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Introduction
[1] The application served before me in Urgent Court on 4 March 2025.
[2] The applicant applied for the following relief:
“To review and set aside the decision of the Firs t Respondent [Parole
Board] to refuse Applicant parole on the grounds of unreasonableness,
irrationality and unlawfulness.
This decisio n be replaced by an order to be released on parole
immediately.
The court to declare that the respondents do not have an empowering
provision to alter, add or remove anything from the warrant of committal
duly issued by a court of law. ”
[3] I dismissed the ap plication .
[4] The reasons for the order are as follows.
Submissions by the applicant.
[5] The applicant is currently serving a 16 years sentence of which he had
completed 11 years at the time of the application. By 2022 when he qualified to
be considered for parole he had completed all the required rehabilitative pre-
release programs.
[6] The applicant first appeared before the Parole Board allegedly during 2022
when his parole was denied , a further profile was recommended and his next
appearance was set for 12 N ovember 2024. Prior to the Parole Board making a
decision certain errors in respect of his nationality were identified that had to be
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corrected. He was recalled to the Parole Board on 9 December 2024 where his
parole consideration was postponed to 30 June 2025. The reason for the
postponement was to confirm the nationality of the applicant and the validity of
his South African Identity document. It is clear that the applicant is aggrieved by
the postponement of his parole hearing to 30 June 2025, and that t his
postponement informs the relief sought in the Notice of Motion.
[7] He contended that his South African Identity document is a valid identity
document that was issued to him in 2024 while he was incarcerated in Kgosi
Mampuru Correctional Facility. This i dentity document has never been cancelled
by the Department of Home affairs neither has a deportation order been issued
at any stage by a court for his deportation.
[8] He argues that t he decision whether to be released on parole does not
require the national ity of the applicant to be considered by the Parole Board as it
is not one of the jurisdictional facts to be considered in accordance with the
Correctional Services Act1
Submissions by the respondents
[9] In opposing the application the Head of Medium B, Kgosi Mampuru II
Correctional Centre deposed to an affidavit in which the following preliminary
points were raised :
9.1 The Parole Board did not consider the applicant for parole and
consequently no decision was made by the Board.
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9.2 The applicant was informed during the appearance before the Board
on 25 July 2022 that he does not qualify for parole as he was
classified as a maximum offender and that in terms of the provisions
of the Correctional Services Act onl y offenders classified as medium
offenders qualify to be considered for parole. This appearance did
not entail an assessment and the applicant was provided with a new
date, namely 8 June 2024 which date were dependant on his status
at that stage. On 8 June 2024 there were still outstanding aspects
to be clarified and the assessment was postponed to 12 November
2024 and eventually to 9 December 2024 on which date the
applicant was provided with a final date for consideration of this
parole application, namel y 30 June 2025. The reason for the
postponement was for the final confirmation of the validity of the
applicant’s identity document as well as the provision of proof of the
applicant’s prison er status as medium or maximum offender as
ordered by the court i n the judgement of Ndhlovu Ziggy Xolane v
The Head of Case Management Committee Kgosi Mampuru II
Central and others Case No: 2024/00410 dated 13 September
2024.
9.3 In respect of the nationality of the applicant, the Department of
Home Affairs has confirmed th at his nationality is under investigation
as well as whether the identity document was obtained fraudulently .
9.4 The Parole Board has not made a decision and consequently there
is no decision to review. The Board is still involved in the process of
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gathering information on which to base its decision.
Discussion
[10] The applicant does not have a right to be released on parole.2
[11] The applicant contends that the decision not to release him on parole
amounts to administrative action and is consequently reviewable as the decision
was irrational, unreasonable and unlawful. The applicant did not rely on a “failure”
by the Parole Board to take a decision as provided for in Section 1 of PAJA.
[12] The applicant also did not rely on the ground that the postponement by the
Parole Board equates to a refusal to make a decision in respect of this parole but
merely on the fact that the Board postponed his consideration. The applicant
ostensibly equates the postponement with a refusal to grant him parole.
[13] The decision by the Parole Board to refuse a prisoner parole based on the
provisions of section 75(1)(a) of the Correctional Service Act amounts to
administrative action in terms of the Promotion of Administrative Justice Act, Act
3 of 2000 (PAJA).3
[14] The question therefore is whether the postponement of the decision by the
Parole Board amounts to administrative action which is reviewable. PAJA defines
a decision as follows:
“'decision' means any decision of an administrative nature made,
proposed to be made, or required to be made, as the case may be, under
an empowering provision, including a decision relating to -
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(a) making, suspending, revoking or refusing to make an order, award
or determination;
(b) giving, suspending, revoking or refusing to give a certificate,
direction , approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative
nature,
and a reference to a failure to take a decision must be construed
accordingly.”
[15] A review of such a decision is brought in terms of section 6 of PAJA by
means of Rule 53 of the Uniform Rules of Court.4
[16] There has been no compliance with Rule 53 of the Uniform Rules of Court
and is there consequently no record of proceedings of the impugned decision
before the court.
[17] The contention of the applicant faces the further hurdle that the first
respondent has not yet made a decision. When he appeared before the Parole
Board in 2022 he was informed that he does not qualify the be considered for
parole due to his classification and a maximum offender and not as a medium
offender. This decision has not been the subject of attack by the applicant.
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[18] In the absence of any record of the proceedings as to what the decision of
the Parole Board was, and whether any decision had indeed b een taken by the
Board, the court is saddled with two mutually destructive versions of the events
before the Board.
[19] The applicant seeks final relief on motion in the form of a review and a
substitution in accordance with section 8(1)(cc)(ii) of PAJA. The first respondent
is still in the process of complying with a court order to verify the nationality of the
applicant as well as the validity of his identification document.
[20] The prisoner status of the applicant is also currently under investigation
hence th e postponement of the assessment to 25 June 2025.
THE STANDARD FOR REVIEW
Rationality
[21] Section 33(1) of the Constitution requires administrative action to be
reasonable. Rationality is the first element of reasonableness. Rationality is to be
assessed objec tively and dispassionately. A decision that does not meet this
requirement is arbitrary5 or even capricious in which case a review and setting
aside of the impugned decision is justified.
[22] The rationality requirement entails the existence of a rational con nection
between the decision and the purpose for which the power was granted. Where
the connection is lacking, the effect of the decision is arbitrary and inconsistent
with this requirement.
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[23] For a decision to pass constitutional scrutiny, the exercise of p ublic power
by the Executive must comply with this requirement .
Reasonableness
[24] Section 6(2)(h) of PAJA provides that administrative action will be
reviewable where the exercise of power is so unreasonable that no reasonable
person could have exercised the power.
[25] Reasonableness includes the elements of rationality and proportionality.
Rationality not only entails that the decision be objectively capable of furthering
its purpose, but also that it be supported by facts and capable of being arrived at
on the evidence or information serving before the decision maker.6
[26] Section 6(2)(h) of the PAJA provides that administrative action may be set
aside if :
‘the exercise of the power or the performance of the function authorised
by the empowering legislation in pursuance of which the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised the power or performed the functio n.”
[27] This section requires a simple test namely that an administrative action
stands to be review ed if it is such that a reasonable decision maker could not have
exercised the power or performed the function in such manner .7
Unlawfulness
[28] The applicant has failed to allege on what basis the postponement or failure
to grant him parole is unlawful . The postponement of a hearing before the Parole
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COUNSEL FOR THE APPLICANT : Adv Mukwevho
INSTRUCTED BY: ME Makgopa Attorneys
COUNSEL FOR THE RESPONDENT :
INSTRUCTED BY: State Attorney
DATE OF ARGUMENT : 4 March 2025
DATE OF JUDGMENT: 29 April 2025
1 Act 111 of 1998
2 Combrinck v Minister of Correctional Services 2001 3 SA 338 (D) 342, Motseme v Minister of Correctional
Services and Others 2006 (2) SACR 277 (W). Du Preez v Minister of Justice and Correctional Services
2015 1 SACR 478 (GP)
3 Combrinck v Minister of Correctional Services (n 2 above)
4 Section 6 Rules Board for Courts of Law Act, Act 107 of 1985. Rules Regulating the Conduct of
Proceedings of the Provincial and Local Divisions of the High Court of South Africa. Promotion of
Administrative Justice Act, 2009. Rules of Procedure for Judicial Review of Administrative Action.
5 Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC)
6 Hoexter, C (2021) Administrative Law in South Africa 479 -480
7 Bato Star Fishing (Pty) Ltd v Mini ster of Environmental Affairs and Tourism and Others 2004(7) BCLR 687
(CC)