0000429/2025-nvdb 2 JUDGMENT
03-01-2025
Minister of Correctional Services , the National
Commissioner of Correctional Services and various other
subordinate officials to release Doctor Rathete so that he may attend his mother’s funeral was brought today . Initially,
so I am told, the application was enrolled before my sister,
Acting Justice Benson, at noon.
For reasons that are not entirely clear to me, the
matter was not considered at noo n. The application was
first brought to my attention at around 5:30 in the afternoon.
It was not immediately clear to me whether the
10
funeral of Doctor Rathete’s mother had actually already taken place. On the papers, t he funeral is alleged to be
taking place tomorrow, 4 January 2025, at around 7 am.
However, t he invitation to the funeral annexed to the papers
suggests that the funeral took place at 7 o’ clock this
morning , 3 January 2025.
Further papers that have been brought to my
attention, though not under oath, seem to suggest that there
is a memorial on 3 January, to be followed by a funeral on 4
January. I accordingly accept, for present purposes, that
20
Doctor Rathete wants to be released to attend his mother’s
funeral tomorrow. Officials acting on behalf of the Minister appear to
have refused that request on two bas es. Firstly , that there
are insufficient personnel to escort Dr Rathete to
0000429/2025-nvdb 3 JUDGMENT
03-01-2025
Polokwane to attend the funeral . Secondly , it is said that, as
a maximum- security prisoner , Dr Rathete does not qualify
for compassionate release, even on a temporary basis .
I do not have the respondent’s word for any of this.
It is rather conveyed to me in a confirmatory affidavit
deposed to in support of the application by a Ms Moketimi, who is Doctor Rathete’s daughter. Reference to the reasons
for refusal is also made somewhat obliquely in the founding
affidavit .
The princip al difficulty before me is that I know for
10
a fact that none of the respondents, whose decision I am being asked to set aside , have been served with this
application, whether by email or physically.
There is an affidavit from a candidate attorney ,
handed up at the hearing of the matter , which suggests that
some papers have been Whatsapp’d to certain of the
respondents, but those papers indicate that a hearing will be held at noon today. There is no indication on the papers that the respondents know that there is a hearing taking
place now, at 8:30 in the evening .
20
Section 44 of the Correctional Services Act 111 of
1999 gives the National Commissioner, who is the second respondent, the discretion to temporarily release Doctor Rathete on compassionate grounds. I am being asked to interfere with his exercise of that discretion.
0000429/2025-nvdb 4 JUDGMENT
03-01-2025
It is one thing to do so knowing that the
respondents have been given an opportunity to justify their
exercise of that discretion but have elected not to do so. It
is quite another to interfere with the discretion in circumstances where the papers show conclusively that the
respondents have not been given any meaningful opportunity to appear before me and defend their exercise
of the discretion.
At this stage therefore I am disinclined to make an
order on the application. I will remove the matter from the
10
roll. However, if the funeral is postponed to enable Doctor Rathete to attend it, I will give the applicant leave on proper notice to the respondents to re -enrol the matter before me
in my urgent court on Tuesday 7 January at 10 am. It may at
that point be possible to consider the application on its merits , if it is still live .
At this stage , however, although I am acutely
sympathetic to Doctor Rathete’s situation , there is no basis
for me to step in and interfere with the exercise of the section 44 discretion in circumstances where I know that
20
the respondents have been given no reasonable opportunity to justify their exercise of that discretion, notwithstanding the fact that the applicant and his legal representatives could and should have informed the respondents that they would have such an opportunity this evening at 8:30.