THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2025-214685
In the matter between:
THABO BESTER Applicant
and
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
First Respondent
THE NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES
Second Respondent
HEAD OF CENTRE: KGOSI MAMPURU II
CORRECTIONAL CENTRE
Third Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] The applicant, Mr Bester, launched this urgent application, seeking a declarator
that his incarceration as a sentenced prisoner is unconstitutional, an order that his
(1) REPORTABLE: Yes☒/ No ☐
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 30 March 2026
2
status and classification as a sentence prisoner is unconstitutional, an order directing
the respondents to re-classify him as a remand detainee pending the outcome of his
current pending criminal trial in Bloemfontein, an immediate cessation of what he
describes as solitary confinement, and a prospective order to the effect that, in the
event of his acquittal on the escape and related charges, the respondents will be
directed to restore him to the position he occupied as a free person prior to his return
to South Africa on 13 April 2023. The application is opposed by the second and third
respondents.
[2] None of the relief the applicant sought is competent for the following reasons.
[3] Mr Bester is currently detained at Ebongweni Correctional Centre. In 2011 and
2012, he was convicted of various serious offences, including murder and rape, in the
Western Cape High Court and elsewhere. He was sentenced to life imprisonment,
along with other substantial prison terms. There is no evidence in the papers that he
has been released from those sentences by operation of a lawful mechanism under
the Correctional Services Act (“the Act”),
1 the Criminal Procedure Act, 2 or the
Constitution.
[4] The only facts that this court has on record regarding how Mr Bester came to
be outside prison are set out in the respondent’s answering affidavit, which I
summarise insofar as necessary to explain the applicable legal principles. Mr Bester
did not dispute their account in my material respect.
[5] Mr Qebengu, acting head of C-Max Correctional Centre (where Mr Bester was
previously detained), explains Mr Bester’s escape from G4S Mangaung in May 2022,
during 2022, when Mr Bester was serving his sentence at the G4S Mangaung
Correctional Centre in Bloemfontein ("Mangaung”). The details of the escape need not
be repeated here and will form part of the criminal trial scheduled for later this year.
What is important to note is that this section 39(3) of the Act dealt with below gets
What is important to note is that this section 39(3) of the Act dealt with below gets
triggered at the moment of escape.
1 111 of 1998.
2 51 of 1977.
3
[6] In April 2023, Mr Bester and Ms Magudumana were detained in Arusha,
Tanzania, by Tanzanian authorities for lacking lawful documentation. He was
subsequently deported to South Africa. Mr Bester was transported directly from
Lanseria Airport to Kgosi Mampuru II Correctional Centre, C-Max, by the Department
of Correctional Services (DCS) to continue serving his sentences under the
outstanding warrant of committal. He appeared in court within 24 hours, during which
the National Prosecuting Authority stated that he was a sentenced inmate.
[7] Mr Bester states in his affidavit that he is currently detained at Kgosi Mampuru
II, C-Max, as a sentenced offender (as indicated, he has since been moved). The
respondents submit that he is there because he is serving his life sentence and other
periods of imprisonment pursuant to warrants of committal arising from his 2011 - 2012
convictions. He is also an accused in a criminal case pending before the Free State
Division of the High Court, Bloemfontein. The charges against him include escaping
from lawful custody, violation of a human body, corruption, money laundering and
arson. The matter is set down for commencement of the trial in July 2026. As of the
date of this application, no evidence has been led in the criminal trial, and no finding
has been made by the criminal court on any of the charges.
[8] He seeks the following specific relief:
a. A declaration that his current status and classification as a sentenced
prisoner are unconstitutional, coupled with an order directing the
respondents to re-classify him from a sentenced prisoner to a remand
detainee pending the outcome of his criminal trial;
b. A declaration that he has been serving a prison sentence
unconstitutionally since 13 April 2023, in contravention of section
35(3)(h) of the Constitution;
c. An order directing the respondents to re-classify him from a sentenced
prisoner to a remand detainee pending the outcome of his criminal trial;
prisoner to a remand detainee pending the outcome of his criminal trial;
d. An order directing the respondents immediately to cease his solitary
confinement or segregation and to reintegrate him into conditions
consistent with humane standards alongside other remand detainees;
4
e. A prospective order that, in the event of his acquittal on the escape and
related charges, the court will continue to presume that he was released
legally, and the respondents will be directed to restore him to the position
he occupied as a free person prior to 13 April 2023;
f. A reporting order requiring the respondents to file a written report
confirming compliance; and
g. Costs against the respondents jointly and severally on a constitutional
scale.
Legal framework: classification of incarcerated persons
[9] When it comes to his classification, it is important, at the outset, to distinguish
between two issues. The first issue is whether the applicant is, in law, a sentenced
offender. This is determined by the 2012 conviction and sentence and the warrants of
committal issued by that court. This was not challenged, disputed, or denied, and
requires no further analysis.
[10] The second issue is whether, given those existing warrants, the Department of
Correctional Services is acting lawfully in classifying and treating the applicant as a
sentenced offender. Only the second issue is relevant in this case. To answer the
question, it is important to set out the definitions of “sentenced offender” and “remand
detainee”.
[11] The Act
3 draws a clear distinction between sentenced offenders and remand
detainees. Section 1 of the Act defines a “sentenced offender” as a convicted person
sentenced to incarceration or correctional supervision. A “remand detainee” is defined
as a person detained in a remand detention facility awaiting the finalisation of his or
her trial, whether by acquittal or sentence, who has not commenced serving a
sentence or is not already serving a prior sentence [own emphasis].
[12] In Zealand v Minister of Justice and Constitutional Development
4 the
Constitutional Court explained the reason for this distinction:
3 Correctional Services Act 111 of 1998.
4 2008 (4) SA 458 (CC) para 30.
5
“The difference between the two prison sections is of great significance. It reflects the
fundamental difference in status between, on the one hand, persons who are merely
awaiting the completion of their trials, and on the other hand, persons who have been
convicted of a crime and consequently sentenced to punishment by a court of law .
Crucially, the former bear the right to be presumed innocent; the latter do not. ” (own
emphasis)
[13] The court in Zealand further recognised an international obligation under article
10(2) of the International Covenant on Civil and Political Rights that accused persons
shall, save for exceptional circumstances, be segregated from convicted persons.
These principles do not require that a sentenced offender who faces new charges be
reclassified as a remand detainee. As the respondents correctly note, Mr Bester is not
a person who has not yet commenced serving a sentence; he is a person who was
sentenced in 2012, commenced serving that sentence, and resumed serving it upon
recapture. Minister of Correctional Services v Kwakwa
5 confirmed that serving
prisoners who are convicted and sentenced on a previous occasion and who await the
commencement of subsequent trials are not regarded as unsentenced prisoners.
[14] Section 39(3)
6 of the Act provides that the date of expiry of any sentence being
served by a sentenced offender who escapes from lawful custody is postponed by a
period during which the sentence was interrupted. The reason for this is self-evident:
an escape does not terminate, extinguish or suspend a lawfully imposed sentence.
The sentence endures. That means that upon recapture, the offender resume serving
the sentence, with the expiry date adjusted to account for the period at large. Section
117
7 of the Act separately criminalises escape from lawful custody as a substantive
offence.
5 2002 (4) SA 455.
6 S39 (3) The date of expiry of any sentence of incarceration being served by a sentenced offender who escapes
from lawful custody or is extradited in terms of the Extradition Act, 1962 (Act No. 67 of 1962), and returns to the
Republic or who absconds from the system of community corrections or who is unlawfully discharged is postponed
by the period by which such sentence was interrupted. See also Mthombeli v Minister of Justice 2021 ZANWHC
68.
7 117. Escaping and absconding
Any person who—
(a) escapes from custody;
(b) conspires with any person to procure his or her own escape or that of another inmate or who assists or
incites any inmate to escape from custody;
6
[15] Just on a plain reading of these provisions alone, Mr Bester’s contentions
regarding his classification cannot hold. He is still serving his original sentence while
being charged with new crimes arising from his escape. That falls within the definition
of “sentenced offender”.
[16] Mr Bester does not dispute that he was convicted and sentenced in 2012, and
that he was serving those sentences at Mangaung at the time of the events of May
2022. His further contention is more difficult to follow. He says that he is no longer a
sentenced prisoner because he might, for instance, have received a presidential
pardon. Since he is now accused of escaping, he says he has a right to be presumed
innocent until proven guilty and that, until he has been so found, this court and the
respondents must proceed on the basis that he was lawfully outside prison.
[17] That reasoning cannot hold. These are civil proceedings, determined on the
pleadings before this court on a balance of probabilities. The applicant bears the onus
of establishing that his absence from Mangaung was lawful. He does not allege that
he was granted parole, that the sentence was suspended on any lawful basis, that he
received a presidential pardon under section 84(2)(j) of the Constitution, or that any
court has set aside his convictions or sentence. He says it is common cause that he
was out of prison, and that the question of whether that was lawful or unlawful is still
pending before the criminal court.
[18] The respondents, in contrast, have provided a detailed sworn account of the
circumstances surrounding the applicant's departure from Mangaung and his
subsequent return to South Africa. The applicant has not discharged the onus resting
on him. Whether the State will ultimately prove, beyond a reasonable doubt, in the
criminal proceedings, that the applicant's departure constituted an escape from lawful
criminal proceedings, that the applicant's departure constituted an escape from lawful
(c) is in possession of any document or article with intent to procure his or her own escape or that of another
inmate;
(d) in any manner collaborates with a correctional or custody official or any other person, whether under the
supervision of such correctional or custody official or person or not, to leave the correctional centre without lawful
authority or under false pretences; or
(e) i s subject to community corrections and where he or she absconds and thereby avoids being monitored,
is guilty of an offence and liable on conviction to a fine or to incarceration for a period not exceeding ten years or
to incarceration without the option of a fine or both.
7
custody is a matter entirely for the Bloemfontein court. It is not necessary for this court
to express any view on that question. What is clear is that the existing warrants of
committal have never been set aside and remain enforceable.
[19] The lawfulness of his current detention as a sentenced offender therefore stems
from his lawful and still valid warrants of committal from his 2012 convictions, not from
the outcome of the pending escape prosecution. And as stated above, he offers no
evidence that those warrants have been set aside. They remain in force. The Act, as
set out above, expressly states that an offender who escapes and is recaptured
resumes serving his sentence by operation of law. There is a complete and lawful
basis for his current detention and classification as a sentenced offender.
[20] For these reasons, Mr Bester’s classification and detention as a sentenced
offender are lawful and constitutional.
Presumption of innocence
[21] Section 35(3)(h) of the Constitution provides
“Every accused person has a right to a fair trial, which includes the right to be presumed
innocent, to remain silent, and not to testify during the proceedings.”
[22] This section is central to his argument as explained above. He contends that
this section requires this court and the respondents to treat him, in effect, with a
presumption that he never escaped from prison until the contrary has been established
beyond a reasonable doubt in the criminal court. The classification as a sentenced
offender is a usurpation of the criminal court’s function and amounts to, in his view, a
reversal of the burden of proof.
[23] It is necessary at the outset to be clear about what this submission entails. The
applicant does not, in this application, seek to set aside his 2012 convictions or the
warrants of committal issued pursuant to them. His complaint is rather that, because
the escape charge is still pending, section 35(3)(h) precludes the respondents and this
the escape charge is still pending, section 35(3)(h) precludes the respondents and this
court from acting on his status as a sentenced offender for any purpose, including his
8
classification under the Act, as he might have been outside prison for lawful reasons.
Put differently, he seeks to rely on the presumption of innocence on the escape charge
so as to unsettle the legal consequences that flow from his prior sentences.
[24] Mr Bester’s submission is a misconstruction of the function and breadth of the
constitutional right to be presumed innocent. Section 35(3)(h) provides that every
accused person has the right to a fair trial, including the right to be presumed innocent,
to remain silent, and not to testify during criminal proceedings. The presumption of
innocence is, as contained in the Constitution, an incident of the right to a fair trial. As
the South African Law Reform Commission
8 expressed:
"The constitutional right to be presumed innocent is specified in relation to the right to
a fair trial. It therefore does not apply to proceedings outside the definition of a criminal
trial."
[25] This is not merely a formalistic reading of the Constitution's wording. It also fits
with the purpose and the structure of section 35(3)(h) in that the presumption of
innocence in the provision directs the criminal court to the correct approach to guilt
and burden of proof. It ensures that the State proves the criminal case to the
appropriate standard before punishment may be imposed. It does not operate as a
general rule that all courts, in all proceedings, must conduct a hearing as if no factual
event occurred until the criminal court has adjudicated it.
[26] Moreover, the Constitutional Court in S v Dzukuda and Others; S v Tshilo
9
stated
"An important aim of the right to a fair criminal trial is to ensure adequately that innocent
people are not wrongly convicted, because of the adverse effects which a wrong
conviction has on the liberty, and dignity (and possibly other) interests of the accused.”
8 In Discussion Paper 90 (Project 101) page 4. Also see Currie et al The Bill of Rights Handbook (6th ed,) p 755.
9 2000 (2) SACR 443 (CC) para 11.
9
[27] The Court further held that once an accused is convicted, the presumption of
innocence under section 35(3)(h) no longer applies, even at the sentencing stage of
the same proceedings. Its protective function is spent at the guilt-finding stage.
[28] Even more analogous to this situation, in S v Dlamini; S v Dladla; S v Joubert;
S v Schietekat
10 in which the Constitutional Court emphasised that bail proceedings
are not concerned with determining guilt, but with where the interests of justice lie
pending trial. Even in bail proceedings (which form part of the same criminal process
concerning the same accused), the court held that different considerations apply, and
that a statutory provision placing an evidential burden on an accused at bail constitutes
a permissible limitation of those rights, justified by the interests of justice. If section
35(3) rights yield even there, where the accused is not yet convicted, the presumption
is alive, and the proceedings are part of the same criminal process, then, with even
stronger reason, section 35(3)(h) cannot govern these entirely separate civil
proceedings concerning the respondents’ classification of the applicant as a
sentenced offender.
[29] This argument is further without merit because there is a logical contradiction:
Mr Bester asks this court and the respondents to treat him with the presumption that
he never escaped from prison, but this would require this court and the respondents
to make a positive finding, such as that, for present purposes, he was lawfully at large
since May 2022. But that is not the function of the presumption of innocence. The
presumption ensures that the burden of proving guilt rests on the prosecution in the
criminal trial; it does not require another court, like this one, to make a finding of
innocence, nor does it require the executive to do so when exercising lawful
administrative functions, such as detaining a sentenced offender under a lawful,
existing warrant of committal.
existing warrant of committal.
[30] The crux of this argument suggests that the description or classification of him
as a sentenced offender amounts to a finding by the respondents that he is guilty of
the escape charge. But this ignores that there are two legal questions: one, whether
the applicant’s continued detention as a sentenced offender is lawful (i.e. is there an
10 1999 (2) SACR 51 (CC).
10
original existing 2012 warrant of committal), and two, whether he is guilty of the escape
charge. Just because he is classified as a sentenced offender (by operation of law)
does not mean he has been found guilty of the escape from lawful custody, until so
proven in a court of law during criminal proceedings.
[31] Thus, Mr Bester’s rights under section 35(3)(h) in the Bloemfontein criminal trial
are fully intact. The State will bear the onus to prove each element of the escape
charge beyond a reasonable doubt. There, the applicant may elect to remain silent.
The presumption of innocence will be applicable in those proceedings. None of that is
affected by his classification as a sentenced offender in terms of the Act.
Conditions of detention
[32] Mr Bester alleges that he is held in solitary confinement, and that his conditions
of detention adversely affect his physical and psychological health, and that his access
to legal representatives for purposes of preparing his criminal defence is unduly limited
by this. He relies on sections 35(2)(e) and (f), section 35(3)(h) and section 34 of the
Constitution.
[33] “Solitary confinement” is defined in the act as being held in a single cell with
loss of all amenities. The respondents deny that he is held in solitary confinement with
loss of all amenities, and in any way in breach of his constitutional rights. The
answering affidavit makes it clear that the applicant’s placement in a single cell is
consistent with the management of a high-security facility and is not punitive
segregation, and lists the amenities that he enjoys, along with documentary proof of
such (such as visits, phone calls etc).
[34] Just on the pleadings the applicant has not sufficiently pleaded any facts with
any particularity the physical or psychological injuries he alleges to have sustained,
their nature, their onset, etc. He has not placed before this court any medical evidence,
their nature, their onset, etc. He has not placed before this court any medical evidence,
or a psychological report or expert evidence to support this assertion. The same is true
for his allegations regarding his legal representatives. The wide ranging relief that Mr
Bester seeks, calls for stronger evidence, which is simply not there.
11
[35] In contrast, the respondents have given records of his contact with his legal
representatives, as well as his visits to the psychologist and doctors, indicating that
whatever physical and mental health issues there might be, are treated within the
appropriate framework of incarceration.
[36] It is important to keep the rights of sentenced prisoners under section 35(2) of
the Constitution in context. These rights are subject to section 36 of the Constitution
(the limitation clause) and to lawful regulation under the Act. The respondents have
placed him, as an offender of various serious crimes, in a C-Max facility, in a single
cell. On the face of it, however, this is not constitutionally impermissible. The Act itself
provides internal mechanisms for reviewing classification and segregation decisions,
and Mr Bester has not exhausted those mechanisms before launching an urgent
constitutional application.
[37] I am not satisfied that the applicant has made out a case for the broad relief he
seeks in respect of the conditions of detention. His allegations are general,
unsubstantiated and not supported by the evidence one would expect in support of an
urgent constitutional application.
[38] This is not to imply that prolonged single-cell accommodation or segregation of
sentenced prisoners can never raise constitutional concerns. The Correctional
Services Act, read alongside the oversight mandate of the Judicial Inspectorate for
Correctional Services, provides mechanisms for addressing any systemic or individual
abuses that may occur in high-security facilities. Nothing in this judgment should be
taken as endorsing indefinite or unjustified segregation regimes; it is limited to the
record and relief presented before this court.
Acquittal relief
[39] Mr Bester lastly seeks an order that, in the event of his acquittal on the escape
and related charges, this court shall continue to presume that he was released legally
and related charges, this court shall continue to presume that he was released legally
and honour that release, and direct the respondents to place him in the place he was
in prior to his 13 April 2023 arrest, namely a free man.
12
[40] This relief is also incompetent.
[41] Firstly, it is premature. I cannot grant an order that is conditional upon a
hypothetical future event such as this, and then bind the executive and another court
to that particular outcome. I can only grant an order that is grounded in an existing,
identifiable legal right that has been infringed.
[42] Secondly, this relief seeks to do away with Mr Bester’s original sentence and
his status under the Act, which is not possible, and not supported by section 39(3) of
the Act. If Mr Bester is acquitted of escaping prison in the criminal court, that court
might need to determine what, if anything, the impact of the acquittal is on his original
sentence. To grant the relief he seeks here will usurp the functions of the criminal court
and pre-empt the legislative scheme in the Act.
[43] Most importantly, even if Mr Bester were acquitted of the escape charge, it does
not follow as a matter of course that he will be entitled to be placed “as a free man” in
the position he was in prior to 13 April 2023. His 2012 sentences remain, for the
reasons set out above. An acquittal on the escape charges does not extinguish those
sentences.
Urgency
[44] I am not persuaded that the matter meets the requirements of Rule 6(12)(b) in
the ordinary sense. The applicant has been aware of his classification since his return
to South Africa in April 2023. He litigated on related constitutional grounds in August
2024. He does not provide a specific date on which he says he became aware of the
alleged violation and offers no adequate explanation for the nearly three-year delay
before approaching this court. Furthermore, he caused the removal of the matter from
the roll in November 2025, and more than three months passed thereafter without any
apparent harm visiting him.
[45] However, given the particular circumstances of this matter, urgency and merits
are so closely intertwined that they cannot usefully be separated. The urgency case
are so closely intertwined that they cannot usefully be separated. The urgency case
rests entirely on the premise that the applicant's classification and detention are
13
unconstitutional. If that premise holds, some urgency may be arguable. If it does not,
there is no urgency at all, because there is no ongoing constitutional violation. I
therefore deal with the merits, and for the reasons set out above, I have found that the
premise does not hold. But to get to that conclusion, I had to enrol the matter.
Conclusion
[46] For the reasons given above, Mr Bester’s application cannot succeed. That
leaves me with the question of costs. The ordinary rule in constitutional litigation
involving the State and a private litigant is that, if the litigant is unsuccessful, no costs
order is made against him or her, in accordance with the principle in Biowatch Trust v
Registrar Genetic Resources.
11 I am mindful of that principle. However, that principle
is not absolute. It rests on the rationale that litigants should not be deterred from
seeking to vindicate genuine constitutional rights by the threat of an adverse costs
order.
[47] This application does not fall within that rationale. It is not a genuine
constitutional challenge brought in the public interest to vindicate rights of broader
significance. It is private litigation, framed in constitutional language, and brought by a
prisoner convicted by a court of law on numerous charges, including murder, who is
serving a lawfully imposed life sentence pursuant to a valid warrant, with the purpose
of resisting the enforcement of that sentence. The Biowatch principle was not designed
to insulate litigation of that character from the ordinary costs and consequences that
attend unsuccessful proceedings. Costs should follow the result.
11 2009 (6) SA 232 (CC).
14
Order
[48] The following order is made:
1. The application is dismissed, with costs.
___________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
24 March 2026
Date of judgment:
30 March 2026
For the applicant:
In person
For the respondent:
LJS Madiba instructed by the State
Attorney