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[2026] ZAGPPHC 1079
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Dlamini v Head of Prison: Ebongweni Super Maximum Correctional Centre and Others (Leave to Appeal) (149050/2026) [2026] ZAGPPHC 1079 (4 September 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case number:
149050/2026
Heard on: 2 September
2026
Judgment: 4 September
2026
(1)
REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER
JUDGES: YES / NO
(3) REVISED
DATE : 4 September
2026
SIGNATURE
In the
matter between:
Dlamini Thembeleli Headman
Applicant
and
Head
Of
Prison: Ebongweni
First Respondent
Super
Maximum Correctional Centre
National
Commissioner Of Correctional Service
Second Respondent
Head
Of Prison: Kgosi Mampuru II Correctional
Service
(C-Max)
Third Respondent
Judgment
Strijdom,
J
1.
In this matter the respondents apply for
leave to appeal to the full court of this division, against order
number 2 of my judgment
handed down on 29 July 2026, wherein I
ordered that the applicant be removed from the C Section of Kgosi
Mampuru Correctional
Facility ("KMMC") and be placed in the
medium section of Westville Correctional Facility or any other medium
correctional
facility in the Province of KwaZulu-Natal.
2.
The application for leave to appeal by the
respondents is opposed by the applicant.
3.
The ground of appeal is set out in the
application for leave to appeal and is confined to security
classification.
4.
The
test on leave to appeal is not whether this Court erred in its
reasoning but whether an appeal court would come to a different
conclusion and would, thus, give a different order.
[1]
Here again, the fundamental point of departure is that an appeal lies
against an order and not the reasons.
[2]
5.
To succeed in this application the
applicant must convince the Court that the requirements of s 17(1) of
the
Superior Courts Act
,
Act 10 of 2013 ("the Act"), are satisfied. These
requirements are:
5.1
First, there is a reasonable prospect of success on appeal.
5.2
Secondly, there is some other compelling reason why the appeal should
be heard.
5.3
Thirdly, the appeal does not fall within the ambit of section
16(2)(a) and s 17(1)(b).
5.4
Fourthly, the decision sought to be appealed does not dispose of all
the issues in the case, s 17(1)(c).
6.
An applicant for leave to appeal must convince the Court that
on a sound rational
basis, its prospects of success on appeal are not
remote but have a reasonable and realistic chance of succeeding.
Equally, a mere
possibility of success on appeal is not enough.
[3]
7.
The respondents contended that the effect
of ordering that the applicant be placed in a medium security
facility is that his security
classification has been changed from a
maximum to medium under circumstances where there was neither a legal
nor factual basis
for doing so.
8.
The court made no classification finding.
What the court did was to set aside an unlawful transfer, a finding
not appealed, and
then, as the Constitution requires, granted
effective relief under section 172(1).
9.
On the respondents' answering affidavit,
paragraph 4.7, upon completion of his maximum cycle at Ebongweni,
they decided to transfer
him to a medium facility in
Pietermaritzburg.
10.
The respondents concede that the
classification issue was not placed before the urgent court. They say
that they withheld it because
it is “foreshadowed” for
the appeal, and that they will apply to adduce it as further
evidence. Leave to appeal must
be sought on the record as it stands.
11.
It was argued on behalf of the applicant
that:
“
An
appeal that can succeed only if a court of appeal first grants an
exceptional indulgence to admit evidence available all along
is not
an appeal with a sound, rational prospect of success.”
12.
In respect of the grounds of appeal raised
by the respondents, my judgment deals with the facts and the law as
presented by the
parties and how the court arrived at each conclusion
on the contentions raised by the parties.
13.
When the facts and the law were examined,
there is, in my view, no sound and rational basis for the conclusion
that the appeal would
have a reasonable prospect of success.
14.
I am also of the view that there are no
compelling reasons why the appeal should be heard.
15.
In the result, the application for leave to
appeal is dismissed with costs on the party and party scale. Costs
are to be taxed in
accordance with Scale “B”.
STRIJDOM J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Appearances:
For the Respondents:
Adv. N. Mashabela
Instructed by:
State Attorney
For the Applicant:
Adv. D.B. Melaphi
Instructed by:
M.E. Makgopa Attorneys
[1]
Four
Wheel Drive Accessory Distributor CC v Rattan NO
2019
(3) SA 451
(SCA) at [34].
[2]
See
South
African Reserve Bank v Khumalo and Another
2010 (5) SA 449
(SCA);
[2011] All SA 26
;
[2010] ZASCA 53
para 4
[3]
See
Kingfisher
Fuels CC v BP Southern Africa (Pty) Ltd and Another (2025) 1 JDR
1544 (GJ), para 46, page 12.