IN THE HIGH COURT OF SOUTH AFRICA GUATENG … · GUATENG LOCAL DIVISION JOHANNESBURG Case no: ... Kindly put this application on the URGENT ... IN THE HIGH COURT OF SOUTH AFRICA GUATENG

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IN THE HIGH COURT OF SOUTH AFRICA

GUATENG LOCAL DIVISION

JOHANNESBURG

Case no: _______________

In the matter between:

DONOVAN SAMUEL MOODLEY APPLICANT

And

THE MINISTER OF CORRECTIONAL SERVICES 1stRESPONDENT

THE REGIONAL COMMISIONER (CORRECTIONAL SERVICES) 2NDRESPONDENT

THE AREA COMMISIONER (JOHANNESBURG CORRECTIONAL 3RDRESPONDENT

SERVICES)

THE HEAD OF PRISON (JOHANNESBURG MEDIUM “B” CENTER) 4THRESPONDENT

PRINCIPAL EDUCATIONIST (JOHANNESBURG MEDIUM “B” CENTER) 5THRESPONDENT

UNIVERSITY OF SOUTH AFRICA (UNISA) 6TH RESPONDENT

INDEX

APPLICANT’S: URGENT NOTICE OF MOTION………..…………………………. Page 3 - 5

APPLICANT’S: FOUNDING AFFIDAVIT……………………………..……………… Page 6 -13

APPICANTS: DRAFT COURT ORDER………………………………………………. Page 14

APPLICANT’S: NOTICE OF SET DOWN ……………………………………….……. Page 16

APPLICANTS: HEADS OF ARGUMENT ……………………………….……………. Page 17- 20

APPLICANT’S: ANNEXURES……………………………………………………………… Page 21

Kindly put this application on the URGENT ROLE

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TO: THE REGISTRAR OF SOUTH GAUTENG HIGH COURT PRIVATE BAG X 7 JOHANNESBURG, 2000 AND TO: THE MINISTER OF CORRECTIONAL SERVICES AND OTHERS Defendant’s Attorneys C/O The State Building, 10th Floor 95 Market Street, Cnr Kruis Street Johannesburg 2000 Tel No: (011) 330-7606 And To: The University of South Africa Pretoria – P.O box 392, UNISA 0003 Local Office – Gandhi Square

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JOHANNESBURG

Case no: _______________



And




SERVICES)




URGENT NOTICE OF MOTION IN TERMS OF RULE 53

TAKE NOTICE that DONOVAN SAMUEL MOODLEY (hereinafter called the applicant),

intends to make an application to this Court for an order in the following terms: 1. That this application be heard as an urgent application and that Rule 6 (12) (a) of the

uniform rules of court be applied and that the normal forms and services provided for in the uniform rule may be abridged to that extent as set forth here under;

(a) The applications normal procedure is dispensed for this application.

(b) That the court grants an order for the applicant not to be transferred out of JHB CORRECTIONAL CENTER MEDIUM “B” by the 4th Respondent until his studies is complete and that he continues to stay in a single cell.

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(c) That the 6th Respondent be ordered to fulfill its part of the contract with the Applicant and not deregister Johannesburg Correctional Centre Medium B as an Exam Centre.

(d) That the honorable court is requested to issue an order preventing the cited

RESPONDENTS from any form of harassment or victimization.

(e) Any further or alternative relief that the Honorable Court deems proper.

TAKE NOTICE FURTHER that the accompanying affidavit of DONOVAN SAMUEL MOODLEY, together with annexures will be used in support of this application.

TAKE NOTICE FURTHER that the applicant has chosen Johannesburg Correctional Center

Medium “B” 09 Main Road Mondeor 2110 as the address at which delivery and service of all processes and documents in these proceedings will be accepted.

TAKE NOTICE FURTHER that the Respondents should provide Notice of intent to oppose,

within 24 hours, should they wish to do so before the notice of set down date; and further, in such notice appoint an address within eight kilometers of the office of the registrar at which they will accept notice and service of all documents.

TAKE NOTICE FURTHER that the respondents should provide any Answering Affidavit,

together with any relevant documents, within 24 hours of their notice of intent to oppose should they wish to do so.

TAKE NOTICE FURTHER that if the respondents intend to raise any question of law only

they shall deliver notice of their intention to do so, within the time stated in the preceding sub-paragraph, setting forth such question.

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Dated and signed at Johannesburg Correctional Center Medium “B”

_________________________ Applicant in person

DONOVAN SAMUEL MOODLEY Prison # 205 293 034

Johannesburg Correctional Center Private bag x04

Mondeor 2110 RECEIVED COPY HEREOF ON THIS ___________DAY OF MARCH 2015

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JOHANNESBURG

Case no: _______________



And




SERVICES)




FOUNDING AFFIDAVIT

I, the undersigned, DONOVAN SAMUEL MOODLEY, do hereby make oath and state:

1. I am the applicant in this matter. I am an adult male, presently incarcerated at the Johannesburg Medium “B” Correctional Center, where I am serving a sentence.

2. Save where it appears from the context, that the facts deposed hereto are within my own personal knowledge and are to the best of my knowledge and belief, true and correct.

3. The 4th Respondent is the HEAD OF JHB CORRECTIONAL CENTER MEDIUM “B”, thus all final decisions of transfer are authorized by him.

4. The 5th Respondent is the PRINCIPAL EDUCATIONIST AT JHB CORRECTIONAL CENTER MEDIUM “B” and his duty is ensure that the needs of students are met.

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5. The 6th Respondent has a contract with the Applicant to study toward an LLB Law

degree at Johannesburg Correctional Centre Medium B.

6. The Honorable Court should take note that I make this application as a LAYMAN and would appreciate the guidance of the court in this matter.

7. And that the Respondents should not overlook paragraph 6.

LOCUS STANDI

8. It is my assertion that I have locus standi to bring this matter before the Honorable Court for adjudication by virtue of my interest in the matter. It is further asserted that my fundamental right to a just administrative action has been infringed by the Respondents' conduct – section 33 of the Constitution '1996.

URGENCY

9. The Respondents are adamant that by the 31st of March ‘2015 I will be transferred to another prison.

10. It is the middle of the Semester. I write exams in the first week of May ‘2015. 11. This transfer will severely prejudice my studies.

HEARING OF AN OFFENDER PRIOR TO TRANSFER

12. It is submitted with great respect that in terms of the policy of the Department of correctional services the audi alteram partem rule must be complied with at all times before an offender could be transferred to another prison. This implies that an offender has the right to be provided with written reasons for the intended transfer, to be given an opportunity to present his case and also for review of the decision, in case he is not satisfied. See the attached ANNEXURE "A".

13. The Applicant has not been given any hearing on this matter; his concerns have not been addressed.

14. It is patently clear from Respondents 1 to 5’s conduct that they intend to implement

their decision without having followed the prescribed transfer procedures does not only threaten my right to a just administrative action as envisaged in section 33 of the

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Constitution 1996, but also constitutes an abuse of public power. An abuse of power that will result in the end of my studies.

NATURE OF THE APPLICATION AND RELIEF SOUGHT

15. The Applicant seeks relief of what he considers to be an infringement of his fundamental right to a Just Administrative Action and Education as set out in the Constitution 1996.

16. That the Respondents 1 to 5 be ordered to act in compliance with their own policy directives.

17. That the Court compels UNISA, the 6th Respondent not to deregister the Applicants current Exam Centre as he has a contract with them.

18. That the Applicants contract with all Respondents and his personal circumstances are enough to compel Respondents to allow him to finish his studies at his current prison.

APPLICATION:

19. I applied to study at Johannesburg Correctional Centre Medium B in May ‘2013. This application was approved. I began to study at UNISA from 2014. I later applied for a personal computer and this was also approved as it is a basic requirement from UNISA. I am in my second year of an LLB Law degree. The first year consists of eight subjects. I completed nine in my first year, from which I am proud to say I got four Distinctions and four B’s. I am dedicated to my studies. I am fully invested in them. My family is also fully invested and to date have spent just over thirty thousand rand to fund my studies.

20. There is a Contract between DCS and an inmate upon application to study and bring in a computer. The inmate receives approval to study at the center at which he applies. I applied to study at Johannesburg Correctional Centre Medium B and not anywhere the Department chooses to send me at any time during my studies. The Centre must be compelled to uphold the contract.

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There is firm reasoning behind this assertion; before applying to study at a prison: 1) An inmate must first establish a support base with people near the prison he is at. 2) He must find a conducive, space to study at the Centre (Single Cell). 3) He must acquire the necessary financial support. (These requirements are set out in the UNISA prospective student brochure to all students) All three of the above imperatives to my studies are secured for me at this Centre only. To remove me will be the end of my studies. If I or my family knew that transfer was a possibility during my studies, we would not have started this journey.

21. It is an imperative for UNISA LLB Law students to have a Personal Computer. Computers are fragile and often need repairs or upgrades. It is my family who do this running around for me. This repair must be done quickly, as to not negatively affect ones studies. It is not a simply task to collect and then bring back a computer to a prison. If I am taken far away from my family, this will not be possible.

22. In the Study of Law today it is impossible to proceed without a personal computer.

a) Each subject has case law, journal articles and legislature (to name a few) that are essential to study. To have these printed instead of on a personal computer is just absurd.

b) I have already summarized my notes and case law on my personal computer for

this semester. I have little over a month to study. Should I now, at this last second, reduce information to hand written documents?

c) I have already worked out a method of study, in which my personal computer is

central and indispensable. My marks are proof thereof. Am I supposed to scrap this method and revert to a pen and paper method now?

d) The information given by the Principal Educationist that UNISA will now provide

each student with a personal computer at Pretoria Central Correctional Centre simply cannot be true. Such false information must receive a harsh sanction from this Honorable Court.

23. The notice placed on walls in all units in the prison on the 23rd of March ‘2015 says that from the 1st of April ‘2015, this Centre will no longer be an exam venue of UNISA. UNISA has a valid enforceable contract with me. I registered to write at this Centre,

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which is a service they provide. This court must compel them to comply with this contract. SEE ANEXTURE “B”.

24. A student often needs unforeseen stationary. It is my family which supplies it to me. If I am removed far away from them this will not be possible and my studies will suffer.

25. I have a right to self-determination guaranteed in the Constitution. This move will be an unjustified curtailment of that right, as it will end my studies.

26. It is not reasonable to believe that the Department of Correctional Services (DCS) would transfer me in the middle of studies and disrupt these studies. The department does not supply funding, essentials to University Students or basics. On a weekly basis, family or friends will have to bring things to me which is critical to my studies by visiting. I am doing a LLB Law degree which is extremely challenging, how much more so in prison. It requires lots of research and I have to often send people to a Law Library to assist me. This will not be impossible if I am moved far away from my support base.

27. Any new arrangements for students can only apply to future students. New policy decisions cannot be applied retrospectively when it disadvantages a person. Moving the goal post just because one can, is not fair administration.

28. Prison is an extreme environment, the challenges facing a student are incredible and

even hard to describe. One has to take time to settle before having any chance of meaningful study. It is the middle of the semester. A few weeks from exams. My first exam is on the 7th of May ‘2015. How can the DCS justify such a move at this stage? These actions could easily be construed as a sign of contempt and disregard of my Person. Is this the actions of a Rehabilitator?

29. My parents are retired and live on a modest budget. Currently they are sacrificing for me to study. They cannot be further stretched financially. This move will stretch them beyond their means.

30. Those who study at University are role models for other inmates. To drain prisons of

tertiary students is to create a micro society with no role models. I started to study because I met others doing so in prison. It made me believe it was possible. How will those behind me be inspired.

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Many of our past and current leaders in this country were inspired to study in prison in this very same way.

31. Currently, the vast majority of School Teachers/Facilitators are UNISA students. They perform a critical function in all prisons. This move of UNISA students to one or two Centres in a province will cripple this prisons schooling system.

32. The department has extremely low and slow success rates with the implementation of new systems. This current project is an experiment. Being forced to participate in an experiment in a pilot project that has little chance of success is an unjustified infringement of my right to human dignity. I have everything invested in these studies.

Experiments go wrong. My current situation is working. How will the DCS compensate

me if my marks are bad or if I fail as a result of their experiment?

I have everything to lose if this experiment does not work, but the DCS has nothing to

lose. This is an unjustified application of force.

33. There has been no consultation with me on this issue by DCS or UNISA. No details have been provided on my new conditions that I will face at the prison of transfer. Again, this cannot be deemed to be just administrative action.

34. Study for a degree is on the uppermost tier when it comes to rehabilitation. It is the utopian goal for every inmate in a Correctional Centre. One that should be encouraged.

a) For DCS to make only one or two prisons in a province university learning Centres is to elevate these studies to extra ordinary. This cannot be sound rehabilitation policy. It will discourage inmates from studying and many current students will drop out because they must go to distant prisons, away from family to study.

b) Every prison is a University Learning Centre currently. Making one or two prisons

in a province a University learning Centre is not sound policy and cannot be defended.

c) Will prospective UNISA students in future now have to wait for placement at

Pretoria Central Prison or Medium C to pursue their studies in this Province? This is

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absurd, as it takes one many months and years in many cases to get moved to a prison of choice. This model is simply not a long term solution.

d) Prisons are overcrowded and in a poor state of administration. Why interfere with

self-determined individuals that are progressing.

35. I have been in prison for a very long time, ten years, I have developed some health

conditions related to age, genes and prison conditions. a) I receive repeat medication on a monthly basis from Baragwaneth Hospital, from

Saint John’s Eye Clinic and ENT departments. b) I have been diagnosed for diabetes, which I control with a special diet provided by

this prison, and is mainly supplemented by my family. c) I also go to the University of Johannesburg regularly to be treated for a rare

degenerative condition called Keratoconus in my eyes. This means I have very limited sight without the use of hard contact lenses. I cannot read or write without them and navigation is severely impaired. Lenses which I can only use for a few hours at a time. I rely on memory to get around when they are off. I cannot live in a communal cell as I am clumsy without them and this will create unnecessary tension for me with others, as prison is a hostile environment. A new environment will completely disable me.

This transfer will not be in the interest of my health. It will severely disrupt all my treatment and take me away from specialists and prison nurses who know my condition.

36. I was allowed to bring in a guitar in 2009. I have taught myself to play over the years. I am currently teaching three other inmates to play. I cannot imagine my life without my guitar as it has brought me unspeakable joy, comfort and solace. This transfer will cause me to lose the use of my guitar. It will not be in the best interest of my rehabilitation, it will put me under severe mental strain.

37. It is submitted that it is most disturbing that I am seeking relief from this Court when I

should be studying. This is an unnecessary and callous distraction by the DCS. It is time consuming and mentally draining.

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38. Why is this plan not being implemented or discussed with students during the June/July break or December/January break. This is proof of an administration that simply does not care. No communication has been received from UNISA.

39. Their actions are against their own policy. (see relevant policy in heads of argument below)

It is respectfully submitted that I have no alternative but to approach the Honorable Court and pray that the Court grant me my prayers as set out in the Notice of Motion, or such remedy as the Honorable Court deems fit under section (38) of the bill of rights. I know and understand the contents of this declaration. I have no objection to taking the prescribed oath, which I consider to be binding on my conscience.

__________________________ DONOVAN SAMUEL MOODLEY

SIGNED and SWORN TO before me at JHB CORRECTIONAL CENTER “B” on this_24th___ day of MARCH 2015, the deponent having acknowledged that he knows and understands the contents of this declaration, has no objection in taking the prescribed oath which he considers to be binding on his conscience.

____________________ Commissioner of oaths Designation: _____________________________ Full Names: _____________________________ Address: _____________________________

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JOHANNESBURG

Case no: _______________



And




SERVICES)




DRAFT COURT ORDER

Having read the documents filed and having considered the matter: IT IS ORDERED THAT:

1. The Respondents are not to transfer the applicant from the JOHANNESBURG CORRECTIONAL MEDIUM B PRISON till his studies are completed.

2. The Respondents are not to harass and victimize the applicant, nor remove him from his cell at the Johannesburg Medium B Correctional Center.

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3. That the Court compels UNISA, the 6th Respondent not to deregister the Applicants current Exam Centre as he has a contract with them Alternate Order

1. The DCS of is ordered to suspend all plans till proper consultations with the Applicant is done as per their own policy. And that this should be done during the semester breaks in June/July or December/January.

2. The Respondents are not to harass and victimize the applicant, nor remove him from

his cell at the Johannesburg Medium B Correctional Center.

3. That the Court compels UNISA, the 6th Respondent not to deregister the Applicants current Exam Centre as he has a valid contract with them.

BY THE COURT ______________________ THE REGISTRAR

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JOHANNESBURG

Case no: _______________



And




SERVICES)




URGENT NOTICE OF SET DOWN

To the registrar/ clerk of the South Gauteng High Court. All the Respondents as

indicated in the notice of motion. Please take note that applicant would like to

set the matter down before court and the date of set down to be arranged for

the 26th March ‘2015 time 9:00 hours.

_________________________ Applicant in person

DONOVAN SAMUEL MOODLEY Johannesburg Correctional Center

Private bag x04 Mondeor

2110

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JOHANNESBURG

Case no: _______________



And




SERVICES)




APPLICANTS HEADS OF ARGUMENTS

1. This is an application whereby I am requesting the Honorable court to compel the

Respondents to “Act in terms of their own policy directives” that is the correctional

services Act 111 0f l998 and the correctional services B Order.

1.1 Family and Community

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CORRECTIONAL SERVICES ACT 111 OF 1998

CHAPTER III CUSTODY OF ALL PRISONERS UNDER CONDITIONS OF

HUMAN DIGNITY (ss 4-35)

Contact with community

(1) The Department must encourage prisoners to maintain contact with the community

and enable them to stay abreast of current affairs.

(2) The Department must give prisoners the opportunity, under such supervision as may

be necessary, of communicating with and being visited by at least their spouses or

partners, next of kin, chosen religious counsellors and chosen medical practitioners.

(3) In all circumstances, a minimum of one hour must be allowed for visits each month.

1.2 Development of an Inmate




41 Treatment, development and support services

(1) The Department must provide or give access to as full a range of programs and

activities as is practicable to meet the educational and training needs of sentenced

prisoners.

1.3 Inmates health requirements




Health care

(1) The Department must provide, within its available resources, adequate health

care services, based on the principles of primary health care, in order to allow every

prisoner to lead a healthy life.

1.4 Location and Transfer of Prisoners

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43 Location and transfer of prisoners

(1) A sentenced prisoner must be housed at the prison closest to the place where he or

she is to reside after release, with due regard to the availability of accommodation and

facilities to meet his or her security requirements and with reference to the availability of

programmes.

(2) The transfer of a prisoner is subject to the same consideration.

(3) A prisoner must be examined by the registered nurse or medical officer before his or

her transfer. Where such a prisoner is being treated by a medical practitioner, he or she

must not be transferred until the prisoner has been discharged from the treatment or the

transfer has been approved by the medical officer after consultation with the Head of

Prison.

2. This is an application whereby I am requesting the Honorable court to compel the

Respondents to Act in accordance with the Constitution of South Africa.

The Constitution of South Africa, 1996

Section 33

Just administrative action

(1) Everyone has the right to administrative action that is lawful, reasonable and

procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the

right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights, and must-

(a) provide for the review of administrative action by a court or, where appropriate, an

independent and impartial tribunal;

(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(c) promote an efficient administration.

In terms of section 7 (2) of the Constitution, 1996 the Respondents are obligated to'

respect, promote and fulfill my fundamental right to a just administrative action as

envisaged in section 33 of the Constitution.

3. The callous disruption of my studies are against my inherent right to Human

Dignity.

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Section 10

Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

4. Right to Education


Section 29

Education

(1) Everyone has the right-

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make

progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of

their choice in public educational institutions where that education is reasonably

practicable. In order to ensure the effective access to, and implementation of, this right,

the state must consider all reasonable educational alternatives, including single medium

institutions, taking into account-

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices.

It is respectfully submitted that I have no alternative but to approach the Honorable Court and pray that the Court grant me my prayers as set out in the Notice of Motion, or such remedy as the Honorable Court deems fit under section (38) of the bill of rights.

________________________

Applicant in person Donovan Samuel Moodley PDS NO: 205293034 Johannesburg Correctional Center Private bag x04 Mondeor 2110

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Documents

IN THE HIGH COURT OF SOUTH AFRICA GUATENG … · GUATENG LOCAL DIVISION JOHANNESBURG Case no: ... Kindly put this application on the URGENT ... IN THE HIGH COURT OF SOUTH AFRICA GUATENG