(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO /
(3) REVISED. l..-/"
DATE: 31/0
SIGNATURE
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 011761-2026
In the matter between:
ORPHAN MOTSWERE APPLICANT
and
NATIONAL COUNCIL FOR CORRECTIONAL FIRST RESPONDENT
SERVICES
THE MINISTER OF CORRECTIONAL SERVICES SECOND RESPONDENT
HEAD PRISON: KOSI MAMPURU II CORRECTIONAL THIRD RESPONDENT
C-MAX
2
REASONS FOR ORDER
The judgment and order are published and distributed electronically .
PA VAN NIEKERK, J
[1] On Monday 9 March 2026 the Applicant applied by way of an application, described in
the founding affidavit as "extreme urgency" for an interdict against the Respondents in
terms whereof the Respondents be interdicted from proceeding with a scheduled
disciplinary hearing against the Applicant on 10 March 2026. The interdict sought is an
interim interdict pending a review application to be launched by the Applicant against the
decision to subject Applicant to the disciplinary hearing. On 9 March 2026 I struck the
matter from the roll and on 27 March 2026 Applicant caused a request for reasons for
that order to be delivered to my registrar by email. The reasons for striking the matter
from the roll follow hereunder.
[2] The impugned disciplinary hearing relates to the alleged unlawful possession of a cellular
telephone by the Applicant, who is an inmate at Kosi Mampuru Correctional facility and
who is thus subject to the provisions of the Correctional Services Act 111 of 1998 ("CSA')
and regulations promulgated in terms of CSA. The grounds for the relief claimed by the
Applicant can conveniently be summarised as follows:
[2.1] On 3 March 2026 the Applicant was served a notice to appear before a
disciplinary hearing, relating to an incident which occurred on 4 July 2025 when
the Applicant was found to be in the possession of an unauthorised cellular
3
telephone. This conduct constitutes an offense in terms of CSA and its
regulations;
[2.2] Respondents averred in a previous application under the same case number
(where Applicant challenged his confinement to maximum security) that the
Applicant was found guilty of that particular offence after pleading guilty.
Applicant may thus not be charged again for the same offence under the
principle of autrefois convict;
[2.3] The notice to appear before the disciplinary hearing does not comply with
Regulation 40 of GN35277 dated 25 April 2012, because it falls outside the
period of 14 days as envisaged in that regulation.
[3] Based on the aforesaid, the Applicant avers that the charges and penalties are serious,
that it is embarrassing, and that he has a "clear right" to an interdict. In support of urgency
the Applicant averred that the impugned disciplinary hearing is "happening" at 10h00 on
10 March 2026, rendering the application to be one of extreme urgency.
[4] In the founding affidavit Applicant failed to disclose that, in the previous application to
which he refers where he was allegedly found guilty of the same offence and which forms
the basis of the Applicant's reliance on the principle of autrefois convict, he denied under
oath that he was found guilty and/or pleaded guilty and stated that this allegation was
false.
[5] The matter was struck from the roll after I exercised my discretion in terms of Rule 6(12),
having found that the matter was not urgent, for the following reasons:
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[5.1] Applicant has an alternative remedy available. Applicant may appear at the
hearing and plead not guilty, and at the hearing plead his defence of autrefois
convict. For that purpose the Applicant may be represented by a legal
representative who, instead of appearing before me and attempting to obtain
cost orders against the Respondents, could appear at the disciplinary hearing
and plead all defences available to Applicant.
[5.2) Should the Applicant's defence of autrefois convict not be upheld during that
disciplinary hearing, (or for that matter, any other defence raised by the
Applicant), the Applicant may request that the proceedings be reviewed by the
Commissioner in terms of section 24(7) of CSA There is therefore an alternative
internal remedy available to the Applicant and it is not necessary to engage this
Court on a basis of "extreme urgency", relying in this application on a defence
which the Applicant may raise during the disciplinary hearing, and seeking this
court to decide on the merits of that defence.
[6] Applicant thus failed to disclose irreparable harm, and/or lack of a suitable alternative
remedy, and/or that the balance of convenience favours Applicant, for that very reason
failed to disclose any grounds why the application should be entertained as an "extreme
urgent" application. I am of the view that, should I have found that the merits of the
Application required urgent determination, I would have dismissed the Application.
[7] The matter was accordingly struck of the roll.
APPEARANCES
APPLICANT
INSTRUCTED BY:
RESPONDENT:
PA VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
Adv DB Melhapi
M.E MAKGOPA ATTORNEYS
No appearance.