REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2023/096157
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: NO
10 June 2026
DATE
In the matter between:
BLOEMFONTEIN CORRECTIONAL CONTRACTS
(PTY) LTD
AND
APPLICANT
THE MINISTER OF JUSTICE AND CORRECTIONAL FIRST RESPONDENT
SERVICES
NATIONAL COMMISSIONER OF THE DEPARTMENT SECOND RESPONDENT
OF CORRECTIONAL SERVICES
G4S CORRECTIONAL SERVICES (BLOEMFONTEIN) THIRD RESPONDENT
(RF) (PTY) LTD
JUDGMENT
HINRICHSEN AJ
Introduction
1
2
[1] This is an application to review and set aside the decision taken by the National
Commissioner of the Department of Correctional Services (“ the National
Commissioner”) on 30 March 2023 to invoke section 112 of the Correctional
Services Act1 (“the Act”) and to appoint a temporary manager as the head of
the Mangaung Correctional Centre, outside Bloemfontein (“ the prison”) (“the
section 112 decision”).
[2] The review is brought under the Promotion of Administrative Justice Act 2
(“PAJA”). In addition to the setting aside of the section 112 decision, the
applicant seeks consequential just and equitable relief under section 8 of PAJA,
in particular repayment of amounts credited to the National Commissioner,
under protest, in respect of costs said to have been incurred by the Department
of Correctional Services (“the Department”) in consequence of the section 112
decision.
[3] The application is supported, on substantially the same grounds, by the third
respondent, G4S Correctional Services (Bloemfontein) (RF) (Pty) Ltd (“ G4S”).
G4S has been the applicant’s operating subcontractor of the prison since the
prison commenced operations in 2000, and is responsible for the day-to-day
management and the employment of custodial personnel. G4S has filed an
answering affidavit in support of the review, delivered its own heads of
argument, and was represented at the hearing by two counsel.
[4] The first and second respondents (collectively “ the respondents”) oppose the
review. They contend, first, that the section 112 decision was not administrative
action within the meaning of PAJA but the exercise of a contractual power under
clause 55 of the Concession Agreement. Alternatively, they contend that, if the
decision was administrative action, it was either procedurally fair or amounted
to a reasonable and justifiable departure from the requirements of sections 3
and 4 of PAJA. The respondents also raise five points in limine and seek
and 4 of PAJA. The respondents also raise five points in limine and seek
condonation for the late filing of their answering affidavit.
1 Act 111 of 1998
2 Act 3 of 2000
3
The parties
[5] The applicant is a South African company incorporated in 2000 for the specific
purpose of entering into a public-private partnership with the Republic of South
Africa under which the prison would be designed, constructed, financed and
operated. On 24 March 2000 the applicant and the Republic entered into a
written Concession Agreement, a contract as contemplated by section 103 of
the Act.
[6] The first respondent is the Minister of Justice and Correctional Services (“ the
Minister”). The second respondent is the National Commissioner of the
Department of Correctional Services. The Act assigns the concessioning power
to the Minister and the emergency power at a public-private partnership
correctional centre to the National Commissioner. It is the National
Commissioner who deposed to the respondents’ answering affidavit.
[7] The third respondent, G4S, is the operating subcontractor to which the
applicant has, since 2000, subcontracted its operational obligations at the
prison. The prison is staffed by more than 500 G4S employees and holds
approximately 3 000 inmates. G4S has also concluded a direct agreement with
the Minister and the applicant under which G4S warranted to the Minister that
it would comply with the subcontract. G4S supports the relief sought.
Background and common cause facts
[8] The background to the application, and the facts on which it falls to be
determined, are largely common cause or have not been properly placed in
dispute. They are these.
[9] The prison is a large public-private partnership correctional centre operated
under a concession contract sanctioned by the Act. On 3 May 2022 G4S
reported to the Department that the occupant of a single cell at the prison, Mr
Thabo Bester (“Mr Bester”), had died by suicide by setting fire to his cell. The
South African Police Service (“SAPS”) attended the scene, removed the badly
4
burned corpse from the locked cell and opened an inquest docket. The death
was initially treated as a suicide.
[10] The post-mortem conducted the next day, on 4 May 2022, concluded that the
cause of death was blunt force trauma to the head, including a skull fracture,
and that the corpse showed no signs of smoke inhalation in the lungs. During
May and June 2022 the SAPS converted the inquest docket to a homicide
docket on the strength of the post-mortem findings, and on 6 June 2022 G4S
informed the controller of the conversion. On 1 July 2022 DNA testing revealed
no match between the corpse and Mr Bester’s biological mother. It was then
clear that the corpse was not that of Mr Bester, and that he had escaped, in all
probability by contriving to have another body substituted for his own.
[11] These facts were known to the Department, to the controller at the prison and
to the National Commissioner from July 2022. Between May and November
2022 the controller conducted an inquiry into the escape, culminating in a
written controller’s investigation report dated 22 November 2022. The report
concluded that Mr Bester had escaped and that the applicant had breached the
Concession Agreement, and recommended the imposition of contractual
penalties under Schedule M of the Concession Agreement. The applicant paid
the Schedule M penalty in respect of the escape, in the amount of R876 637.14.
That fact is common cause.
[12] During November/December 2022 a report of the Judicial Inspectorate for
Correctional Services (“JICS”), indicating that Mr Bester had not died but had
escaped, was leaked to the national media. The National Commissioner took
no steps under section 112 of the Act at that time, nor upon completion of the
controller’s investigation report in November 2022.
[13] On 12 January 2023 the Department for the first time reported the matter to the
SAPS as an escape rather than a suicide. As the Public Protector observed:
SAPS as an escape rather than a suicide. As the Public Protector observed:
“Although the Department was informed of the escape by the
SAPS during the June 2022 meeting and by JICS in August 2022,
5
it took no less than six months for the Department to report the
case as one of escape. Furthermore, it took the Department
approximately 55 calendar days post its investigation report dated
18 June 2022 to report the matter to the SAPS on 12 January
2023.”
[14] During February and March 2023 the escape became the subject of extensive
media attention. On 28 March 2023 the National Commissioner prepared a
memorandum to the Minister (annexure SA-1 to the supplementary founding
affidavit) (“the memorandum”), headed: “Update the Honourable Minister on
continuous work in relation to the recommendations of the investigation report
of the escape of offender Thabo Bester”.
[15] On 30 March 2023 the National Commissioner took the section 112 decision
and issued the section 112 notice appointing Mr Mashabathaga Pas as
temporary manager to take operational control of the prison from the applicant
and G4S as operator. The notice reads:
“1. This serves as a notice to appoint Mr Mashabathaga Pas as
the temporary manager at Mangaung Correctional Centre to act
as the head of the Correctional Centre in terms of section 112 of
the Correctional Services Act 111 of 1998, as amended (“CSA”)
from 30 March 2023 until further notice, because the Director has
lost effective control of the Public-Private Partnership
Correctional Centre and it is necessary in the interest of safety
and security to take control of the Correctional Centre.
2. During the period of appointment above, Mr Mashabathaga will
be performing the functions of the Director of the Mangaung
Correctional Centre as provided for in section 112(c)(i) of the
CSA.
3. The contractor is reminded that the provisions of section
112(c)(ii) of the CSA will apply.”
6
[16] It is common cause that neither the applicant nor G4S was given prior notice of
the proposed invocation of section 112, or any opportunity to make
representations, before the section 112 decision was taken.
[17] Simultaneously the National Commissioner issued a media statement that
included the following: “I have decided to invoke section 112 of the Correctional
Services Act, read with clause 55 of the concession contract. This is a
necessary remedy following this embarrassing incident which has undermined
the authority of the state.”
[18] From 28 March 2023 the Department demanded that the applicant credit
amounts said to represent the costs of the section 112 intervention. The
applicant issued those credits under protest and without admission of liability.
The total of the credits for the period 28 March 2023 to 31 July 2023 is
R1 716 479.07.
[19] Since 30 March 2023 the temporary manager has been in position at the prison
together with three assistants. The protocols governing the running of the prison
have not been changed. Day-to-day operations are undertaken by G4S
personnel under the supervision of the temporary manager. More than two and
a half years later, the temporary manager remains in place.
Operation of the prison
[20] Certain further facts concerning the operational state of the prison are common
cause and bear emphasis, since they form part of the factual record on which
the rationality of the section 112 decision must be tested.
[21] From the commencement of operations in 2000 to 3 May 2022 there had been
only one prison escape from the prison: a 2002 incident attributable to a flaw in
the design of the prison, in which three of the five escapees were apprehended
on site, one was rearrested and one was killed by the SAPS. The incident bears
no similarity to the Bester escape. By comparison, the Department reported the
7
escape of 515 inmates from Department-run prisons over the period 2013 to
2023.
[22] In 2021/2022 the JICS rated the prison “ GOOD”. This is the highest available
rating, accorded to only seven of the 39 prisons evaluated. The Department
conducted regular inspections of the prison. In the years preceding 30 March
2023 none of the controller, the Commissioner or the Department raised any
concern regarding the director’s loss of effective control or any necessity, in the
interest of safety and security, to take control.
[23] During the period from 3 May 2022
3 to 30 March 20234 the prison continued to
function. The Department’s own written representation to the Parliamentary
Portfolio Committee, dated 4 April 2023, records that no significant difference
in security incidents had been registered over the period 2017 to 2023; that the
statistics on assaults from 2022 were lower than those of the previous five
years; and that the “damage to property” was showing a downward trend.
[24] The Department conducted a routine inspection at the prison from 9 to 20 May
2022, the Monday following the Bester escape, and that inspection did not
result in the invocation of section 112. No unrest was recorded among the
inmates; no imminent threat of further escape was identified; the inmates were
settled.
[25] G4S, for its part, conducted an internal investigation following the discovery of
the burnt corpse, dismissed nine employees implicated in the escape, and
implemented a series of operational measures, including revised laptop
protocols, new and upgraded camera systems, new staff rotation protocols,
lifestyle audits, the locking of the CCR door, and a number of other initiatives.
[26] After the appointment of the temporary manager on 30 March 2023, the day-
to-day operations of the prison continued as before. The temporary manager
3 The date of the Bester escape
4 The date of the Section 112 decision
8
did not alter the policies, the protocols or the operational regime of the prison.
The respondents annexed to their answering affidavit a table of changes said
to have been effected after 30 March 2023. A line-by-line consideration of that
table shows that the majority of the entries are continuations of policies and
practices already in place under G4S, and that the remainder represents steps
taken by the Department to fulfil its own pre-existing obligations under the
Concession Agreement.
[27] On the record before this court the temporary manager has not made the prison
safer, brought greater control to its management, or effected any operational
change of substance.
Issues for determination
[28] The issues that fall for determination are:
a. whether the respondents’ application for condonation of the late filing of
their answering affidavit should be granted and, if so, on what basis as
to costs;
b. whether the five points in limine raised by the respondents, namely: the
applicant’s failure to request reasons under section 5 of PAJA; the
applicant’s failure to utilise the Promotion of Access to Information Act
5
(“PAIA”); the applicant’s non-compliance with the 180-day limit in section
7(1) of PAJA; the applicant’s non-exhaustion of the internal remedies
under section 7(2) of PAJA; and the applicant’s misjoinder of
G4S should be upheld;
c. whether the section 112 decision constituted administrative action for the
purposes of PAJA, or, as the respondents contend, the exercise of a
contractual power under clause 55 of the Concession Agreement;
5 Act 2 of 2000
9
d. whether the jurisdictional facts prescribed by section 112(1) of the Act
were present at the time the National Commissioner exercised the
power;
e. whether the National Commissioner afforded the applicant and G4S
procedurally fair treatment under sections 3 and 4 of PAJA, or,
alternatively, whether any departure from those requirements was
reasonable and justifiable within the meaning of sections 3(4) and 4(4);
f. whether the section 112 decision was taken for a purpose not authorised
by the Act, on the basis of irrelevant considerations or the exclusion of
relevant considerations, or for an ulterior purpose;
g. whether the decision was rationally connected to the purpose of the
empowering provision, to the information before the Commissioner, or
to the reasons given; and
h. whether, if the decision falls to be reviewed and set aside, the court
should order restitution of the R1 716 479.07 credited under protest, and
costs, and on what scale.
The statutory framework
[29] The statutory framework that bears on the dispute is as follows:
a. Section 103 of the Act empowers the Minister to enter into a contract
with any party to design, construct, finance and operate any correctional
centre established in terms of section 5 of the Act. The Concession
Agreement is such an agreement.
b. Section 104 provides that the contractor must contribute to a just,
peaceful and safe society by enforcing the sentences of the courts,
detaining sentenced offenders in safe custody while ensuring their
10
human dignity, and promoting their social responsibility and human
development.
c. Under section 105 the National Commissioner must appoint a controller
for every public-private partnership correctional centre. The controller is
an employee of the Department. Under section 106 the controller
monitors the daily operations of the centre and reports to the National
Commissioner.
d. Section 107 obliges the contractor, with the prior approval of the National
Commissioner, to appoint a director to serve as the head of the centre.
Section 108 places operational responsibilities on the director, who has
(subject to statute and the Concession Agreement) the powers, duties
and functions of the head of a correctional centre.
e. Section 109 empowers the contractor to appoint custody officials to
perform custodial duties. They have the powers and duties of
correctional officers, save as restricted by the Act, regulations or the
Concession Agreement.
f. Section 112, which lies at the heart of this review, empowers the National
Commissioner, in consultation with the Minister, in certain circumstances
to appoint a temporary manager to act as the head of the centre and to
replace custody officials with correctional officials. The provision is set
out in full below.
The respondents’ condonation application
[30] The application was issued on 22 September 2023. The respondents served a
notice of intention to oppose on 16 October 2023, filed the record under Rule
53 on 2 November 2023, and the applicant filed the supplementary affidavit
under Rule 53(4) on 16 November 2023. G4S filed its answering affidavit in
support of the application on 21 December 2023.
11
[31] By 27 February 2024 the applicant had not received the respondents’
answering affidavit and set the application down for hearing on 14 August 2024
on an unopposed basis. On 14 August 2024 the application served before
Matsemela J. It was postponed sine die and the respondents were ordered to
pay the wasted costs occasioned by the postponement. On 18 November 2024
the respondents filed their answering affidavit, 307 days after it was due on 16
January 2024.
[32] The approach to condonation is trite. In Uitenhage Transitional Local Council v
South African Revenue Services
6 the Supreme Court of Appeal emphasised
that an applicant for condonation must furnish a full, detailed and accurate
account of the causes of the delay and their effects, so that the court is placed
in a position to assess the conduct and motives of the applicant.
[33] The Constitutional Court in Baron v Claytile (Pty) Ltd
7 confirmed that it may be
in the interest of justice to condone the late filing of an answering affidavit,
having regard to the extent of the delay, the explanation and effect of the delay,
and the importance of the issues to be raised.
[34] Measured against those criteria the respondents’ case for condonation is weak.
The delay of some 307 court days is extraordinary. The respondents’
explanation, stripped bare, is confined to a few short paragraphs that advert in
general terms to the need to consult officials, the reallocation of the matter
between State Attorneys, and the inevitable difficulty of assembling the record.
The explanation is inadequate. The prospects of success, to which I turn in
detail below, are against the respondents. Ordinarily the cumulative weight of
a lengthy and inadequately explained delay, and weak prospects on the merits,
would count decisively against the grant of condonation.
[35] Against those factors, however, weigh the public importance of the matter, the
substantial public law issues it raises, and the consideration that the Minister
substantial public law issues it raises, and the consideration that the Minister
6 2004 (1) SA 292 (SCA)
7 2017 (5) SA 329 (CC)
12
and the National Commissioner ought, so far as reasonably possible, to be
heard on the merits. In a matter of this importance it is in the interest of justice
that the court has before it the respondents’ full version and considers all the
facts. Balancing all the relevant considerations, condonation is granted and the
answering affidavit is received and considered.
[36] The respondents’ remissness has, however, imposed unnecessary costs on
the applicant and G4S in the bringing of the condonation application itself.
Those costs must be borne by the first and second respondents.
Points in limine
The failure to request reasons under section 5 of PAJA
[37] The respondents contend that the applicant and G4S did not request written
reasons for the section 112 decision under section 5 of PAJA, and that the
review is, for that reason, incompetent or premature. Section 5(1) provides:
“Any person whose rights have been materially and adversely
affected by administrative action and who has not been given
reasons for the action may, within 90 days after the date upon
which that person became aware of the action or might
reasonably have been expected to have become aware of the
action, request that the administrator concerned furnish written
reasons for the action.”
[38] The legislature’s use of the word “ may” is decisive. Section 5 confers a right; it
does not impose an obligation, and does not erect a precondition to the
institution of review proceedings. A litigant aggrieved by administrative action
is entitled to elect whether to invoke section 5, or to proceed directly to review
under section 6.
13
[39] That construction is settled. In Body Corporate of Argyle Green v Appeal
Authority, City of Johannesburg and Others 8 the court held that, although
reasons are fundamental to administrative justice and an important component
of procedural fairness, the requesting and giving of reasons does not constitute
an internal remedy per se, because the provision of reasons does nothing to
diminish the effect of the decision for which they are sought.
[40] The court in Seruoe v Speaker, Free State Provincial Legislature
9 reached the
same conclusion, holding that section 5 is permissive and that “ requesting
reasons for the impugned decision is not a prerequisite for judicial review
proceedings”.
10
[41] In any event, the reasons are to be found in the Department’s internal
memorandum which was included in the Rule 53 record. The applicant and G4S
have engaged with those reasons. The absence of a formal section 5 request
has caused no prejudice and does not deprive this court of jurisdiction. The
point fails.
The alleged failure to utilise PAIA
[42] The respondents next contend that the applicant ought to have utilised PAIA to
obtain the record before launching review proceedings. The contention is
misconceived. Rule 53 of the Uniform Rules of Court provides its own
mechanism for the production of the record of proceedings under review. PAIA
is not a precondition to Rule 53 relief, nor a substitute for it. The applicant
invoked Rule 53 and the record was furnished in response. The point fails.
8 2024 JDR 4089 (GJ)
9 2023 JDR 3632 (FB)
10 Seruoe at para 9
14
Section 7(1) of PAJA — the 180-day period
[43] The respondents contend that the application was brought outside the 180 days
prescribed by section 7(1)(b) of PAJA, calculated from the date upon which the
applicant became aware of the section 112 decision
11 to the launch of the
application on or about 22 September 2023. The chronology is decisive: the
application was served on 22 September 2023, and the 180-day period came
to an end on 26 September 2023. The point is factually unsustainable and must
be dismissed.
Section 7(2) of PAJA — non-exhaustion of internal remedies
[44] The respondents contend that there exist internal remedies under the
Concession Agreement which the applicant ought to have exhausted before
launching review proceedings, in breach of section 7(2) of PAJA. The
provisions of the Concession Agreement to which the respondents point are in
truth dispute resolution mechanisms. These are expert determination,
mediation and arbitration and are all directed at disputes under the contract.
They are not “internal remedies” against administrative decisions of the
National Commissioner under section 112 of the Act, and the Act itself contains
no administrative appeal or internal review mechanism.
[45] The point fails on a more fundamental ground. An “ internal remedy” within the
meaning of section 7(2)(a) of PAJA is, by definition, an administrative appeal or
review extra-curial in character and domestic to the administrative hierarchy
from which the impugned decision emerged.
12 To qualify, the remedy must be
capable, as a matter of law, of providing effective relief, that is, it must be
capable of disturbing or reversing the impugned decision.13
11 30 March 2023
12 Read and others v Master of the High Court of South Africa and others 2005 JDR 0538 (E) para 25 and 26
13 Read at para 20
15
[46] The contractual dispute resolution mechanisms upon which the respondents
rely fail both limbs of the test. They are neither extra-curial appeals within the
administrative hierarchy, nor capable of setting aside an administrative
decision. Only a court can do that. 14 A clause requiring expert determination,
mediation or arbitration of contractual disputes does not, and could not, confer
on those private fora the power to set aside the statutory exercise of an
emergency power under section 112 of the Act. The point fails.
Misjoinder of G4S
[47] The fifth point in limine is the misjoinder of G4S. The respondents advance it
on the following grounds: first, that there is no enforceable right between G4S
and the Department under the Concession Agreement; secondly, that on the
doctrine of privity of contract, parties not privy to a contract cannot sue or be
sued on it, and G4S, not being privy to the Concession Agreement, is not
entitled to locus standi; and thirdly, that this court, per Kubushi J in earlier
proceedings between the applicant and the first and second respondents, has
already determined that G4S has no legal standing in the dispute.
[48] The respondents rely on Medihelp Medical Scheme v Minister of Finance NO
15
and on the test of direct and substantial interest. The common premise of all
three grounds is that the second respondent exercised a contractual right under
clause 55 of the Concession Agreement, and did not take an administrative
decision under section 112 of the Act.
[49] That premise cannot stand. Section 1 of PAJA defines administrative action as
any decision taken by an organ of state when exercising a public power or
performing a public function in terms of any legislation, which adversely affects
the rights of any person and has a direct, external legal effect.
14 NAD Property Income Fund (Pty) Ltd v Bushbuckridge Local Municipality and Another 2026 (2) SA 426 (SCA)
15 2020 JDR 0546 (SCA)
16
[50] In Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works 16 the Supreme
Court of Appeal held that whether particular conduct constitutes administrative
action depends primarily on the nature of the power being exercised, rather
than the identity of the person exercising it and that administrative action is, in
general terms, “the conduct of the bureaucracy … in carrying out the daily
functions of the state which necessarily involves the application of policy,
usually after its translation into law, with direct and immediate consequences
for individuals or groups of individuals”.
17
[51] Applied to the present matter, the section 112 decision satisfies that standard.
The notice of appointment expressly invokes section 112 of the Act, not clause
55 of the Concession Agreement; the memorandum, although it quotes clause
55, does not identify clause 55 as the source of the power; and the public law
character of the power is not altered by the contractor’s undertaking, in clause
55, to comply with a section 112 decision once taken. The section 112 decision
was administrative action within the meaning of PAJA.
[52] The standing of G4S therefore falls to be assessed on public law principles.
Section 38(a) of the Constitution affords standing to anyone acting in their own
interests where a right in the Bill of Rights is infringed or threatened. Section
3(1) of PAJA provides that “administrative action which materially and adversely
affects the rights or legitimate expectation of any person must be procedurally
fair”. The legislature’s choice of the words “any person” is significant: procedural
fairness is owed not only to the addressee of the decision but to any person
whose rights or legitimate expectations are materially and adversely affected.
[53] The Constitutional Court in Giant Concerts CC v Rinaldo Investments (Pty)
Ltd
18 settled the framework. An own-interest litigant need not show the
sufficient, personal and direct interest the common law requires, but must show
sufficient, personal and direct interest the common law requires, but must show
that the contested decision directly affects its rights or interests, or its potential
16 2005 (6) SA 313 (SCA)
17 Greys Marine at para 24
18 2012 JDR 2298 (CC)
17
rights or interests. The requirement is to be generously and broadly interpreted
and the interests must be real, not hypothetical or academic.
[54] On those criteria, G4S plainly has standing. The section 112 decision installs a
temporary manager, appointed by the National Commissioner to perform the
functions of the director of the prison. The director is, on the common cause
facts, a G4S employee. The decision authorises the replacement of custody
officials, also G4S employees, with correctional officials. G4S has, in addition,
concluded a direct agreement with the Minister and the applicant, under which
it warranted to the Minister that it would comply with the subcontract.
[55] The contractual structure, and the operational role at the prison upon which it
rests, are directly and immediately engaged by the decision. The relief sought
operates upon G4S’s interests in a tangible and practical way: if the section 112
decision is set aside, the temporary manager falls away, and G4S is able once
again to install its director and to resume the day-to-day operational
management of the prison. That is an interest “ directly affected” within the
meaning of Giant Concerts
19.
[56] The doctrine of privity of contract has no application. The applicant’s challenge
is brought under section 6 of PAJA against an administrative decision under
section 112 of the Act; it is not a contractual claim. The proposition that only a
party to a contract may sue on it does not engage the question whether a third
party whose rights or interests are directly affected by an administrative
decision has locus standi to review that decision.
[57] As to the judgment of Kubushi J, the dispute there concerned the cancellation
of the Concession Agreement as between the applicant and the first and
second respondents. It did not concern the administrative decision of the
National Commissioner under section 112 of the Act, and it did not address the
National Commissioner under section 112 of the Act, and it did not address the
standing of a third party affected by such a decision. The principle of stare
decisis, as between judges of the same Division, requires that a judge sitting
19 At para 42 and 43
18
alone follow the decision of another judge of that Division unless convinced that
it is clearly wrong.
[58] For the reasons set out above, and being respectfully convinced that the
reasoning of Kubushi J does not govern a review under PAJA of a decision
taken under section 112 of the Act, I decline to follow it in the present, distinct
context. The fifth point in limine fails.
[59] None of the points in limine has merit. All five are dismissed.
Section 112 of the Correctional Services Act
The text of the provision
[60] The National Commissioner’s emergency powers at public-private partnership
correctional centres are conferred by section 112 of the Act, headed
“Commissioner’s powers in an emergency at public-private partnership
correctional centres”. The section provides that
(a) If, in the opinion of the National Commissioner in consultation with
the Minister-
(i) the Director has lost, or is likely to lose, effective
control of a public -private partnership correctional
centre or any part of it; and
(ii) (ii) it is necessary, in the interest of safety and security
to take control of such correctional centre or part of it,
he or she may appoint a Temporary Manager to act as the head
of that correctional centre and may replace custody officials with
correctional officials to the extent necessary.
(b) The appointment referred to in paragraph (a) starts at the time
specified in the Temporary Manager's written notice of
appointment and ends on written notice to that effect.
19
(c) During the period of appointment referred to in paragraph (b)-
(i) the Temporary Manager performs the functions of the
Director; and
(ii) the Contractor and any subcontractor, must do all that
is possible to facilitate the performance by the
Temporary Manager of those functions.
(d) As soon as practicable after making or terminating the
appointment of a Temporary Manager, the National Commissioner
must give notice of such action to the Contractor, the Director and
the Controller.
The jurisdictional facts
[61] Stripped to its essentials, the National Commissioner is empowered to appoint
a temporary manager and to replace custody officials only if:
a. an emergency has arisen at the correctional centre;
b. the National Commissioner holds the opinion that such emergency has
arisen, and that opinion has been formulated in consultation with the
Minister;
c. the director has lost, or is likely to lose, effective control of the centre;
and
d. it is necessary, in the interests of the safety and security of the centre,
the prisoners, the custody officials or members of the public, to take
control of the centre.
[62] The substantive preconditions are that the Director has lost, or is likely to lose,
effective control, and that the taking of control is necessary in the interest of
safety and security; the opinion formed in consultation with the Minister is the
20
gateway through which those matters fall to be assessed. The emergency to
which the heading refers is not a discrete precondition but the character of the
power, confirmed by the heading and inherent in the requirement that the
takeover be necessary.
[63] These preconditions are jurisdictional. The section frames them as the objects
of an opinion. It is “in the opinion of the National Commissioner in consultation
with the Minister” that the director must have lost, or be likely to lose, effective
control, and that it must be necessary in the interest of safety and security to
take control. The legislature has thus entrusted the evaluation of those matters,
in the first instance, to the National Commissioner, and it is not for this court to
substitute its own assessment of conditions at the prison for his. But a power
conditioned upon the formation of an opinion is not thereby placed beyond
review.
[64] In Walele v City of Cape Town and Others
20 the Constitutional Court held, of a
statutory power likewise conditioned upon a subjective precondition, that a
decision-maker’s ipse dixit no longer suffices. Where the opinion relied upon
for the exercise of public power is challenged on the basis that the subjective
precondition did not exist, the decision-maker must show that the opinion was
based on reasonable grounds.
21 The existence of reasonable grounds falls,
moreover, to be assessed with reference only to the material that was before
the decision-maker at the time the opinion was formed. Knowledge held
elsewhere within the institution, but not placed before him, cannot supply the
grounds after the event.
22 An opinion not shown to have been based on
reasonable grounds is not the opinion the section contemplates, and the
jurisdictional precondition to the exercise of the power is then absent. They are
preconditions, not rhetorical descriptors of the Commissioner’s decision.
20 2008 (6) SA 129 (CC)
21 Walele para at 60
22 Walele paras at 61–63
21
[65] Applying Walele, two enquiries arise: what material was before the National
Commissioner when the opinion was formed; and whether that material could
reasonably have satisfied him of the matters section 112 prescribes.
[66] As to the first, the respondents have elected to stand on the memorandum of
28 March 2023. The memorandum indicates that the Controllers investigation
report, the Concession Agreement and the Act formed the basis for the section
112 decision. As to the sec ond, the Controllers investigation report, the
Concession Agreement and the Act could not reasonably have satisfied him
that the director had lost, or was likely to lose, effective control of the prison, or
that it was necessary in the interest of safety and security to take control of it.
It must be remembered that the Controllers report recommended the imposition
of contractual penalties under Schedule M of the Concession Agreement and
that these penalties had been paid. The memorandum does no t identif y a
present threat to the safety and security of the centre, its inmates, its officials
or the public. The National Commissioner only concludes that the director has
lost control of the prison.
[67] The assertion in the answering papers that the National Commissioner was
nonetheless satisfied is the very ipse dixit that Walele holds to be insufficient
once the opinion is challenged. And whatever knowledge the Department at
large may have possessed cannot assist the respondents. The reasonableness
of the opinion falls to be assessed with reference only to the material that was
before the decision-maker at the time. The opinion relied upon for the exercise
of the section 112 power was not based on reasonable grounds, and the
jurisdictional precondition to the exercise of the power was therefore absent.
The meaning of “emergency”
[68] The Act does not define “emergency”. It must therefore be accorded its ordinary
meaning, informed by the text and apparent purpose of the provision. The
meaning, informed by the text and apparent purpose of the provision. The
approach to interpretation has been authoritatively restated by the Supreme
Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni
22
Municipality23 and applied in numerous subsequent decisions. Although the
word appears in the heading to the section, the emergency character it signals
is in any event inherent in the operative requirement that the taking of control
be necessary in the interest of safety and security.
[69] The Oxford English Dictionary defines “ emergency” as “a serious, unexpected,
and often dangerous situation requiring immediate action ”. The essential
features of the ordinary meaning are that the situation must be serious,
unexpected or unforeseen, and one that requires immediate action.
[70] That understanding aligns with the statutory context. Section 112 is an
extraordinary power. It authorises the National Commissioner to take control of
a facility whose operations have been entrusted, by a Concession Agreement
sanctioned by statute, to a private contractor. It vests in the National
Commissioner the right to substitute the director with a temporary manager and
to replace custody officials with correctional officials. Such a power is not to be
exercised as a matter of course, or as a substitute for ordinary contractual
remedies, or in response to stale and historical events that can be addressed
by the ordinary machinery of the Act and the Concession Agreement.
[71] It is an emergency power, to be invoked sparingly and only where the
jurisdictional preconditions are met. The court is bound to give effect to the
ordinary meaning of “emergency” in the provision, and to construe the power
strictly, consistent with the principle of legality and the constitutional
requirement that public power be exercised only in the manner and within the
limits in which it has been conferred.
In consultation with the Minister
[72] Section 112 requires that the opinion of the National Commissioner be formed
in consultation with the Minister. The phrase “ in consultation with”, imposes a
substantive obligation upon the National Commissioner and not a mere
23 2012 (4) SA 593 SCA
23
formality. Consultation, properly understood, requires a genuine, deliberative
exchange. The Minister must be presented with the relevant information, must
have an opportunity to consider it, and must be able to express a view24.
[73] The internal memorandum speaks for itself. Paragraph 6.3 records: “ I therefore
submit my opinion to consult the Minister as required by the CSA. ” That
language, on its face, discloses a fundamental misunderstanding of the
consultation requirement. The National Commissioner did not consult the
Minister; he submitted an opinion he had already formed to the Minister for
signature. The distinction is not semantic. The Minister signed the document on
the same day. There is no evidence of any deliberation, discussion,
modification, or back and forth between the National Commissioner and the
Minister.
[74] The engagement the section requires must precede the formation of the
opinion. It is the opinion itself that must be formed “ in consultation with” the
Minister, and an opinion formed unilaterally and thereafter presented for
endorsement is not an opinion so formed. If the section requires consultation,
a signature appended, on the same day, to an opinion already formed and
submitted for signature, without any indication that the Minister was placed in
possession of the relevant material and brought an independent judgment to
bear upon it, is not the consultation the section contemplates.
Effective control of the prison
[75] The operative phrase is not “control” simpliciter but “effective control”. This
distinction is textually and legally significant. Individual operational failures,
isolated security incidents, or specific contractual breaches do not per se
constitute a loss of “effective control” of the facility. “Effective control” refers to
the director’s ability to manage and operate the facility as a functioning
correctional centre. That is to direct custody officials, to maintain security and
correctional centre. That is to direct custody officials, to maintain security and
24 Tlouamma and Others v Speaker of the National Assembly and Others 2016 (1) SA 534 (WCC)
24
good order, and to give effect to the sentences of the courts. The director must
have lost (or be likely to lose) this broad managerial capacity.
[76] As at 30 March 2023, on the version of both the applicant and G4S, the facility
was stable, all observation notices had been resolved, and the prison was
operating normally. The National Commissioner’s own memorandum does not
identify any current state of dysfunction, instability or loss of operational
capacity at the facility. The National Commissioner reasons backwards from
events that occurred in April and May of 2022, 10 months before the decision.
The meaning of “safety and security”
[77] The Act uses the concepts of “safety” and “security” consistently throughout.
Section 4(2)(a) records the Department’s duty to ensure the safe custody of
every inmate and to maintain security and good order in every correctional
centre. Section 26 protects inmates’ rights subject to limitations “ reasonably
necessary to ensure the security of the community, the safety of correctional
officials, and safe custody of all inmates ”. Section 33(3)(b) authorises the use
of non-lethal devices where “the security of the correctional centre or safety of
inmates or others is threatened”, and section 34(3)(d) authorises the use of
firearms in similar circumstances. Section 102 authorises force against persons
who “disrupt or threaten to disrupt the operation of a correctional centre”.
[78] A consistent legislative usage emerges. “ Safety” refers to the physical well-
being and bodily integrity of inmates, officials and the public. “ Security” refers
to the secure custody of inmates, the integrity of the perimeter, the prevention
of escapes, and the ordinary functioning of the centre. Both concepts, as used
throughout the Act, are forward-looking and present-tense assessments. They
describe threats that exist at the time of the exercise of the relevant power, not
historical events.
historical events.
[79] The same construction must apply in section 112. The “ interests of safety and
security” upon which a takeover under section 112 is to be founded are the
present and operational interests of the centre, not historical events to be
25
remedied retrospectively. The question is precise: as at 30 March 2023, was
there a present or imminent threat to the safety of inmates and officials, and to
the security of the facility, such that taking control was necessary? The papers,
and the National Commissioner’s own memorandum, do not identify any such
threat.
Administrative action or contractual power?
[80] The respondents’ first substantive defence is that the section 112 decision was
not administrative action at all, but the exercise of a contractual power under
clause 55 of the Concession Agreement. If correct, PAJA would not apply.
[81] Clause 55 of the Concession Agreement, headed “ Intervention by the Minister
under Section 112 of the Correctional Services Act, Number 111 of 1998
(Section 112)”, provides:
“55.1 The contractor shall comply with the provisions of Section
112.
55.2 In the event that the Commissioner, in consultation with the
Minister, shall appoint a temporary manager of the prison
by virtue of his powers under Section 112, the contract
shall continue in force, and all provisions of the contract
shall, without prejudice to the Department’s rights under
clause 44 (Default) or 45 (Termination for contractor
default), or the contractor’s rights to terminate on a
Department event of default under clause 47, continue to
operate to save that the actions that would otherwise be
exercisable by the director or the controller shall be
exercised by the temporary manager.
55.3 Any reasonable and necessary costs incurred by the
Department as a result of the action being taken by virtue
of Section 112 will be reimbursed to the Department by the
26
contractor, unless such appointment is as a result of a
Department event of default and the Department shall be
entitled to set off all such amounts due to it against any
other amounts due to the contractor from the Department
hereunder, subject to the provisions of clause 43.”
[82] None of these provisions modifies, expands or reduces the jurisdictional
requirements of section 112. Their character is consistently consequential.
They deal with what happens after a valid section 112 appointment has been
made. Clause 55.1 imposes an obligation on the contractor to comply and
creates no power for the Commissioner. Clause 55.2 regulates the contractual
consequences of an appointment and presupposes that a valid section 112
appointment has been made “ by virtue of his powers under Section 112”; it is
not itself a source of power. Clause 55.3 deals with cost recovery and is again
consequential upon a valid appointment.
[83] The source of the power remains exclusively statutory. No contractual provision
can expand, modify or reduce the jurisdictional requirements for the exercise of
a statutory power. Were it otherwise, any public authority could circumvent
statutory limitations on its power simply by incorporating those powers into a
contract with adjusted preconditions. This would be constitutionally
impermissible.
[84] The section 112 notice expressly records that the appointment of the temporary
manager is made in terms of section 112 of the Act. The Concession
Agreement is not referenced. The memorandum quotes clause 55 of the
Concession Agreement but the Commissioner makes no mention of it as the
source of the power or the basis for his decision.
[85] The decision satisfies the seven elements of administrative action defined in
section 1 of PAJA:
25 it is a decision of an administrative nature, by the National
Commissioner as an organ of state, exercising a public power or function in
25 Minister of Defence and Military Veterans v. Motau 2014 (5) SA 69 (CC).
27
terms of section 112 of the Act, the decision adversely affects the rights and
interests of the applicant and G4S, it has a direct, external legal effect Lastly,
and lastly the decision is not a listed exclusion.
[86] The section 112 decision is administrative action within the meaning of PAJA,
and the applicant and G4S are entitled to impugn it on any of the grounds
enumerated in section 6(2) of PAJA.
The memorandum as the record of the decision
[87] The memorandum is the record on which the respondents have chosen to
stand. Its content matters because the respondents are bound by the reasons
given and the factors that were considered at the time the section 112 decision
was taken. The law does not permit an administrator to engage in ex post facto
rationalisation.
26
[88] The memorandum sets out a narrative of the escape, the subsequent
investigation and the steps taken thereafter. It canvasses, at length, alleged
breaches of the Concession Agreement and recommends that a section 112
notice be issued. It does so without any demonstration that the jurisdictional
preconditions in section 112 are satisfied. The memorandum does not state that
any emergency has arisen at the prison and nowhere does it describe a serious,
unexpected and immediate situation.
[89] The events the memorandum describes are those that led up to the escape of
Mr Bester on 3 May 2022. The relevant question is whether, as at 30 March
2023, there was a situation of such urgency, immediacy and severity at the
prison that it constituted an emergency requiring the exercise of section 112.
Having regard to the ten month period of the respondents’ inaction after
confirmed knowledge of the escape; the controller’s recommendation of
penalties, and not the invocation of section 112 in November 2022; the
Directorate Contract Management’s recommendation of observation notices,
26 National Energy Regulator of South Africa v PG Group (Pty) Ltd 2020 (1) SA 450 (CC)
28
and not the invocation of section 112 in March 2023; the visits by the
Department subsequent to the escape that recorded that the prison was
running smoothly; the resolution of all observation notices arising from the
escape; and the prison’s stable operation as at 30 March 2023, the answer can
only be no.
[90] The memorandum does not engage with the fundamental question whether the
events and breaches that led to Mr Bester’s escape, or the escape itself,
indicated a loss of effective control of the prison. It contains no statement that
the director has lost, or is likely to lose, effective control, still less any supporting
facts capable of sustaining such a conclusion. The “ loss of control” was the
Department’s retrospective conclusion about specific events during April and
May 2022 that had since been the subject of contractual remediation. The
respondents reasoned backwards from historical events.
[91] The memorandum contains no statement that it is necessary, in the interests of
safety and security of the centre, the prisoners, the custody officials or members
of the public, for the National Commissioner to take control of the prison. It
records only that “it is necessary to appoint a temporary manager” — a generic
conclusion that omits the specific jurisdictional requirement.
[92] The Commissioner did not identify any specific, current safety or security threat,
explain why the contractual mechanisms were insufficient to address any threat
or explain why a takeover of the entire facility was necessary. Where a statute
prescribes jurisdictional facts, and the contemporaneous record relied on as the
reasons neither asserts those facts nor supplies any material from which they
could rationally be inferred, the power has not been lawfully exercised.
The grounds of review
Section 6(2)(b) and (d)
[93] It follows from what has been said that the section 112 decision was not taken
in compliance with the mandatory and material procedures and conditions
in compliance with the mandatory and material procedures and conditions
prescribed by the empowering provision. None of the jurisdictional
29
preconditions was met, and none is recorded in the memorandum. The concept
of an “emergency” requires seriousness, unforeseeability and the need for
immediate action.
[94] By 30 March 2023, the escape had taken place ten months earlier; the
controller had investigated it; the controller’s report had been prepared and the
Schedule M penalty had been paid; the corpse had been identified by DNA as
not Mr Bester’s; and the JICS report had been leaked. An event that had been
investigated, quantified and penalised over the course of ten months cannot
rationally be characterised as an emergency within the ordinary meaning of that
word.
[95] As I have already held, the record discloses no evidence of a consultation with
the Minister before the National Commissioner had formed the opinion that the
pre-conditions of section 112 were present at the time the decision was taken
on 30 March 2023. That deficiency is not cured by the Minister’s subsequent
support for the decision in the answering affidavit. The reasons for an
administrative decision are those that in fact form the basis of it at the time it
was taken. The ex post facto rationalisation in the answering affidavit is
impermissible.
[96] Discrete operational failures or specific contractual breaches do not, without
more, amount to a loss of effective control of the prison as a functioning
correctional facility. The memorandum does not state that the director had lost
or was likely to lose effective control. The section 112 notice recites the
conclusion but is not supported by any contemporaneous reasons. In the ten
months following the escape the prison continued to operate, no incident of loss
of control is recorded, and the ordinary mechanisms of the Concession
Agreement had functioned.
[97] Neither the memorandum nor the answering affidavit discloses a concrete
threat to the safety or security of the prison, the prisoners, the custody officials
or members of the public that could not have been addressed by the ordinary
or members of the public that could not have been addressed by the ordinary
machinery of the Act and the Concession Agreement.
30
[98] The decision falls to be set aside under section 6(2)(b) of PAJA for non-
compliance with the mandatory and material conditions prescribed by the
empowering provision, and under section 6(2)(d) on the ground that the action
was taken for reasons not authorised by the empowering provision.
Section 6(2)(c) — procedural fairness
[99] Section 6(2)(c) of PAJA empowers the courts to review administrative action
that was procedurally unfair. Section 3(1) of PAJA, with which it must be read,
provides that administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally fair.
Section 3(2) particularises the minimum content of that obligation. An
administrator must give a person whose rights are affected adequate notice of
the nature and purpose of the proposed administrative action; a reasonable
opportunity to make representations; a clear statement of the administrative
action; adequate notice of any rights of review or internal appeal, where
applicable; and adequate notice of the right to request reasons in terms of
section 5 of PAJA.
[100] None of these requirements was met. The respondents concede that the
applicant and G4S received no prior notice of the proposed invocation of
section 112 and were given no opportunity to make representations. They were
furnished with no advance statement of the proposed action, no notice of any
right of review, and no notice of the right to request reasons. On the National
Commissioner’s own version, no procedurally fair mechanism was followed
before the decision was taken.
[101] The significance of pre-decision procedural fairness is not formal. The
Constitutional Court has emphasised
27 that observance of the rules of
procedural fairness ensures that administrative functionaries have an open
mind and a complete picture of the facts and circumstances within which the
mind and a complete picture of the facts and circumstances within which the
27 Janse van Rensburg N.O. v Minister of Trade and Industry N.O. 2001 (1) SA 29 (CC); De Lange v Smuts N.O.
1998 (3) SA 785 (CC)
31
administrative action is to be taken, so that the functionary is more likely to
apply his or her mind to the matter in a fair and regular manner. The focus of
the section 6(2)(c) inquiry is correspondingly not whether the decision was in
fact correct, but whether the process by which the decision was reached
satisfied PAJA’s procedural standards.
28
[102] The respondents seek to justify the failure on the strength of section 3(4), which
permits an administrator to depart from the ordinary requirements of procedural
fairness if it is reasonable and justifiable in the circumstances to do so. Section
3(4) does not license the wholesale abandonment of procedural fairness. As
the Constitutional Court explained in Department of Agriculture, Conservation
and Environment, North West Provincial Government v HTF Developers (Pty)
Ltd
29, section 3(4) authorises a deviation from procedural requirements, a
truncation of time periods, or a limitation on the opportunity to make
representations in cases of urgency, and the purpose that the provisions serve
dictates the extent of the procedural standards expected of the administrator.
[103] The section 3(4) defence cannot succeed on the facts. First, the premise upon
which it rests, that the situation was an emergency, has, for the reasons already
given, not been established. Secondly, the National Commissioner has been
seized of the relevant material since at latest November 2022. The events relied
upon had been investigated, quantified and, in the case of the Schedule M
penalty, financially remedied. There was, on the record, no urgency at the time
of the decision capable of dictating any deviation from the ordinary procedural
standards. Thirdly, the answering affidavit does no more than recite the
language of section 3(4)(b) without engaging with the objective factors that
paragraph requires the administrator to weigh. The conclusion is asserted, not
justified.
paragraph requires the administrator to weigh. The conclusion is asserted, not
justified.
[104] In any event, the procedural unfairness is established even on the assumption,
contrary to my findings, that a qualifying emergency existed. Section 3(4)
28 Allpay Consolidated v Chief Executive Officer, SASSA 2014 (1) SA 604 (CC)
29 2008 (2) SA 319
32
authorises a departure from, a truncation of, or a limitation upon the ordinary
incidents of procedural fairness. It does not authorise their wholesale
abandonment. What occurred here was not a curtailed procedure but the
absence of any procedure at all. No notice of any kind, however abbreviated,
and no opportunity of any kind, however brief, was afforded to the applicant or
to G4S.
[105] The decision was procedurally unfair within the meaning of section 6(2)(c) of
PAJA. No reasonable and justified departure has been demonstrated under
section 3(4), and the decision falls to be reviewed and set aside.
Section 6(2)(e)(i), (ii) and (iii) — improper purpose, ulterior motive and irrelevant
considerations
[106] The record contains several indications that the section 112 decision was taken
for a purpose not authorised by section 112, and for an ulterior motive or
purpose, within the meaning of section 6(2)(e)(i) and (ii) of PAJA.
[107] The settled test is that an administrator who has no honest belief that good
reasons existed for the decision has acted with an ulterior motive.
30 The failure
to take into account relevant considerations, or the taking into account of
irrelevant ones, is a separate ground of review under section 6(2)(e)(iii).
[108] The media statement on 30 March 2023 describes the action as a response to
“this embarrassing incident which has undermined the authority of the state ”.
The humiliation of the State caused by the escape is a consideration that cannot
lawfully be brought to bear on the exercise of the section 112 power, which is
concerned with present operational emergencies at a correctional centre, not
with historical reputational damage.
[109] The chronology fortifies the inference of improper purpose. The National
Commissioner’s own investigation team had concluded, by November 2022,
30 City of Cape Town v Premier Western Cape 2008 (6) SA 345 (C)
33
that the Bester escape involved breaches of the Concession Agreement and
recommended the imposition of contractual penalties. The team did not
recommend the invocation of section 112. That assessment prevailed for some
four months. It was overtaken in March 2023, against the backdrop of
intensifying media scrutiny, by a decision in which the Department sought to be
seen to be acting decisively.
[110] The memorandum, read as a whole, is directed principally at historical breaches
of the concession contract and at laying the ground for termination. The section
112 notice was followed, a little more than a month later, by the termination
notice of 2 May 2023.
[111] The use of an emergency administrative power as a response to alleged
contractual breaches that were already remedied or remediable through the
ordinary contractual machinery is not a permissible purpose under section 112
of the Act, and constitutes an ulterior purpose within the meaning of section
6(2)(e).
[112] Relevant considerations are not reflected in the memorandum. No recent
escapes had occurred and the controller’s statutory functions had been
performed. The Schedule M penalty had been paid. G4S had conducted an
internal investigation, dismissed nine implicated employees and implemented
a series of operational measures, and less drastic contractual remedies had
been identified and applied.
[113] None of these matters are engaged by the reasons in the memorandum. The
respondents relegated paramount factors to insignificance and accorded
irrelevant factors weight in excess of their value. The failure to apply its mind to
the relevant considerations is itself reviewable under section 6(2)(e)(iii) of
PAJA.
[114] The decision accordingly falls to be set aside on each of the three grounds
under section 6(2)(e)(i), (ii) and (iii).
34
Section 6(2)(f)(ii) — rationality
[115] The rationality inquiry under section 6(2)(f)(ii) of PAJA asks whether the
decision is rationally connected to the purpose of the empowering provision, to
the information before the administrator, and to the reasons given for it.
[116] The Constitutional Court in Democratic Alliance v President of the Republic of
South Africa
31 restated the inquiry in three steps. First, were relevant factors
ignored? Secondly, if relevant factors were ignored, was the failure to consider
them rationally connected to the purpose for which the power was granted?
Thirdly, if there is no rational connection, did the failure to consider the ignored
facts render the process leading to the decision irrational?
[117] Each of those questions is, on the findings already made, against the
respondents. Relevant factors of the most material kind were ignored: the
continuing operation of the prison; the JICS “ GOOD” rating in 2021/2022; the
absence of any further escape since 3 May 2022; the performance of the
controller’s statutory functions over the intervening ten months; the payment of
the Schedule M penalty; G4S’s investigation, the dismissal of the implicated
employees and the operational measures it had implemented; and the
existence of less drastic contractual remedies that had in fact been used and
resolved.
[118] The failure to consider those factors had no rational connection to the purpose
for which section 112 was conferred. The elimination of those factors from the
deliberative process rendered the process leading to the decision irrational.
[119] On a separate analysis, there was no rational connection between the decision
and the empowering provision itself. Section 112 authorises the National
Commissioner, in consultation with the Minister, to take control of a public-
private partnership correctional centre where the director has lost or is likely to
lose effective control and it is necessary in the interest of safety and security to
lose effective control and it is necessary in the interest of safety and security to
31 2013 (1) SA 248 (CC)
35
do so. The decision was taken in the absence of any of the jurisdictional
preconditions being met, and for purposes of addressing the media uproar that
followed disclosure of the escape.
[120] There can be no rational connection between an emergency power, sparingly
conferred and reserved for present threats to safety and security, and a
decision to invoke that power for the management of reputational damage. The
decision is not rationally connected to the purpose of the empowering provision,
to the information that was before the Commissioner, or to the reasons given
for it. The decision falls to be set aside under section 6(2)(f)(ii) of PAJA.
Section 6(2)(h) and (i)
[121] For the reasons already given, the decision is also one that no reasonable
decision-maker could have taken on the material before the Commissioner. It
is accordingly unreasonable within the meaning of section 6(2)(h) of PAJA, and
unlawful as contemplated by section 6(2)(i).
Remedy
[122] The ordinary consequence of the findings I have made is a declaration of
invalidity and an order setting the section 112 decision aside. Section 8(1) of
PAJA empowers the court to grant an order that is just and equitable, including,
in terms of paragraph (c)(ii), a declaration of the rights of the parties, the setting
aside of the administrative action, remittal for reconsideration, or, in exceptional
cases, substitution.
Restitution of R1 716 479.07: the framework
[123] The applicant seeks, under section 8(1)(c)(ii)(bb) of PAJA, an order directing
the first and second respondents to repay the sum of R1 716 479.07. The
amount represents the credits the applicant was required to issue to the
Department in respect of the costs said to have been incurred by the
36
Department in consequence of the section 112 decision, for the period 28
March 2023 to 31 July 2023.
[124] It is common cause that the credits were issued under protest and without
admission of liability. The basis on which they were demanded is clause 55.3
of the Concession Agreement, which renders the contractor liable for the costs
of an intervention under section 112.
[125] Section 8(1) confers on the court a power to grant “ an order that is just and
equitable”, including the orders particularised in paragraphs (a) to (f). The
Constitutional Court has emphasised that the relief afforded by section 8(1) is
exemplary rather than exhaustive, and that undue weight should not be
accorded to the disjunctive framing of paragraphs (c)(i) and (c)(ii)(bb).
32 The
principle of subsidiarity precludes the applicant from running, alongside the
PAJA remedy, a freestanding common law claim for restitution. PAJA covers
the field.
33
[126] It does not follow, however, that the order must be confined to the rubric of
“compensation” in paragraph (c)(ii)(bb). Being exemplary and not exhaustive,
the power conferred by section 8(1) extends to the consequential and
restitutionary relief necessary to give effect to the setting aside, and it is there
that the present order is located.
[127] The repayment sought is, in substance, restitutionary rather than
compensatory. The credits were exacted under clause 55.3 of the Concession
Agreement, a provision whose operation is wholly consequential upon a valid
appointment under section 112. Once that appointment is set aside the causa
for the credits is extinguished, and the amounts were paid without cause. Relief
of that character is located in the broad just and equitable power conferred by
section 8(1), the orders listed in paragraphs (a) to (f) being, as already noted,
no more than instances of it.
32 Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality 2023 (2) SA 31 (CC)
33 Esorfranki supra
37
[128] The respondents might be understood to contend for a different construction,
under which clause 55.3 allocates to the contractor the cost risk of any
intervention purportedly taken under section 112, whether or not that
intervention is afterwards found to have been lawful, as part of the bargain
struck between commercial parties. That construction cannot be preferred.
Clause 55.3 fastens liability upon costs incurred “ as a result of action being
taken by virtue of Section 112”, and action taken “by virtue of” a statutory power
is action that the power in truth authorises.
[129] An invocation that is reviewed and set aside as falling outside section 112 is
not, in law, action taken by virtue of that section. To read the clause as imposing
upon the contractor the cost burden of an unlawful invocation would be to
attribute to the parties an intention to underwrite the very exercise of public
power that the statute forbids, and to permit the Department to retain, on the
strength of contract, the fruits of an administrative act that has been annulled.
The risk-allocation reading presupposes the validity that the review has
displaced, and does not survive the setting aside of the decision.
[130] It follows that, although the Concession Agreement and clause 55 themselves
remain on foot, the setting aside of the section 112 decision removes the very
foundation on which the credits were exacted. The survival of clause 55 is
therefore immaterial, since the clause can authorise the retention of the credits
only upon a valid exercise of the statutory power that has now been annulled.
This accords with the approach in Central Energy Fund SOC Ltd v Venus Rays
Trade (Pty) Ltd
34, where the restoration of sums received under transactions
subsequently set aside was treated as a consequence of the setting aside
rather than as an independent claim.
[131] The repayment is not relief sourced in the Concession Agreement. It is the
[131] The repayment is not relief sourced in the Concession Agreement. It is the
direct and consequential restitution that flows, on the corrective principle
34 Central Energy Fund SOC Ltd v Venus Rays Trade (Pty) Ltd 2021 JDR 1626 (WCC) paras 336–337, where
the restitution of the purchase price and storage fees received under the impugned transactions was treated as
a legal consequence of their setting aside, given effect as part of the just and equitable remedy.
38
articulated by the Constitutional Court in Allpay Consolidated Investment
Holdings (Pty) Ltd & others v Chief Executive Officer, South African Social
Security Agency & others (No 2) 35, from the setting aside of the impugned
decision.
[132] Where an exercise of public power is set aside, the just and equitable
jurisdiction conferred by section 8(1) of PAJA, read with section 172(1)(b) of the
Constitution, extends to reversing the financial consequences of the invalidity,
including the return of money taken under the decision now annulled.
Consistent with the approach in Venus Rays, the restoration of sums received
under the annulled transactions is to be treated as a consequence of the setting
aside rather than as compensation, so that to order it is to give effect to the
review, not to grant a contractual remedy under the guise of constitutional
relief.
36
[133] So characterised, the order need not be brought within the exceptional cases
for which compensation under paragraph (c)(ii)(bb) is reserved. That paragraph
is directed at making good a loss caused by the administrative action; the
present order looks the other way, reversing a benefit conferred under a
mechanism whose only foundation was the validity of the section 112 decision.
Steenkamp NO v Provincial Tender Board, Eastern Cape
37 addresses the
distinct question whether a claim lies for loss caused by invalid administrative
action; and Trustees of the Simcha Trust v De Jong
38 confirms that the
reference to exceptional cases concerns the choice of remedy, not the
egregiousness of the decision. The threshold attaching to paragraph (c)(ii)(bb)
is therefore not engaged.
35 Allpay Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive Officer, South African Social
Security Agency & others (No 2) 2014 (4) SA 179 (CC) para 30, where the corrective principle was treated as
the logical consequence flowing from invalid and rescinded transactions and the law of unjustified enrichment
generally.
generally.
36 Venus Rays supra paras 337 and 501: at para 337 the restoration was characterised as a consequence of the
setting aside rather than as compensation under PAJA, and at para 501 as relief that does not amount to the
grant of a contractual remedy under the guise of constitutional relief.
37 2007 (3) SA 121 (CC)
38 2015 (4) SA 229 (SCA)
39
[134] To hold otherwise would be to accept that money taken from a person under
an administrative act may be retained by the State notwithstanding the
annulment of that act, save in exceptional cases, a proposition at odds with the
just and equitable purpose section 8(1) exists to serve and with the principle
that an invalid act can confer no entitlement to retain what has been obtained
under it.
Application to the present case
[135] Each branch of the test is met. In setting aside the section 112 decision the
court has found that the invocation was made for purposes ulterior to the
empowering provision, and that none of the jurisdictional facts in section 112
was present. The record on which those findings rest is closed and complete.
[136] Remittal would therefore serve no purpose. The court has before it all the
material that was before the National Commissioner and no specialised or
technical exercise remains to be performed. On the same facts the only lawful
conclusion is that the section 112 power was not engaged, so that a fresh
decision could lawfully arrive at no different outcome. There has, moreover,
been substantial delay since 30 March 2023, throughout which the applicant
has performed under protest under the very mechanism now set aside.
[137] To require it to await a fresh decision, in respect of the same historical events,
would prolong its loss to no purpose and would be neither fair to the applicant
nor productive of any vindication of the public interest not already secured by
the setting aside.
[138] Substitution under section 8(1)(c)(ii)(aa) was not pursued by the applicant, and
is in any event not the appropriate exceptional remedy on the facts of this
matter. The court is not asked to make an emergency takeover decision in the
place of the National Commissioner. It is asked to undo a decision that should
not have been taken at all.
40
[139] Setting aside, on its own, will not however suitably remedy the loss. The
applicant has paid R1 716 479.07 to the Department under the very mechanism
that has now been declared invalid. Without restitution, the applicant remains
out of pocket on the strength of an unlawful decision, and the Department
retains money paid to it under a predicate that has fallen away. Once the section
112 decision is set aside, no cost liability under clause 55.3 of the Concession
Agreement can survive the invalidation of the decision that triggered it; the
credits were paid without cause.
[140] The order does not enrich the applicant or impose any double burden on the
public purse. It directs no more than the refund of a precise and undisputed
sum paid under a statutory predicate that has fallen away, leaving the applicant
no better off than had the unlawful decision never been taken.
[141] The causation is direct: but for the unlawful section 112 decision, no demand
for repayment under clause 55.3 of the Concession Agreement would have
been made, and no credit would have been issued under protest. It is just and
equitable, within the meaning of section 8(1), to direct the first and second
respondents, jointly and severally, to repay the sum of R1 716 479.07.
[142] As to interest, the obligation to make restitution arises upon the setting aside of
the section 112 decision. In the exercise of the just and equitable discretion
conferred by section 8(1) of PAJA, read with section 172(1)(b) of the
Constitution, and in order to achieve full restitution, interest on the sum of
R1 716 479.07 is directed to run from 31 July 2023, being the date by which
that sum had been exacted in full and from which the Department has had the
use of money paid to it without cause. The amounts credited or deducted after
1 August 2023 having been exacted progressively and remaining to be
quantified, interest on those amounts is directed to run, more conservatively,
quantified, interest on those amounts is directed to run, more conservatively,
from the date of this order. In each case interest is fixed at the prescribed rate.
41
Costs
[143] Costs follow the result. The matter is complex, raises important points of
administrative law, and was the subject of substantial preparation and two-
counsel representation. The employment of two counsel was justified. Costs on
scale C are appropriate.
Order
[144] In the result, the following order is made:
a. The first and second respondents’ application for condonation for the
late filing of their answering affidavit is granted. The costs of the
condonation application, including the costs of two counsel on scale C
where so employed, shall be paid by the first and second respondents,
jointly and severally.
b. The five points in limine raised by the first and second respondents are
dismissed.
c. The second respondent’s decision, taken on or about 30 March 2023, to
invoke section 112 of the Correctional Services Act 111 of 1998, and to
appoint a temporary manager at the Mangaung Correctional Centre, is
reviewed, declared unlawful and set aside.
d. The section 112 notice issued by the second respondent on 30 March
2023 appointing Mr Mashabathaga Pas as temporary manager at
Mangaung Correctional Centre is set aside.
e. The first and second respondents are directed, jointly and severally, the
one paying the other to be absolved, to pay to the applicant the sum of
R1 716 479.07, together with interest thereon at the prescribed rate of
interest calculated from 31 July 2023 to date of final payment.
42
f. It is declared that, the section 112 decision having been set aside, no
liability under clause 55.3 of the Concession Agreement for the costs of
the section 112 intervention survives. The first and second respondents
are directed, jointly and severally, the one paying the other to be
absolved, to repay to the applicant all further amounts credited or
deducted in respect of such costs from 1 August 2023 to the date of this
order, together with interest thereon at the prescribed rate from the date
of this order to date of final payment.
g. The first and second respondents are directed, jointly and severally, to
pay the costs of the applicant and the third respondent in the review,
such costs to include the costs of two counsel on scale C where so
employed.
________________ ______
DH HINRICHSEN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
DATE OF THE HEARING: 19 MARCH 2026
DATE OF HANDING DOWN JUDGMENT: 10 June 2026
Appearances:
For the Applicant: Adv WB Pye SC instructed by Fasken
(Incorporated in South Africa a Bell
Dewar Inc)
For the First and Second Respondents: Adv G Shakoane SC with Adv MX
Mpahlwa instructed by AM Vilakazi Tau
Attorneys
For the Third Respondent Adv B Leech SC with Adv L Choate
instructed by Webber Wentzel Attorneys