Potgieter v Head of Correctional Centre Modderbee and Others (2023-049795) [2023] ZAGPJHC 584 (26 May 2023)
The court found that the application was procedurally defective due to the applicant's failure to join the National Prosecuting Authority, an interested party, despite having the prosecutor's contact details. In the circumstances, and given the urgency and lack of opportunity for the respondents to file answering...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 584
- Parties
- Applicant: Johannes Christoffel Potgieter; Respondent: Head of Correctional Centre Modderbee; Respondent: National Commissioner of Correctional Services; Respondent: Acting Deputy Regional Commissioner of Correctional Services Gauteng; Respondent: Minister of Justice and Correctional Services
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2023-049795
- Procedural Posture
- Urgent Application / Application for Compassionate Leave Pending Sentencing
- Outcome
- Application removed from the roll for lack of joinder of the National Prosecuting Authority; costs awarded against the applicant.
- Judges
- GC Wright
- Legal Topics
- Joinder, Compassionate Leave, Correctional Services Act, Urgent Interdict
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Johannes Christoffel Potgieter
Applicant
Head of Correctional Centre Modderbee
Respondent
National Commissioner of Correctional Services
Respondent
Acting Deputy Regional Commissioner of Correctional Services Gauteng
Respondent
Minister of Justice and Correctional Services
Respondent
Procedural Posture
Urgent Application / Application for Compassionate Leave Pending Sentencing
Legal Issues
- 1 Whether the applicant, a convicted prisoner awaiting sentence, may be granted compassionate leave under section 44 of the Correctional Services Act to attend his daughter's wedding.
- 2 Whether the application should be dismissed or removed from the roll due to non-joinder of the National Prosecuting Authority.
Ratio Decidendi
The court found that the application was procedurally defective due to the applicant's failure to join the National Prosecuting Authority, an interested party, despite having the prosecutor's contact details. In the circumstances, and given the urgency and lack of opportunity for the respondents to file answering papers, the court determined that the appropriate course was to remove the matter from the roll rather than dismiss it outright. The applicant was ordered to pay the respondents' costs.
Court Disposition
Application removed from the roll for lack of joinder of the National Prosecuting Authority; costs awarded against the applicant.
Orders
- The matter is removed from the roll for lack of joinder of the NPA.
- The applicant is to pay the respondents' costs.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-049795
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
26.05.23
In the matter between:
JOHANNES CHRISTOFFEL POTGIETER APPLICANT and THE HEAD OF CORRECTIONAL CENTRE MODDERBEE 1ST RESPONDENT THE NATIONAL COMMISIONER OF CORRECTIONAL SERVICES 2ND RESPONDENT THE ACTING DEPUTY REGIONAL COMMISSIONER OF CORRECTIONAL SERVICES GAUTENG 3RD RESPONDENT THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 4TH RESPONDENT
Neutral Citation: Johannes Christoffel Potgieter v The Head of Correctional Centre Modderbee & 3 Others (Case No: 049795/2023) [2023] ZAGPJHC 584 (26 May 2023)
JUDGMENT
WRIGHT J
1. The applicant is a man who was convicted of fraud on 10 May 2023. He is held at Modderbee prison awaiting sentence. He seeks an order that he be allowed compassionate leave, under section 44 of the Correctional Services Act, to attend his daughter’s wedding tomorrow, Saturday 27 May 2023.
2. At the trial, the applicant was legally represented. In the present application, the applicant is represented by the same attorney.
3. The application was launched yesterday, 25 May 2023, some 15 days after conviction and the refusal of bail pending sentence. The respondents are presently legally represented but have not been given a fair chance to file answering papers. The NPA has not been cited as a party as it should have been.
4. He says that he attended at court for his trial on some 30 occasions prior to conviction and that he is not a flight risk.
5. He says that bail was revoked on conviction. It appears that a bail application, brought after conviction, on 10 May 2023, was refused on that day. He says that the present case is neither a bail application nor a bail appeal.
6. He says that section 44 should be read to include prisoners awaiting sentence. The section seems expressly applicable only to sentenced
offenders, but I do not decide the point.
7. The founding affidavit is silent on details regarding the conviction. From the bar, the attorney for the applicant said that it was one count, involving between R700 000 to R800 000, one corporate victim and not from a position of trust. The statement was made from the bar that the applicant is a first offender.
8. I do not decide either the question of urgency or that of the merits.
9. The non-joinder of the NPA is a serious fault in the application. The applicant’s attorney admitted from the bar that he has the relevant prosecutor’s email address. The application was not even emailed to the prosecutor dealing with the matter.
10. Adv Chabane, for the respondents asked me to dismiss the application on the ground of non-joinder but in the rushed circumstances it is in my view, preferable to remove the matter from the roll on the ground of non-joinder.
ORDER
1. The matter is removed from the roll for lack of joinder of the NPA.
2. The applicant is to pay the respondents’ costs.
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD : 26 May 2023
DELIVERED : 26 May 2023
APPEARANCES :
APPLICANT Mr L Nolte Instructed by Nolte Inc Attorneys 011 788 0188 nakka@couzyns.co.za; steff2@nolteinc.co.za; lourens@nolteinc.co.za RESPONDENTS Adv VJ Chabane Instructed by State Attorney Mmapula.makghamatha@dcs.gov.za; thembi.gwamanda@dcs.gov.za; luckyboy.mathiba@dcs.gov.za; CPrhiri@justice.gov.za