REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
,!.1 ) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
28/08/2026
DATE
In the matter between:
SIGNATURE
OUPA CHIPANE PHAAHLA
and
NATIONAL COUNCIL FOR CORRECTIONAL
SERVICES
THE MINISTER OF CORRECTIONAL
SERVICES
CORRECTIONAL SUPERVISION
AND PAROLE BOARD
Case Number: 2023-011042
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 ' legal representatives by email and uploading it to the electronic file of
this matter on Caselines. The date and time of hand-down is deemed to be 28
August 2026.
2
JUDGMENT
TEFFO J
Introduction
[1] The applicant, a sentenced prisoner, obtained an order of this Court on 7
November 2024, taken by agreement, regulating his consideration for parole
and the furnishing of written reasons in the event of refusal. In February 2025
he launched an application to have the respondents held in contempt of that
order. On 12 March 2025 the reasons were furnished, and the alleged contempt
was purged. Only the issue of costs remains for determination. The applicant
seeks the costs of the contempt application on attorney and client scale. The
application is only opposed by the second respondent (“the Minister”) . The
Minister contends that the application was premature and unnecessary, and
seeks costs also on attorney and client scale, alternatively no order as to costs.
The legal framework
[2] Costs lie within the discretion of the Court and are in essence a matter of
fairness to both sides.1 Where the relief has become moot, the Court does not
retry the merits. It takes a broad, practical view of prospects and conduct, and
litigants then owe a duty, in the efficient use of judicial resources, to make
sensible proposals, unreasonable rejection weighs heavily in the costs order. 2
Contempt proceedings vindicate the authority of the courts and the rule of law.
The state, which here holds the applicant in custody in the name of the law ,
must be exemplary in obeying court orders. 3 The litigation in casu, is litigation
by a private individual to compel state compliance with a court order ,
constitutional litigation in the Biowatch sense.4
1 Ward v Sulzer 1973 (3) SA 701 (A) at para 706; Ferreira v Levin NO and Others 1996 (2) SA 621 (CC)
at para 3; Vryenhoek and Others v Powell NO and Others [1996] ZACC 27.
2 Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at para 863; John
Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in liquidation) and Another 2018 (4) SA
433 (SCA) at para 10.
433 (SCA) at para 10.
3 Sections 1(c) and 165(4) – (5) of the Constitution of the Republic of South Africa,1996; Secretary of
the Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others 2021 (5) SA
327 (CC); cf MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA).
4 Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC) at paras 21 – 24;
Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC).
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The background facts
[3] The order of 7 November 20245 reads as follows:
“(a) The first respondent is to consider the applicant for parole on or
before 4 December 2024;
(b) Thereafter, the second respondent is to consider the decision of the
first respondent within 60 (sixty) days from the date of the order, and should
parole or day parole be refused, to provide his written reasons together
with the decision, within 60 (sixty) days from the date of the order;
(c) No order as to costs.”
[4] The order was granted by consent, and it was served on the respondents
on 14 November 2024. The first respondent (“the NCCS”) considered the
applicant for parole on 4 December 2024 . The contempt application was filed
on 10 February 2025 and on 12 March 2025 the respondents, purged contempt
and provided reasons in terms of the court order. Parole was not granted.6
[5] The Minister’s version is that he considered the decision of the NCCS and
made his decision on 09 January 2025, that is, within sixty days after the
decision of the NCCS.7 The order pegs the sixty days to the date of the order.
The Minister’s assertion is not supported by any admissible material, as
appears below. In correspondence, the respondents invoked the dies non. The
applicant’s attorneys disputed this and invited them to furnish reasons and
tender costs . That was declined, as was the State Attorney’s post -launch
invitation to withdraw the application to avoid the costs of opposition.
Non-compliance and the prematurity defence
[6] The papers disclose four terminal dates for the sixty-day period running
from the date of the order: (a) on a calendar-day computation, 6 January
2025; (b) on court days, on or about 5 February 2025; (c) on the respondents’
5 CaseLines 80-1.
6 Joint practice note dated 20 January 2026. CaseLines 88-10 at para 8.
7 CaseLines 83-9 AA para 21 & 83-15 AA at para 49.
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dies non approach, excluding 16 December to 15 January, a date in early
March 2025; and (d) on the applicant’s own heads which assert the date
without disclosing the computation, 21 February 2025.
[7] An order of court is interpreted like any other instrument. 8 Absent any
reference to court days , there is much to be said for the calendar meaning .
However, it is not necessary to decide that for one decisive fact. On every one
of the four computations, the terminal date had passed before 12 March 2025
when the reasons were first furnished, and the obligation was to provide the
reasons, with the decision, to the applicant , not merely to decide in the
departmental file. Non -compliance is established on any computation.
Wilfulness and mala fides as requisites for contempt were never determined,
and nothing in this judgment amounts to a finding of contempt . However, the
objective breach matters for costs.
[8] The Minister contends that the application was premature. The
application was instituted on 5 February 2025 , served and delivered on 10
February 2025. These dates preceded the period’s expiry. That holds only on
the most generous computations . On the calendar reading the Minister had
been in breach for over a month by then, and on the court -day reading, the
period had expired by 10 February 2025. And if, as he asserts, the decision and
reasons existed on 9 January 2025, nothing prevented their immediate
furnishing, or an immediate tender once the application was brought . Instead,
they materialised only on 12 March 2025, with no explanation for the interval.
[9] Fundamentally, the 9 January 2025 decision is not established. In motion
proceedings the affidavits are both the pleadings and the evidence; 9 heads of
argument are not. The only supporting document tendered is another offender’s
NCCS recommendation and the ministerial approval reflecting an NCCS sitting
NCCS recommendation and the ministerial approval reflecting an NCCS sitting
8 Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A); Natal Joint Municipal Pension
Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18; Eke v Parsons 2016 (3) SA 37 (CC).
9 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184
(SCA) at para 43.
5
of 18 to 21 February 2025, a recommendation of 7 March 2025, a decision of
10 March 2025 and communication to him on 12 March 2025. 10 Those
documents prove nothing in this application. Even if the institution of the
application was early on one computation, the breach crystallised during its
pendency. Prematurity cannot retrospectively sanitise it . Still less make the
Minister the successful party.
The appropriate order
[10] The applicant had to institute the application for the Minister to comply
with the o rder of 7 November 2025 . Within one month of instituting the
application, the Minister provided written reasons in compliance with the order.
On the probabilities the application was the catalyst , in the only sense that
matters, the applicant was substantially successful.
[11] The Minister nonetheless pressed, to the end, for attorney and client costs
against a prisoner, dependent on family resources, litigating to compel the state
to honour an order to which it consented. On the Biowatch principle, even
outright failure would not have attracted an adverse costs order unless the
litigation was frivolous or vexatious, and it was neither. On the common cause
facts, the reasons were late.
[12] As between the respondents , only the Minister breached the order .
Paragraph (b) of the order of 7 November 2024 obliged the Minister to consider
the decision of the NCCS. The NCCS complied with the order on 4 December
2024, and the third respondent played no discernible role. This Court is
persuaded having regard to the papers that the Min ister should pay the costs
of the application. For the following reasons, this Court is not convinced that an
order for costs on a punitive scale is justified . First, wilfulness and mala fides
were never determined. Secondly, the opposition, though it has failed, was not
vexatious, the computation was genuinely muddled, not least by the applicant’s
own heads, whose 21 February 2025 date would make his own launch
own heads, whose 21 February 2025 date would make his own launch
10 CaseLines 86-18- 86-19.
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premature on his own showing. Under the circumstances, this Court is of the
view that the a ppropriate order for costs against the Minister should be costs
on a party and party scale which includes counsel’s fees on Scale B.
The state of the papers
[13] The state of the papers require comment. Both sets of heads are marred
by errors of typography and of fact: two dates for the NCCS’ consideration, two
for the furnishing of the reasons. What is more concerning is the annexing of
another prisoner’s parole record – his name, prison registration number, the
NCCS’ confidential assessment and the Minister’s decision concerning him.
That is intimately personal information of a third party with no connection to this
case; it implicates s ection 14 of the Constitution of South Africa and the
Protection of Personal Information Act,11 and its filing, at best careless, deprived
the Minister of the very proof his argument required. The order provides for
removal and for referral to the Head: Office of the State Attorney, Pretoria.
Order
[14] In the result, the following order is made:
1. The second respondent is to pay the applicant’s costs of the
contempt application, including the costs of the hearing of 26
January 2026, on party and party scale, which includes counsel’s
fees on Scale B.
2. The documents filed of record at CaseLines 86-18 to 86-19, relating
to a third party, shall be removed from the court file, alternatively
access thereto on Caselines shall be restricted . The second
respondent’s attorneys shall attend to such removal or restriction
with the Registrar within ten (10) days of this order.
11 Section 14 of the Constitution of the Republic of South Africa, 1996; Protection of Personal
Information Act 4 of 2013.
3. The Registrar is directed to bring a copy of this judgment to the
attention of the Head: Office of the State Attorney, Pretoria.
Appearances
For the applicant:
Instructed by:
For the second respondent:
Instructed by:
Date of hearing:
Date of judgment:
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
DB Melaphi
M E Makgopa Attorneys, Pretoria
M W Dlamini & RA Ramuhlala
The State Attorney, Pretoria
26 January 2026
28 August 2026
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