REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 013953/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
JOHANNES ALLY SHIBAMBO APPLICANT
and
MINISTER OF JUSTICE AND CORRECTIONAL FIRST RESPONDENT
SERVICES
COMMISSIONER OF CORRECTIONAL SECOND RESPONDENT
SERVICES
CHAIRPERSON, NATIONAL COUNCIL THIRD RESPONDENT
FOR CORRECTIONAL SERVICES
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TISANI, AJ
Introduction
[1] The Applicant, Mr Johannes Ally Shibambo, is a prisoner currently incarcerated
at Kgoshi Mampuru II Correctional Centre, Pretoria.
[2] The present application is an opposed review application against the decision of
the First Respondent (Minister) to reject the Applicant’s application for parole.
At the time the decision was taken, and the present application launched, the
‘Minister’ responsible for correctional services – as defined by section 1 of the
Correctional Services Act1(1998 Act) – was the Minister of Justice & Correctional
Services2. With effect from 11 October 2024 , the functions of the Minister
responsible for correctional services have been transferred from the Minister of
Justice & Correctional Services, to the Minster of Correctional Services, in terms
of section 97 of the Constitution3.
[3] The National Commissioner for Correctional Services, and the Chairperson of
the National Council for Correctional Services have also been cited in the
application as the Second and Third Respondents respectively.
[4] The Applicant seeks an order reviewing and setting aside the Minister’s decision
rejecting the Applicant’s application for parole. The Applicant further seeks an
order substituting the decision of the Minister with an order by this Court placing
of the Applicant on parole within 15 (fifteen) days, and on such terms as the Court
may deem fit. The Applicant finally seeks costs against the Minister, and against
the Second and Third Respondents, in the event of opposition.
[5] The review application has been brought in terms of section 6(2) of the Promotion
of Administrative Justice Act4 (PAJA), alternatively on the grounds of legality.
1 Act 111 of 1998
2 Proc 47 in GG37839 of 15 July 2014
3 Proc 199 in GG 51368 of 11 October 2024
4 Act 3 of 2000
Background facts salient to the present application
[6] The offences for which the Applicant was convicted and sentenced are appalling.
On 04 September 2003 at or near Chili’s Farm Moloto, in the district of
KwaMhlanga, the Applicant, unlawfully armed with a firearm and ammunition,
robbed one Mr Sense Banda of a motor vehicle, and subsequently murdered Mr
Banda.
[7] The Applicant was charged with one count of murder, one count of armed
robbery with aggravating circumstances as defined in Section 1 of the Criminal
Procedure Act 5(CPA), one count of the unlawful possession of a firearm in
contravention of s2 of the Arms and Ammunition Act6, and one count of unlawful
possession of ammunition in contravention of s36 of the Arms and Ammunition
Act7.
[8] The matter proceeded before the Transvaal Provincial Division of the High Court
(as it then was) with Mr Acting Justice Ranchod (as he then was) presiding. The
Applicant pleaded not guilty to all charges and pleaded an alibi in his defence.
The Applicant’s alibi defence was rejected by the High Court, and the Applicant
was convicted on all four counts on 02 May 2006.
[9] The sentencing proceedings with respect to the murder and armed robbery
convictions was subject to the minimum sentencing provisions as set out in
section 51 of the Criminal Law Amendment Act8. The High Court, having found
neither substantial nor compelling circumstances justifying a departure from the
minimum sentencing provisions, sentenced the applicant on 09 May 2006 to life
imprisonment in res pect to murder, 15 (fifteen) years with respect to armed
robbery with aggravating circumstance s, and 3 (three) years imprisonment for
unlawful possession of a firearm and ammunition. The sentences of 15 (fifteen)
years, and 3 (three) years respectively, were ordered to run concurrently with the
sentence of life imprisonment.
5 Act 51 of 1977
6 Act 75 of 1969. This Act was subsequently repealed and replaced by the Firearms Control Act 60 of
2000.
7 Ibid
2000.
7 Ibid
8 Act 105 of 1997.
[10] It is common cause that the Applicant falls within the category of prisoners
covered by the judgment of the Constitutional Court in Phaahla v Minister of
Justice and Correctional Services9 which found that the correct interpretation of
section 136 of the 1998 Act was that offenders are entitled to the parole regime
that was enacted at the time when the crime was committed, rather than when
the offender was sentenced. In respect to the Applicant, the applicable parole
regime in place was in accordance with the provisions of the Correctional
Services Act 8 of 1959 (1959 Act) read with the policy and guidelines applied by
the former Parole Boards under the 1959 Act. It is further common cause that
the Applicant reached the minimum detention period under the 1959 Act and
relevant policy and guidelines, on 08 March 2019.
[11] Pursuant thereto , t he Applicant on 30 August 2021 appeared before the
Correctional Supervision and Parole Board for the Kgosi Mampuru II
Management Area (Parole Board ) seeking a recommendation on possible
placement on parole . After having considered a correctional services plan
approved by the case management committee dated 23 September 2020,
together with an education al report, a unit manager’s report , a spiritual
caregiver’s report, a social workers report by Ms E Dhlamini and Ms Leshabane
dated 02 March 2021 , and a clinical psychologists report compiled by one JJ
Morolong dated 20 November 2020, as well as submissions from the Applicant,
the Parole Board on 30 August 2021 recommended the release of the Applicant
on parole, and the placement of the parole recommendation for approval before
the National Council for Correctional Services, the Third Respondent, in terms of
section 75(1)(c) read with section 78(1) of the 1998 Act.
[12] The Third Respondent having considered the recommendations of the Parole
Board during meetings of 31 August 2022 – 02 September 2022, took a decision
Board during meetings of 31 August 2022 – 02 September 2022, took a decision
dated 13 December 202 2 not to recommend parole for the A pplicant. The
grounds of the decision taken by the Third Respondent were predicated on the
findings cited in the assessment and report on the Applicant by the clinical
psychologist JJ Morolong dated 20 November 2020. The Applicant was instead
9 2019 (2) SACR 88 (CC) at paras 46 – 54, 62 and 70.
advised by the Third Respondent to improve his situation by undergoing
individual psychotherapy to address his aggressive violent behaviour, lack of
insight and victim empathy. The Applicant was further advised to undergo a risk
assessment conducted by a non – treating psychologist. The Third Respondent
finally recommended that the parole application be placed before the Third
Respondent for reconsideration after a further period of 12 (twelve) months had
elapsed.
[13] The Minister, per decision dated 28 April 2023, and acting in terms of s ection
78(2) of the 1998 Act, approved the recommendation of the Third Respondent
not to place the Applicant on parole. The Minister further directed that a further
profile of the Applicant be conducted and the matter be placed before the Third
Respondent after 28 April 2024.
[14] Aggrieved by the decision of the Minister , the Applicant brought the present
application.
Issues to be determined
[15] The issues to be determined are the following:
15..1 Is the decision taken by the Minister lawful and reasonable?
15.2 Is the Court entitled to substitute the decision of the Minister , if the
Minister’s decision is found not to be lawful and reasonable?
Applicable law
[16] The appalling occurrences of 0 4 September 200 3 notwit hstanding, the
Constitutional Court in Janusz Jakub Walusz v Minister of Justice and
Correctional Services & others10 (Walusz) reminds us that:
10 2023 (2) SA 473 (CC) at paras 43 – 44, 47
16.1 An important objective of imprisonment in our correctional facilities
(prisons) is aimed at rehabilitating the prisoner so that he or she can lead
a crime-free life after being released from prison and rejoining society.
16.2 The broad policy applicable under section 136 of the 1998 Act, which
utilised the policy and guidelines under the 1959 Act , was that the
placement of a prisoner on parole should be as soon as possible after
the date from which such prisoner becomes eligible for consideration for
parole. Furthermore, the evaluation of a prisoner for parole must be done
fairly and justly.
[17] The Court in Mazingane an d others v Minister of Correctional Services and
others11 remarked as follows pertaining to parole decisions:
“[75] Once a person has been incarcerated for a long time and has satisfied
all the principles and the requirements for parole, they should not continue
to be incarcerated when they have become eligible for parole unless the
Minister has legitimate reason to deny parole. In the absence of sound
reasons, denials of parole applications of this kind may rob prisoners of
hope as they are left with no clear way to demonstrate rehabilitation and
earn their freedom. A decision not to release a sentenced offende r under
these circumstances may be irrational in that the evidence and information
do n ot support the decision and do not justify the decision -maker's
conclusion. It can thus be reviewed in terms of PAJA on such grounds”
[18] The above notwithstanding, p lacement on parole is not a right. The right that
exists under section 73 of the 1998 Act, is the right to be considered for parole .
Implicit in the right to be considered for parole, is that such determination must
be made on rational grounds.
11 [2024] ZAGPJHC 1092 (28 October 2024) at para 75
[19] The decision by the Minister constitutes the exercise of a public power and must
accordingly comply with the Constitution and the doctrine of legality 12. Indeed,
every exercise of public power, including every executive act must comply with
the principle of legality, irrespective of whether the provisions of the Promotion of
Administrative Justice Act13 (PAJA) also applies14.
[20] The principles of legality, as set out in Democratic Alliance vs President of the
Republic of South Africa and others15, require that:
20.1 The functionary may not exercise a power or perform a function beyond
that conferred by law16.
20.2 The power must not be misconstrued17.
20.3 The decision must be rationally connected to the purpose for which the
power was conferred18.
20.4 The decision must not be arbitrary.
[21] With respect to administrative action, Section 33 of the Constitution provides that:
'(1) Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and
must –
12 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at para
49.
13 Act 3 of 2000
14 Minister of Defence & Military Veterans v Motau 2014 (5) SA 69 (CC) at para 69
15 2013 (1) SA 248 (CC).
16 Fedsure Life Assurance Limited and others vs Greater Johannesburg Transitional Metropolitan
Council and other 1999 (1) SA 374 (CC) at para 58.
17 Masetla vs President of the Republic of South Africa and another 2008 (1) SA 566 (CC) at para 81.
18 Footnote 9. Ibid at para 75.
(a)provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)impose a duty on the State to give effect to the rights in ss (1) and (2);
and
(c) promote an efficient administration.'
[22] Section 1 of PAJA defines administrative action as:
“administrative action” means any decision taken, or any failure to take a
decision,
by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation; or
(b) a natural or juristic person, other than an organ of state, when exercising
a public power or performing a public function in terms of an empowering
provision, which adversely affects the rights of any person and which has a
direct, external legal effect…”
[23] Section 6(2) of PAJA identifies the circumstances under which a court or tribunal
has the powers to judicially review administrative action:
‘(2) A court or tribunal has the power to judicially review an administrative
action if -
(a) the administrator who took it -
(i)was not authorised to do so by the empowering provision;
(ii)acted under a delegation of power which was not authorised by the
empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken -
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another
person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself -
(i) contravenes a law or is not authorised by the empowering
provision; or
(ii) is not rationally connected to -
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that no
reasonable person could have so exercised the power or performed the
function; or
(i) the action is otherwise unconstitutional or unlawful’
[24] Rationality is the cornerstone of decision making and the exercise of public
power, and is one of the primary determining factors of the legality of a decision.
The Constitutional Court in Pharmacutical Manufacturers Association of South
Africa: In re Ex Parte President of the Republic of South Africa19 made the
following observations pertaining to the content of the requirements of rationality:
19 2000 (2) SA 674 (CC) at paras 85 – 90
24.1 Rationality is the minimum threshold requirement applicable to exercise
all public power by members of the executive and other functionaries.
Action that fails to pass this threshold is inconsistent with the
requirements of our Constitution, and therefore unlawful.
24.2 Rationality is a requirement of the rule of law that the exercise of public
power by the executive and other functionaries should not be arbitrary.
Decisions must be rationally related to the purpose for which the power
was given, otherwise they are in effect arbitrary and inconsistent with
this requirement.
24.3 The question whether a decision is rationally related to the purpose for
which the power was given calls for an objective enquiry . What the
Constitution requires is that public power vested in the executive and
other functionaries be exercised in an objectively rational manner.
[25] Reasonableness relates to the question of whether or not the decision is one that
a reasonable decision-maker could reach. Relevant considerations may include
an analysis of whether there is an abuse of discretion, whether a decision taken
was irrational, whether the decision taken was proportional, whether the decision
was vague, and/or whether the decision was objectively generally unreasonable.
The Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs & Tourism and others20 (Bato Star Fishing) stated it thus
with respect to what constituted a reasonable decision:
‘[45] What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair procedure
will depend on the circumstances of each case. Factors relevant to
determining whether a decision is reasonable or not will include the nature
of the decision, the identity and expertise of the decision -maker, the range
of factors relevant to the decision, the reasons given for the decision, the
20 2004 (4) SA 490 (CC) at para 45
nature of the competing interests involved and the impact of the decision
on the lives and well-being of those affected…’
[26] Leaving aside the questions pertaining to the legality and reasonableness of the
Minister’s decision, t he Applicant in the present review application, seeks
exceptional relief under s8(1)(c)(ii) of PAJA in that the Applicant seeks an order
substituting the decision of the Minister, and the placing of the Applicant on
parole within 15 (fifteen) days, and on such terms as the Court may deem fit.
[27] It is trite law in respect to reviews of administrative decisions that the court should
be very hesitant to step into the shoes of an administrator. The rationale for this
principle is the doctrine of the separation of powers, in terms of which the court
should avoid usurping the decision making powers of an administrator unless
exceptional circumstances warrant interference by the court21.
[28] The Constitutional Court in Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa 22(Trencon), ha s articulated the
following principles governing the circumstances in which the courts can step into
the shoes of an administrator , and effectively substitute the decision of the
administrator with its own:
28.1 Firstly, where the end result is a foregone conclusion, the court may
substitute its decision for that of the administrator, on the grounds that it
would serve no purpose to refer the matter back to the original decision
maker23. This can be evidenced by circumstances where the information
before the administrator allows for no other rational conclusion other
than the relief sought by the applicant24. The situation can also manifest
in circumstances where the administrator is prevented from acting in a
manner which would accord procedural fairness to the applicant25.
21 Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T) at 76
22 2015 (5) SA 245 (CC) at paras 34 to 55.
22 2015 (5) SA 245 (CC) at paras 34 to 55.
23 Gauteng Gambling Board v Silverstar Development Ltd & others 2005 (4) SA 67 (SCA) at para 28
24 Grinaker LTA Ltd v Tender Board, Mpumalanga (2002) 3 All SA 336 (T) at para 86
25 Premier, Province of Mpumalanga v Executive Committee, Association of Governing Bodies of State
Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) at para 52
28.2 Secondly, the court further carefully examines whether further delay of
the administrative decision would cause undue prejudice to the
applicant26. This consideration notwithstanding, t he presence of delay
does not in and of itself entitle the judicial officer to substitute its decision
for that of the administrator. The test is that the remittance of the matter
back to the administrator, and the resultant delay, must objectively result
in undue prejudice to the applicant27.
28.3 Thirdly, public policy also plays a crucial role . The more pressing the
public policy considerations in favour of the applicant, the more likely the
court will be to substitute its decision for that of the administrator28.
28.4 Finally, the court may elect to substitute its decision for that of the
administrator in circumstances where the administrator exhibits bias
and/or incompetence to such a degree that it would be unfair to submit
the applicant to the jurisdiction of the administrator again 29. This can be
evidenced by circumstances where t he administrator made a decision
which was wholly unwarranted and entirely unsupported by the available
evidence30, alternatively where the administrator has conducted himself
in a manner which suggests that he is completely closed to reapplying
his mind, or reconsidering his position if required to do so by the court31.
Is the Minister’s decision rational and reasonable
[29] Approving the recommendation of the Third Respondent not to place the
Applicant on parole, and directing that a further profile of the Applicant be
conducted, and that the matter be placed before the Third Respondent after 28
26 Ruyobeza v Minister of Home Affairs 2003 (5) SA 51 (C) at 65 – 66
27 Tripartite Steering Committee & another v Minister of Basic Education & another 2015 (5) SA 107
(ECG) paras 49 – 58, and 77.
28 WC Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board 1982 (4) SA 427
(A) at 449
(A) at 449
29 Welkom Village Management Board v Leteno 1958 (1) SA 490 (A) at 494F – G
30 Oskil Properties (Pty) Ltd v Chairman of the Rent Control Board 1985 (2) SA 234 (SE) at 247
31 Minister of Local Government & Land Tenure v Inkosinathi Property Developers (Pty) Ltd 1992 (2)
SA 234 (TkA)
April 2024, are all administrative decisions in that the Minister is exercising a
public power, and performing a public function in terms of legislation.
[30] A key requirement of rational decision making is that the decision itself must be
rationally connected to the facts before the decision maker . A decision is
rationally connected to the purpose for which it was taken if it is connected to that
purpose by reason, as opposed to being arbitrary or capricious32.
[31] What then are the Minister’s reasons for the decision to reject the Applicant’s
parole application? This question presents a fundamental problem in the present
application. The Minister is not the deponent to the answering affidavit.
[32] The deponent to the answering affidavit is Marothi Aaron Mashifane
(Mashifane). Mr Mashifane is a member of the National Council for Correctional
Services, the Third Respondent, and has deposed to the answering affidavit on
its behalf. The Third Respondent fully supports the decision not to recommend
the Applicant for parole , and further supports the referral of the Applicant back
for psychotherapy on account of the report of the clinical psychologist . There is
no confirmatory affidavit from the Minister.
[33] The present application is not directed at challenging the recommendation of the
Third Respondent. The ultimate decision maker on parole is the Minister. It is
the Minister’s decision that is being challenged.
[34] The admissibility of evidence is not a discretionary question for the court. It is a
substantive finding of law 33. The admission of hearsay evidence in particular is
governed by s3 of the Law of Evidence Amendment Act34, the relevant provisions
of which holds as follows:
32 Calibre Clinical Consultants (Pty) Ltd & Another v National Bargaining Council for the Road Freight
Industry & Another 2010 (5) SA 457 (SCA) at para 58
33 McDonald's Corporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another; McDonald's
33 McDonald's Corporation v Joburgers Drive -Inn Restaurant (Pty) Ltd and Another; McDonald's
Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers Drive -Inn Restaurant
(Pty) Ltd and Dax Prop CC1997 (1) SA 1 (A) at para 27 D – E.
34 Act 45 of 1988
“(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless
(a)each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)the court, having regard to –
(i) the nature of the proceedings;
(ii)the nature of the evidence;
(iii)the purpose for which the evidence is tendered;
(iv)the probative value of the evidence;
(v)the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends;
(vi)any prejudice to a party which the admission of such evidence
might entail; and
(vii)any other factor which should in the opinion of the court be
taken into account,
is of the opinion that such evidence should be admitted in the interests of
justice…
(4) For the purposes of this section -
''hearsay evidence'' means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any person other
than the person giving such evidence…”
[35] Section 3 of the Law of Evidence Amendment Act enjoins a court in determining
whether it is in the interests of justice to admit hearsay evidence to have regard
to every factor that should be taken into account 35. The court must carefully
consider the factors set out in s 3(1)(c) of the Law of Evidence Amendment Act,
and only if, having regard to all the factors contained therein cumulatively, finds
that it would be in the interests of justice to admit the hearsay evidence, should
the court then admit the evidence. Most pertinently, the framework created by the
provisions of the Law of Evidence Amendment Act is exclusionary. Hearsay
evidence not admitted in accordance with its provisions is not evidence at all36.
[36] This has profound implications for the present application. The Full Court of this
division in Minister of Home Affairs v Helen Suzman Foundation & others 37 has
determined – on the strength of the principle confirmed by the Supreme Court of
Appeal in Freedom Under Law v Judicial Services Commission38 – that it is only
the decision maker who can tender evidence as to what passed through the mind
of the decision maker, as well as evidence on which factors the decision maker
has taken into consideration in arriving at a decision. If a decision maker has
failed to depose to an affidavit it is impermissible for a functionary to do so on
behalf of the decision maker in that same constitutes inadmissible hearsay in the
absence of positive confirmation from the decision maker. More pertinently
inadmissible affidavits should not be considered in adjudicating a matter.
[37] The affidavit of Mr Mashifane can thus at best constitute a synopsis of the salient
background information, and an analysis of the relevant factors taken into
consideration by the Third Respondent in arriving at its decision to recommend
to the Minister not to approve parole for the Applicant. It does not const itute
evidence of the Minister.
[38] In the present application it is common cause from the papers that the Parole
Board, the correctional services plan approved by the case management
Board, the correctional services plan approved by the case management
committee dated 23 September 2020, an educational report, a unit manager’s
report, a spiritual caregiver’s report, and a social workers report by Ms E Dhlamini
35 S v Shaik and others 2007 (1) SA 240 (SCA) at para 170
36 S v Ndhlovu & others 2002 (2) SACR 325 (SCA) at para 14.
37 [2023] ZAGPPHC 1835 (16 October 2023) at para 12
38 2023 (3) All SA 631 (SCA) at para 27
and Ms Leshabane dated 02 March 2021 are all favourable towards the
Applicant, and the Parole Board has on the strength of same recommended the
release of the Applicant on parole. The Parole Board has further considered the
assessment and report on the Applicant by the clinical psychologist JJ Morolong
dated 20 November 2020 and is evidently unpersuaded that the concerns raised
by the clinical psychologist warrant a rejection of the parole application.
[39] The Third Respondent has taken a contrary view – based on its reading and
analysis of the findings cited in the assessment and report on the Applicant by
the clinical psychologist JJ Morolong dated 20 November 2020, and has instead
recommended the rejection of the Applicant’s parole application, and has further
recommended that the Applicant undergo further psychological assessment to
address his apparent aggressive violent behaviour, lack of insight and victim
empathy, and finally for the Applicant’s application to be reconsidered after a
period of 12 (twelve) months to allow for the above interventions.
[40] This Court is left in the dark as to the reasons why the Minister has in the present
instance preferred one viewpoint and parole recommendation over the other. The
discretionary power to place a life sentenced offender on parole in terms of either
section 78 or section 136 of the 1998 Act vests with the Minister. The Minister is
not merely a rubberstamp of the Third Respondent. In exercising his discretion,
the Minister is obliged to act rationally. More pertinently, in order to be rational, a
decision must be based on objectively accurate findings of fact , and a correct
application of law 39. In essence there must be a rationally objective basis
justifying the decision40.
[41] There is no admissible evidence before this Court about the objective basis on
which the Minister has decided to reject the Applicants application for parole –
which the Minister has decided to reject the Applicants application for parole –
which decision of necessity requires the Minister to prefer one viewpoint and
parole recommendation over the other. It is not for the Applicant or this Court to
39 Chairman, State Tender Board v Digital Voice Processing (Pty) Ltd; Chairman, State Tender Board v
Sneller Digital (Pty) Ltd and Others 2012 (2) SA 16 (SCA) at para 40
40 Merafong Demarcation Forum v President of the Republic of South African & Others 2008 (5) SA 171
(CC) at para 63
speculate about the reasons for the Minister’s decision. It was incumbent on the
Minister to take the Court into his confidence and explain his reasoning to the
Applicant and to the Court. The Minister has not done so, and this renders his
decision irrational. It is settled law that irrational parole decisions stand to be
reviewed and set aside41.
Is the Court entitled to substitute the decision of the Minister?
[42] As a starting point, the factors under the exceptional circumstances’ enquiry are
independent rather than cumulative, and as such in principle , if any factor is
established as being present, that may alone justify an order of substitution.42
[43] The above notwithstanding, the Court in Trencon 43 set out the methodology
according to which a court was enjoined to approach the question of whether
exceptional circumstances were sufficiently present such that the court could
make an order substituting the decision of the administrator.
[44] Firstly44, a fundamental precondition for the court to entertain any review
application in which exceptional relief is sought is that the court must be in as
good a position as the administrator to take the decision45. The court must have
all the facts in the papers before it that are necessary, in order to be able to
substitute its decision for that of the administrator. If it does not have the
necessary information, the court can itself not take a proper, rational decision46.
[45] A court will not be in as good a position as the administrator where the application
of the administrator’s expertise is still required and a court does not have all the
pertinent information before it. This of necessity involves a careful evaluation of
the stage at which the administrator was in when the decision was taken.
Generally, the further along in t he process, the greater the likelihood of the
administrator having already exercised its specialised knowledge.
41 Footnote 10. Ibid at para 60
42 Footnote 22. Ibid at para 39
41 Footnote 10. Ibid at para 60
42 Footnote 22. Ibid at para 39
43 Footnote 22. Ibid
44 Footnote 22. Ibid at paras 47 – 48
45 Traube v Administrator Transvaal & others 1989 (2) SA 396 (T)
46 Footnote 19. Ibid at paras 52 – 54
[46] Secondly47 however, even where the administrator has applied its skills and
expertise and a court has all the relevant information before it, the nature of the
decision may dictate that a court defer to the administrator. This consideration
finds its origins in the second precondition for entertaining any review application
in which exceptional relief is sought, namely that the decision of the administrator
must be a foregone conclusion.
[47] A foregone conclusion exists where there is only one proper outcome of the
exercise of an administrator’s discretion and it would merely be a waste of time
to order the administrator to reconsider the matter. In practical terms this involves
a determination of whether the decision of the administrator is guided purely by
particular rules and legislation – in which case the court can itself apply such
rules and legislation – or whether the decision is policy laden and polycentric in
nature, in which case the court should be cautious and careful to exercise judicial
deference.
[48] Applied to the facts of the present application there are 3 (three) factors that
militate against the granting of the exceptional relief sought by the Applicant.
Firstly, the court has been placed in possession of a correctional services plan
approved by the case management committee dated 23 September 2020,
together with an educational report, a unit manager’s report, a spiritual
caregiver’s report, a social workers report by Ms E Dhlamini and Ms Leshabane
dated 02 March 2021, and a clinical psychologists report compiled by one JJ
Morolong dated 20 November 2020, the recommendation of the Parole Board of
30 August 2021, the recommendation of the Third Respondent 13 December
2022, and the decision of the Minister dated 28 April 2023. What the Court does
not have is an engagement in the affidavits filed on the substantive and
comparative conclusions of each of the reports and recommendations, and the
comparative conclusions of each of the reports and recommendations, and the
reasons why one viewpoint and parole recommendation should be preferred over
the other.
47 Footnote 22. Ibid at paras 47 – 50
[49] Secondly, a parole decision applicable to the category of life sentenced offenders
such as the Applicant is determined with reference to the parole regime in place
which was in accordance with the provisions of the 1959 Act, read with the policy
and guidelines applied by the former Parole Boards under the 1959 Act. The
relevant policy documents and guid elines do not form part of the record in the
present application, nor have they been addressed in the affidavits filed. This
Court is thus no t in a position to assess whether the facts peculiar to the
Applicant, when compared with the applicable policies and guidelines, would
support the release of the Applicant on parole.
[50] Finally, what is clear is that a parole decision pe rtaining to a life sentenced
offender in the category of offenders as the Applicant, involves a careful interplay
between the applicable legislation, facts peculiar to the offender, and the
applicable policies and guidelines under the 1959 Act. This is eminently a terrain
as articulated in Bato Star Fishing48 where courts must demonstrate:
“…a judicial willingness to appreciate the legitimate and constitutionally -
ordained province of administrative agencies; to admit the expertise of those
agencies in policy-laden or polycentric issues; to accord their interpretations
of fact and law due respe ct; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and the practical and financial
constraints under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal to tolerate
corruption and maladministration. It ought to be shaped not by an
unwillingness to scrutinise administrative action, but by a careful weighing up
of the need for – and the consequences of – judicial intervention. Above all, it
ought to be shaped by a conscious determination not to usurp the functions of
administrative agencies…”
administrative agencies…”
[51] This Court is accordingly n either in as good a position as the administrator to
take the decision, nor is the decision itself a forgone conclusion. The decision in
question is furthermore policy laden and pol ycentric in nature, and the C ourt
48 Footnote 20. Ibid at para 46
should be cautious and careful to exercise judicial deference. The Court
consequently declines to order the exceptional relief sought by the Applicant.
Costs:
[52] The final consideration relates to costs. The Applicant has been successful in
reviewing and setting aside the decision of the Minister on grounds of rationality.
The Court has declined to order the exceptional relief sought – not on substantive
grounds pertaining to the objective merits of the decision to reject the Applicant’s
parole application – but rather on grounds of judicial deference to policy driven
decision making . The Applicant has thus been substantially successful in the
present application, and there is not reason why the costs should not follow the
result. Given the complexity involved, the scale of costs is on scale B.
Order
[53] For the above reasons, I make the following order:
1. The decision of the Minister of Justice and Correctional Services dated 28
April 2023, to refuse the release of the Applicant on parole, is reviewed and
set aside.
2. The ‘Minister responsible for correctional services – as defined by section
1 of Correctional Services Act 111 of 1998 is ordered to reconsider the
refusal to release the Applicant on parole, and to provide the Applicant with
written reasons within 60 days of this order.
3. The Respondents are ordered to pay the costs of the Application , jointly
and severally, the one paying, the other to be absolved, on a party and party
scale, on scale B.
SM TISANI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date of hand - down is deemed to be 17 June 2026.
APPEARANCES:
For the Applicant:
Instructed by:
For the Respondents
Instructed by:
VL Makofane
Moroamhube PK Attorneys
MV Magagane
State Attorney, Pretoria