Published on: 04th March 2026
Authored by: Akhona Mlandu
University of Fort Hare
Citation: [2025] ZAGPJHC
Bench: High Court of South Africa South Gauteng, Johannesburg
Judgement date: 10 November 2025
Facts and issues
The complainant, Nthabiseng Beverly Mokoena, is a transgender woman who is an inmate of Johannesburg Central Prison. She approached the High Court of South Africa, which is an equality Court as constituted in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA)[1]. She contended that the State, acting through the Department of Correctional Services (DCS), subjected her to harassment and unfair discrimination as envisaged by Promotion of Equality and Prevention of Unfair Discrimination. The applicant sought an order compelling the DCS to give effect to and implement its own Standard Operating Procedures applicable to transgender inmates, as well as an order directing the provision of medical care for her diagnosed gender dysphoria at state expense from the outset of her incarceration. The medical relief claimed was limited in scope, consisting solely of gender-affirming hormonal treatment that had already been prescribed by her treating medical practitioners.[2]
Does the right to adequate medical treatment in section 35(2)(e) of the Constitution and related statutory duties under the Correctional Services Act include gender affirmation health care, such as hormone therapy, for transgender inmate? Did the failure of the DCS provide such treatment, to allow the inmate to express her gender identity, and provide appropriate accommodation amount to unfair discrimination and harassment under the Promotion of Equality and Prevention of Unfair Discrimination Act?[3]
Arguments
The applicant contended that the impugned conduct amounted to unfair discrimination in terms of section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Ac, which expressly prohibits discrimination on the ground of gender. In response, the respondent, in submissions advanced in September, disputed the applicant’s interpretation of the listed ground of gender. It argued that the statutory and constitutional prohibition of unfair discrimination does not extend to transgender identity as such, maintaining that the Constitution protects against discrimination only on the grounds of sex and gender, and not based on transgender status.
The Department of Correctional Services contended that the treatment sought by the applicant is not routinely available to inmates, relying on its three-tier health system. It argued that section 12(1) of the Correctional Services Act limits inmates’ entitlement to primary health care services only. On this basis, the DCS maintained that gender-affirming health care does not constitute primary health care and, accordingly, that the applicant is not entitled to receive such treatment while incarcerated.
The DCS did not deny that prohibiting the applicant from wearing clothing, cosmetics, and toiletries that affirm her gender identity, misgendering her by failing to recognize and relate to her as a woman, or referring to her using incorrect pronouns would amount to discrimination or harassment, unless it could demonstrate that such conduct was fair.
The DCS asserted that it is entitled to impose limitations on the circumstances in which the applicant may wear gender-affirming clothing and makeup, citing security considerations. While it conceded that it has a duty, due course, to facilitate the applicant’s formal engagement with the Department of Home Affairs to amend her recorded gender marker in terms of section 2 of the Gender Description and Sex Status Act of 2003, it denied that this obligation extends to providing the gender -affirming health care sought at state expense. It was common cause that the DCS is also required to assist the applicant in approaching the Department of Home Affairs to apply for such a change of forenames in terms of section 24 of the Births and Deaths Registration Act 51 of 1992.[4] The DCS denied any obstruction in this regard, stating that such assistance is routinely provided to all inmates
Judgement and Ratio
The High Court of South Africa, sitting as an equality court, found in favor of the transgender inmate, Nthabiseng Mokoena, in her claim against the Department of Correctional Services. The refusal to provide gender-affirming hormone therapy constituted discrimination linked to her medical condition, which is inseparable from her gender identity. The court relied on section 13 of the Promotion of Equality and Prevention of Unfair Discrimination Act, which requires a complainant to establish only a prima facie case of discrimination on one or more listed grounds, including race, gender, colour, pregnancy, marital status, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, and HIV/AIDS. Once the discrimination on the listed or analogous ground is shown, the evidentiary burden shifts to the respondent to prove that the discrimination is fair. In the present matter, the cort court held that the DCS’s withholding of gender-affirming health care amounted to unfair discrimination, particularly where the State bears a positive obligation to provide such medical treatment to incarcerated people.
Section 35(2)(e) of the Constitution guarantees that all detained persons, including sentenced prisons, are entitled to conditions of detention consistent with human dignity, which expressly includes provision, at state expense, of adequate medical treatment. This section imposes a corresponding duty on the Department of Correctional Services, in terms of the Correctional Services Act, to ensure that inmates are treated in a manner that respects and protects their inherent dignity. In support of this obligation, the court referred to Van Biljon v Minister of Correctional Services,[5] where it was held that the State owes a heightened duty of care to prisoners living with HIV compared to individuals outside the prison system suffering from the same condition. The court found that this principle applies equally in the present matter, concluding that the State bears a similarly elevated duty to provide medically necessary treatment to transgender inmates.
The court held that the Constitution expressly differentiates between prisoners and people outside the correctional system, in that the rights afforded to prisoners, particularly those relating to dignity and adequate medical care, are not subject to the kind of internal limitations contended for by the DCS. On this basis, the court found that the DCS had engaged in unfair discrimination by denying Ms. Mokoena the ability to express her gender identity and by failing to provide her with appropriate accommodation. Accordingly, the DCS was ordered to immediately implement suitable accommodations, to give effect to and enforce its own Standard Operating Procedures applicable to transgender inmates and provide the inmates with the prescribed medical care.
Critical Analysis
The judgment in Mokoena v Head of Johannesburg Correctional Centre marks a significant and principled development in South African constitutional jurisprudence. It illustrates the progressive nature of South African law in safeguarding the rights of individuals, including inmates, and affirms that imprisonment does not entail the forfeiture of constitutional protection. The Constitution ensures that people are not discriminated against based on gender, beliefs, race, sexual orientation, etc., and the judgment of the case clearly assessed the fundamental nature of these rights. A key implication of the judgment is its affirmation that adequate medical treatment under section 35(5)(e) of the Constitution must be interpreted substantively. By recognizing gender-affirming health care as medically necessary rather than cosmetic, the court set a clear standard for how healthcare obligations towards inmates should be evaluated. This shifts the focus from institutional convenience and cost considerations to medical evidence and human dignity, strengthening accountability within the Department of Correctional Services.
The judgment promotes a culture of constitutional compliance rather than administrative discretion. Correctional authorities are now placed on notice that failure to reasonably accommodate gender identity may expose the State to Constitutional and equality-based litigation. The judgment is largely consistent with established Constitutional Court and High Court jurisprudence. In S v Makwanyane, the Constitutional Court affirmed dignity as the foundational value of the constitutional order.[6] Mokoena v Head of Johannesburg Correctional Centre built on this by recognizing that dignity includes respect for an individual’s deeply held identity. Importantly, the judgment does not create a new right to gender-affirming healthcare; it applies existing Constitutional rights to equality, dignity, and healthcare. This approach underscores the judgment’s consistency with established precedent and reinforces the principle that constitutional rights retain their full force even within the correctional system.
[1] Promotion of Equality and Prevention of Unfair Discrimination Act
[2] Saflii.org/za/cases/ZAE/200
[3] Lawlibrary.org.za
[4] Birth and Deaths Registration Act 51 of 1992
[5] Section 35(2)(e) of the Constitution
