant is unlawful and that he should be returned to his centre/region of
origin. The fact that the applicant is regarded as a high-risk inmate is no reason
to continue his unlawful detention. His risk category is a matter for the centre
of origin to determine and t o deal with according to internal protocols and
policy.
[43] In the premises I make the following order:
1. An order condoning the terms of section 9(1)(b) of the Promotion of
Administrative Justice Act, 3 of 2000 the late institution of the application
in respect of the administrative decisions in paragraphs 4 and 5 of the
notice of motion.
2. The applicant is exempted from exhausting internal remedies.
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3. The decision of one or more of the respondents to extend the applicant's
detention in C-Max beyond the period of 18 months is reviewed and set
aside.
4. It is declared that the applicant's continued detention in C-Max is
unlawful.
5. The respondents are directed to transfer the applicant to his
centre/region of origin within 48 hours of delivery of this order.
6. Prayer 3 of the notice of motion is dismissed due to lack of jurisdiction.
7. This judgment is referred to the Office of the Investigating Judge (JICS).
8. This judgment is referred to the Parliamentary Portfolio Committee
responsible for the oversight of the Department of Correctional Services
for consideration and further action, if so advised.
9. The first, second and third respondents are directed to pay the costs of
this application on an attorney and client scale, Scale C.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
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APPEARANCES:
APPLICANT IN PERSON : JERMAINE PRIME
ATTORNEYS FOR RESPONDENT : STATE ATTORNEY PRETORIA
SALU BUILDING
316 THABO SEHUME