REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 10780/2025
In the matter between:
In the matter between:
ISAAC LEPARA CHAUKE First Applicant
LAZARUS LERATO PHOHLELE Second Applicant
and
MINISTER OF CORRECTIONAL SERVICES First Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF
CORRECTIONAL SERVICES Second Respondent
JUDGMENT
DOMINGO, AJ
Introduction
[1] This is an unopposed application by the applicants who are serving sentences
of life imprisonment to review the respondents’ decisions regar ding the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
30 January 2026 _________________________
DATE SIGNATURE
applicants’ parole which they allege were taken in contravention of the terms of
the old Correctional Services Act 8 of 1959 (“the 1 959 Act”) and the new
Correctional Services Act 11 of 1 998 (“the 1998 Act) and the principles of
administrative justice.
[2] The application was served on the respondents on 11 July 2025 wherein they
were afforded the opportunity to oppose the application and file both the notice
of i ntention to o ppose and opposing affidavits, which they elected not to do.
There was no appearance by the respondents on the day of the hearing. The
second respondent is cited as the chairperson of the Nation al Council of
Correctional Service (‘ NCCS”) which is the body that considers the profiles of
sentenced offenders. The first respondent, the Minister makes a decision based
on the advice of the NCCS. The applicants are commonly referred to as “lifers”
as they have been sentenced to life imprisonment.
Grounds for Review
[3] This is an application in terms of Rule 53 of the Uniform Rules of Courts in
which the applicants s ought to review the respondents’ actions rel ying on
section 6(2) of the Promotion of Administr ative Justice Act 3 of 2000 (“PAJA”).
The applicants have relied on the following grounds of review to have the court
intervene and as averred by the applicants vindicate their rights which they
claim have been violated by the respondents:
3.1 Failure to comply with section 78(4) of the 1998 Act
3.2 Legitimate Expectation
3.3 Violation of the audi alteram partem rule
3.4 Retroactive application of the Law
3.5 Principle of Legality
[4] The applicants are also seeking the constitutional invalidity of section 42(3) and
section 136(3)(b) of the 1998 Act.
Relief Sought
[5] The applicants sought the following relief:
5.1 An order reviewing and setting aside the respondents’ decision to
refuse parole w hich was taken in November 2024 owing to its
unlawfulness and irrationality.
5.2 Ordering the exclusion of the respondents from further participation in
the applicants’ parole reconsideration for failure to comply with s78(4)
of the 1998 Act.
5.3 The court substituting the Minister, reconsidering the applicants' parole
and ordering their release within a period of 10 -days from the date of
this order.
5.4 Declaring s42(3) and section 136(3)(b) of the 1998 Act to be invalid to
the extent of its inconsistency or applying a reading -down method to
save the provisions.
5.5 Ordering the respondents to pay the costs of this application jointly and
severally, the one paying the other to be absolved.
Internal Remedy
[6] Section 21 of the 1998 Act provides for internal pr ocedures that must be
followed by an inmate in lodging a complaint if he or she is not satisfied with the
outcome of a decision.
[7] An exercise of public power may be impugned in terms of either a PAJA or
legality review. PAJA only applies to administrative a ctions. Upon a reading of
the applicants founding affidavit, it appears that this review application is a
hybrid one as the arguments raised by the applicants are grounded on PAJA,
legality review and constitutional invalidity. According to s 7(2)(a) of PAJ A, no
court shall review an administrative actio n in terms of PAJA unless any internal
remedy provided for in any other law has been exhausted.
[8] It was averred by the applicants that the internal remedies onl y afforded them
an opportunity to lodge a complaint up to the National Commissioner’s Office
and the Office of the Independent Correction Centre Visitor. It was further
averred by the applicants that the complaints and request procedures available
do not a llow for an inmate to communicate to the respondents’ offices . The
applicants therefore request the court to exe mpt them from exhausting internal
remedies, as the available mechanisms prevents them from exer cising their
right to complain directly to the respondents’ offices.
[9] From a reading of the 1998 Act and 1959 Act there are no internal remedies
provided for to deal with an adverse decision made by the Minister. In the
premises, I am of the view that applicants’ matters can be reviewed by the court
in terms of PAJA.
Condonation
[10] It was submitted by the applicants that they are aware that in terms of s7(1) of
PAJA that they are expected ex lege to institute an application for judicial
review within a period of 180 days (6 months) subject to paragraph (a) an d (b)
of that particular provision. T he applicants submitted they are bringing this
application for review taking into account the date of the decision by the first
respondent which is 21 November 2024, allegedly outside the 180 days pe riod
and thus reques ted the delay to be condoned by the court on the basis of the
following reasons:
10.1 That although the first respondent took the decision on 21 November
2024 that decision was only communicated to the applicants on 12
December 2024. According to the applicants this is standard practice at
centre level, which was similar to the previous parole dec isions taken,
whereby the first applicant’s decision by the first respo ndent taken on
18 January 2023 was only communicated to the applicant in May 2023
and the second applicant’s decision by the first respo ndent on 23
March 2023, was only communicated to the second applicant on 6 July
2023.
10.2 It was averred by the applicants that the admi nistrative procedure
which is followed for a lifers profile to reach the office of the first
which is followed for a lifers profile to reach the office of the first
respondent, is burdensome as i t passes t o the Correctional
Supervision Parole Boar d (CSPB), Area Commissioner, Regional
Commissioner, Head Office, NCCS and finally to the first respondent’s
office (Minister). It is submitted by the applicants that the same
procedures are followed when the files are returned to the centre
where the applicants are housed. It was furthermore, averred by the
applicants that once the file is returned back to the centre level, the
Case Management Committee (CMC) will keep the profile documents
for days in their office while assessing the first respondent’s decision
and finally handing it over to the CSPB who will in turn follow its own
process to summon the applicant to appear before the board to be able
to convey the decision of the Minister.
10.3 The applicants contended that after this whole administrative process,
they are left in a state of uncertainty as they would be confused by the
decision of the Minister and by the fact that they would in most cases
be required to redo the programs they hav e already undergone for the
second or even third time.
10.4 It was submitted by the applicants that since the first respondent’s
decision was taken on 21 November 2024 and only communicated to
both the applicants on 12 December 2024, that the December date
should be when the administrative decision became effective after it
was communicated to the applicants or when the applicants became
aware of the decision.
10.5 It is averred by the applicants that on the basis of the date that the
decisions were communicated to b oth applicants, it can be safely
inferred that the applicants have acted within the boundaries of s7(1) of
PAJA as they would only be regarded as having acted outside the 180
days on 12 July 2025.
[11] Having regard to the above averments made by the applicants, I am persuaded
that they could have only made an application upon knowing the outcome of
the Ministers decision, thus the proverbial clock started ticking from 12
the Ministers decision, thus the proverbial clock started ticking from 12
December 2024. This is aligned to s7(1)(b) of the PAJA wh ere it is stated that
the 180 -day could commence where “ the person was informed of the
administrative action, became aware of the action and the reasons for it…” The
application for judicial review was served on the respondents on 11 July 2025; I
am satisfied that the application can be condoned.
Background
[12] The applicants are both sentenced inmates serving life imprisonment at Kgosi
Mampuru II Pretoria Central Correctional Centre. They have b een in custody
serving their respective sentences for more than 20 years, with the first
applicant having served 22 years and the s econd applicant having served 20
years.
[13] It is submitted by the applicants that they committed their offences during the
operation of the 1959 Act and subsequently sentenced during the operation of
the 1959 and the 1998 Act. The first applicant was sentenced in Decem ber
2002 while the second applicant was sentenced in June 2005.
(a) First Applicant
[14] The applicant is a 50-year-old male who was arrested for two counts of murder
and robbery. The first applicant’s offences were committed on 25 May 1999.
The first applicant was sentenced to two life imprisonment terms on 13
December 2002 and has served to date a total of 22 years.
[15] According to the first applicant, following his date of sentence, he was admitted
into custody and care of the first r espondent at Pretoria New-Look Correctional
Centre (B-Section), which is an admission centre for inmates who ha ve been
recently sentenced and who are to be transferred to other centres in
accordance with with their needs and development. It was submitted by the first
applicant that he was only housed for two weeks and subsequently transferred
to Zonderwater Maximum Correctional Centre. Upon admission at Zonderwater
Correctional Centre in Cullinan, a correction sentenced plan was prepared by
the offic ials which outlined how the first applicant should serve his sentence
and specifically, which rehabilitation programs he should engage in. Accord ing
and specifically, which rehabilitation programs he should engage in. Accord ing
to the first applicant, he was housed for a period of 10 years until 2021 when he
was transferred to Kgosi Mampuru II Management Area, Pretoria Central
Correctional Centre wherein he has been imprisoned for 13 years.
[16] It was submitted by the first appli cant that upon his arrival at Pretoria
Correctional Centre in 2012 , he had continued his rehabilitation journey by
attending further rehabilitation programmes which included amongs t others the
following:
16.1 Changing Lanes Program
16.2 HIV/AIDS Program
16.3 Anger Management Program
16.4 Life Skills Program
16.5 Substance Abuse Program
16.6 Restorative Justice Program
16.7 Alpha Course Program
16.8 Ukuphula Iketanga Program
16.9 Searching Issues Program
16.10 Welding
16.11 Food Preparation Level 1 and 2
[17] It was submitted by the first applicant that he was only considered for possible
placement on parole or day parole in February 2018, that is after a period of 16
years since he was incarcerated in December 2002. It is averred by the first
applicant that he was meant to be considered for possible placement on parole
after the conclusion of 20 ye ars1 which was reduced to 12 years and 4 months
following a number of court chall enges, one of which decla red s136(1)
1 See section 136(3)(a) of the 1998 which reads: “ Any sentenced offender serving a sentence
of life incarceration immediately before the commencement of Chapters IV, VI and VII is entitled
to be considered for day parole and parol e after he or she has served 20 years of the
sentence.”
constitutionally invalid on the grounds that the use of the date of the sentence
rather than the date of the commission of the off ence violated the right to equal
protection of the law and also the right to the benefit of the least server e
punishment.2
[18] It was submitted by the first applicant that he was “lucky” as he benefitted from
the credit system in terms of s22A of the 1959 Act which was introduced by an
amendment in 1993 wherein inmates could earn credits for good behaviour.
The effect of this was that inmates sentenced to life incarceration between 1
March 1994, and 1 October 2004 became eligible for parole after having served
a minimum per iod of 13 years and 4 months of their life sentence. It was
subsequently reduced to 12 years and 4 months when taking into consideration
the two separate presidential remissions which deducted 6 months each.
[19] First further profile: It was submitted by the applicant that he appeared before
the CSPB in 2017 and his pro file was positively recommended for parole and
forwarded to the second respondent for further recommendation and fin ally to
the first respondent for a decision. On 1 February 2018, the first respondent’s
advisory body chaired by the second respondent recommended at its meeting
against placing the first applicant on parole and decided that the matter should
be reconsidered with in 18 months. It was submitted by the first applicant that
the decision by the second respond ent to recommen d “first further profile”
which was approved by the Minister was communicated to the first applicant
after the actions of both respondents wherein the first applicant was not actively
involved. Since the decision was approved and signed by t he first respo ndent
on 1 February 2018 and taking into account that reconsideration should have
been within 18 months , the first applicant expected that the matter would be
reconsidered by 1 February 2020.
[20] Second Further Profile: It was submitted by the first applicant that the second
[20] Second Further Profile: It was submitted by the first applicant that the second
respondent’s sitting that dealt with the first applicant’s profile for the second
time was a meeting that took place between the 23 to 26 March 20 21. The
2 Phaahla v Minister of Justice and Correction Services and Another (Tl hakanya intervening)
[2019] ZACC 18, 2019 (7) BCLR 795 (CC).
Council recommended that the first applicant should not be placed on pa role
and that the matter should be placed before the council again after 31 March
2022. It is submitted by the first appl icant that in the interim, the council
recommended that the first applicant undergoes program s. It is averred by the
first applicant that what is of concern was the fact that after the first applicant’s
profile was seen by the council on 26 March 2021, the date for which the
recommendation was signed on behalf of the council, the first respondent to ok
a decision and approved the council ’s recommendation after a period of 22
months later, on 18 January 2023.
[21] Third Further Profile: It was submitted by the first applicant that his third
further profile was signed by the first respondent on the advice of the council
headed by the second respondent on 21 No vember 2024. The first applicant
was given a further 12 months wherein the first respondent provided that he will
reconsider his decision after 12 months. It is averred by the first applicant that
he has been subjected to three further profiles since 2018 wherein the first one
was decided by the first respondent in February 2018, the second decided in
January 2023, with the last one decided in November 2024. It is further averred
by the first applicant th at in all these further profiles, the C MC and CSPB had
made positive recommendations in favour of the release of the first applicant on
parole. It was submitted by the first applicant that despite the strength of the
recommendations of the CMC and CSPB, the respondents had not bothered to
notify the first applicant prior to making any adverse decisions despite the
positive recommendations.
(b) Second Applicant
[22] The second applicant is a 42 -year-old male who was arrested , charged and
convicted for murder and rob bery with aggravating circumstances. He
committed these offences on 24 July 20 03. The second applicant was
committed these offences on 24 July 20 03. The second applicant was
convicted and sentenced to to life plus 15 years imprisonment term on 7 June
2005 and he has served a total of 20 years to date.
[23] It was submitted by the second applicant that he was initially admitted to
Leeuhof Maximum Correctional Centre in Vereeniging in Gauteng. This was the
same centre where he was housed while awaiting trial as an inmate for 2 years
and subsequently after his date of sentenc e. It was further submitted by the
second applicant that he was later transferred to Groenpunt Maximum
Correctional Centre in the Free State in 2005 where he remained until 2013. In
2013, he was transferred to Pretoria Central Correctional Centre in Gauten g
where he has been housed from 2013 to date, which is a period of 12 years.
[24] It was submitted by the second applicant that throughout his sen tence up until
the time that he was admitted to the Pretoria Central Correctional Centre, 12
years into his sentence, he had already engaged in rehabilitation programs and
has up to date completed the following programs:
24.1 HIV and AIDS Awareness
24.2 Changing Lanes
24.3 Cross-Roads
24.4 Relapse Prevention
24.5 Positive Parenting Program
24.6 Personal Growth Program
24.7 TB Program
24.8 FAMSA Program
24.9 Self- Mastering and Interpersonal Skills
24.10 Substance Abuse Program
24.11 Anger Management Program
24.12 Gangsterism Program
24.13 Restorative Justice Program
[25] The second applicant also submitted that he has completed his grade 12
Senior Certificate, an investment in excellence course, electrical installation
course, N3 Mechanical Eng ineering course and a N6 Public Management
course.
[26] It was submitted by the secon d applicant that he had served 18 ye ars of his
sentence when he was considered for the first time in 2018 for possible
placement on parole or day parole. The second applicant submitted that he was
initially meant to be considered for possible placement on parole after the
completion of 20 years into his sentence. Here too, the second applicant
benefitted from the Phaahla3 Constitutional Court ruling and like the first
applicant the second applicant also submitted that he was “lucky” as he
benefitted from t he credit system in terms of s22A of the 1959 Act wherein
inmates could earn credits for good behaviour.
[27] First Further Parole: It was submitted by the second applicant that he
appeared for the first time before the CSPB in 2020, where his profile was
positively recommended by both the CSPB and CMC for parole and forwarded
to the second respondent for further recommendation and finally to the office of
the first respondent for a decision that was taken on 23 March 2023. It was
further submitted by the second applicant that the second respondent decided
not to recommend parole and stated that the matter should be placed before
the council in 12 months for reconsideration. The reason for the second
applicant’s further profi le in March 2023 as recommended by the second
respondent’s council were set out as follows:
“That the applicant should undergo the individual psychotherapy to address offending
behaviour”
“The applicant must undergo risk assessment by a non-treating psychologist.”
[28] Second Further Profile: It was submitted by the second applicant that
following the decision in 2023, the first respondent reconsidered the second
applicant’s possible placement on parole or day parole again on the 21
November 2024. It was further submitted by the second applicant that the first
respondent, yet again on the recommendations of the second respondent
respondent, yet again on the recommendations of the second respondent
3 Supra note 2.
declined to grant the parole citing that the second applicant should do the
following programs:
“Individual psychotherapy to address se xual offending behaviour and minimise the
index crime.”
“Risk assessment by a non-treating psychologist.”
[29] It is averred by the second applicant that he was recommended by the second
respondent to undergo the same programs that were recommended in 2023.
The first respondent also approved the recommendations. Thus, it is submitted
by the second applicant that both the first and second respondent
recommended that the second applicant undergo the same programs that were
previously recommended which the second a pplicant said he successfully
completed. It is further submitted by the second applicant that no reasons were
provided for grounds that would have led the respondents to recommend the
same programs within a period of 20 months. It is averred by the second
applicant that the failure by the first and second respondents to engage him in
allowing him to make representations before taking a decision of granting a
further second profile, left him in the dark, especially since no reason s were
proffered to explain the decision for him to redo the successfully completed
programs.
Legal Framework
[30] The legislature in South Africa recognises and acknowledges the principle of
parole.4 The parole process has many stages which includes an ass essment
stage, consideration sta ge and then a decision -making stage. The stages of
parole fall under the Department of Correctional Services and its organs/bodies
and officials , which include the following: Case Management Committee
(CMC), the Correctional Supervision and Pa role Board (CSPB), Correctional
Supervision and Parole Review Board (C SPRB), the National Council of
Correctional Services ( NCCS) and the Minister. These organs ac t in ter ms of
the provisions the 1998 Act . They must also act within the p rescripts of the
Constitution and PAJA.
4 Moses J Parole in South Africa 2012.
[31] It was submitted by the applicants that the 1998 Act provides the guidelines
that governs the treatment of sentenced offenders upon admission, throughout
their rehabilitation journey, including their release on parol e. The applicants
directed the court to the following provisions:
31.1 Section 21(3),(4) and (5) of Act 1998 reads:
“If an inmate is not satisfied with the response to his or her complaint or
request, the in mate may indicate this together with the reasons for the
dissatisfaction to the head of the Correctional Centre, who must refer the
matter to the National Commissioner.”
The response of the National Commissioner must be conveyed to the inmate.
If not satisfied with the response of the National Commissioner, the inmate
may refer the matter to the Independent Correctional Centre Visitor, who must
deal with it in terms of the procedures laid down in section 93”
31.2 Section 42(3) of Act 1998, provides for the following:
“(3) A sentenced offender must be informed of the contents of the report
submitted by the Case Management Committee to the Correctional
Supervision and Parole Board or the National Commissioner and be
afforded the opportunity to sub mit written representations to the
Correctional Supervision and Parole Board or National Commissioner,
as they case may be.”
31.3 Section 75(1)(c) of Act 1998 in regard to the powers, functions and
duties of the CSPB provides that:
“A Correctional Supervision and Parole Board, having considered the report
on any sentenced offender serving a determinate sentence of more than 24
months submitted to it by the Case Management Committee in terms of
section 42 and in the light of any other information or argument, may –
In respect of any sentenced offender serving a sentence of life incarceration,
make recommendations to the Minister on granting of day parole, parole or
medical parole, and, subject to the provisions of section 52, the cond itions of
community corrections to be imposed on such an offender.”
31.4 Section 78(1), (2), (3) and (4) provide s for the powers of the Minister in
respect of offenders serving life sentences as follows:
(1) “Having considered the record of proceedings of the Correctional
Supervision and Parole Board and its recommendations in the case of
a person sentenced to life incarceration, the National Council may,
subject to the provisions of section 73(6)(b)(iv), recommend to the
Minister to grant parole or day par ole and prescribe the condition of
community corrections in terms of section 52.
(2) If the Minister refused to grant parole o r day parole in terms of
subsection (1), the Minister may make recommendations in respect of
treatment, care, development and supp ort of the sentenced offender
which may contribute to improving the likelihood of future placement
on parole or day parole.
(3) Where a Correctional Supervision and Parole Board acting in terms of
section 73 recommends, in the case of a person sentenced to life
incarceration, that parole or day parole be withdrawn or that the
conditions of community corrections imposed on such a person be
amended, the Minister, on advice of the National Council, must
consider and make a decision upon the recommendation.
(4) Where the Minister refuses or withdraws parole or day parole the
matter must be reconsidered by the Minister, on advice of the National
Council, within two years.”
31.5 Section 84(1) to (5) of Act 1998 provide s for the functions and duties of
the National Council of Correctional Services as follows:
“(1) The primary function of the National Council is to advise, at the
request of the Minister or on its own accord, in developing policy in
regard to the correctional system and the sentencing process.
(2) The Minister must refer draft legislation and major proposed policy
developments regarding the correctional system to the National
Council for its comments and advice.
(3) The National Commissioner must provide the necessary information
and resources to enable the National Council to perform its primary
function.
(4) The National Council may examine any aspect of the correctional
system and refer any appropriate matter to the inspecting Judge.”
31.6 Section 136(1), (2) and (3)(a-c) of Act 1998 provides for the transitional
provisions between the 1959 and the 1998 Act as follows:
“Any person serving a sentence for an offence committed before the commencement
of Chapters IV, VI and VII is subject to the provisions of the Correctional Service Act,
1959 (Act No.8 of 1959), relating to his or her placement under community corrections,
and is to be considered for such release and placement by the Correctional
Supervision and Parole Board in terms of the policy and guidelines applied by the
former Parole Boards prior to the commencement of those chapters.”5
When considering the release and placement of a sentenced offender who is serving a
determinate sentence of incarceration as contemplated in subsection (1), such
sentenced offender must be allocated the maximum number of credits in terms of
section 22A of the Correctional Services Act, 1959 (Act No.8 of 1959).
(a) Any sentenced offender serving a sentence of life incarceration for the offence
committed before the commencement of Chapters IV, VI and VII is entitled to be
considered for day parole and parole after he or she has served 20 years of the
sentence.6
(b) The case of an offender contemplated in paragraph (a) must be submitted to the
National Council which must make a recommendation to the Minister regarding the
placement of the offender under day parole or parole.
(c) If the recommendation of the National Council is favourable, the Minister may order
that the offender be placed under day parole or parole, as the case may be.
[32] A reading of s136(3)(b) implies that after the NCC S has considered the profile
of a lifer it must make a recommendation to the Minister regarding the
of a lifer it must make a recommendation to the Minister regarding the
placement of the lifer under parole. Section 136(3)(c) then follows to say that if
5 As amended by the Correctional Services Amendment Act No.7 of 2021. S136(1) substituted
by s3(a) of Act 7 of 2021 with effect from 1 February 2025.
6 Section 136(3)(a) substituted by s3(b) of Act 7 of 2021 with effect from 1 February 2025.
the recommendation of the NC CS is favourable the Minister “may” order that
the offender be place d on parole or day parole. The 1998 Act is silent on what
happens in the case where the NCCS makes an adverse or un favourable
recommendation and in such a case does the Minister retain the discretion to
place the sentenced offender on parole or day parole . A reading of the word
“may” in s136(3)(c) of the 1998 Act suggests to me that the Minister does have
a discretion to deny parole even where the NCCS has provided a favourable
recommendation. It would therefore logically flow that should the NCCS provide
the minister with a recommendation that is unfavourable the Minster will retain
a discretion and may order that the offender be granted parole or day parole
despite an unfavourable recommendation by the NCCS.
[33] In Anderson v Minister of Justice and Correctional Services and Another 7 the
court held the following in regard to s136(3)(c) of the 1998 Act, with which I fully
agree:
“It is not the duty of the Minister to rubber -stamp, as it were, the recomme ndation of
the NCCS. In my view, the section cannot be interpreted to mean that the Minister may
only exercise the discretionary powers once a favourable recommendation is made by
the NCCS. Were that to be the case, the Minister will be nothing but a token. Such will
also render the Parole Board Manual or Departmental Policy negatory. Since every
exercise of statutory power ought to be objectively rational, if th e Minister is a rubber-
stamp, then rationality will hardly be achieved.”
[34] Once the Minister makes a decision whether or not to place the offender on
parole, as provided in s78 of the 1998 Act, this is an administrative action.
[35] It is submitted by the applicants that PAJA serves to give effect to the right to
administrative action that is lawful, reasonable and procedurally fair and to the
right to be give n written reasons for administrative action contemplated in
right to be give n written reasons for administrative action contemplated in
section 33 of the Constitution of the R epublic of South Africa , Act 108 of 1996
(“Constitution). It is further submitted by the applicants that the Constitution
provides for the right to equality which extends to inmates despite their status of
being incarcerated. It is averred by the applicant s that sections 9(1) and (3) of
7 [2024] ZAGPPHC 1355 (23 December 2024) at para 24.
the Constitution protects everyone against any form of discrimination unless it
can be justified by the limitation clause.
[36] PAJA defines an administrative action as follows:
“administrative action” means any decision taken, or any failure to take a decision, by-
(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or provincial constitution or
(ii) exercising a public power or performing a public function in terms of any
legislation; or
(b) A natural or juristic person, other that an organ of state, when exerci sing a public
power or performing a public function of an empowering provision, which adversely
affects the rights of any person and which has a direct, external legal effect, but
does not include-…”
[37] In the premises it is clear that the Mi nister’s decision in this matter is an
administrative action. However, an issue that does arise is whether the
recommendations made by the NCCS to the Minister falls within the purview of
an administrative action as provided for in PAJA. The NCCS does not make the
final decision and therefor e it could be argued that its actions do not fall within
PAJA definition of an administrative action. Moses , in his book, Parole in South
Africa8 sates the following in regard to this issue:
“[A]s Hoexter points out, the Constitutional Court in a final appeal in the New Cl icks
case9, declined to treat the two stages of the process -the recommendations (relating
to a transparent pricing system) from the medicines pricing committee, and the
subsequent regulations made by the Minister -as separate and independent decisions.
According to Moseneke J, it was one continuous process involving the committee and
the Minister as different times.
The PAJA could, so it is argued, conceivably be interpreted so as to avoid this effect,
which would be viewing multistage processes more holistically.
8 Supra note 4 at pages 92 and 93.
8 Supra note 4 at pages 92 and 93.
9 See New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang and Another NNO 2005 (2) SA
530 (C).
But even if these preliminary stages are interpreted to fall outside the purvi ew of the
PAJA, and accordin gly do not qualify as administrative action (as they are not final) ,
this does not mean that they could not be tested on the other common -law or
constitutional review grounds, such as not being in accordance with constitutional
principle of legality, being unreasonable, or being unfair in the circumstances.”
[38] Having regard to the above, I am of the view that the recommendations made
by the NCCS and the subsequent decision made by the minister should be
viewed holistically. My reasoning is that the Minister makes his final decision, in
consultation with the advice provided by the NCCS. Thus, the
recommendations made by the NCCS is not independent from th e final
decision made by the Minister and is therefore reviewable under PAJA.
[39] As I stated earlier, upon a reading of the applicants’ founding affidavit , their
application for review is hybrid as it is grounded on PAJA, legality revie w and
constitutional invalidity review. Thus, the decision of the Minister in this matter
can be reviewed on the PAJA grounds of review of reasonableness, lawfulness
and procedural fairness. For a court to review a decision, the reasons for the
decision must be provided to the court and the applicants must provide reasons
why the decision made falls short of a just administrative decision. This matter
was heard unopposed, so it is prudent to point out here that the failure by the
respondents to oppose the matter does not in and of itself automatically lead to
the review and the setting aside of the decision.
[40] The court in Mazingane and Others v Minister of Correctional Services and
Others10 set out the requirements for reasonableness, lawfulness and
procedural fairness as follows:
“Reasonableness relates to the question of the decisio n is one that a reasonable
decision-maker could reach. It considers t he nature of the decision, the identity and
decision-maker could reach. It considers t he nature of the decision, the identity and
expertise of the decision-maker, the factors relevant to the decision, the reasons given
for the decision, the nature of the competing interests involved and the impact of the
decision on the lives and well -being of those affected. Various specific grounds relate
to ‘reasonableness’, such as where there is an abuse of d iscretion, when a decision
taken was irrational, where the decision is not proportional, where it is vague, and
10 [2024] ZAGPJHC at paras 91, 92 and 93.
where it is generally unreasonable. In previous parole cases, the rationality test was
employed. Rationality, requires that the action be ration ally connected to the purpose
for which it was taken, the purpose of the empowering provision, the information
before the administrator or the reasons given for it by the administrator. This is why
applicants need to make sure that they request reasons for the decision (as they are
entitled to in terms of s3 of PAJA) and to provide the court with those reasons if they
seek the decision to refuse parole or to require more programmes to be taken on
review. It is not enough to simply provide the court with their own conclusions based
on the facts known to them, but not the court.
Lawfulness requires the administrative action to align with the authorisation (the
empowering provision). Under a lawfulness inquiry the questions “what was
authorised’ and ‘who was authorised to take the decision’ and ‘how did the
authorisations say the actions must be taken’ is asked.
Procedural fairness as a ground of review provides an applicant with a remedy if the
administrator performs an administrative action without complying with the demands of
s3 and or 4 of PAJA.”
First Ground of Review: Failure to comply with S78(4) of the 1998 Act
[41] It was submitted by the applicants that s78(4) of the 1998 Act is a peremptory
provision that compels the first respondent ( the Minister), in the event that he
has withdrawn or refused parole or day parole of an inmate serving life
imprisonment to reconsider the matter on the advice of the N CCS within 2
years (24 months).
[42] It was averred by the fir st applicant that he was considered for parole for the
first time in February 2018, reconsidered in January 2023 and subsequently
reconsidered in November 2024. It was submitted by the first applicant that in
terms of s78(4) of the 1998 Act , the first consideration took place in February
2018, thus, the Minister was compelled to reconsider the matter no later than
2018, thus, the Minister was compelled to reconsider the matter no later than
February 2020, which would have been within the prescribed period of 24
months. It was averred by the first applicant that the Minister dismally failed to
reconsider his parole within the 24 -month period and only reconsidered him
after a period of 4 years and 11 months.
[43] It was submitted by the first appl icant that since the provision is peremptory
(must), the Minister is therefore not empowered by the 1998 Act to cure any
action taken ultra vires which would leave the only logical inference that any
decision for reconsideration taken outside of the prescr ibed period of 24 -
months would be regarded as being unlawful. Thus, it was further submitted by
the first applicant t hat the decision take n in January 2023 by the Minister is
therefore unlawful and as a result any decision taken subsequently to the expiry
of 24-months would also be unlawful. It is on that basis that the first applicant
contended th e review of the lawfulness of the Ministers decision taken 24
November 2024 , citing that Minister was accordingly excluded from
participating in the reconsideration of the first applicant’s profile with effect from
the expiry of the 24-month period in February 2020.
[44] The conundrum that faces the first applicant’s argument as set out above in my
view is that the Minister ’s January 2023 decision was not taken on a PAJ A
administrative review or legality review . A PAJA application has a 180-day
prescription time period, while a legality review has no time limit. In regard to
the Minister’s powers as set out s78(4) of the 1998 Act , no legality re view
argument was put forth by the applicant s. Instead in this matter, it was averred
by the first applicant that the failure by the respondents to comply with s78(4) of
the 1998 Act, to reconsider the first applicant’s parole placement within a period
of 24 m onths (between the 2018 and 2023 period) was a direct violation to a
procedurally fair administrative action. It is further averred by the first applicant
that the action of the first respondent (the Minister) is a direct violation of
s6(2)(b) of PAJA , as an administrator, he acted ultra vires and that his action s
do not comply with the mandatory and material procedure which is prescribed
do not comply with the mandatory and material procedure which is prescribed
by the empowering provision, s78(4) of the 1999 Act in this instance. I am of
the view that i n terms of s7(1) of PAJA this court is bound to only review the
Minister’s 24 November 2024 decision in terms of the applicant’s PAJA
application. However, I must point out that a 4 year and 11 months
reconsideration of the first applicant’s parole is an inordinate length of time.
[45] Having regard to the Minister’s November 2024 reconsideration decision it was
made within the 24-month period of the empowering provisi on (s78(4) of the
1998 Act) following the Minister’s previous decision which was made in January
2023. In the premises, I am satisfied that the respondents have not failed to
comply with s78(4) of the 1998 Act.
[46] It was submitted by the second applicant that he was considered for parole for
the first time in March 2023 by the first respondent, however, his profile was
sent to the off ice of the Minister in October 2020, and he was given a 12
months further profile. It is averred by the second applicant that i t took the first
respondent 2 years and 5 months to make decision which goes against the
principles of administrative actions. The second applicant was reconsidered for
possible placement on parole or day parole in November 2024. Having regard
to the papers placed on record, there is no evidence indicating that the second
applicant’s profile was sent to the office of the Minister in October 2020. The
second applicant averred in his founding affidavit that his profile was positively
recommended by both the CM C and CSPB in 2020 for parole and thereafter
forwarded for further recommendation and finally to the office of the first
respondent for a decision that was taken on 23 March 2023. Since the matter
is un opposed, I have to rely on the documents provided by the second
applicant. The NCCS ’ recommendation document was signed by the
chairperson on 28 November 20 22 and the Minister’s made his decision on 23
March 2023 . Furthermore, the March 2023 document reflecting the Minister’s
decision states the following:
“Parole is not recommended at this stage. This matter should be placed before the
council after 12 months…”
[47] The PAJA application before this court is in term s of the Minister’s 21
November 2024 decision and not the 23 March 2023 decision. Having regard to
the 21 November 2024 decision the Minister made that decision within 1 year
and 7 months which falls within the 24-month period provided for in the
empowering provision of s78(4) of the 1998 Act . The 12-month period
empowering provision of s78(4) of the 1998 Act . The 12-month period
mentioned above refers t o the matter being place before the NCCS after a 12-
month period. In the premises, I am of the view that the respondents have
complied with the provision of s78(4) of the 1998 Act.
Second Ground of Review: Legitimate Expectations
[48] It was submitted by the ap plicants that the transition al provision of the 1998
Act, s136(1) and (2) guarantees the applicants that their parole considerations
would be considered in accordance with the laws (1959 Act) that was in place
at the time when they committed their offences . Furthermore, it is submitted by
the applicants that the 1998 Act guarantees that the applicants automatically
benefit from the credit system which w ere allocated in terms of section 22 A of
the 1959 Act. It was averred by the applicants that the implication of these
credits is that since they were expected to serve a period of 20-years before
they could be eligible for parole consideration, that the 20 -years was now
reduced to 13 years and 4 months. This period was further reduced to 12 years
and 4 months which was calculated by the reduction of two (6 month) by virtue
of presidential remissions which they benefitted from in 2005 and 2012. The
applicants have submitted that they have benefitted from s22A of the 1959 Act
thus the credit system is not in dispute.
[49] It was submitted by the applicants that according to their correctional sentence
plan they complied with the requirements set therein, the social worker,
psychologist, CMC and CSPB had all positively recommended their release. It
is further submitted by the applicants that they had made representations at
Centre level before any decision was taken by the social workers,
psychologists, CMC and CSPB in accordance with s42(3 ) of the 1998 Act. All
these bodies recommended the applicants for relea se on parole, and it is
averred by the applicants that any person or body that would subsequently
make further recommendations that are contrary to those made at centre level,
it would be expected that the applicants be afforded an opportunity to make
representations before such decision could be finalised. I am in agreement with
representations before such decision could be finalised. I am in agreement with
the applicants that there is a legitimate expectation that they should have been
afforded the opportunity to make representations before a final decision was
made. It would be fair and equitable, and in accordance with the constitutionally
guaranteed rights of every person including a sentenced offender, that the
offender be given the opportunity to make representations before the relevant
Minister or NCCS , to make submissions or to argue the merits of his or her
case, and to add uce evidence particularly where substantial injustice may
otherwise have occurred.11
[50] It was submitted by the applicants that since the Minister had refused to release
them on parole, that the Minister would reconsider their matters for possible
parole considerations within a period of 24 months and that since they may
have complied with the Minister’s recommendations as contained in the further
profile, that they woul d be released on parole. The applicants expected that in
terms of s75(1) (c) of the 1998 Act “for their files to go directly to the Minister
after the sitting with the parole board at centre level.”
[51] The official document reflecting the Minister’s January 2 023 decision with
regard to the first applicant reads as follows in respect of the recommendations
made in the document:
“The above do not constitute reasons for the denial of parole.”
[52] The “ above” referred to the recommendations in regard to the activities or
courses the first applicant need ed to undertake. It can be infe rred from the
statement above that even if the first applicant successfully complete d and
complied with the all the recommendations set out there could not have been a
legitimate expectation by the first applicant that he would be released on parole
as the recommendations “do constitute the reason for the denial of the parole”.
[53] Having regard to the 23 March 2023 NCCS further profile document of the
second applicant which was also approved by the Minister, the second
applicant was told to improve his situation and recommendations were also
made therein. Regarding those recommendations the document reads as
follows:
“Compliance with all of the above will not guarantee the offender a placement on
parole.”
[54] The above statement makes it very clear that the second appl icant even if he
complied with all the recommendations, it would not “ guarantee” him a
placement on parole when he was to be considered again for parole.
placement on parole when he was to be considered again for parole.
11 Moses supra note 4 at pages 81 and 82.
[55] In terms of the argument made by the applicants that they believed their files
would be sent directly to the Minister from the centre level ; on a reading of
s75(1)(c) of the 1998 Act, it would appear that they expected that it would not
serve before the NCCS first before being sent to the Minister. However, upon a
reading of s75(1)(c) the CSPB’s report does serve before the Minister when he
makes his decision.
[56] Since this matter is unopposed the only official documents that contain s the
Minister’s 21 November 2024 decision that can inform this court states the
following for the first applicant:
“Having considered the documentation of the aforesaid offender and the
recommendations of the NCCS, parole is not approved. This matter should be placed
before the Council after 12 months . The offender is presently urged to improve his
situation as follows:
1. To un dergo individual psychotherapy to further reduce
his risk of offending.
2. A risk assessment by a non -treating psychologist should
be conducted indicating the risk level and tools, if any.”
[57] The official document that contains the Minister’s 21 November 2024 d ecision
in regard to the second applicant reads as follows:
“Having considered the documentations of the aforesaid offender and the
recommendations of the NCCS, parole is not approved. This mater should be placed
before the Council after 12 months . The offender is presently urged to improve his
situation as follows:
1. To undergo individual psychotherapy to further reduce
his risk of reoffending.
2. A risk assessment by a non -treating psychologist should
be conducted indicating the risk level and tools used, i f
any.”
[58] The averments made by the applicants is that the recommendations made by
the Minister to improve their situation require them to undergo the same
programmes that they have already completed. In regard to the second
applicant, the first further profile of the second applicant signed by the Minister
in March 2023 required him to “ 1) undergo individual psychotherapy to address
offending behaviour and 2) a risk assessment by a non -treating psychologist
should be conducted.” Thus, prima facie if one loo ks at the improvement
recommendations cited in the March 2023 decision and November 2024
decision, they appear the same. In regard to the first applicant, his 18 January
2023 further profile indicate d that he was urged to improve his situation by 1)
undergoing “individual psychotherapy to address his minimisation of the offence
and his crimonogenic needs and 2) a risk assessment by a non-treating Clinical
Pyschologist / Criminologist should be conducted. Once again, this prima facie
appears to be the same requirements as set out in the first applicant ’s
November 2024 ministerial decision document.
[59] From all the above, it can be inferred that the Minister appears to have
considered all the documents placed before him, which would have included
the CSPBs report and the recommendations of the NCCS. There is no
explanation of the minister’s reasons in the documents provided by the
applicants. There is thus, no evidence before this court on how the Minister
applied his mind to the applican ts’s parole applications. Prima facie, it would
appear from the documents provided to the court that the Minister simply
endorsed the NCCS’ recommendations, which were the averments put forth by
the applicants. Absent an explanation of the Minister’s reaso ns for his
decisions, I am of the view that I cannot reach a conclusion that the Minister ’s
decisions were irrational or unlawful . In the Walus v Minister of Justice and
Correctional Services and Others,12 the Constitutional Court confirmed that the
question of whether a decision is rationally related to the purpose for which the
question of whether a decision is rationally related to the purpose for which the
power was given calls for an objective enquiry. It is thus an impossible task for
this court to objectively enquire into the rationality of the Minister’s decisions
absent evidence from the respondents , as this court is bereft of any fact s from
the decision maker (the Minister).
12 [2022] ZACC 39, 2023 (2) SA 473 (CC).
[60] Furthermore, one of the grounds of relief sought by the applic ants is that this
court grant their release on parole. Having regard to the totality of evidence
presented, I have not been provided with sufficient evidence and information to
support the release of the applicants. Accordingly, this court is not in as goo d a
position as the Minister to consider the granting of the applicants’ parole . For
these reasons, I cannot release applicants on parole.
Third Ground of Review: Violation of the Audi Alteram Partem Rule
[61] It was submitted by the a pplicants that the impor tance of the principle of the
Audi Alteram Partem rule is to afford both parties an opportunity to be heard,
thus tell their side of the story before any decision can be taken. It was averred
by the applicants that this is part of the dictates of constitutional procedural
fairness which is crucial in all decisions taken administratively. As stated earlier
according to the applicants, they were a fforded an opportunity to make
representations at Centre level before a decision was taken by the social
workers, psychologists, CMC and CSPB. T he applicants contended that this
opportunity to make representations should have been extended beyond centre
level to the office of the first and second respondents. It was submitted by the
applicants that the opportunity to make representations would have enabled
them an opportunity to make representations to the respondents, which would
have complied with the administrative requirement to give the party that may be
affected by the intended decision an opportu nity to make representations. It is
averred by the applicants that a factor that necessitated them making
representations to the respondents is premised on the positive
recommendations made by the role players at centre level which the applicants
averred were ignored by the respondents. It is averred by the applicants that a
reasonable inference can therefore be drawn from the failure to afford the
reasonable inference can therefore be drawn from the failure to afford the
applicants an opportunity to make representations, that procedural fairness in
the process of the resp ondents taking a decision was not adhered to. It is
further averred by the applicants that the delay in taking the decision and the
recommendations that the applicants should redo program that they had
already previously done, is irrational.
[62] I am in agreement with the applicants that they should have been given the
opportunity to make written submissions or representations with regard to the
unfavourable recommendation made by the NCCS before the final decision
was made by the Minister.
Fourth Ground of Review: Ret roactive Application of the Law, Fifth Ground of
Review: Principle of Legality and Constitutional Invalidity -Section 136(3)(b) of
1998 Act
[63] I have decided to deal with the applicants’ fourth ground of review, (retroactive
application), fifth ground of review (principle of legality) and their arguments for
the constitutional invalidity of section 136(b) of the 199 8 Act collectively below,
because the crux of the applicants arguments deal with the issue of
retrospectivity focusing on the the NCCS and s136(b) of the 1998 Act.
[64] It was submitted by the applicants that the NCCS, a structure that came into
existence during the 1998 Act was officially afforded the authority to ma ke
recommendations to the Minister pertaining to the release of lifers on parole or
day parole in October 2004. It was averred by the applicants, that t his means
that, the NCCS does not have the power to act or make recommendations on
matters of the lifers that committed their crimes before October 2004. It was
noted by the applicants that the transitional provisions of the 1998 Act (section
136) catered for the smooth transition of inmates who committed their offences
during the operation of the old 1959 Act, who are to be treated in accord ance
with the old 1959 provisions of release o n parole. It was submitted by the
applicants that the validity of the transitional provision was challenged in
various courts wherein and it was amended to ensure that it complie d with
constitutional prescripts. The applicants directed the court to the fol lowing
cases: Van Vu ren v Minister of Corrections Services and Others , Minister of
Correctional Services and Others v Seganoe and the Phaahla case13
Correctional Services and Others v Seganoe and the Phaahla case13
According to the applicants these cases make it explicitly clear that s13 6(1), (2)
and (3) caters for the sentenced inmates who committed their offences before
13 Van Vuren v Minister of Correctional Services and Others [2010] ZACC 17, 2010 (12) BCLR
1233 (CC); Minister of Correctional Services and Others v Seganoe [2015] ZASCA 148, 2016
(1) SACR 221 (SCA) (1 October 2015) and Phaahla see supra 2.
October 2004, whose parole considerations should be regulated by the 1959
Act. Only subsection (4) caters for those who are serving a life sentence
committed before the commencement of Chapters IV, VI and VIII and those
sentenced to life for offences committed after October 2004.
[65] It is averred by the applicants that the implication of s136(3)(b) o f the 1998 Act
is that it gives the NCCS the powers which are statutorily give n in terms of
s78(1) of the 1998 Act to make recommendations to the Minister pertaining to
the release of a lifer s after October 2004, that such powers (s136(3)(b)) allows
the NCCS to make recommendations with retrospective effect to the lifers who
are regu lated by the 1959 Act. It is further averred by the applicants that
according to South African law, legislation only applies to the future which
means that legislation should not have a retro-effect. This is a standard practice
in terms of the law in South Africa except when the retro -effect benefits the
person being the subject of that application of that particular law.
[66] It is submitted by the applicants that the NCCS is a body that is known for
making adverse recommendations which are contrary to those m ade at the
centre level and that the Minister has on many occasions relied on the NCCS’
recommendations to refuse many lifers their release on parole or day parole. It
is averred by the applicants that the application of s136(3)(b) is burdensome on
them because the parole consideration of the lifers takes much longer now
before a decision is made. It was further averred by the applicants that the
reasons for the delays are firstly, that the NCCS ’ sittings take place during
specified periods of the year and as a result thereof the inmates profiles lay in
their offices for months or years before they are placed before the Minister to
make a decision. Secondly, the delay caused by the NCCS hinders the
Minister’s ability to reconsider the lifers parole matters w ithin a period of 24
months.
Minister’s ability to reconsider the lifers parole matters w ithin a period of 24
months.
[67] It is averred by the applicants that s75(1)(c) of the 1998 Act does not recognise
the NCCS which makes their involvement in the parole consideration of the
applicants unlawful as they committed their offences during the 1959 Act.
[68] It was submitted by the applicants that the principle of legality advocates for the
notion that everyone deserves protection from retroactivity or retrospectivity of
the law, especially where the result of such would be prejudicial. It was averred
by the applicants that the retrospective effect resulting from the application of
s136(3)(b) invokes the provision of s 35(3)(n) of the Constitution, which is in
favour of prospectivity rather that retrospectivity . It was further averred by the
applicants that in their case where they committed their offences before the
commencement of chapters IV, VI and VIII, that their parole consideration
should be in terms of rules that were in place at the time they committed their
offences as it was co ncluded in the case of Van Vuren.14 The exception would
be in the circumstances where the applicants st ood to benefit from the rules
applicable in the 1998 Act.
[69] It was submitted by the applicants that s136(3)(b) of the 1998 Act violate d the
principle of le gality by applying the law retrospectively by granting the NCCS
the powers to make recommendations on the release of lifers who committed
their offences before October 2004. Sentenced inmates who committed
offences around the same period as the applicants were not subjected to the
compulsory recommendations by the NCCS for their release as lifers. It is on
that basis that the applicants conten ded that the application of s136(3)(b) on
the lifers who committed their offences prior to October 2004 encroach es on
their right to equality.
Discussion on the retrospective effect of the provision
[70] Section 35(3)(n) of the Constitution provides that every accused person has a
right to a fair trial, which includes the right “to the benefit of the least severe of
the prescribed punishments if the prescribed punishment for the offence has
been changed between the time that the offence was committed and the time of
sentencing”. Parole has been recognised as forming part of punishment. In
sentencing”. Parole has been recognised as forming part of punishment. In
Phaahla v Minister of Justice and Correctional Services and Another
(Tlhakanye Intervening),15 it was stated:
14 Supra note 13.
15 Supra note 2 at para 34.
“Correctional supervision is a class of punishm ent, and so the rules prescribing
correctional supervision prescribe a form of punishment. Parole is defined in
substantively the same way, serves the same purpose, and is governed by the same
rules as correctional supervision. In substance, therefore, the two are identical and
parole, like correctional supervision, must surely be a type of punishment.”
[71] In National Director of Public Prosecutions v Carolus and Others ,16 the
Supreme Court of Appeal (SCA) affirmed that individuals must be afforded an
opportunity to know what the law is in order to regulate their conduct
accordingly. The court in National Director of Public Prosecutions v Basson ,17
explained that: “A statute is said to operate retrospectively if it creates legal
consequences for conduct only after that conduct has occurred”. 18 The Court
further held:19
“ …section must thus be construed as operating only prospectively, with the resul t
that a confiscation order may not be imposed in consequence of a conviction for an
offence committed before the Act came into effect.”
[72] The Constitutional Court in Van Vuren v Minister of Correctional Services and
Others,20 emphasised that s 136 of the 1 998 Act must be interpreted against
the backdrop of the general presumption against retrospectivity.21
[73] The distinction between procedural and substantive provisions cannot always
be decisive in the operation of the presumption against retrospectivity. 22 As the
court recognised in Minister of Public Works v Haffejee NO:23
16 [1999] ZASCA 101; 2000 (1) SA 1127 (SCA) at para 36.
17 (131/2000) [2001] ZASCA 111; [2002] 2 All SA 255 (A); 2002 (1) SA 419 (SCA); 2001 (2) SACR 712
(SCA) (28 September 2001).
18 Supra at para 1.
19 Supra at para 17.
20 Supra note 13 at paras 52-53.
21 Genrec Mei (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering, Metallurgical Industry and
Others [1994] ZASCA 143; 1995 (1) SA 563 (A) at 572E, where the court stated: “It is settled law that
there is a strong presum ption against retrospectivity of a statute, and that hence its operation should be
construed as prospective only unless the Legislature clearly expressed a contrary intention.” See also S v
Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) (8 June
1995) at para 37.
22 Veldman v Director of Public Prosecutions (Witwatersrand Local Division) (CCT19/05) [2005] ZACC 22;
2007 (3) SA 210 (CC); 2007 (9) BCLR 929 (CC); 2006 (2) SACR 319 (CC) (5 December 2005) at para 28.
23 [1996] ZASCA 17; 1996 (3) SA 745 (A) at 753B–C.
“[I]t does not follow that once an amending statute is characterised as regulating
procedure it will always be interpreted as having retrospective effect. It will depend
upon its impact upon existing substantive rights and obligations. If those substantive
rights and obligations remain unimpaired and capable of enforcement by the
invocation of the newly prescribed procedure, there is no reason to conclude that the
new procedure was not intended to apply.”
[74] Section 64 of the 1959 Act states as follows:
“64. Release of prisoner serving life sentence.
(1) A prisoner upon whom a life sentence has been imposed, shall not be released
unless the National Advisory Council—
(a) after having been requested by the Minister to advise him in relation to
that prisoner; and
(b) after considering a report of an institutional committee, with due regard to
the interests of society, has made a recommendation to the Minister for the
release of the prisoner and the Minister has accepted that recommendation.
(2) If the Minister accepts the recommendation for the release of such a prisoner, he
may authorize the release of the prisoner on the date recommended by the National
Advisory Council or on any other date, either unconditionally or, subject to any such
condition as he may determine, on parole as he may direct.”
[75] Section 136(3) of the 1998 Act provides:
“….
(b) The case of a sentenced offender … must be submitted to the National
Council which must make a recommendation to the Minister regarding the placement
of the sentenced offender under day parole or parole.
(c) If the recommendation of the National Council is favourable, the Minister may
order that the sentenced offender be placed under day parole o r parole, as the case
may be.”
[76] The Constitutional Court in Van Vu ren held the following in terms of the pre-
1998 Act position:24
24 Supra note 13 at paras 25 and 27.
“Prior to the enactment of the Act, the National Advisory Council of Correctional
Services (National Advisory Council) submitted a provisional memorandum to the
Minister. The National Advisory Council advised the Minister on general policy
considerations, including the placement of sentenced offenders on parole. The final
report recommended, in the case of offenders senten ced to life incarceration, that
offenders sentenced to life should serve 20 years in prison, with life incarceration
being equated with a determinate sentence of 40 years. The report also stated that
an offender sentenced to life incarceration, upon reaching 65 years of age, should be
entitled to be considered for parole provided that he or she should have served 15
years of the sentence. The National Advisory Council recommended further that any
decision by the Parole Board recommending parole in the case of a person
sentenced to life incarceration should be brought before it for a final decision.0
…
Section 64 of the Old Act, as amended, empowered the Minister to authorise the
release of an offender sentenced to life incarceration on parole after having be en
advised by the National Advisory Council, the latter having considered the report of
an institutional committee.”
[77] The question is therefore whether the parole procedure in s 136(3)(b)–(c) of the
1998 Act constitutes such a fundamental departure from s 64 of the 1959 Act,
thereby contravening s 35(3)(n) of the Constitution? No , I think not. Both retain
the same essential structure: consideration by an institutional body, a
recommendation to the Minister, and a final discretionary decision by the
Minister. It is true that the composition of the National Council has been
broadened,25 so it differs from that of the former National Advisory Council. 26
The enquiry under s 35(3)(n) is whether s 64 of the old Act is “least severe”
when compared with s 136(3)(b) –(c). In my view, the two frameworks are
when compared with s 136(3)(b) –(c). In my view, the two frameworks are
fundamentally equivalent. Any differences in institutional composition do not
rise to the level of increased punishment, nor retrospectively attach new legal
consequences to past conduct.
Section 42(3) of 1998 Act
25 Section 83 of the 1998 Act.
26 Section 1 read with section 7 of the Correctional Services and Supervision Matters Amendment Act 122
of 1991.
[78] It was submitted by the applicants that s42(3) of the 1998 Act provides for
sentenced inmates with a right to make representations up to the National
commissioner and provides no mechanism that allows for lifers to be able to
make representations to the Nat ional Council for Correctional Services or the
Minister. It was averred by the applicants that this prevents the applicants and
other inmates in the same position the opportunity to be heard by either the
NCCS or Minister before a decision can be taken bey ond centre level. It is
further averred by the applicants that s42(3) of the 1998 Act unfairly
discriminates against applicants as it does not afford them with the right to
make representations to the office of the NCCS or Minister and therefore
should be amended to cater for the inmates in the same position as the
applicants.
[79] The court in Mazingane and Others v Minister of Correctional Services and
Others27 held the following in regard to the submission of written
representations by offenders:
“A sentenced offender has a right to be informed by the CSPB of what it recommends
to the Minister, and the Minister must confirm whether the recommendations were sent
to him. A sentenced offender can then submit written representations to the Minister
regarding the CSPB’s recommendations, which the CSPB is obliged to allow and
obliged to submit with its report to the Minister.The Minister must consider all this
information. The Minister can then decide to either release the offender on parole
(perhaps subject to community corrections) or refuse to grant parole. After a refusal,
the sentenced offender has the right to have their case reconsidered by the Minister
within two years.”
[80] In the premises the 1998 Act is silent on the right of the sentenced offender to
be informed by the NCCS of what it will recommend to the Minster, particularly
where the NCCS has made an unfavourable recommendation. There is no
where the NCCS has made an unfavourable recommendation. There is no
provision made for a sentenced offender to submit written representations to
the Minister regarding the NCCS’ recommendations.
[81] The court in Block v Upington Correctional Supervision and Parole Board and
Others,28 held the following:
27 Supra note 10 at para 69.
“It is so that in terms of Section 42(3) of the Act, a sentenced offender must be
informed of the contents of the reports submitted by the Case Management
Committee to the Correctional Supervision and Parole Board or the National
Commissioner and be afforded the opportunity to submit written representations to
the Correctional Supervision and Parole Board or National Commissioner, as the
case may be. A mere reading of the said Section reveals that it is a mandatory and a
material procedural requirement or condition prescribed by the empowering
provision.
….
…It follows that the applicant’s averments that he was not afforded any opportunity to
make written representations or that he was not called to appear before the Case
Management Committee for feedback, but was only called to the office of the Head of
Correctional Centre for feedback, stand undisputed. In the premise, this Court fi nds
that the impugned decision was arrived at in a procedurally unfair manner.”
[82] While the 1998 Act is silent on this issue of making representations to the
Minister regarding the NCCS recommendations, I am not convinced by the
constitutional argument made by the applicants in terms of s42(3) of the 1998
Act that it unfairly discriminates against them. Upon a reading of s42(3) of the
1998 Act, the section deals with the reports compiled by the C MC which is
submitted to the CSPB or the National Commissioner. In this case the
applicants submitted that they were afforded the opportunity to make
representations to the CMC. The applicants noted that the outcome of the CMC
regarding their release of parole was favourable. In terms of s75(3)(b) of the
1998 Act, the applicants must be informed by the CSPB of its
recommendations and “must confirm that the recommendations have been
conveyed to him or her.” As quoted above in the Mazingane29 a sentenced
offender has a right to be informed by the CSPB what it recommends to the
offender has a right to be informed by the CSPB what it recommends to the
Minister. The court then proceeds to say that the Minister must confirm whether
the recommendations were sent to him or her . This point is also made by
28 (893/2023) [2023] ZANCHC 72; [2023] 4 All SA 295 (NCK) (15 September 2023) at para 98 and 100.
29 Supra see note 10 and 27.
Moses in his book on Parole. 30 I beg to differ with both the Mazingane court
and Moses, s75(3)(b) of the 1998 Act state the following:
“A person or sentenced offender referred to in subsection (1)(c) must be informed by
the Board of its recommendations and must confirm that the recommendations have
been conveyed to him or her.”
[83] My reading of the above section implies that the sentenced offender must be
informed of the CSPB’s recommendations and the sentenced offender and not
the Minister must confirm that the recommendations have been conveyed to
him or her.
[84] Section 75(3)(c) of the 1998 Act provide s the applicants with the opportunity to
make representations to the recommendations of the CSPB, it states as
follows:
“In cases referred to in subsections (1)(c) and 2(c) the Board must allow the person to
sentenced offender to submit written representations with regard to the
recommendation of the Board, and the Board must submit the representations,
together with it report to the court.”
[85] Having read t he documents presented by the applicants in this matter, the
further profile documen ts of the NCCS and the Minister , the section where the
minister placed his signature reads as follows:
“Having considered the documentation of the aforesaid offender, and the
recommendation of the NCCS,……”
[86] Prima Facie , it does mean that the Minister takes into consideration all the
documents before him including the recommendations of CSPB together with
any written submissions made by the offender as those documents must be
submitted to the final decision maker which is the Minister. As stated earlier, the
1998 Act is silent on the ability of the offender to make recommendations in
regard to an adverse finding by the NCCS. The applicants argue that this
silence should be remedied by this court declaring s42(3) of the 1998
unconstitutional or alternatively providing a reading -in to the Act. In the
30 Moses supra note 4 at page 102.
premises I am not convinced that s42(3) of the 1998 Act is the correct place to
remedy the absence of a provision providing the offenders a reasonable
opportunity to put forth t heir side of the story where the NCCS has
recommended a denial of parole. It could be included elsewher e in the 1998
Act, perhaps in Chapter VIII, which deals with the NCCS -however, alternative
placements of a reading -in or the inclusion of a new provisio n elsewhere in the
1998 Act were not put forth by the applicants.
[87] Section 3(2)(b)(ii) of PAJA provides - “a reasonable opportunity to make
representations”. Thus, in terms of PAJA , I am of the view that the applicants
should have had a reasonable opportun ity to make representations to the
Minister in regard to the NCCS’ unfavourable recommendation , particularly
where in this case the CMC and the CSPB have all recommended that the
applicants be considered for release on parole. This may be especially
necessary where given the fact that the circumstances of the offender may
have changed materially in the period between the report and the
recommendations of the CSPB, and the recommendations of the NCCS to the
Minister and the Ministers decision. 31 Thus, not providing the applicants this
opportunity in my view amounts to procedural unfairness in terms o f s6(2)(c) of
PAJA as the applicants were not given a meaningful opportunity to make
written submissions to the Minister in regard to the NCCS’ adverse
recommendation of not recommending parole.
Conclusion
[88] Notwithstanding, that I am unable to determine the substantive lawful nature of
the Minister’s decision not to grant parole to the applicants due to the absence
of reasons; I find that the November 2024 decision of the Minister in regard to
both applicants cannot stand because it was reached through a p rocedurally
unfair process.
Order
31 See Moses supra note 4 at page 82.
[89] Having considered the totality of evidence, the papers filed and the
submissions made by the applicants’ counsel, I hereby make the following
order:
89.1 The decision of the first respondent made on the 21 November
2024 in respect of the first applicant is reviewed and set aside.
89.2 The first applicant’s matter is remitted to the first respondent for
reconsideration within 90 days of the service of this order, in
accordance with a procedura lly fair process including but not
limited to , affording the first applicant an opportunity to make
written submissions with regard to the recommendations of the
second respondent , and the second respondent is ordered to
submit the written submissions, tog ether with its report to the
first respondent.
89.3 The decision of the first respondent made on the 21 November
2024 in respect of the second applicant is reviewed and set
aside.
89.4 The second applicant’s matter is remitted to the first respondent
for reconsideration within 90 days of the service of this order, in
accordance with a procedurally fair process including but not
limited to, affording the second applicant an opportunity to make
written submissions with regard to the recommendations of the
second respondent, and the second respondent is ordered to
submit the written submissions, together with its report to the
first respondent.
89.5 The respondents are to pay the costs of this application jointly
and severally, the one paying the other to be absolved.
___________________________
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Delivered: This judgment was prepared and authored by the Judge who se name is
reflected and is handed down electronically by circulation to the parties' legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. This matter was set down on the roll for 28 October 2025 but was
postponed to the 30 October 2025. The matter was heard in open court on the 30
October 2025. The date for hand down is deemed to be 30 January 2026.
APPEARANCES:
For the Applicant: MS SEKOKOTLA instructed by MR KARABO
LEBYANA, LEBYANA ATTORNEYS
For the Respondents: NO APPEARANCE