IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
1
DELETE WHICHEVER IS NOT APPLICABLE CASE NO: 2023-011042
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
26/02/2026
DATE
In the matter between:
SIGNATURE
NATIONAL COUNCIL FOR CORRECTIONAL
SERVICE
MINISTER OF CORRECTIONAL SERVICE
CORRECTIONAL SUPERVISION AND PAROLE
SERVICE
And
OUPA CHIPANE PHAAHLA
1 st Applicant
2nd Applicant
3rd Applicant
Respond et
JUDGMENT IN RESPECT OF THE LEAVE TO APPEAL
TD SENEKE, AJ
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Introduction
1. On 4 September 2025, I made an order in favour of the Respondent for him to
be released on parole by no later than 3 October 2025.
2. On 2 October 2025, the Applicants (State Parties) filed a notice of application
for leave to appeal.
3. On 3 October 2025, I wrote a detailed judgment which formed the basis of the
reasons for my order of 4 September 2025.
4. On 24 October 2025, the State Parties filed a notice of supplementa ry
application for leave to appeal in light of the judgment and order that I made
on 3 October 2025.
The test for leave to appeal
5. The provisions of section 17(1) of the Superior Courts Act 10 of 2013 provides
for the circumstances in which a judge may grant leave to appeal.
6. Section 17 of the Superior Courts Act 10 of 2013 provides that leave to appeal
may be granted if the Court is of the opinion, amongst others, that the appeal
would have a reasonable prospect of success or the decision on appeal would
still have practical effect.
7. In Zuma v Democratic Alliance,1 the Court said that an application for leave to
appeal must convince the Court that there is a reasonable prospect of success
on appeal and that the success of such an application depends on, among
others, the prospect of eventual success of the appeal itself. The Court hearing
1 [2021] ZASCA 39 of 13 April 2021
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the application for leave to appeal must itself be of the opinion that another
Court will differ from its judgment.2
8. In Ramakatsa v African National Congress,3 the Court said that the prospects
of success must not be remote and that “there must exist a reasonable chance
of succeeding”.
9. The Superior Courts Act has raised the bar for granting leave to appeal. In The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and Others,4 Bertelsmann J,
held as follows: “It is clear that the threshold for granting leave to appeal
against a judgment of a High Court has been raised in the new Act. The former
test whether leave to appeal should be granted was a reasonable prospect
that another Court might come to a different conclusion, see Van Heerden v
Cronwright and Others, 1985 (2) SA 342 (T) 5 at 343 H. The use of the word
‘would’ in the new statute indicates a measure of certainty that another court
will differ from the court whose judgment is sought to be appealed against.”
The grounds for application for leave to appeal
10. The grounds for application for leave to appeal are:
“1. In paragraph 67 of the judgment, the learned judge erred in finding
that the decision of the Minister was primarily based on the single
report of Sukhdeo dated 31 January 2024 and to the limited extent
the report of Buthelezi dated 23 July 2024 and further that the
Minister dealt with the report of Sukhdeo in a piecemeal and
nitpicking manner to suit his predetermined decision.
2 The Mont Chevaux Trust v Tina Goosen 18 Others 2014 JDR 2325 (LCC).
3 [2021] ZASCA 31 of 31 March 2021
4 2014 JDR 2335 (LCC).
5 2014 JDR 2325 (LCC) at para 6.
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1.1. It is submitted by the Applicants that the Court a quo committed
gross irregularity by finding as aforesaid as these were not the
only reports/factors which the Minister considered when he made
the impugned decision. The misdirection of the Court a quo in
this regard, is further augmented by the fact that his judgment is
littered with contradictions i.e in paragraph 67, the Court a quo
found that the Minister considered the report of Buthelezi, but on
paragraphs 99-101 of the very same judgment, the Court says
the NCCS (and the Minister) did not consider the report of
Buthelezi. It is therefore difficult to fathom under what
circumstances the Court a quo based its finding that the Minister
had preconceived the determination of the Respondent’s parole
application. It is submitted that that the Court a quo in this regard
committed an irregularity that is prone to be set aside by another
Court.
2. The Honourable Court in paragraph 77 inter-alia found that:
2.1. The Minister, by denying parole to the Respondent, treated him
unfairly and unjustly because two of his accomplices (Kwaka
and Mokwape) were released on parole.
3. The Honourable Court in paragraph 93 of the judgment inter -alia
found that:
3.1. The Phakathi report was produced in 2004, a period of more
than 20 years and that this report should have been used to
consider the Applicant ’s parole in 2017 when the Applicant
became eligible for placement on parole.
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4. The Honourable Court in paragraph 93 inter-alia found that:
4.1. The NCCS failed to consider the report of Buthelezi in its
recommendation of 23 December 2024.
5. The Honourable Court in paragraph 109 inter-alia found that:
6.2. The Minister has not provided any tangible and substantive
reasons for this malicious, outlandish, illogical and unsound
recommendation. Frankly, this borders on the Minister being
spiteful. Further that the Minister was clearly acting prejudicially
and unconstitutionally in this instance.
7. The learned judge in paragraph 115 of its judgment erred in finding
that the Respondent has been attending the programmes
recommended by the Minister in the impugned decision since 2004.
The finding of the Court a quo in this regard is not supported by th e
evidence at the disposal of the Court as the objective evidence
suggested that the Respondent could not have attended the
recommended ‘programmes’ since 2004 in light of the fact that the
Respondent only qualified for parole in 2017.
7.2. It is submitted on the afore -going that there are reasonable
prospects that another Court will find that the Respondent could
not have attended the recommended ‘programmes’ since 2004
in light of the fact that the Respondent only qualified for parole
in 2017 and the impugned decision was made in 2025. It is clear
from a cursory look at the reasoning of the Court a quo above,
that the Court once again confused the date of sentence of the
Respondent with the date of eligibility for the Respondent ’s
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parole as the Respondent was sentenced in 2004, and became
eligible for parole in 2017.
8. The learned judge erred by placing reliance in paragraph 115 of its
judgment on the judgment of Walus v Minister of Justice and
Correctional Services 2023 2 BCLR 224 (CC) and thus reaching the
conclusion that the Minister had no intention of placing the
Respondent on parole.
8.2. In this regard, the Applicants submit that the facts in casu are
quite distinguishable from the Walus case as mentioned above
because the Respondent exhibited a ‘moderate to low ’ risk of
recidivism instead of a low risk of recidivism. It is submitted that
there are reasonable prospects that another Court will find that
the facts and circumstances in this matter are distinguishable
from the Walus matter.
8.1. In casu, it must be mentioned that the factors the Minister took
into account in are distinguishable from those considered by the
Constitutional Court in the Walus matter. This is because, in the
present matter, the constant factors relate to possible fut ure
events which may possibly occur after the Respondent is
released on parole. It is thus submitted that the Court a quo
committed gross irregularity in failing to properly assess the
evidence at its disposal where a proper assessment thereof
would have made the Court properly advised by the evidence
to reach a different conclusion.
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9. The learned judge erred in finding in paragraph 118 of his judgment
that the decision of the Minister was irrational. The faulty reasoning
of the Court a quo in this regard is exhibited by the failure of the Court
to consider objective evidence at its dis posal instead to reach
conclusions that are not supported by the facts at the disposal of the
Court.
9.1. In this regard the Applicants submit that there are reasonable
prospects that another Court will find that there is connection
between the exercise of the Minister ’s power and purpose of
the enacting provision or the information which was before the
Minister.
10. The Learned Judge erred in paragraph 112 of the judgment in finding
that remitting the matter back to the Minister would not guarantee the
offender placement on parole. In this regard , the Applicants submit
that there are reasonable prospects of success in another Court
finding that:
10.1. The Court a quo, usurped a power it did not have by ordering
the Applicants to release the Respondent without affording the
Minister the right to impose such terms and condition as he may
deem appropriate. The power to release the Respondent is
expressly conferred upon the Applicants by the Correctional
Services Act 11 of 1998 Act (and/or any other relevant
statute/regulation/policy).
10.2. This order served to defeat the provisions of the above statutory
enactment.
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11. The learned judge erred in granting the application with costs on
party and party including the costs of Counsel on scale C. There are
reasonable prospects that another Court will find that no order as to
courts ought to have been awarded.”
11. I intend to deal with the grounds as follows:
First Ground
12. During the hearing of the application for leave to appeal, I specifically engaged
Counsel for the State Parties on reports of Sukhdeo and Buthelezi.
13. There was no doubt that the Minister primarily relied on the report of Sukhdeo
and to a very limited extend on the report of Buthele zi. The reliance on the
report of Buthele zi was taken out of context without taking into account the
totality of her findings.
14. Her findings support the placement of the Respondent on parole. The Minister
simply nitpicked what suited his narrative and simply disregarded the totality
of Buthelezi’s findings.
15. In paragraphs 99 to 101 of my judgment, I focused on the recommendation of
the NCCS and I made a valid point that the NCCS ignored the report of
Phakathi. I made a clerical error as to the date of that report. The Phakathi
report is dated 4 December 2019. I am indebted to Counsel for the State
Parties for bringing the issue of the incorrect date to my attention.
16. When the NCCS considered the recommendations of the parole board to
place the Respondent on parole in 2024, it clearly did not consider the reports
of Phakathi and Buthelezi dated 4 December 2019 and 23 Ju ly 2024,
respectively.
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17. My criticism with re gard to the failure to consider the two reports is solely
directed to the NCCS. The attempt to lump the role of the Minister and NCCS
has no basis. The findings in paragraphs 67 and 99 to 100 are well supported
by the reasoning and findings contained in the judgment.
18. There is no merit to this ground.
Second Ground
19. I was justified in making the findings in light of the five reports which find
favourably for the Respondent. There were no adverse findings or records with
regard to his incarceration as a convicted inmate since 2004.
20. After engining Counsel for the State Parties , it become apparent that the
Minister heavily relied on the characterisation of the Respondent as having a
risk profile of moderate t o lo w. This was contained in the last senten ce of
Buthelezi’s report and was quoted out of context. In fact, Buthelezi used the
risk assessment of moderate to low in support of the pl acement of the
Respondent on parole. The full paragraph reads:
“As part of his release plan Mr Phaahla will be staying with his sister in
Atteridgeville. In terms of work plan, Mr Phaahla reported that he will utilise
the skill acquired during his incarceration of motor mechanic. Based on
the assessment and integration of the information listed above, Mr
Phaahla does not display any major unresolved crim inogenic needs, and
his risk of re offending falls with the moderate to low range for violence
offences.”
21. There is no merit to this ground.
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Third Ground
22. I have indicated that I have made a clerical error in using 2004 as the date of
the Phakathi report. The correct date is 4 December 2019. Nothing turns on
the fact that I made that clerical error. The reasoning and findings have not
been affected by that clerical error.
23. There is no merit to this ground.
Fourth Ground
24. Barring the clerical error, the reasoning and findings are correct. Nothing turns
on the fact that I made that clerical error.
25. There is no merit to this ground.
Fifth Ground
26. Paragraph 109 must be read with para graph 108 of the judgment . In
circumstances where the Respondent has not used an d abused substances
since 1984 or 1985, it is irrational for the Minister to recommend that he must
attend programmes to deal with his substance abuse problem. Paragraph 109
buttresses and emphasises the malice , outlandish , illogical and unsound
recommendation of the Minister.
27. There is no merit to this ground.
Seventh Ground
28. Baring the clerical error with respect to the date of Ph akathi report, nothing
turns on this point. The reasons and findings of the judgment have not been
seriously challenged.
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29. There is no merit to this ground.
Eighth Ground
30. The emphasis of this ground is the “moderate to low” risk of recidivism instead
of low risk. This is based on the wrong characterisation of Buthelezi’s report.
She used this ri sk assessment as feather on the cap of the Respondent to
emphasise that he should be reconsidered for parole. The Minister has in a
cynical way attempted to use Buthelezi’s findings to achieve the outcome that
was not intended by that report. It is one of the instances where the g laring
attitude of the Minister to deny the Respondent parole at all costs is
demonstrated.
31. The judgment has shown instances where the NCCS refused to recommend
parole for Respondent without reasons (2022) and where the NCCS
recommended that the Respondent must attend further and additional
programmes while stat ing that completion of these programmes would not
guarantee that he would be eligible for parole (2024).
32. In all these instances, the NCCS and the M inister were pre -determining the
issue of placing the Respondent on parole.
33. The manner in which the Minister ignored the reports of Bopape, Phakathi,
Govender and opportunistically nitpicked part of the sentence in Buthelezi’s
report that recommended parole for the Respondent is telling.
34. In order to motivate that there is a rational basis to find that the decision of the
Minister to put more empha sis on the risk factor of moderate to low to deny
the Respondent parole, Counsel for the State Parties has referred me to the
case of Barnard v Minister of Justice, Constitutional Development and
12
Correctional Services and Another.6 He referred me to this case to support the
State Parties’ contention that the Court in that matter had determined that a
risk factor of medium to low is a proper basis to deny parole.
35. This is not correct. In the Barnard case, the Cou rt stated as follows , i n
paragraph 36:
“[36] The Minister averred that, in addition to these positive factors, he was
required to take, and had taken, into account the following negative
factors, mitigating against the granting of parole:
…
[36.3] Mr Barnard’s noncompliance with his previous parole conditions
pursuant to him having been placed on parole on 10 December
1987 (in respect of two previous convictions for murder and other
charges), and his murder of Dr Webster while on parole; and
[36.4] Mr Barnard ’s lack of scholastic, academic or technical
achievements while in prison.”
36. In paragraph 37
“[37] As regards the sentencing court ’s comments, the Minister relied on
the following (as roughly translated by me from the original
Afrikaans):
….
[37.5] Mr Barnard ’s previous convictions were a particularly notable
aggravating factor. He had two previous convictions for murder,
6 2016 (1) SACR 179 (GP)
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one of attempted murder, and three for theft, for which he had
been sentenced on 10 December 1984;
[37.6] Mr Barnard was released on parole three years later, on 10
December 1987. He had murdered Dr Webster on 1 May 1989,
while still on parole; and
[37.7] Mr Barnard was clearly a danger to the community, and it was the
court’s duty to ensure that the community was protected against
any further danger from him.”
37. In paragraph 91:
“[91] The psychologist also assessed Mr Barnard ’s risk for committing
violent crimes in the future, were he to be released on parole. He
indicated that the risk of Mr Barnard committing politically
motivated violent crimes in the future was low. However, he also
noted that a complicating factor in Mr Barnard ’s case is that he
had committed other crimes, apart from those committed on behalf
of the CCB. The psychologist concluded in this regard: ‘The high
versatility of his crimes may increase actuarial risk to at least
medium risk.’ He also noted that it was uncertain to what extent
the greed component in Mr Barnard ’s propensity for criminal
conduct had been contained during his incarceration.
Furthermore, Mr Barnard ’s propensity for violence was ‘very
difficult to pin down’.”
38. In paragraph 93:
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“[93] Although it was argued before me that the sentencing court was
incorrect in finding that Mr Barnard had committed the murder of
Dr Webster while he was on parole for his first offences, this
submission did not withstand closer scrutiny. This, too, is a factor
that the Minister expressly indicates that he took into account in
refusing to approve Mr Barnard’s release on parole.”
39. In paragraph 94:
“[94] In light of all of this it does not seem to me that there is any merit
in Mr Barnard’s contention that there is overwhelming evidence in
support of his being released on parole, and that the Minister
acted unreasonably in denying this to him. There are certainly
factors in favour of a positive decision, but they are not
overwhelming. Mr Barnard is an offender with a seasoned history
of violent crime of the most serious kind. He has previously
committed murder while on parole, albeit in particular
circumstances. He committed a second murder thereafter. In this
context, the equilibrium reached by the Minister between the
positive and negative factors pertaining to Mr Barnard’s case does
not strike me as being unreasonable.”
40. In paragraph 96:
“[96] Mr Barnard contends that it was unreasonable for the Minister to
refuse him parole based on negative factors he can do nothing to
change. It is so that Mr Barnard cannot change the facts of the
past. However, this does not make it unreasonable for the Minister
to have taken them into account. On the contrary, the parole policy
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and parole manual expressly list his crime history, sentencing
remarks by the convicting court, and ambient features of his
crimes as being factors that must be considered. Moreover, as I
have noted, the psychological assessmen t raises areas of
uncertainty regarding Mr Barnard’s risk of reoffending.”
41. The case of Banard is distinguishable from the case in casu.
42. Paragraph 91 deals with the psychologis t’s assessment of Mr Ba rnard. The
psychologist concluded “the high versality of his crimes may increase actuarial
risk to at least medium risk”. The psychologist also noted that it was uncertain
to what extent the greed component in Mr Barnard ’s propensity for criminal
conduct had been contained during his incarceration. Furthermore, Mr
Barnard’s propensity for violence was “very difficult to pin down”.
43. In paragraph 93, the Court in Barn ard said that the Minister has considered
that Barnard had committed the murder of Dr We bster (an academic at Wits
University and a prominent social justice activist) while he was on parole for
his first offences.
44. In paragraph 94, the Court clearly indicated that there are cert ain factors in
favour of a positive decision, but they are not overwhelming. The Court stated
that Mr Bernard is an offender with a seasoned history of violent crime of the
most serious kind.
45. To counter the reliance on Barnard by the S tate Par ties, Counsel for the
Respondent referred me to the case of Van Der He ever v Minister of
Correctional Services and Another.7 Paragraph 12 states that:
7 (14495/2017) [2018] ZAGPPHC 867 (8 November 2018)
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“[12] Dr Swanepoel ’s risk assessment described the applicant as a
medium to low risk to society. Dr Swanepoel concluded that the
applicant no longer possesses a danger to the public and
recommended the applicant's release on parole under strict
conditions which should includ e continued psychotherapy outside
prison.”
46. Paragraph 43 states that:
“[43] The respondents’ submissions are not supported by the facts when
they contend that, despite the positive facts listed by the relevant
experts, the Minister weighed up these factors against the negative
factors and concluded that the applicant is not suitable for parole.
The so called negative factors are summed up by one consideration
and that is the risk factor which clouded the respondents ’
consideration. The respondents find support in their reasoning by
alleging that they possess the resources to provide psychotherapy
and to monitor the applicant whilst being incarcerated. In my view,
the respondents have failed to show that their decision was rational
on the facts before court..”
47. I concur with the approach in van der Heever. Accordingly, there is no merit to
this ground.
Ninth Ground
48. There is no merit to this ground. The judgment has dealt with the reasons and
findings that the Minister’s decision is irrational in paragraphs 66 to 166.
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Tenth Ground
49. There is no merit to this ground. The judgment dealt with exceptional
circumstances in paragraphs 124 to 129. The exceptional circumstances form
the basis for the finding that the matter should not be remitted to the Minister.
50. In paragraph 45 of van der Heever case, the Court stated that:
“[45] The applicant submitted that if the court does find that the
respondents’ decision stands to be reviewed and set aside, the court
should rather make an order substituting the respondents ’ decision,
instead of referring the matter back to the respondents, because:
45.1 the end result is a foregone conclusion;
45.2 it will be a waste of time to order the Minister to reconsider the
matter, which is obvious;
45.3 much time has unjustifiably and unreasonably been lost in the
process which has prejudiced the applicant, and a further delay
that a referral back to the Minister would cause;
45.4 the actions of the Minister show bias and/or incompetence with
reference to consideration of the relevant facts and expert
records;
45.5 the court is in as good a position as the Minister to make the
decision;
45.6 in the light of the fact that he has been incarcerated for a long
period of time, time is of the essence in this matter.”
51. In paragraph 47, the Court stated that:
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“[47] The court is empowered, in terms of section 8(1)(c)(ii)(aa) of PAJA,
to substitute its decision for that of the administrator in exceptional
cases. ln my view and given the facts, I am of the view that this case
warrants an order of court to substitute the decision of the
respondents.”
52. In Walus, the Constitutional Court stated as follows:
“[86] After the advent of democracy, this continued to be the position. It is
important to emphasise that courts only substitute their decisions for
those of government functionaries in exceptional cases. It is not
something the courts do lightly nor should the y. Section 8 of PAJA
deals with remedies in judicial review proceedings. In so far as it may
be relevant, section 8 reads:
“8(1) The court or tribunal, in proceedings for judicial review in
terms of section 6(1), may grant any order that is just and
equitable, including orders—
(a) directing the administrator—
(i) to give reasons; or
(ii) to act in the manner the court or tribunal
requires;
(b) prohibiting the administrator from acting in a particular
manner;
(c) setting aside the administrative action and—
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(i) remitting the matter for reconsideration by the
administrator, with or without directions; or
(ii) in exceptional cases—
(aa) substituting or varying the administrative
action or correcting a defect resulting from
the administrative action; or
(bb) directing the administrator or any other party
to the proceedings to pay compensation.”
(Emphasis added.)
[87] In Trencon this Court dealt extensively with the circumstances in
which it would be justified for a court not to remit a matter to the
relevant functionary but, instead, to itself make the decision that the
law vests in the functionary. It is not necessary for purpo ses of this
judgment to deal with all those exceptions. It should suffice to refer
only to one or two. Khampepe J, writing for a unanimous Court in
Trencon, said:
“Pursuant to administrative review under section 6 of PAJA and
once administrative action is set aside, section 8(1) affords
courts a wide discretion to grant ‘any order that is just and
equitable’. In exceptional circumstances, section 8(1)(c)(ii)(aa)
affords a court the discretion to make a substitution order.
Section 8(1)(c)(ii)(aa) must be read in the context of section
8(1). Simply put, an exceptional circumstances enquiry must
take place in the context of what is just and equitable in the
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circumstances. In effect, even where there are exceptional
circumstances, a court must be satisfied that it would be just
and equitable to grant an order of substitution.”
[88] This Court also said in that case:
“In Livestock, the Court percipiently held that—
‘the Court has a discretion, to be exercised judicially upon
a consideration of the facts of each case, and . . . although
the matter will be sent back if there is no reason for not
doing so, in essence it is a question of fairness to both
sides.’” (Footnotes omitted.)
[89] One of the exceptions recognised in Trencon is where the decision
is a foregone conclusion. This Court went on to say:
“To my mind, given the doctrine of separation of powers, in
conducting this enquiry there are certain factors that should
inevitably hold greater weight. The first is whether a court is in as
good a position as the administrator to make the decision. The
second is whether the decision of an administrator is a foregone
conclusion. These two factors must be considered cumulatively.
Thereafter, a court should still consider other relevant factors.
These may include delay, bias or the incompetence of an
administrator. The ultimate consideration is whether a substitution
order is just and equitable. This will involve a consideration of
fairness to all implicated parties. It is prudent to emphasise that
the exceptional circumstances enquiry requires an examination of
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each matter on a case-by-case basis that accounts for all relevant
facts and circumstances.
A court will not be in as good a position as the administrator where
the application of the administrator’s expertise is still required and
a court does not have all the pertinent information before it. This
would depend on the facts of each case. Generally, a court ought
to evaluate the stage at which the administrator’s process was
situated when the impugned administrative action was taken. For
example, the further along in the process, the greater the
likelihood of the administrator having already exerci sed its
specialised knowledge. In these circumstances, a court may very
well be in the same position as the administrator to make a
decision. In other instances, some matters may concern decisions
that are judicial in nature; in those instances – if the court has all
the relevant information before it – it may very well be in as good
a position as the administrator to make the decision.
Once a court has established that it is in as good a position as the
administrator, it is competent to enquire into whether the decision
of the administrator is a foregone conclusion. A foregone
conclusion exists where there is only one proper outcome of t he
exercise of an administrator’s discretion and ‘it would merely be a
waste of time to order the [administrator] to reconsider the matter’.
Indubitably, where the administrator has not adequately applied
its unique expertise and experience to the matter, it may be
difficult for a court to find that an administrator would have reached
a particular decision and that the decision is a foregone
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conclusion. However, in instances where the decision of an
administrator is not polycentric and is guided by particular rules or
by legislation, it may still be possible for a court to conclude that
the decision is a foregone conclusion.” (Emphasis added.)
General observations during interaction with Counsel
53. During the hearing of this matter, Counsel for the State Parties attempted to
raise a further ground for leave to appeal from the bar.
54. Counsel referred me to paragraph 60 of the judgment. Counsel indicated that
the provision of section 78(1) to (4) as quoted therein is incorrect.
55. According to Counsel for the State Parties, the incorrect quotation renders the
judgment appealable. Counsel moved from the premise that the reasoning
and findings in the judgment were based on section 78(1) to (4).
56. In the first place, it is unfair and prejudicial for Counsel to raise a ground for
leave to appeal from the bar without alerting the Court and the Respondent’s
legal representatives of his intention to do so. This constitutes litigation by
ambush and it is frowned upon by the Courts.
57. Secondly, I did not base the judgment on section 78( 1) to (4). In paragraph
124, the judgment state s that the Cou rt is empowered in terms of P AJA to
make an order not to remit this matter to the Minister. This accord with the van
der Heever and Walus judgments.
58. The incorrectness or otherwise of sect ion 78(1) to (4) does not in anyway
assist the State Parties’ case.
59. Counsel for the S tate Parties conceded that the additional grounds for the
decision of the Minister which were contained in his answering affidavit were
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not backed by any expert evidence. The Minister alleged that the Respondent
had a tend ency to act aggressively and that he has not fully dealt with his
substance abuse issues.
60. I debated these issues with Counsel for the State Parties as these additional
grounds for the decision of the Minister were repeat ed in the heads of
argument under paragraphs 38 and 65.
61. These additional grounds to support the decision of the Minister were not part
of the Minister’s record of decision. It is a mischievous, unfair and prejudicial
for the Minister to add to the grounds of his decisions in the manner that he
did through the answering affidavit.
62. It is even more troubling for the Minister to throw in grounds for his decision
which are baseless and not supported by evidence.
Conclusion
63. I would like to quote paragraph 37 of the Walus judgment:
“[37] In considering the applicant’s appeal, it is appropriate to refer back
to what was said in the first few paragraphs of this judgment. That
is that section 36 of the CSA tells us that the objective of the
implementation of a sentence of imprisonment is to enable the
sentenced prisoner to “lead a socially responsible crime-free life in
the future”. On the face of it, this seems to suggest that, where, on
all the evidence, the risk of a prisoner re-offending, if he or she were
released on parole, is low, the relevant authorities should seriously
consider releasing such prisoner on parole because the objective
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of the implementation of a sentence of imprisonment would have
been achieved.”
64. Accordingly, the application for leave to appeal is dismissed with costs.
In the result, I make the following order:
1. The application for leave to appeal is dismissed.
2. The Applicants are o rdered to pay the costs including the cost of Counsel on
scale C.
________________________
TD SENEKE AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
Appearances
For Applicants : Advocate M.W Dlamini
Advocate R.A Ramuhala
Instructed by : State Attorney, Pretoria
For Respondent : Advocate D.B Melaphi
Instructed by : M.E Makgopa Attorneys