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[2026] ZALMPTHC 15
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South African Custodial Management (Pty) Ltd v Jiyane and Others (1541/2020 ; 1542/2020 ; 15243/2020 ; 1637/2020 ; 1638/2020) [2026] ZALMPTHC 15 (1 September 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
THOHOYANDOU
CASE No. 1541/2020
1542/2020
1543/2020
1637/2020
1638/2020
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED.
DATE: 01/09/2026
SIGNATURE:
In the matter between:
SOUTH
AFRICAN CUSTODIAL MANAGEMENT (PTY) LTD
APPLICANT
And
MINAH
JIYANE
FIRST
RESPONDENT
ERIC
ELMON JIYANE
SECOND
RESPONDENT
GLADYS
JIANE
THIRD
RESPONDENT
MPEKE
MORE
FOURTH
RESPONDENT
KHUMBULANI
RADEBE
FIFTH
RESPONDENT
LUBABALO
MDODA
SIXTH
RESPONDENT
SIVO
MOLO MOYO
SEVENTH
RESPONDENT
SABELO
DLAMINI
EIGHTH
RESPONDENT
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The
date
and time for the handing down of the judgment are deemed to be 10:00
on 01 September 2026.
JUDGMENT
SEMENYA DJP:
[1]
The first, second and third respondents, collectively referred to as
Jiane plaintiffs, are plaintiffs
in case No. 1541/2020 in the main
action. The fourth and fifth respondents (collectively referred to as
Radebe and, an More plaintiffs)
are plaintiffs in case No. 1542/2020.
The sixth respondent (Mdoda) is plaintiff in case No. 1543/2020. The
seventh respondent (Mayo)
is the plaintiff in case No.1638/2020.
[2]
The plaintiffs have all sued South African Custodial Management (Pty)
Ltd (SACM), a private company
that operates and manages correctional
facilities through private-public partnership with South African
Department of Correctional
Services, for damages arising out of
separate incidents that allegedly took place within at Kutama
Sinthumule Correctional Centre.
SACM took exceptions against each of
the plaintiffs' particulars of claim in all five matters on the
grounds that they do not disclose
the cause of action. The exceptions
have been consolidated.
[3]
The plaintiffs in the Jiane matter allege that their brother,
Siyabonga Siyani (the deceased)
was incarcerated at Kutama Sinthumule
Correctional Centre during October 2020. Siyani in custody at that
Centre. The allegations
in the particulars of claim are that the
deceased was circumcised at the Centre's health facility on 14
October 2020. On 27 October
2020, the deceased was hospitalized when
he experienced excruciating pain and bleeding emanating from the
effect of circumcision.
He was discharged two days thereafter. On 30
October 2020 the deceased complained about the persisting pain which
caused his co-inmates,
Radebe and More, to call SACM employees by
pressing the intercom button. The employees failed to respond to the
calls and to give
the deceased the necessary medical attention. The
employees arrived after his passing. The deceased later died in the
cell in the
presence of Radebe and More. Radebe and More were removed
from the cell to be returned shortly thereafter. The two are the
first
people to tell the Jiane plaintiffs about the deceased's
passing.
[4]
The plaintiffs in Jiane, Radebe and More cases aver that they
suffered emotional trauma, shock,
depression, humiliation,
degradation, contumelia and constitutional damages as a result of
SACM's failure to provide the deceased
with prompt access to medical
attention, proper medical treatment and to inform them forthwith
about the death of the deceased.
[5]
Radebe and More allege that they were made to see the deceased's
sufferings and were frustrated
by SACM employees' failure to
timeously respond to their calls. They further aver that the conduct
of SACM violated their right
to dignity and a healthy environment.
SACM's conduct further caused emotional stress and contumelia.
[6]
Mdoda was serving a prison term at Kutama Sinthumule as of the 20
August 2020. He alleges that
he was assaulted by SACM employees for
refusing to be relocated to Block H. He was undressed and assaulted
further while in a naked
state. He avers that he sustained grievous
injuries as a result of the assault. He is claiming damages for
contumelia, pain and
suffering and constitutional damages.
[7]
Moyo was incarcerated at Kutama Sinthumule Correctional Centre as of
29 October 2020. He alleges
that on 27 October 2020 he was assaulted
by employees of SACM for requesting permission to see officials from
the Department of
Correctional Services and a psychologist. He claims
damages for pain and suffering, constitutional damages, contumelia
and unlawful
detention.
[8]
Dlamini avers that he was serving a prison term at Kutama Sinthumule
as of 03 January 2017. On
that date and again on 6 May 2020, he was
assaulted by employees of SACM. He was thereafter isolated from other
prisoners for a
period of 49 days after the assault.
[9]
SACM has taken an exception to the claims for constitutional damages
in all five claims on the
basis that (i) the claim, as pleaded, does
not exist in law and is not legally competent, and (ii) the
particulars of claim do
not sustain a cause of action for
constitutional damages. The exception taken against the claim for
contumelia in respect of Jiane
and Radebe and More is that the
plaintiffs failed to make out a case for the requirements of
wrongfulness and causation. SAMC further
argue that the plaintiffs
failed to set out facts to sustain the cause of action for defamation
in support of the claim for infringement
of their right to dignity.
In as far as the claim for burial costs, SACM contends that the Jiane
plaintiffs failed to plead the
basis on which they were responsible
for the burial costs of the deceased. The exception against the
Dlamini and Mayo case relates
to the claim for constitutional damages
only.
[10]
In the Dlamini case, SACM contends that the plaintiff pre-empted the
raising of a special plea of prescription.
This is so in that Dlamini
pleads that he was assaulted in 2017. Dlamini pleads further that he
gained knowledge that SACM is the
joint debtor with the prison
officials when he consulted with his attorneys of record on 12
November 2020. He further avers that
prescription was interrupted by
the threats made by SACM employees that he will be poisoned should he
lay charges against them.
[1]
In considering an exception whether the particulars of claim do not
sustain a cause of action,
the court must assume that the averments
made in the plaintiffs' particulars of claim are true.
[1]
[12]
The plaintiffs in all five cases plead constitutional damages on top
of common law damages. They contend
that constitutional damages will
best afford them the protection of the enforcement of their
constitutionally entrenched rights.
Plaintiffs further plead that
common law damages for emotional shock and trauma
'will not be
broad enough to encompass 'appropriate relief' to remedy the
violation of the plaintiffs and the deceased and other
prisoners who
may find themselves in similar position'
.
[13]
SACM contends that where a litigant has an action in delict arising
out of an infringement of a constitutional
right, compensation for
that infringement in the form of delictual damages would suffice.
SACM relies on
Fose
v Minister of Safety and Security
[2]
and in
Komape
and Others v Minister of Basic Education and Others
[3]
where it was held that the award of damages arising out of delict or
common law will be a powerful vindication of the constitutional
rights and would require no further vindication by way of an
additional award of constitutional damages. The allegations made by
the plaintiffs in the five cases will, if proven, lead to an award
for general damages that would, as stated in Fose and Komape,
vindicate the plaintiffs' rights. The courts in both cases found that
an award for constitutional damages over and above these
damages
would amount to punitive damages.
[14]
The plaintiffs in all five cases failed to plead facts which justify
punitive damages. They simply
aver that common law damages will not
be enough compensation for the harm that they allegedly suffered as a
result of SACM conduct.
For this reason, I find that the exception
taken against the claim for constitutional damages should be upheld
on that basis.
[15]
SACM contends that the plaintiffs in Jiane and Radebe and More cases
failed to plead, first, a legal
duty imposed on SACM by the
constitution or a statutory provision in relation to them. Second,
facts from which it can be inferred
that the relationship between the
plaintiffs and SACM gives rise to a legal duty owed to the plaintiffs
by SACM in relation to
the treatment of the deceased. SACM contends
that the plaintiffs rely on an omission as opposed to positive
conduct and that in
such a case, the plaintiffs are required to plead
that SACM owed a legal duty to the plaintiffs.
[16]
SACM contends that the plaintiffs are required to plead and prove
that SACM acted wrongfully. In relation
to Jiane, Radebe and More
cases, plaintiffs plead that section 12 of the Correctional Services
Act
[4]
create a legal duty on
SACM to provide medical care on the deceased and the plaintiffs. The
plaintiffs, on the other hand, contend
further that in terms of
section 35(2)(e) of the Constitution, SACM has a duty to detain the
deceased, Radebe and More in a manner
which is consistent with human
dignity. The plaintiffs further plead that SACM's conduct of
discharging the deceased from the medical
center and of failing to
provide medical treatment or to urgently transfer Radebe and More
from the cell where the deceased died
to another cell was
prima
facie
wrongful.
It is further alleged that SACM had a legal duty to provide the
deceased with medical care.
[17]
Section 12 of the Correctional services Act provides that the
Department of Correctional Services must
provide, within its
available resources, adequate health care services, based on the
principle of primary health care, in order
to allow every inmate to
lead a healthy life. Subsection (2) provides that every inmate has
the right to adequate medical treatment,
but no inmate is entitled to
cosmetic medical treatment at State's expense.
[18]
SACM correctly argued that the provisions of section 12 of the
Correctional Services Act and 35(2)
(e) of the Constitution, are not
available to the plaintiffs in Jiane case in that all three
plaintiffs were not inmates at Kutama
Sinthumule Centre. SACM bore no
duty to provide medical treatment to them at the Department's
expense. SACM therefore owed no legal
duty to detain the Jiane
plaintiffs in conditions that are consistent with human dignity, as
pleaded in this case. SACM's submission
that the court cannot find
that it acted wrongfully as there is no legal duty that rests on it
to act in terms of section 12 of
the Correctional Services Act or
35(2) (e) of the Constitution in relation to Jiane plaintiffs is
valid. The exception therefore
stands to be upheld on the basis that
the plaintiffs failed to plead sufficient facts that shows that
SACM's conduct was wrongful.
[19]
In contrast to the Jiane plaintiffs, the right to be detained in an
environment that is consistent
with human dignity and to be provided
with adequate medical treatment is available to Radebe and More. SACM
contents that even
if it can be inferred that the relationship
between the plaintiffs and SACM gives rise to a legal duty owed to
plaintiffs, there
are compelling public policy considerations that
trump any right to emotional well-being enjoyed by plaintiffs.
[20]
The Supreme Court of Appeal held in
Nohour
v Minister of Justice and Constitutional Development
[5]
that:
"[14] Wrongfulness
is an essential element in delict. The Constitutional Court held in
this regard that the element of wrongfulness
acts 'as a brake on
liability' and that conduct is not to be regarded as wrongful if
public or legal policy considerations determine
that it would be
'undesirable and overly burdensome to impose liability'. In
Le
Roux and Others v Dey
, the Constitutional Court confirmed that
the criterion of wrongfulness depends on a judicial determination as
to whether it would
be reasonable to impose liability on the
defendants, which reasonableness has nothing to do with the
reasonableness of the defendant's
conduct or omissions. Therefore,
even if it were to be found that there was negligence herein, the
mere fact of such negligence
may not make the omission wrongful. In
order to prevent the 'chilling effect' that delictual liability in
such cases may have on
the functioning of public servants, such
proportionality exercise must be duly carried out and the
requirements of foreseeability
and the proximity of harm to the
action or omission complained of, should be judicially evaluated."
[21]
SACM contends that factors to be taken into consideration in this
case are (a) the interest of the
public in having resources spent on
effective custodial management rather than on litigants who claim
emotional harm, not because
of any positive conduct against them, but
on omissions in relation to a sibling who is a prisoner or a fellow
prisoner (I will
call them secondary victims); (b) that awards of
compensation for emotional harm and contumelia would have chilling
effect on the
functioning of SACM, because it would deplete resources
that could otherwise be spent on effective custodial management; (c)
a
facility management entity, such as SACM would be unduly and
unreasonably burdened and hamstrung in its operations if it were to
have to guard against a legal duty owed to co-inmates and siblings of
prisoners who die in their custody and arising out of omissions
relating to such prisoners; and (d) any conduct that may have the
effect of triggering emotional harm or contumelia, would have
to be
avoided in order to escape liability, which is impractical and
desirable, particularly with regard to prisons.
[22]
In
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
[6]
it was held that:
"[22] Wrongfulness
is generally uncontentious in cases of positive conduct that harms
the person or property of another. Conduct
of this kind is prima
facie wrongful. However, in cases of pure economic loss - that is to
say, where financial loss is sustained
by a plaintiff with no
accompanying physical harm to her person or property- the criterion
of wrongfulness assumes special importance.
In contrast to cases of
physical harm, conduct causing pure economic loss is not prima facie
wrongful. Our law of delict protects
rights, and, in cases of
non-physical invasion, the infringement of rights may not be as
clearly apparent as in direct physical
infringement. There is no
general right not to be caused pure economic loss."
[23]
The plaintiffs' averments that the conduct of SACM in Jiane and
Radebe and More cases is
prima facie
wrongful is without
merit. There is no allegation in the particulars of claim that the
plaintiffs suffered physical harm in their
persons or to any of their
properties. In the circumstances of this case, where no physical harm
was suffered, wrongfulness cannot
be inferred.
[24]
In line with Nohour, above, it is my view that it would be
unreasonable to infer wrongfulness on the
part of SACM simply because
the next of kin was informed about the death two days after the
occurrence. Furthermore, in Fose, the
court discouraged a situation
where government entities are burdened with damages arising from the
performance of their functions
as this will have the effect of
depleting the minimal funds allocated to them. The Constitutional
Court in Fose warned against
this situation.
[25]
Counsel for the plaintiffs contends that SACM failed to raise a
special plea of prescription and that
on that basis, this court
should find that Dlamini's 2017 claim has not prescribed. SACM
contends that Dlamini pleaded his case
in such a way that
prescription was pre-empted. On what a defendant faced with such
pre-emption should do, the court in
Sanan
v Eskom Holdings Ltd
[7]
held that:
"[20] In regard to
the question of a defence being either an exception or a special plea
Herbstein and Van Winsen, Fifth Edition
supra
at 599 and 600
has the following to say:
"The essential
difference between a special plea and an exception is that in the
case of the latter the excipient is confined
to the four corners of
the pleading. The defence raised on exception must appear from the
pleading itself; the excipient must accept
as correct the factual
allegations contained in it and may not introduce any fresh matters.
Special pleas, on the other hand, do
not appear
ex facie
the
pleadings. If they did, then the exception procedure would have to be
followed. Special pleas have to be established by the
introduction of
fresh facts from outside the circumference of the pleading, and those
facts have to be established by evidence
in the usual way. Thus, as a
general rule, the exception procedure is appropriate when the defect
appears
ex facie
the pleading, whereas the special plea is
appropriate when it is necessary to place facts before the court to
show that there is
a defect. The defence of prescription appears to
be an exception to this rule for it has been held that that defence
should be
raised by way of special plea even when it appears
ex
facie
the plaintiff’s particulars of claim that the claim
has prescribed, apparently because the plaintiff may wish to
replicate
a defence to the claim of prescription, for example an
interruption.""
[26]
The issue of prescription in this case appears
ex facie
the
plaintiffs' particulars of claim. SACM was within its right to
address it by way of an exception. I agree with SACM that Dlamini
has
raised issues that were supposed be addressed in replication in his
particulars of claim. In so doing, he anticipated a special
plea of
prescription. SACM was, in line with Sanan, entitled to do what it
did in this case. It was not necessary for it to raise
a special plea
of prescription.
[27]
Regarding interruption of prescription, SACM contends that
section 14
(1) of the
Prescription Act, 1969
, lays down circumstances that
interrupt the running of prescription. It provides that prescription
is interrupted by the express
or tacit acknowledgment of liability by
the debtor. SACM contends that the pleaded facts on prescription,
being that Dlamini did
not claim timeously because he was threatened
with violence by the employees of SACM is not a condition that
interrupts the running
of prescription. The exception on
prescriptions stands to be upheld on this basis.
[28]
The plaintiffs plead that "
The
defendant is liable for the damages suffered by the in terms of
common law duly developed in terms of section 39 (2) of the
Constitution. The Defendant has not paid any of the plaintiffs
damages the have suffered
."
SACM contends, with reliance on
Mohun
and Another v Phillips
NO
obo
Shearer and Another
[8]
that
there is no deficiency in the common law remedies requiring any
further development r the provision of constitutional damages
in
addition to common law remedies. The SCA in Mohun referred to the
Constitutional Court decision in Mighty solutions CC
t/a
Orland
Service Station v Engen Petroleum Ltd and Another
[9]
where it is laid down that the court must (a) determine exactly what
the common law position is; (b) then consider the underlying
reasons
for it; and (c) enquire whether the rule offends the spirit, purport
and objects of the bill of Rights and thus requires
development
before it can proceed to develop common law.
[30]
The plaintiffs contend that SACM did not take an exception to the
claim for the development of the
common law and cannot raised it by
way of argument. Be that as it may, the principle laid down in Mighty
Solutions stands, and
unless the plaintiffs amend their particulars
of claim accordingly, there will be no cause to develop the common
law.
[31]
On the claim for funeral expenses, SACM contends that the particulars
of claim fail to allege facts
on why the plaintiffs in Jiane were
responsible funeral expenses. The plaintiffs simply aver that they
had to incur funeral expenses
as a result of SACM wrongful,
alternatively, negligent conduct. I agree that the facts as, pleaded,
do not disclose the cause of
action on funeral expenses claim.
[32]
On the issue of costs, SACM contends that plaintiffs" pleaded
facts do not raise constitutional
issues and, on this basis, Biowatch
is not applicable. The plaintiffs relied on the Bill of Rights as the
basis of some of the
claims. The main consideration in this case is
whether they pleaded is not weather the claims will succeed at this
stage. The question
is whether the pleaded facts disclose a cause of
action. I am of the view that this is a case where each party should
bear its
own costs.
[33]
In the result the following order is made:
1.
The defendant's exception in the consolidated cases is upheld.
2.
The plaintiffs' particulars of claim are struck out.
3.
Each party is to pay own costs of the exception.
MV SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION
APPEARANCES:
For the Applicant:
TJ
Bruinders SC with Yusur Peer
Instructed by:
Norton Rose
Fulbright South Africa Inc.
For the Respondents:
SO Ravele
SO
Ravele Attorneys
Date heard:
13 May 2026
[1]
Living
Hands (Pty) Ltd v Ditz
2013 (2) SA 368
GJ at 3740
[2]
1979
(3) SA 786
(CC)
[3]
[2019]
ZASCA 129
[4]
111
of 1998
[5]
[2020]
ZASCA 27
at 14
[6]
[2013]
ZASCA 161
(26 November 2013)
[7]
2010
(6) SA 368
at para. 20
[8]
(1219/2021)
[20222]] ZASCA 186 (22 December 2022)
[9]
2016
(1) sa 621 cc