Nyamakazi v Head of Modderbee Correctional Centre- Ms Masuku and Others (2024-096156) [2024] ZAGPPHC 1280 (3 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2024-096156

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

Date 03 December 2024

K. La M Manamela

In the matter between:

LINDA NYAMAKAZI

Applicant

and

HEAD OF MODDERBEE CORRECTIONAL

1st Respondent

CENTRE - MS MASUKU

THE CHAIRPERSON OF THE CASE

2nd Respondent

MANAGEMENT COMMITTEE MODDERBEE

CORRECTIONAL CENTRE - MR MMOTONG

NATIONAL COMMISSIONER FOR THE

3rd Respondent

DEPARTMENT OF CORRECTIONAL SERVICES

MINISTER OF CORRECTIONAL SERVICES

4th Respondent

DATE OF JUDGMENT: This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time of hand-down is deemed to be 10h00 on 03 December 2024.

JUDGMENT

Khashane Manamela, AJ

Introduction

[1] Mr Linda Nyamakazi (‘the applicant’) is an inmate or sentenced and incarcerated prisoner currently held at the Department of Correctional Services: Modderbee Correctional Centre or prison in Benoni. On 30 December 2021, the applicant was convicted of eleven counts of various crimes, including kidnapping, theft and extortion, by the Regional Court, Gauteng North.[1] On 10 January 2022 he received sentences for imprisonment of one year on each count. The sentences were not ordered to run concurrently

and, therefore, the result was a cumulative prison term of eleven years. But, the prison term drastically reduced as the Regional Court extemporaneously ordered that four of the eleven years be conditionally suspended for five years. In the end, the applicant was to be imprisoned for a period of seven years.

[2] In this application, the applicant seeks relief stated as follows (in its full nature and extent) on the notice of motion to the application:

1. The applicant is granted urgency in terms of Rule 6 (12)(a) of the Uniforms Rules of Court, and that the normal forms and service provided for in the Uniform Rules be dispensed with;

2. That the applicant is granted access to this Court in terms of section 34 of the Constitution;

3. That the second Respondent’s failure Respond my Representations dated 11/07/2024 or act ( in implementing section 280(2) of the Criminal Procedure Act and section 39(2) (a) of the Correctional Services Act) respectively, be reviewed and set aside in terms of:

(i) Section 2 (g) alternatively;

(ii) Section 2 (b) alternatively;

(iii) Section 2 (c) alternatively;

(iv) Section 2 (e)(iii) alternatively

(v) Section 2 (e)(iv) alternatively;

(vi) Section 2 (f)(i) alternatively;

(vii) Section 2 (i);

4. That the one (1) year imprisonment sentence meted out on count 2 ( Kidnapping) started to operate from date of sentence unless the sentencing Court had made an order that the sentence be postponed;

5. A declaratory order that the word “deleted” used in example 4 and 5 is unlawful as no executive has power to undo what the court has ordered; the word “deleted” is varied to read “served”.

6. A declaratory order that my sentences are to be served consecutively in terms of section 280(2) of the Criminal Procedure Act and that each sentence that is fully served expires and comes to the end of period of validity;

7. A declaratory order that on10 January 2023 I had fully served the sentence for kidnapping and its period of validity expired on 09 January 2023;

PART 2

In the event that prayer 3, 4, 5,6 and 7 are found in my favour. I further pray for orders in the following terms:

8. That the second Respondent be ordered and/or directed to consider the Applicant for placement on parole after all necessary steps and recalculation of the Applicant’s minimum detention period (MDP);

9. That the second Respondent’s is ordered to take all necessary actions and steps to prepare the profile of the Applicant and place the same before Correctional Supervision and Parole Board within 10 days after the issue of this order;

10. That such further and/or alternative relief be granted as deemed fit and proper.

[3] As will become clearer below, the essence of the abovementioned relief was previously sought - with no or less success - from this Court by the applicant. Below, I reflect in a table format the previous approaches to this Court by the applicant.[2] The approaches were for similar or identical relief. I need to immediately record here that this is denied by the applicant. It is in this regard that the first, second, third and fourth respondents (‘the respondents’) raised a defence of res iudicata.[3]

[4] As was the case with the other previous applications or proceedings, the relief sought by the applicant in the matter currently before the Court is on an urgent basis. I intimated (or so I thought) at the hearing of the matter that I considered the matter to deserve determination or disposal not only on the basis of urgency or the absence of urgency. The matter heavily features hallmarks of the liberty of the applicant and I considered it to be in the interests of justice to consider it and give a ruling. The nature of the ruling (at that stage at a preliminarily inclination) was also influential to that predisposition. Also, the applicant was appearing in person, not legally represented. I was mindful of the fact that the applicant had brought similar applications in the past and, actually, took this issue up with the applicant. He passionately informed the Court that upon proper scrutiny the issues in this application substantially differ from those in previous applications. The application is

opposed by the respondents. But, more need to be said about the status of their opposition, particularly regarding the answer filed

in the matter.

[5] The matter came before me on 03 September 2024. As already indicated the applicant appeared in person whilst Mr A Bleki appeared as counsel for the respondents. This judgment was reserved after listening to oral submissions and, gratefully, also benefitted from written submissions filed.

Brief background, including previous litigation between the parties

[6] Further to what appears above, what follows may place the issues in this matter in perspective. The material is mostly derived from the objective facts in the matter and, in most parts, repeated by the applicant himself, and, therefore, cannot bear any bona fide dispute regarding the issues.

[7] The applicant, as stated above, was convicted on 30 December 2021 on eleven charges as follows: (a) kidnapping (i.e. count 2); (b) extortion (i.e. counts 3, 6 and 11); impersonating a labour inspector (i.e. counts 4, 7, 9, 12 and 14); theft (i.e. count 8), and attempted extortion (i.e. count 13). The conviction on count 2 for kidnapping is the most pertinent for current purposes, as would become clearer below.

[8] The applicant was sentenced on 10 January 2022 to one year direct imprisonment on each of the eleven counts, which amounted to a cumulative eleven year prison term. Four of the eleven years was totally (with conditions) suspended for a period of five years. The remainder of the sentences are running consecutively and, therefore, the applicant is/was to be incarcerated for a period of seven years from date of sentencing, barring him being paroled.

[9] The applicant received another one year prison term on 24 August 2023. This was on a charge unrelated to those already discussed above, but the latter one year sentence was ordered to run concurrently with the seven year cumulative prison term.

[10] As already indicated, the applicant has already approached this Court on a number of occasions, previously, without success or with minimal success. I am mindful that in some instances the Court appeared to have urged the parties to consider amicable resolution of the dispute, but the applicant remains unsatisfied. Table 10, below, reflects the highlights of the applicant’s matters brought before the Court or litigation history on similar or identical grounds.

Table 10: History of similar or identical litigation before this Court involving Mr Nyamakazi

Date Case NO / Coram or Judge Nature of Relief Outcome / Judgment Applicant’s reaction to the outcome October 2023 2023-104494: Swanepoel, J Refer to the next column on outcome. The Court advised the parties to try settle the matter out of court. The applicant wanted to be considered for parole in terms of the COVID-19 Special Parole Dispensation, as he had not reached half of his sentence. He was granted leave to supplement his papers in the event that there was no agreement reached. The applicant says the respondents did not engage with him, which gave him no choice but to supplement his papers and approach the Court on urgent basis again under the same case number. November, 2023 2023-104494: Van der Westhuizen, J Notice of Motion sought the following relief: 1) The Applicant is granted urgency in terms of Rule 6(12)(a) Of the Uniformed (sic) rules of Court and that the normal forms and service provided for in the uniformed (sic) rules be dispensed with. 2) Granting The applicant condonation, where I failed to comply with the rules of this Honourable Court. 3) The Honourable Court to grant me condonation in case my affidavit is not commissioned. 4) That the applicant be granted access to this court. 5) That the decision by the record’s office (Mr Gouws), be reviewed and set aside. 6) It is declared and confirmed that the applicant qualifies for the additional 12 months’ remission, granted by the President of South Africa, in terms of Circular 4 of 2023: ‘Granting of special remission of sentence, (amnesty)’. 7) The decision by the case management committee chairperson (CMC) is reviewed and set aside. 8) It is declared and confirmed that the applicant qualifies for the COVID 19 parole special dispensation. 9) That the respondents be, and are hereby ordered to urgently consider processing the applicant (Presby Linda Nyamakazi) for placement on parole by not later than 30 days from the date of this judgment. 10) Any further and/ or alternative relief the Court deems fit. Application dismissed. Leave to appeal was also refused. In November 2023 the applicant petitioned the Constitutional Court seeking direct access and direct leave to Appeal. The Constitutional Court, ultimately on 22 May 2024 refused the application. 14 June 2024. 2024-060382: Nalane, AJ Notice of Motion sought the following relief: 1. The applicant is granted urgency in terms of Rule 6 (12)(a) of the Uniforms Rules of Court, and that the normal forms and service provided for in the Uniform Rules be dispensed with. 2. The decision by the head of Devon Correctional Centre when he is not authorised by any legislation to make such decisions on behalf of the Centre Co-ordinator-Corrections ( Mr Maphanga)/ failure to act on the part of the Centre Co-ordinator is reviewed and set aside. 3. A declaratory order that on 11 August 2023 I had already served the one year sentence imposed by the court on the count of kidnapping charge and by the gist of section 39(2)(a) that sentence expired. 4. It is declared and confirmed that the applicant (Mr Linda Nyamakazi) qualify for the additional 12 months remission granted by the President of South Africa in terms of circular 04 of 2023 “Granting of special remission of sentence (Amnesty). 5. The decision by the Minister of Justice and Correctional Services and Department of Correctional Service executives to implement Proclamation 19 of 2020 only to approve placement on parole to offenders who were already serving sentences on 27 April 2020 and excluding offenders who were incarcerated pending finalisation of their cases who after being sentenced their Minimum Detention Periods fell within the threshold of 26 April 2026, to be unconstitutional, irrational and in violation of Phaahla judgment that punishment, and parole eligibility, should be determined by date of commission of the offence. 6. The decision by the Minister of Justice and Correctional Services and Department of Correctional Services executives to approve placement on parole to offenders determined by date of sentence instead of date of commission of the offence being the determining date is invalid, unlawful and in violation of the right to benefit from the least of the severe of the prescribed punishments and contravenes paragraph 2.2 of Correctional Services Amendment Bill. 7. It is declared that any person serving a sentence of incarceration for a qualifying offence(s) in terms of Proclamation 19 of 2020, which was committed before or on 27 April 2020 who at the time of the announcement was incarcerated who will reach their Minimum Detention Periods on or before 26 April 2025, qualify to be considered for placement on parole in terms of the policy and guidelines applied by the parole boards when implementing Proclamation 19 of 2020. 8. It is declared and confirmed that the applicant (Linda Nyamakazi) qualify to be considered for parole placement in terms of policy and guidelines applied when Covid19 Special Parole Dispensation was implemented. 9. That the Respondents be and are hereby ordered to urgently take necessary steps processing the applicant's profile and submit it to the Parole Board for consideration of placement on parole by not later than 14 days from the date of thus judgement. 10. That such further and/or alternative relief be granted as deemed fit and proper. The defence of res judicata was raised, but the Court urged for an amicable agreement between the parties. A draft order was made an order by agreement between the parties. The applicant was dissatisfied that the answer given by the respondents to his letter directed at them in terms of the order of Nalane ,AJ. He felt aggrieved by the response and decided to approach the Court again (under the same case number). 05-08-2024 (judgment reserved on 23 July 2024) Van der Westhuizen, J In the judgment by Van der Westhuizen, J at par [3] the following is stated, which alludes to the nature of the relief sought in the application before him as in the one previously: ‘This is not the first attempt by the applicant to be granted the relief now sought. During November 2023, the applicant, also by way of an urgent application, sought similar, if not identical, relief to that in the present application. That application served before me during November 2023, and in ex tempore judgment, the relief sought in that application was refused.’ Application dismissed

Issues and submissions (discussed)

[11] In table 10 above, it is clear that the applicant approached this Court – on a number of times - regarding the execution of judgment of the Regional Court in as far as his incarceration or prison term is concerned. This, in the main, concerned interpretation or computation and sequencing by the prison authorities of the periods in his cumulative sentence(s), as well as associated remissions or amnesty. All these have a bearing on the applicant’s possible release on parole.

[12] Principal among the applicant’s complaints is the fact that the authorities to not seem to share his view or approach that he has fully served the kidnapping sentence in the first year of his incarceration. His logic in this regard is that the sentences are served sequentially as borne by the number they were allocated in the charge sheet before the Regional Court. For example, the kidnapping charge was labelled ‘count 2’ in that court. The applicant was not convicted of the charge bearing the label ‘count 1’. Therefore, in the applicant’s view, from around 10 January 2022 (when he was sentenced) up to somewhere in January 2023 he has served and completed the kidnapping sentence. Thenceforth he commenced serving the next count in line or number.

[13] The motivation for the applicant’s abovementioned approach is because the kidnapping charge stands in his way from being considered for amnesty in terms of Circular 04 of 2023: Granting of Special Remission of Sentence (Amnesty) by the National Commissioner of Correctional Services, dated 11 August 2023 (‘Circular 4’). This circular and attendant issues were properly dealt with – with respect - in the judgment of my brother Van der Westhuizen, J handed down on 05 August 2024. The following excerpts therefrom are material for current purposes:

[9] I further held in respect of the Amnesty in terms of Circular 4 of 2023, that the applicant was disqualified to benefit from that Amnesty, in view of his conviction for kidnapping. Circular 4 specifically stipulated that inmates were excluded from the Amnesty where they were convicted on a charge of kidnapping. I held that the applicant accordingly did not qualify for the additional 12 months remission.

[10] The applicant sought leave to appeal the whole of my judgment and order. That application for leave to appeal was refused. Thereafter, the applicant applied to the Constitutional Court for direct access to appeal my judgment. That request was refused by the Constitutional Court.

[11] In this application, the applicant again seeks a declaration that he is to benefit from the Amnesty in terms of Circular 4 of 2023. At the angle taken by the applicant is slightly different this time. He now submits that the sentence in respect of the conviction on the charge of kidnapping has run its course and furthermore, that it was part of a period of suspension ordered in respect in respect of a specific sentence relating to a specific conviction namely that of extortion.

[12] There is no merit in the applicant's aforementioned contentions for what follows. In my judgement of November 2023, I found that Circular 4 of 2023 specifically excludes a conviction on a charge of kidnapping. However, the Circular allows for a deviation in respect of disqualifying offences where the sentence provided an option for the paying of a fine, or where the sentence in respect of the disqualifying offence was suspended. The applicant was sentenced to direct imprisonment without the option of paying a fine in respect of conviction of kidnapping. Secondly, the ordered period of suspension of sentence was limited to a subsequent conviction when a charge of extortion committed within the five year period of suspension. The sentence on the charge of kidnapping was not included in the suspension.

[underlining added for emphasis]

[14] The applicant also complains that the respondents, particularly, the Chairperson of the Case Management Committee: Modderbee Correctional Centre (‘the CMC’), second respondent, failed to respond to his representations dated 11 July 2024 or to implement the provisions of section 280(2) of the Criminal Procedure Act 51 of 1977 and section 39(2)(a) of the Correctional Services Act 111 of 1998. Again, this is to do with the interpretation of his sentence regarding the kidnapping conviction.

[15] Section 280(2) of the Criminal Procedure Act, together with its heading, reads as follows:

280. Cumulative or concurrent sentences.—(1) When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to such several punishments for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to impose.

(2) Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such sentences of imprisonment shall run concurrently.

[16] Section 39 of the Correctional Services Act, together with its heading, reads as follows in the material part:

39. Commencement, computation and termination of sentences.—(1) Subject to the provisions of subsection (2) a sentence of incarceration takes effect from the day on which that sentence is passed, unless it is suspended under the provisions of any law or unless the sentenced person is released on bail pending a decision of a higher court, in which case the sentence takes effect from the day on which he or she submits to or is taken into custody.

(2) (a) Subject to the provisions of paragraph (b), a person who receives more than one sentence of incarceration or receives additional sentences while serving a term of incarceration,

must serve each such sentence, the one after the expiration, setting aside or remission of the other, in such order as the National

Commissioner may determine, unless the court specifically directs otherwise, or unless the court directs that such sentences shall run concurrently …

[17] To put matters in proper perspective, the following is part of the relief sought by the applicant in terms of the current application:

[17.1] ‘[t]hat the second Respondent’s failure to respond my Representations dated 11/07/2024 or act ( in implementing section 280(2) of the Criminal Procedure Act and section 39(2) (a) of the Correctional Services Act) respectively, be reviewed and set aside …’:

[17.2] ‘[t]hat the one (1) year imprisonment sentence meted out on count 2 (Kidnapping) started to operate from date of sentence unless the sentencing Court had made an order that the sentence be postponed’;

[17.3] ‘[a] declaratory order that my sentences are to be served consecutively in terms of section 280(2) of the Criminal Procedure Act and that each sentence that is fully served expires and comes to the end of period of validity’, and

[17.4] ‘[a] declaratory order that on10 January 2023 I had fully served the sentence for kidnapping and its period of validity expired on 09 January 2023’.

[18] As characterised – with respect – by my brother Van der Westhuizen, J the applicant may have put a ‘spin’ on the relief currently sought, but it remains the same in substance. The relief regarding interpretation or implementation of section 280(2) of the Criminal Procedure Act and section 39(2)(a) of the Correctional Services Act relates to the applicant’s quest to benefit from the amnesty available in terms of Circular 4 or any other similar remission of his sentence. Even if it is not, the issues have been finally determined by this Court.

[19] The respondents raised in their heads of argument the defence of res iudicata. The applicant had objected against the respondents’ answering affidavit which was not properly commissioned as at the time of hearing. I have noted that a properly commissioned affidavit was filed after the hearing. But, I do not consider it necessary to determine whether to admit or refuse admittance of the answering affidavit by the respondents. I will determine the issues in this matter without having regard to the respondents’ affidavit. This is not the same as shutting the respondents completely out, but only the factual averments in their affidavit. I will have regard to the legal argument by the respondents’ counsel (both written and oral), especially on res iudicata. The premises for the argument properly arise from the applicant’s own papers, particularly the litigation history he provided which includes the application which served before Nalane, AJ.[4] This Court have already given effect to the interests of justice in respect of the issue of urgency of this application, which ruling favoured the applicant’s interests. The interests of justice are universal in reach and permeate to every aspect of a matter for all parties before the Court.

[20] Back to the doctrine of res iudicata. In Amler’s Pleadings[5] the learned authors authoritatively state the following regarding the doctrine:

The exceptio rei judicatae is based on the irrebuttable presumption (rule) that a final judgment on a claim submitted to a competent court is correct. This rule is founded on public policy, which requires that litigation should not be endless, and on the requirement of good faith, which does not permit of the same thing’s being demanded more than once…[6]

[21] The Supreme Court of Appeal per Brand JA in Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another[7] had the following to say about res iudicata:

10] The expression ‘ res iudicata ’ literally means that the matter has already been decided. The gist of the plea is that the matter or question raised by the other side had been finally adjudicated upon in proceedings between the parties and that it therefore cannot be raised again. According to Voet 42.1.1, the exceptio was available at common law if it were shown that the judgment in the earlier case was given in a dispute between the same parties, for the same relief on the same ground or on the same cause (idem actor, idem res et eadem causa petendi (see eg National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) at 239F-H and the cases there cited). In time, the requirements were, however, relaxed in situations which give rise to what became known as issue estoppel.

[22] The Constitutional Court, as the apex Court in the country, held in Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund,[8] per Nkabinde ADCJ, as follows regarding the doctrine:

[29] The Fund submits that the matter is res iudicata . This doctrine is founded on public policy which requires that litigation should not be endless, especially when the demand for payment of money is based on the same ground. And, as the law regarding this doctrine remains settled, the enquiry is not whether the decision is right or wrong, but simply that there is a decision…Nonetheless, it is the res iudicata issue – and not the correctness of the Ekurhuleni I interpretation – that should take centre stage in the debate.

[footnotes omitted]

Conclusion and costs

[23] The authorities are very clear on the doctrine of res iudicata. It is not whether the decision or judgment ‘is right or wrong, but simply that there is a decision’.[9]

[24] In this matter, the applicant, Mr Nyamakazi, has been relentless in the pursuit of the relief currently sought. The relief may have been crafted in different forms but its substance remains the same. It involves, predominantly, the same issues and the same parties. This includes even the so-called ‘representations’ of 11 July 2024 regarding the applicant’s minimum detention period.

[25] The following extract from the applicant’s own written submissions, aptly subtitled ‘Review litigation history’, sums up the issue and foretells the fate of this application:

I first began this journey by filing an urgent application in October 2023 which was before Honourable Judge Swanepoel, the Honourable Judge having heard the

parties advised the counsel for the Respondents to go and advise his clients accordingly so that we can settle this matter out of Court.[10] [underlining added]

[26] Based on what appears above the application will be dismissed. But there will be no order as to costs, primarily because of the timing of delivery and status of the respondents’ answer. This is not intended to serve as punishment but it is a natural consequence of the events in this matter. Also, I do not consider the interests of justice to warrant that the applicant be mulcted with costs of the current application. But this does not suggest that similar applications in the future would yield the same outcome, in as far as costs are concerned. In fact, the applicant should seriously and dispassionately consider the contents hereof and those from previous rulings of this Court. It is a well-known fact that the resources of this Court are limited and, thus, ought to be used sparingly and in a reasonable manner. The benefits from such an approach would be reaped by everyone, the applicant included.

Order

[27] In the result, I make the following order, that:

a) the application is dismissed, and

b) there is no finding regarding liability for costs of the application.

Khashane La M. Manamela

Acting Judge of the High Court

Date of Hearing

: 03 September 2024

Date of Judgment

: 03 December 2024

Appearances:

For the Applicant : Mr PL Nyamakazi (in person) For the Respondents

: Mr Mr A Bleki Instructed by

: State Attorney, Pretoria

[1] Par [7] below for further details.

[2] Par [10] below.

[3] Pars [19]-[25] below.

[4] Table 10 above.

[5] LTC Harms and M Townsend, Amler’s Pleadings (10 edn, LexisNexis 2024).

[6] Amler’s Pleadings (10 edn, LexisNexis 2024) 321-322.

[7] Prinsloo NO and Others v Goldex 15 (Pty) Ltd and another (243/11) [2012] ZASCA 28; 2014 (5) SA 297 (SCA) (28 March 2012).

[8] Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund (CCT226/15) [2017] ZACC 1; 2017 (6) BCLR 750 (CC) (17 January 2017).

[9] Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund 2017 (6) BCLR 750 (CC) [29], with italics added for emphasis.

[10] Founding Affidavit par [22], CaseLines 02-14 to 02-15.