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[2026] ZAGPPHC 333
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Prinsloo v Minister of Justice and Constitutional Development (064308/2023) [2026] ZAGPPHC 333 (17 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.:
064308/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE 17/3/2026
SIGNATURE
In the matter between:-
JACOBUS
MICHAEL PRINSLOO
Applicant
v
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Respondent
Heard
on:
23
February 2026
Delivered:
17 March
2026 - This
judgment was handed down electronically by circulation to the
parties' representatives by email, by being uploaded
to
the
CaseLines
system
of the GD and by release to SAFLII. The date and time for hand-down
is deemed to be 14:00 on 17 March 2026.
ORDER
It is ordered:-
1.
The matter is postponed sine dies.
2.
The respondent is ordered to provide the
reasons for not granting the petition within a period of 20 days of
the granting of this
order.
3.
In the event that the respondent fails to
furnish its reasons, then the applicant is entitled to file his
supplementary papers and
duly set the matter down for hearing.
4.
The respondent is further directed to
advance reasons as to why it should not be liable for the costs of
the review application,
by way of a supplementary affidavit within 30
days of the granting of the order.
5.
The applicant is given an opportunity to
respond within 30 days of receipt of the respondent’s response.
6.
The issue of costs are reserved.
JUDGMENT
KOOVERJIE
J
[1]
This is a review against the decision of the Minister of Justice (the
respondent)
in refusing to grant the petition in terms of Section 327
of the Criminal Procedure Act 51 of 1977 (“the Act”).
Prior to launching this petition, the applicant Mr Prinsloo had been
unsuccessful in his appeals to both the Supreme Court of Appeal
and
the Constitutional Court. He has thus exhausted all avenues to
plead his case.
[2]
The applicant was charged for the murder of his ex-wife, Odelia
Prinsloo. The
evidence before the court
a quo
as well as
the Supreme Court of Appeal, at the time, was that Mr. Prinsloo
colluded with the gardener Mr Moloi, to have his ex-wife
(the
deceased) murdered. Mr. Moloi pleaded guilty for the murder of the
deceased. Mr. Moloi was sentenced to 18 months’ imprisonment.
Mr. Prinsloo was also convicted for the murder of the deceased and
was sentenced a term of imprisonment of 25 years.
[3]
The Minister, in this review, contended that it had properly dealt
with the petition
and found no justification in granting the petition
in Mr Prinsloo’s favour.
NEW
EVIDENCE ON PETITION
[4]
The new evidence that was presented on petition were the affidavits
of Mr. Moloi and
testimonies of other individuals who supported Mr
Moloi’s version, which in effect was that Mr. Prinsloo was
wrongly implicated
in the murder. Mr Moloi’s version now
is that he murdered the deceased out of revenge and he was coerced by
the investigating
officer to implicate Mr. Prinsloo. The said new
evidence presented to the Minister for consideration were the
following:
4.1
Mr. Moloi (affidavit)
4.2
Ellie Shongwe (undated statement);
4.3
Sello Leslie Mabalela (statement);
4.4
Steven Donald Makura (affidavit);
4.5
Machandukwa Wilson Mukhwana (affidavit).
THE
GROUNDS FOR REVIEW
[5]
The review is premised on the following grounds namely that:
5.1
no proper consideration was given by the Minister to the new
evidence.
5.2
The Minister failed to explain the procedure followed in determining
whether the evidence
contained in the affidavits and statements were
credible or not. There is no explanation as to how the evidence was
evaluated.
The mandatory procedure prescribed by the provision
was not complied with. Hence the decision was procedurally
unfair, materially
influenced by an error of law and that
administrative action taken by the respondent was arbitrary and
capricious.
5.3
It was further argued that the Minister herself (Minister Simelane),
did not have regard
to the evidence and neither had she applied her
mind to the petition. It was alleged that instead it was the
officials who considered
the petition.
5.4
Mr Prinsloo pointed out that Mr. Moloi’s perjured himself due
to his conflicting testimonies.
In his initial evidence before
the trial court, he testified that Mr Prinsloo contracted him to kill
the deceased. He now
alleges that he was forced to implicate Mr.
Prinsloo. It was contended that the Minister failed to
appreciate that Mr Prinsloo
may have been wrongly convicted, not
because of a mistake by the legal process, but due to the perjured
evidence of Mr. Moloi.
THE
LAW
[6]
Section 327
of the
Criminal Procedure Act makes
provision for the
Minister, on petition, to consider further evidence which, if true,
might reasonably affect the conviction and
may direct that the
petition and the relevant affidavit be referred to the court in which
the conviction occurred.
Section
327(1)
stipulates:
“
(1)
If any person convicted of any offence in
any court has in respect of the conviction exhausted all
the
recognized legal procedures pertaining to appeal or review, or if
such procedures are no longer available to him or her, and
such
person or his or her legal representative addresses the Minister by
way of petition, supported by relevant affidavit, stating
that
further evidence has since become available which materially affects
his or her conviction,
the
Minister may, if he or she considers that such further evidence, if
true, might reasonably affect the conviction, direct that
the
petition and the relevant affidavits be referred to the court in
which the conviction occurred.
”
[7]
Once the Minister refers the matter to court,
Section 327(2)
makes
provision for the court to examine the evidence:
“
(2)
The court shall receive the said affidavits
as evidence and may examine and permit the examination
of any witness
in connection therewith, including any witness on behalf of the
State, and to this end the provisions of this Act
relating to
witnesses shall apply as if the matter before the court were a
criminal trial in that court.”
[8]
Section 327(4) allows the court that assesses the new evidence to
advise the President
of its finding and reads:
“
(4)
(a) The court shall assess the value
of the further evidence and
advise the President whether, and to what
extent, such evidence affects the conviction in question.
(b)
The court shall not, as part of the proceedings of the court,
announce its finding as to the
further evidence or the effect thereof
on the conviction in question.”
[9]
Section 327(5) stipulates that the matter should be heard by the
court that convicted
the accused at the time. It reads:
“
(5)
The court shall be constituted as it was
when the conviction occurred or, if it cannot be so constituted,
the
judge president or, as the case may be, the senior regional
magistrate or magistrate of the court in question, shall direct
how
the court shall be constituted.”
[10]
Section 327(6) makes provision for the State President, upon the
consideration of the finding
or advice of the court under subsection
(4)-
(i)
direct that the conviction
in question be expunged from all official records by way
of
endorsement on such records, and the effect of such a direction and
endorsement shall be that the person concerned be given
a free pardon
as if the conviction in question had never occurred; or
(ii)
substitute for the conviction in
question a conviction of lesser gravity and substitute
for the
punishment imposed for such conviction any other punishment provided
by law.
THE
CONSIDERATION OF THE PETITION
[11]
The applicant is of the view that due to issues raised on the
competence of the affidavits, it
was highly probable that they were
not considered. The Minister’s office raised issue with the
affidavits. It pointed out
certain irregularities, with the
affidavits
inter alia
that Mr Moloi’s affidavit was not
properly sworn and attested to by the commissioner of oaths, in
particular, that he failed
to initial each page of his affidavit. The
applicant, however, in argument, and with reference to authorities
argued that these
requirements are directory and non-compliance would
not invalidate the affidavits. All that is required is substantial
compliance
with the formalities in a way as to give effect to the
purpose of obtaining the deponent’s signature to the affidavit.
[12]
Mr Prinsloo further took issue with the extensive delay from the
Minister's office. He filed the petition
in February 2023 and the
Minister only provided its response on 30 October 2024. Despite
following up with the Minister’s
office he received no
favorable response. The applicant eventually received a response on
24 January 2024 where one of the officials
Ms Nieuwoudt advised him
that the matter was being dealt with and he would be informed when
the Minister considers the petition.
By March 2024 the Minister
had still not considered the matter. Another official, Mr
Rolekwa, advised him that the submissions
to the Minister were
finalized and the memorandum was routed to the Minister and various
senior officials. The applicant
waited in anticipation from May
to October 2024. In this time the responses he received were to
the effect that the Minister
had still not attended to his petition.
[13]
Since no decision was forthcoming, Mr Prinsloo instituted an urgent
application to compel the
Minister to attend to his case. The urgent
application was instituted on 15 October 2024. The Minister
opposed the matter
and requested two extensions to file its answering
affidavit. Eventually on 30 October 2024, the applicant was
informed by
way of a letter from the Minister that there were no
justifiable grounds to direct the petition to the court to consider
the further
evidence.
THE
MINISTER’S DECISION
[14]
The nub of the Minister’s response was:
“
Considering
the petition and the facts of this case, I am of the view that the
issues in this case have been thoroughly considered
by three superior
courts. The judgment in the High Court is well written and
considered all aspects of the case which were
meticulously dealt with
by Judge Mavundla and sound legal principles were applied when
considering all evidence. The Supreme
Court of Appeal could not
find any fault with the Court’s assessment of the evidence and
Mr. Prinsloo’s application
for leave to appeal to the
Constitutional Court was also dismissed.
Considering
this case I am not convinced that the Judgment of the three superior
courts ought to be interfered with.
Furthermore,
the evidence now submitted does not in any way materially impact on
Mr. Prinsloo’s conviction.
Having
fully considered your petition and having applied my mind, I do not
find any justifiable grounds to direct that the petition
be referred
to the court in which the conviction occurred in terms of
Section
327(1)
of the
Criminal Procedure Act
>.”
ANALYSIS
[15]
It must be appreciated that the respective court’s findings
were based on the evidence
that was before them at the time. Clearly,
they did not have regard to the further evidence that was now placed
before the Minister
on petition.
[16]
Notably the only response regarding the new evidence was, in my view,
in the form of a conclusion
that “
furthermore,
the
evidence now submitted does not in any way materially impact on Mr
Prinsloo’s conviction
”.
[17]
This response caused Mr Prinsloo to conclude that the Minister’s
decision was arbitrary,
capricious, and procedurally unfair. He took
specific issue with the fact that the Minister failed to explain how
the evidence
was evaluated and what influenced the Minister to refuse
the petition.
[18]
It is settled law that mere conclusions are inadequate. Mr
Prinsloo was entitled to know
why the further evidence was rejected.
It is accepted that although reasons for a decision need not be
specified in detail, they
must at least be intelligible and
informative. A decision maker is required to explain his/her decision
in a manner that enables
a person who is the bearer of an adverse
outcome, to at least understand why it was not in his favour. Such an
explanation would
allow him to assess if the decision was based on
the correct factual premise and whether there was an error of law.
[19]
Our authorities have endorsed the following principles, namely:
19.1
By merely setting out the decision makers’ conclusion will not
suffice. The decision maker is
required to set out his understanding
of the relevant law, the findings of fact on which the conclusions
are based and the reasoning
process which led to them.
[1]
19.2
The right to an informative explanation constitutes a crucial
component of procedural fairness and
rational justice. The reasons
gives one something to work with particularly in deciding whether the
decision maker has taken irrelevant
considerations into account or
made an error of law. An explanation would have also safeguarded
against arbitrariness and a mechanism
for accountability.
[2]
In the
Phambili
Fisheries
matter
the Supreme Court of Appeal expressed at paragraph 40:
“
The
decision maker should set out his understanding of the relevant law,
any findings of fact on which his conclusion depends…and
the
reasoning process which led him to those conclusions. He should do so
in a clear and unambiguous language, not in vague generalities
or the
formal language of legislation….”
19.3
The Constitutional Court in
Gavric
[3]
endorsed the principle set out in Phambili. It expressed in paragraph
69:
“
The
Supreme Court of Appeal in Phambili explained the value of giving
reason as enabling an aggravated person to understand why
the
decision went against her and decide whether or not to challenge the
decision.
It
is clear from Phambili that the reason should consist of more than
mere conclusions and should refer to the relevant facts and
law, as
well as the reasoning processes leading to those conclusions
.”
[4]
[20]
Due to the inadequate explanation, the applicant has requested this
court to substitute the decision
of the Minister.
[21]
In my consideration of the new evidence it cannot be gainsaid that
the new evidence contradicts
Mr Moloi’s previous evidence
before the trial court. At the time the trial court relied on
Mr Moloi’s evidence
to the extent that there was corroboration
with the other witnesses testimonies. In light thereof, it accepted
Mr Moloi’s
evidence. Now that Mr Moloi presents another
version it cannot merely be ignored. Therefore, the Minister’s
reasoning
is necessary not only for Mr Prinsloo to appreciate why the
decision was made, but particularly for the court to appreciate how
the decision was arrived at.
[22]
In these circumstances, the conclusions drawn by the Minister are
inadequate.
[23]
The Minister’s consideration of the petition is an exercise of
public power which constitutes
an administrative action in terms of
the Promotion of Administrative Justice Act
[5]
and
can be reviewed. The right to administrative justice is
enshrined in Section 33 of the Constitution. The requirement
of
rationality demands that the decision itself and the process by which
it was taken must be rational. In
Simelane
[6]
the
Constitutional Court emphasized:
“
we
must look at the process as a whole and determine whether the steps
in the process were rationally related to the end sought
to be
achieved and if not, whether the absence of a connection between the
particular step (part of the means) it's so unrelated
to the end as
to taint the whole process with rationality
.”
APPROPRIATE
REMEDY
[24]
In deciding the appropriate remedy, this court is guided by Section
172(1) of the Constitution
and Section 8 of PAJA
[7]
.
The remedies imposed must further be just, equitable and
effective. Section 38 of the Constitution allows the court to grant
appropriate relief. In
Steenkamp
[8]
the
Constitutional Court expressed:
“
It
goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle
the aggravated party to appropriate relief. In each case the remedy
must fit the injury. The remedy must be fair to those affected
by it
and yet vindicate effectively the right violated. It must be just and
equitable in light of the facts, the implicated constitutional
principle, if any, and the controlling law.…”
[25]
As a general rule, courts are cautious not to simply substitute an
administrator’s decision
with its own decision. It will
instead remit the matter to the administrator with an instruction to
decide the matter again
or give other appropriate instructions.
Substituting the Minister's decision is the exception rather than the
rule. A court can
however do so in exceptional cases. Remittal is
often the desired and fair course. In
Tripartite
Steering Committee
[9]
the court expressed:
“
The
default position when administrative action is reviewed and set
aside, is for the decision to be remitted to the original decision
maker to decide again, with the benefit of the court’s findings
as to where he/she erred initially.”
[26]
Courts appreciate the doctrine of the separation of powers and are
inclined to exercise deference
where it warranted. However,
under exceptional circumstances it would be prudent for a court to
substitute the decision of
the decision maker. Factors which
influence substitution
inter alia:
are when the end result is
a foregone conclusion and it would be a waste of time to remit the
decision to the original maker, when
the delay would cause
unjustifiable prejudice to the applicant, and where the court is in
as good a position to make the decision.
In addition, the common law
always regards fairness to both sides as an important consideration.
[27]
On the facts that were presented in this matter I am inclined to
remit the matter to the Minister
to particularly furnish her
reasoning in rejecting the petition. The Minister has under
oath alleged that Mr Moloi’s
case was deliberated amongst the
officials, a memo was prepared for the Minister's consideration, the
Minister had considered the
petition, the matter went through
different stages before it reached the Minister and more
significantly the new evidence was in
fact considered by the
Minister.
[28]
If these are the true state of affairs, then it demonstrates that she
formulated her reasoning
and same is readily available. In my view
then, a period of 20 days from the date of granting this order would
give the Minister
more than sufficient time to furnish her reasoning.
[29]
It is fair to direct a truncated time period if consideration is
given to the extensive delay.
The applicant waited for almost 2
years. No credible explanation was forthcoming for the delay.
In these circumstances, Mr
Prinsloo is entitled to an expedited
response. His liberty and freedom afforded to him in terms of
the Constitution remains
pending due to the Minister’s delay in
considering the petition within a reasonable time and the further
failure to furnish
an adequate explanation. I further deem it
appropriate that in the event the Minister fails to abide with the
court order, the
applicant would be entitled to supplement his
papers, set the matter down for hearing before this court and seek
the appropriate
relief.
[30]
In so far as costs are concerned, it is evident that the Minister has
not taken this court into
its confidence. In the exercise of his
public power, Minister should have appreciated that when adverse
decisions are made, the
affected parties are entitled to know why the
outcome was not in their favour.
[31]
This court is inclined to award cost in the applicant’s favour.
However, since the Minister
was not given an opportunity to address
the court on my inclination, its office is given an opportunity to
respond.
[32]
In the premises, the matter is postponed
sine dies
, with the
court giving directions. The issue of cost are reserved.
H.
KOOVERJIE
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Appearances
:
Counsel
for the applicant:
Adv.
LS De Klerk SC
Instructed
by:
Rynhart
Kruger Attorneys
Counsel
for the first respondent:
Mr.
I Chowe
Instructed
by:
The
State Attorney Pretoria
Date
heard:
23
February 2026
Date
of Judgment:
17
March 2026
[1]
Minister
of Environmental Affairs and Tourism and others v Phambili Fisheries
(Pty) Ltd: Minister of Environmental Affairs and
Tourism v Bato Star
Fishing Pty Ltd
2004 (6) SA 407
SCA at paragraph 40. See also South
African Police Service v Solidarity obo Barnard (POPCRU as amicus
curiae)
2015 6 SA 123
CC.
[2]
C.
Hoexter and Penfold, Administrative Law in South Africa, third
edition, page 627
[3]
Gavric
v Refugee Status Determination Officer
2019 (1) SA 21
CC at
paragraph 69
[4]
My
emphasis
[5]
Promotion
of Administrative Justice Act 3 of 2000 (PAJA)
[6]
Democratic
Alliance v President of Republic of Suth Africa, Simelane and Others
2013 (1) SA 248
SA CC at paragraph 37
[7]
Section
8 of the PAJA stipulates:
(1) The court….
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…
[8]
Steenkaamp
and Other v Provincial Tender Board of the Eastern Cape
2007 (3) SA
121
CC at paragraph 29
[9]
Tripartite
Steering Committee v Minister of Basic Education 2015(5) SA 107 EGG
paragraph 50