Nkosi v Minister of Justice and Correctional Services and Others (00028-2018) [2018] ZAGPJHC 3 (5 January 2018)

/ / 2018, Administrative Law, Criminal Law



The Applicant was a prisoner, who had been convicted of multiple offences, inter alia, murder and robbery with aggravating circumstances. The Applicant had served 15 (Fifteen) years of his life sentence and would be considered for parole only on or about 10 April 2019.

On 28 December 2017, the Applicant’s mother passed away and he thus requested temporary leave, in order to attend her funeral, which was set to take place on 6 January 2018. This application for leave was done under section 44(1)(a) of the Correctional Services Act 111 of 1998 (“the Act”), and the request was submitted to the acting head of the prison where he was serving his life sentence.

In terms of section 44(1)(a) of the Act, it states that written permission may granted on a variety of conditions and for certain time periods as he or she may specify, for a sentenced prisoner to leave prison temporarily for the purpose of compassionate leave.

The Applicant’s request was denied by the acting head of the prison. The specific reasons being that, the Applicant:

1.  was a flight risk;

2.  was not trustworthy; and

3.  was sentenced to life imprisonment for the heinous crime of shooting a victim in cold blood, after robbing the same victim.

Prior to his request being denied by the acting head of the prison, 4 (Four) other individuals, being the Applicant’s Unit Manager, the Chairperson of the Case Management Committee, a Social Worker and a Representative of CC Corrections had the opportunity to consider the Applicant’s request for temporary leave and thereafter submit their recommendations to the acting head of the prison.

1 (One) individual recommended that the Applicant should be granted permission to attend the funeral whereas the other 3 (Three) individuals recommended that the Applicant be refused permission to attend the funeral, but that he should be allowed to pay his last respects to his mother at the mortuary only.

The Applicant then brought this urgent application on or about 5 January 2018, to review the decision of the acting head of the prison to refuse temporary leave for him to attend his mother’s funeral, which was set to take place on 6 January 2018 at 08H00.

The High Court of South Africa, Local Division, Johannesburg (“the Court”), in applying section 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), which was found to be applicable in the circumstances, had to consider whether the acting head of the prison took irrelevant considerations into account when arriving at his decision to refuse temporary leave, to the Applicant.

In terms of section 6(2)(e)(iii) of PAJA, it states that a Court or Tribunal has the power to judicially review an administrative action if the action was taken because irrelevant considerations were taken into account or relevant considerations were not considered.

The Court then considered the Sotho speaking Applicant’s brief submissions through an interpreter, however, it could not fully consider the Respondents’ submissions as the content of the Respondent’s Founding Affidavit did not correlate with the Applicant’s admission profile, as annexed to the Founding Affidavit. The Court had to adjourn in order to allow the State Attorney to take instructions from the deponent. Upon continuation of the proceedings, the State Attorney then informed the Court that the interpreter had left due to the State Attorney being unable to pay the interpreter for his services.

In the circumstances, the Court could not continue to hear oral submissions as the Applicant would be prejudiced by not being able to understand the English submissions to be tendered by the State Attorney for the Respondents. Court proceedings were subsequently adjourned for an hour and a half in order for the Court to consider the papers and thereafter deliver judgement.


The acting head of the prison took irrelevant considerations into account in order to arrive at his decision and thus the decision would be reviewed and set aside in terms of section 6(2)(e)(iii) of PAJA and further that the Court would substitute its own decision for the acting head of the prison.

If the Court were to refer the matter back to the acting head of the prison for reconsideration, it would prejudice the Applicant given the urgency.

The Court stated that, in the circumstances, there were 2 (Two) irrelevant considerations:

1. The first was that the Applicant committed a heinous crime in 2001. The Court accepted that the crime was heinous but failed to see the relevance in considering whether the Applicant should be allowed to attend his mother’s funeral for a few hours; and

2.  The second was that the Applicant was classified as high risk in the Respondents’ Founding Affidavit, however the Applicant’s profile document, annexed to the Founding Affidavit, reflected his classification as medium.

The Founding Affidavit further alleged that the Applicant was, inter alia, found guilty of 3 (Three) disciplinary offences whereas only 2 (Two) disciplinary offences were officially recorded.

The Court also noted that the Founding Affidavit indicated that the Applicant had attempted to escape from prison whereas there was no official record indicating same.

The Court ordered that:

  1. the decision to refuse temporary leave for the Applicant to attend his mother’s funeral was reviewed and set aside;
  2. the Applicant was granted temporary leave from prison to attend his mother’s funeral between 07H00 and 12H00 on 6 January 2018; and

the acting head of the prison was ordered to put appropriate security measures in place to ensure that the Applicant remained in custody and that the Applicant maintained an appropriate distance from other attendees of the funeral.


Individuals in authority at correctional services institutions who wish to make a determination as to the granting or refusing of temporary leave for compassionate reasons for a sentenced prisoner, under the Correctional Services Act 111 of 1998, should ensure that relevant considerations are taken into account, failing which, the determination may be subject to review under the Promotion of Administrative Justice Act 3 of 2000.

Written by Jasvir Sewnarain, Candidate Attorney and supervised by Jennifer Stoler, Associate

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