REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-011156
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 22 June 2026
SIGNATURE OF JUDGE:
In the matter between:
SOLOMON MAKHUBELA
and
NATIONAL COUNCIL FOR CORRECTIONAL SERVICE
THE MINISTER FOR CORRECTIONAL SERVICES
THE CORRECTIONAL SUPERVISION AND PAROLE BOARD,
GAUTENG - PRETORIA
Applicant
1st Respondent
2nd Respondent
3rd Respondent
JUDGMENT
D van den Bogert AJ
[1] The central question in this case is what a court must do in a review, absent an
opposing decisionmaker's version on oath.
[2] Before that question is addressed, I deal with the following. The Constitutional
Court in the case of Khumalo1 restates the following fundamental principle
applicable to the state and its functionaries:
"36 Public functionaries, as the arms of the state, are further vested with the responsibility,
in terms of s 7(2) of the Constitution, to 'respect, protect and promote and fulfil the
rights in the Bill of Rights.' As bearers of this duty and in performing their functions in
the public interest, public functionaries must, where faced with an irregularity in the
public administration, in the context of employment or otherwise, seek to address it.
This is the responsibility carried by those in the public sector as part of the privilege of
serving the citizenry who invest their trust and taxes in the public administration." 2
[3] The three respondents in this case are public functionaries and as the arms of
the state carry similar responsibilities. The state's responsibility is heightened
when it engages in litigation with private individuals. It must approach such legal
proceedings respectfully bearing in mind its obligation as envisaged in section
7(2) of the Constitution. The respondents' approach in the present case falls
short of such an earnest resolve to litigation.
(4] Where an organ of state, faced with a review application, has no legally
sustainable defence to the merits of the application, it must say so. To raise all
sorts of procedural and technical defences without dealing or properly engaging
with the merits of a review application, constitutes conduct, unbecoming of
functionaries of the state. This is more particularly so in a case such as the
1 Khumalo an Another v MEC for Education , KwaZulu Natal 2014 (5) SA 579 (CC)
2 See also - Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC)
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present where the applicant's section 12 constitutional right, being his right to
freedom, is at play.
[5) The applicant seeks to review the decision of the second respondent, the Minister
of Correctional Services (herein referred to as "the Minister') of 1 November
2024, to refuse him parole and to have that decision set aside. The first
respondent is the National Council for Correctional Services (the "NCCS"). The
second respondent is the Minister. The third respondent is the Correctional
Supervision and Parole Board Gauteng, Pretoria (herein "the parole board").
[6] The applicant is Solomon Makhubela. His birth date is 14 December 1964. He is
accordingly presently 61 years old. The crimes he was found guilty of, he
committed at the age of 33 years old. It is today some 28 years later. On 5
October 2024, he was sentenced to life imprisonment. He was found guilty,
together with 14 accomplices, on 6 counts of murder, a count of robbery with
aggravating circumstances, 4 counts attempted murder, and guilty of theft and
the unlawful possession of firearms and ammunition. These are facts that cannot
be changed.
[7] The applicant launched his review application on 29 January 2025, which is well
within the 180-day period from the day that the Minister had taken his decision
to refuse parole. The respondents delivered their initial record on 4 March 2025.
No reasons were provided by the Minister for his decision to refuse the parole
and several other documents were also not provided. This caused the applicant
to deliver on 10 March 2025 a notice in terms of rule 30A whereby numerous
reports are requested as well as reasons for the decision of the Minister. A
response thereto was filed on 13 March 2025. Several additional reports were
indeed provided, but no reasons from the Minister.
[8] One of the documents found in the record, is the decision of the Minister, which
is signed on 1 November 2024, by Minister Groenewald. It reads, and I quote:
is signed on 1 November 2024, by Minister Groenewald. It reads, and I quote:
"Having considered the documentation of the aforesaid offender and the recommendations
of the NCCS, parole is not approved. The matter should be placed before the Council after
twelve months. The offender is presently urged to improve his situation as follows:
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1 To undergo individual psychotherapy to further reduce his risk of reoffending.
2 A risk assessment by a non-treating Psychologist should be conducted indicating the
risk level and tools used, if any."
[9] That decision was taken absent any written reasons. The decision is in stark
contrast of the recommendations and motivations of the parole board, who,
premised on several reports, unequivocally supported the release of the
applicant on day parole.
[1 O] According to the parole board memorandum, it is confirmed that the crimes were
committed on 17 December 1997 and that the applicant was convicted on 4
October 2005. He was 33 years of age when he committed the crimes. The
applicant attended several rehabilitation correctional programmes, including, but
not limited to, a life skills programme with a social worker and the several other
correctional programmes being for example "Anger In- Anger Ouf', "Cross
Roads", "Economic crimes program - Theft and Fraud', "Change is Possible",
"Robbery and Related Offences", "Restorative Justice", "New Beginnings", and
"Behaviour Modification in Gangsterism". This list is not exhaustive.
[11] The applicant completed matric (Grade 12) inside the correctional facility. He
obtained N4, N5 and N6 marketing management certificates. He also completed
an "electrical aid module with the directorate Northern Group Training Centres",
and Electrical Engineering Skills Level 2. This list is similarly not exhaustive. He
advanced his education significantly. There is not one single report in the record
that would suggest that the applicant is not ready to be released on parole, or
that he remains a danger to the community.
[12] The parole board did a detailed consideration of all reports, which are naturally
not all mentioned in this judgment, and recommended that the applicant be
placed on "Day Placement" with the following remarks:
"Offende r has been in custody since 1998; he was not granted bail. Therefore, he has been
"Offende r has been in custody since 1998; he was not granted bail. Therefore, he has been
detained for twenty-six (26) years. Day parole is recommended for offender to be able to
transition back to the community."
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[13] That report is dated 26 April 2024. Presently, the applicant's time in prison is 28
years. The record evinces only favourable reports about the applicant, which
includes psychological evaluations done by Social Work Services. All reports
make positive findings about the applicant. Absent cogent and rational reasons
provided by the Minister why this court must ignore those reports and the
recommendation of the parole board, the review, at least prima facie, ought to
succeed.
[14] The applicant initially did not file a supplementary affidavit, because the applicant
held the view that the record was incomplete and persisted with the application
it had broad on 20 March 2025 seeking further reports and particularly the
reasons for the decision to refuse parole. The respondents delivered an answer
to the application to compel a proper record on 21 May 2025. At the hearing, I
was informed by counsel for the respondents that this court must accept that that
specific answering affidavit does not only constitute the answering affidavit to the
application to compel, but also all the respondents' answers to the merits.
[15] Notwithstanding the fact that the applicant had not yet filed its supplementary
affidavit, counsel for the respondents assured me that the May 2025 answering
affidavit is the only and final answering affidavit and that no further affidavit would
be forthcoming. This approach might have been a response to the fact that this
court in prior interlocutory applications, after the filing of the May 2025 answering
affidavit, ordered the respondents to file an answering affidavit to the merits and
to provide reasons for the Minister's decision.
[16] In this respect, shortly prior to the hearing of the review application, the
respondents launched an interlocutory application whereby they sought an order
removing the review application from the court roll, alternatively to strike the
application from the roll. The respondents argued that such an order was justified
application from the roll. The respondents argued that such an order was justified
in circumstances where they had shortly before that removal application
launched recission applications in respect of numerous interlocutory orders that
had been granted by this court.
[17] Considerable court time was spent in dealing with the application to remove the
case from the roll, alternatively to strike it. I dismissed that application, because
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it constituted a cynical attempt by the respondents to bring about a further
postponement of the applicant's review.
[18] This should be read against the backdrop of the fact that this court had directed
in the last of a series of interlocutory orders, which are now the subject of a
recission application, that the postponement, then granted, was a final
postponement. The new interlocutory application was nothing but an application
for a postponement disguised as a removal application or striking application. It
was sought pending the outcome of the rescission application. The rescission
applications, however, have no bearing upon the main review application and
therefore do not constitute a justifiable reason to, yet again, postpone the
inevitable hearing of the review.
[19] I also mention this. Much of the argument at the hearing of this case on
Wednesday 27 May 2026, dealt with the fact that the Minister had not provided
reasons for his decision to refuse the parole of the applicant. The Minister did not
provide reasons and did not provide an affidavit explaining what went on in his
mind when he took the decision to refuse parole. Because much of the allocated
time was taken up by the interlocutory skirmishes on 27 May 2026, the matter
had to stand down to the Friday, 29 May 2026. Again, most of the argument
turned on the fact that the Minister had not provided reasons and that he had not
provided any explanation on oath.
[20] During replying argument of the applicant's counsel, the respondents' attorney,
suddenly uploaded onto the Caselines system, the Minister's reasons without
any affidavit. I allowed the parties to provide further heads on what to do with the
reasons, filed late, without an affidavit.
[21] Prior with me dealing with the case of the applicant, I deem it prudent to say
something about the respondents' answering affidavit of 21 May 2025. It is
deposed to by a Ms LA Vilakazi, who describes herself as a practicing attorney
deposed to by a Ms LA Vilakazi, who describes herself as a practicing attorney
and a member the National Council of Correctional Services. She specifically
claims that she is authorised to oppose the application and to depose to the
answering affidavit in the stead of all the respondents.
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[22] The first point then taken by Ms Vilakazi, allegedly on behalf of the respondents,
is an issue of /is pendens. This point is premised on the notion that there are two
applications of a similar nature. The respondents refer to an earlier application
that was brought under case number 2023-051164. In that application the
present applicant also seeks to review a decision of the previous Minster of
Correctional Services, refusing parole. The present application seeks to review
a decision taken on 11 November 2024. Naturally, the 2023 case does not seek
to review that decision, because when the 2023 case was launched, the second
decision did not exist.
[23) The second refusal to release the applicant on parole, taken in November 2024
constitutes the subject of the present application. The first decision, that was the
subject of the 2023 application, became academic and moot, because it was
overtaken by a second parole board hearing and a second decision to refuse
parole.
[24) These are therefore two distinctly different decisions that are the subject of two
distinctly different reviews and the notion that the case is /is pendens, is wrong.
As such, the lis pendens point cannot succeed and stands to be dismissed.
[25) The further problem with the way the answering affidavit is drafted is this.
Although Ms Vilakazi seems to complain about how the applicant litigates, her
own statements on oath, offends the constitutional responsible manner in which
the state is required to litigate. It is firstly difficult to discern, considering the way
the affidavit is drafted, what exactly the respondents seek to convey. Much of it
is repetitive, but nowhere a cogent response to the merits of the review is to be
found.
[26] Disconcerting, however, is that whilst she criticises the applicant about his
papers, the deponent makes remarks such as that "the applicant and his
attorneys attempt to mislead the above Honourable Court which is woeful". That
attorneys attempt to mislead the above Honourable Court which is woeful". That
remark is not justified by any of the objective facts. Ms Vilakazi further accuses
the applicant that subparagraphs 4.1 up until 6.1 of the applicant's founding
affidavit "are not only contemptuous, but equally laughable". Again, no basis in
fact exists for such a remark. It is also derogatory.
7
[27] The deponent then later in her affidavit says that she reserves the right to seek
costs de bonis propriis against the applicant's legal representatives for they have
attempted to mislead this court. She then later in fact seeks a punitive cost order
de bonis propriis. No basis in fact exists that would justify such an approach.
[28] She also says the following in paragraph 7.2 of her answering affidavit, and I
quote:
"In the light of the above, the frivolous, meritless, argumentative and misleading a/legations
contained in the Applicant 's Application and/or founding Affidavit will not assist him, but
aggravates his situation, as such may not speak well of his rehabilitation, as he may appear
to be having a propensity of baselessly attacking the Respondents in rendering their parole
systems, and/or programmes in utter disrepute."
[29] Again, there exist no basis at all to make these ill-conceived remarks. The
answering affidavit continues in a similar vein and shows disdain and disrespect
towards the applicant. Given the fact that the applicant in his founding affidavit
simply states his case and sets out the basis on which he seeks to review the
Minister's decision of 11 November 2024, the accusations levelled by Vilakazi
against him are not only meritless, but they are devoid of truth. Ms Vilakazi
represents the state in this litigation, and she is, concededly, a functionary of the
state. In addition, she claims to be an attorney of this court.
[30] Her accusations are levelled against an inmate who does not have the resources
and the powerful machinery of the state behind him to litigate. As such, the
accusations levelled against the applicant and the applicant's legal
representatives, which are wrong, offend the notion that organs of state are
required to litigate in a responsible fashion. It is uncalled for and disrespectful.
The way the respondents elected to litigate in this case, is deserving of the
censure and rebuke of this court. This shall be dealt with hereinafter.
censure and rebuke of this court. This shall be dealt with hereinafter.
[31] The second in Ii mine issue raised by the respondents is that the applicant brought
a review application without complying with rule 41 A and the applicant should,
according to the respondents have first sought to mediate the refusals of the
Minister to release him on parole. It is then alleged that that failure to comply with
8
rule 41A to the review application is fatal, and premised on that, it ought to be
dismissed.
[32] Important is the fact that the respondents provide no indication about how they
envisage this mediation process would unfold and why it would lead to a speedy
resolve. Given the fact that the applicant is incarcerated and doesn't have the
litigation advantages that the respondents have, the approach is misguided.
[33] Furthermore, the mediation process is a voluntary process and had the applicant
delivered a notice in terms of rule 41A that he does not believe that there is any
sense in mediating, it would have been the end of the matter. It is highly doubtful
that the Minister would have submitted to attend such mediation and/or would
have conceded a parole during the mediation. The second point in limine is
therefore also to be dismissed.
[34] Although not specifically raised in the answering affidavit, the following issue
found its way to the removal/striking application and has been repeated
numerous times in argument before me. It is this. The respondents argue that
because, in the second review application, being the subject of the present
judgment, the decision to be reviewed was not properly identified, the application
must be dismissed. It is undoubtedly true that prayer 1 of the review application
is not that clear, but in my view that is not fatal. The applicant claims and I quote:
"1 The First and Second Respondents' decision are unlawful and offend rule of Audi
alteram partem, they lack reasonableness and should be declared as such and
set aside and be substituted with an order that, I be released on parole or day
parole on condition to be issued by the Respondents and that I attend all these
stipulated programs by the Respondents and Respondents to ensure that
programs are made available to ensure compliance within 30 days of this order."
[35] What is discernible from the relief sought, is that the decision to refuse parole,
[35] What is discernible from the relief sought, is that the decision to refuse parole,
must be reviewed and set aside and be substituted with a decision that the
applicant be allowed day parole or parole. This is then amplified in paragraph
4.10 of the founding affidavit where specific reference is made to the decision of
Minister Groenewald of 1 November 2024 and where it is then requested in
paragraph 5 thereof that this decision be reviewed. Further, the respondents
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themselves in the record provided, dealt with the reports and the Minister's
decision that particularly relates to the 1 November 2024 decision. There can be
no doubt in the mind of the respondents that the review pertains to that specific
decision.
[36] My view in this regard, namely that the respondents' attack is again over
technical, is fortified by the case of Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) at par 27,
which I quote:
"[27] The Minister and the Chief Director argue that the applicant did not disclose its
causes of action sufficiently clearly or precisely for the respondents to be able to
respond to them. Where a litigant relies upon a statutory provision, it is not
necessary to specify it, but it must be clear from the facts alleged by the litigant that
the section is relevant and operative. I am prepared to assume, in favour of the
applicant, for the purposes of this case, that its failure to identify with any precision
the provisions of PAJA upon which it relied is not fatal to its cause of action.
However, it must be emphasised that it is desirable for litigants who seek to review
administrative action to identify clearly both the facts upon which they base their
cause of action, and the legal basis of their cause of action."
[37] As indicated, in the founding affidavit, at a minimum, the decision sought to be
reviewed is with sufficient clarity identified.
[38] I now turn to deal with the applicant's case as well as the respondents' failure to
have provided an affidavit by the Minister who took a decision explaining the
basis for his decision.
[39] The applicant seeks to review the decision of the Minister, if consideration is
given to paragraph 5 and its subparagraphs of the founding affidavit. The basis
for the review is that that the decision is irrational, constitutionally impermissible,
unreasonable and procedurally unlawful.
unreasonable and procedurally unlawful.
[40] Considering the programmes that the Minister requires the applicant to repeat,
it, in my view requires an applicant specific (i.e. not a generalised) explanation
from the Minister. It is evident from the record that the applicant has successfully
completed similar psychotherapeutic assessments as well as risk assessments.
10
Why the applicant should repeat those assessments, and why the previous ones
were not good enough for the Minister is something he must explain in an
affidavit.
[41] I have already dealt with the positive reports that were placed before the parole
board, and both the parole board and the NCCS were in favour of the applicant's
release. The department's own psychotherapy report prepared by a clinical
psychologist, N Ndaba, in August 2023, concludes:
"In conclusion, based on the interaction with Mr Makhubela, over the course of therapy, it
appears that he gained remorse for his victims and is able to conceptualize a life ahead that
does not involve crime or infringes on the rights of others. Mr Makhubela took responsibility
of the index offence and explored his role in the index offence.
Mr Makhubela successfully engaged with therapeutic intervention. He was able to reflect on
his life decisions, which led to his incarceration. He demonstrates a sense of remorse and
guilt, and he became involved in skills development and made an effort in his rehabilitation
process."
[42) It is uncontested that the applicant poses no demonstratable danger to the
community. The only person that rejected his parole is the Minister. It is thus the
Minister's decision that is on review. As already indicated, the Minister did not
depose to an affidavit. The respondent, on the testimony of Ms Vilakazi, did not
provide any cogent reason for the Minister's decision to reject the parole
recommendation.
[43) In any event, the NCCS cannot testify about that would have been the Minister's
mind when he took the decision to refuse parole. The affidavit of Ms AL Vilakazi
constitutes hearsay evidence in respect of the Minister's decision. In this respect,
I refer to the case of Anderson v Minister of Justice and Correctional Services
and Another (022949/2024) [2024] ZAGPPHC 1355 (23 December 2024 ). The
court dealt with the same issue in respect of the same deponent, as follows:
court dealt with the same issue in respect of the same deponent, as follows:
"[BJ Undoubtedly, it is the decision of the Minister that is called into question. The only
functionary who can defend the impugned decision is the Minister. Sadly, Mr
Anderson is unrepresented in the present application. His Court papers are
haphazardly prepared. The papers were not appropriately indexed and numbered.
11
There was a lot of duplication. It was difficult for this Court to identify the opposing
affidavit. After trawling through three ring-bound bundles, the Court stumbled into
an affidavit titled 'first and second respondents' answering affidavit ". This affidavit
was deposed to by one Ms Amanda Lindokuhle Vilakazi (Ms Vilakazi). This Court
must remark, included in the papers before Court was an unsigned version of an
answering affidavit. As an indication that the answering affidavit stumbled into is
one relied upon by the respondents, Minister included, the heads of arguments
submitted on behalf of the respondents, almost word for word, regurgitated the
contents of that affidavit.
[9] Ms Vilakazi is a practising attorney and a member of the NCCS. She alleged that
the facts she deposed to were within her own personal knowledge . The only
mention by the deponent of the Minister, relates to submissions of a legal nature
which she accepts as being both sound and correct, given to her by the legal
representatives of the Minister and herself . Of utmost significance, there is no
confirmatory affidavit deposed to by the Minister. With regard to the impugned
decision of the Minister, in an attempt to justify the decision, she testified as follows:
II
(44] The court then repeats the testimony. In paragraph 10 the following is stated:
'11 OJ All of the above a/legations constitute inadmissible hearsay evidence. These
a/legations were not confirmed by the Minister . That which is allegedly logical and
rational was made in hollow and was not sufficiently expatiated. The full Court of
this Division in the matter of The Minister of Home Affairs and another v The Hellen
Suzman Foundation and others (Foundation) aptly stated the law to be as follows:
"What renders the Minister's application destined for failure is the Minister's
failure to depose to the answering affidavit in the review proceedings. Only the
Minister, as the decision maker, could give evidence as to what passed through
Minister, as the decision maker, could give evidence as to what passed through
his mind and how he exercised it. The affidavit deposed to by the Director
General ... constitutes inadmissible evidence. As was held by the Supreme
Court of Appeal in Freedom Under Law v Judicial Services Commission if the
decision maker has failed to depose to an affidavit it is impermissible for a
functionary in the office to do so on behalf of the decision maker. In those
circumstances the affidavit of the functionary falls to be declared inadmissible.
The courl in FUL proceeded on the basis that on the merits the application was
to fail in any event. However, the principle is that inadmissible affidavits should
not be considered in adjudicating a matter ... "
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[11) Based on the principles deduced from Foundation, the evidence of Ms Vilakazi is
inadmissible to the extend it seeks to justify the decision taken by the Minister on
26 October 2023. This Court per the erudite Acting Justice Ally, in Mbatha v Minister
of Justice and Correctional Services and another (Mbatha) felicitously stated the
following:
" ... The deponent to the answering affidavit requests the Court to accept
hearsay evidence where no confirmatory affidavit has been filed. No
explanation is given as to why 'the Minister' has not deposed to the answering
affidavit nor why no confirmatory affidavit by him has been filed. The
exceptions to the hearsay rule do not cater for circumstances wherein a person
could have deposed to an affidavit and one wherein a reasonable explanation
has been provided for the failure to depose to an affidavit. In my view, the
request to accept hearsay evidence in this matter cannot be acceded to for the
reason that it is clearly prejudicial to the Applicant and sufficient grounds have
not been provided for the acceptance of such hearsay evidence."
[12) Likewise, no explanation is given as to why the Minister did not depose to either an
answering affidavit or a confirmatory affidavit. In the heads of argument submitted
on behalf of the Minister there is no scintilla of a submission regarding the
application of section 3 of the Law of Evidence Amendment Act. Accordingly, in
considering whether the decision of the Minister is rational and not arbitrary, the
evidence of Ms Vilakazi remains inadmissible ."
[45] On the same principle, in this case, the evidence of Ms Vilakazi insofar as she
seeks to defend that what went on in the Minister's mind, when taking the
impugned decision, is inadmissible and not allowed. There is no affidavit of the
Minister. There is no explanation why the Minister ignored the review application
and decided not to file an affidavit. It is important, in this respect, to mention that
and decided not to file an affidavit. It is important, in this respect, to mention that
the Minister was well aware of this application, because when this court ordered
the Minister in one of the prior interlocutory applications to file reasons, he did
so. It is these reasons that were belatedly uploaded onto Caselines.
[46] Although, in my view, the belated filing of reasons ought to be ignored, there is
no evidence on oath about the content of these reasons allegedly signed by the
Minister. There is no acceptable evidence before court that it was indeed signed
by the Minister. It is not confirmed on oath. The reasons, without any explanation
on oath, should not be accepted in evidence.
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[47] Even if I am wrong in adopting that approach, the reasons belatedly delivered,
do not assist the respondents. Although the filing notice that accompanied the
reasons, is dated 20 November 2025, it was only placed before this court when
the applicant argued in reply. The reasons themselves seem to have been signed
by the Minister on the same day. This was presumably in response to an order
of this Court issued by Judge Minnaar AJ on 24 October 2024 compelling the
Minister to provide reasons. It is apparent that the applicant was unaware of the
fact that reasons existed, because he launched a contempt application on 9
December 2025, against the Minister for failing to give reasons as ordered by
this Court.
[48] Given the fact that the Minister was aware of this application, it is somewhat
astonishing that he decided not to provide his version on oath. It is also surprising
that Ms Vilakazi, who was aware of the Lee Anderson Judgment, of December
2024, referred to above, elected to deliver an answering affidavit in May 2025
without the version of the Minister.
[49] The Minister in his so-called reasons concedes that the parole board and the
NCCS have recommended the release on parole of the applicant. He accepts
that the previous minister had already refused parole and directed the applicant
to undergo individual psychotherapy, a risk assessment and additional
rehabilitation programs. He accepts that the applicant attended several
rehabilitation programs and has developed himself educationally and
vocationally. He deals then with the social worker's report of 6 March 2023. It is
a report that was prepared by SN Dlamini, a social worker.
[50] The mentioned report is generally supportive of a release on parole. The only
negative matter that the Minister could extract from all the reports, on which he
seemingly sought to justify his refusal decision seem to be this. He says:
"1. 7 The risk assessment reports indicates that the offender may present with a
"1. 7 The risk assessment reports indicates that the offender may present with a
moderate risk for re-offending. "
[51] This ignores what the social worker report recommends, being:
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"Mr Dlamini noted that the offender has served approximately 26 years of his life sentence
conviction . That is relatively a long period. Such time has offered him an opportunity to
reform his life morals towards self-discipline . He has matured as an individual to be of better
influence to the younger generation. Continuous imprisonment might not serve much of a
purpose, observing how he has developed himself The chance of reoffending appears to
be minimal as he has empowered himself with skill and knowledge. He takes responsibility
of his crime and is remorseful of the crime committed. He attends the Body of Christ Church
every Sunday. That has assisted him develop further life principles as his life has been
modified."
[52] The Minister also ignored the clinical psychologist's report referred to above. If
one considers the reasons in context, it constitutes a concession that the Minister
did not recognise any of the other reports save for the risk assessment report
wherefrom he only took one negative, namely that there might be a moderate
change of re-offending. Most reports gainsay that notion.
(53] Bearing in mind that the Correctional Services system is there to rehabilitate
inmates, and should that be attained, to restore the freedom of those
incarcerated, the extracting of a single negative consideration, namely the
remote chance of re-offending, from an overwhelming majority of evidence that
parole should be granted, is irrational.
[54] According to section 78 of the Correctional Services Act, 111 of 1998, the Minster
has a discretion to grant parole to a so-called lifer on the recommendation of the
Parole Board and the NCCS. That discretion must be exercised rationally. In this
respect, I refer to Walus v Minister of Justice and Correctional Services and
Others 2023 (2) SA 473 (CC) where the Constitutional Court says in paragraph
3:
"[3] Section 36 reads:
'With due regard to the fact that the deprivation of liberty serves the purposes
'With due regard to the fact that the deprivation of liberty serves the purposes
of punishment, the implementation of a sentence of imprisonment has the
objective of enabling the sentenced prisoner to lead a socially responsible and
crime-free life in the future."
In my view, this provision provides the statutory basis for the proposition that our
prison services are correctional services which emphasises that part of the
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objectives of imprisonment is the rehabilitation of prisoners . This provision makes
it clear that the objective of the implementation of a sentence of imprisonment is to
"correct" the offender or prisoner so that, when he or she is released from prison ,
he or she is unlikely to lead an irresponsible social life but would rather lead a life
that is crime-free. That must be a socially responsible and crime-free life outside of
prison. In this regard it is appropriate to refer to what this Court said in Jimmale. In
that case Nkabinde J said on behalf of a unanimous Court:
"Parole is an acknowledged part of our correctional system. It has proved to
be a vital part of reformative treatment for the paroled person who is treated by
moral suasion. This is consistent with the law: that everyone has the right not
to be deprived of freedom arbitrarily or without just cause ... "
[55] In the case of Pharmaceutical Manufacturers Association of SA and Another: In
re ex pa rte President of the Republic of South Africa and Others 2000 (2) SA 67 4
(CC) the Constitutional Court dealt with the issue of rationality as follows:
'185] It 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. It follows that in order to
pass constitutional scrutiny the exercise of public power by the executive and other
functionaries must, at least, comply with this requirement. If it does not, it falls short
of the standards demanded by our Constitution for such action".
[56] The purpose of imprisonment is rehabilitation or "correction". The decision to
allow a prisoner parole, must be rationally connected to that attainment. If the
evidence shows that the prisoner is rehabilitated, parole, if eligible for parole,
must be the outcome.
must be the outcome.
[57] Given that parole is part of our correctional system, and that it serves to promote
the right in terms of section 12 of the Constitutional namely that everyone has
the right not to be deprived of freedom arbitrarily and without just cause, there is
no rationality in the Minister's decision. The overwhelming number of reports tell
the Minister that it is time for the applicant to be released. This is premised on
the fact that the applicant has submitted himself to all correctional programmes
as required and that most of the reports, even the risk assessment report, relied
upon by the Minister", demand the release of the applicant on parole.
16
[58] As such, the decision of the Minister of November 2024 is irrational and must be
reviewed and set aside. That brings me to the question of a remedy.
[59] In Trencon Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd 2015 (5) SA 245 (CC) the Constitutional Court dealt with what would
constitute an exceptional case that would allow the substituting or varying of the
administrative action by the court itself. These factors according to the case are:
a. whether the court would be in as good a position as the administrator to
make the decision.
b. whether the decision was a foregone conclusion.
c. delay; and
d. bias or incompetence on the part of the administrator.
[60] In this case, this court has all the reports on the question whether the applicant
should be released on parole before it and is therefore in as good a position as
the Minister to decide on the recommendations made by the parole board and
the NCCS.
[61] The question whether the decision, should the case be remitted, is a foregone
conclusion, must also be answered in the affirmative. The Minister, when
providing reasons (although not on oath), has indicated that he stands by his
view that all positive recommendations ought to be ignored. A resubmitting to the
Minister will therefore serve no purpose. He has made his intentions clear.
[62] I shall revert to the issue of delay, because it goes together with the question
whether a substitution is just and equitable. The more difficult enquiry is whether
there is bias or incompetence on the side of the decision-maker. There is no
evidence of any incompetence on the side of the Minister. There exists, however,
a clear indication that the Minister is biased in favour of refusing parole.
[63] The reason for this is to be found in the following. In the face of all the evidence
that supports a release on parole, the Minister decided to favour his own
subjective view, namely, to refuse parole and send the applicant again for reports
17
he had already undergone. Furthermore, when given the opportunity to explain,
the minister refused to go on oath. This is borne out by the fact that he knew of
the review and decided not to provide his version.
[64] The only version that this court has, are his reasons not on oath, and which are
clearly opposed to the evidence that was before him. This underscores the fact
that the Minister has no intention of releasing the applicant ever, which
constitutes biasness. This is so, because of his reliance on one single factor not
rationally connected to the evidence of the correctional services programmes the
applicant underwent having been successful.
[65] Considering the Walus-case, once it is established that a prisoner has
successfully been "corrected", the only logical and rational responsible decision
would be to release him. It follows that an unbiased reconsideration is not to be
expected.
[66] Considering the delay that will be caused by remitting the decision to the Minister,
it will not be just and equitable to do so. I have dealt hereinabove with the
extensive time that has lapsed since the crime was committed and the years of
incarceration. The applicant as prisoner is already 61 years old and any further
delay cannot be regarded as serving justice. The proper remedy is therefore to
substitute the Minister's decision with one that allows the prisoner to be released
on parole.
[67] I also intend to grant a cost order against the respondents on a scale as between
attorney and client. I do not easily come to such a decision, but in this case a
punitive cost order is appropriate. I have fully hereinbefore dealt with the
approach that the respondents have adopted in this litigation. I have indicated
that such approach is uncalled for and unbecoming of state functionaries.
[68] The granting of punitive cost against the three respondents is premised thereon
that this court is displeased with the way the state has litigated. In the answering
that this court is displeased with the way the state has litigated. In the answering
affidavit, unfounded derogatory remarks are directed at the applicant and his
legal team. In addition, the decision-maker, the Minister did not see it necessary
or worthy to provide his evidence on oath. Yet, he instructed the state attorney
to oppose the application. Instead of dealing with the merits of the review, the
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state elected to raise several highly technical defences which do not promote the
interest of justice .
[69] They have the opposite effect and do nothing but to delay the adjudication of this
case, which bearing in mind the rights to freedom which are applicable, should
have persuaded the state actors to avoid the approach adopted.
[70] As such, I issue the following order:
(1) The decision of the Minister of Correctional Services, the second respondent,
made in November 2024, rejecting the applicant's application for parole, is
reviewed and set aside.
(2) The Minister of Correctional Services is ordered to place the applicant on
parole on such terms as he may deem appropriate and to take all such steps
as he may need to take to ensure the applicant is released on parole within
10 (ten) calendar days from the date of this order.
(3) The respondents, jointly and severally, the one paying the other to be
absolved, are ordered to pay the applicant's cost of this application on the
scale as between attorney and client.
D VAN DEN BOGERT
ACTING JUDGE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronioolly by circulation to the parties' and
or parties' representatives by email and by be;ng uploaded to CaseLines. The
date and time for the hand down is deemed to be 1 0h00 on 22 June 2026.
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Appearances
Counsel for the applicant:
Instructed by:
Ref:
Counsel for respondents:
Instructed by:
Ref:
Date of Hearing:
Date of Judgment:
DB Melaphi
ME Makgopa Attorneys
Mr Makhubela/M26/2025
PA Mabilo
The State Attorney, Pretoria
Mr Ngwatle KC
27 and 29 May 2026
22 June 2026
20