IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
In the matter between:
JACKY TEMBA MTSHWENI
AND
CASE NUMBER: 2024/111103
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
APPLICANT
NATIONAL COUNCIL FOR CORRECTIONAL SERVICE 1ST RESPONDENT
THE MINISTER OF CORRECTIONAL SERVICE 2ND RESPONDENT
Disclaimer: This judgment is handed down electronically by uploading it on CaseLines.
The date of the judgment is deemed to be 4 September 2026.
TROMPAJ
Introduction
1. This is an opposed review application against the impugned decision of the
respondents to refuse the applicant parole.
2. The applicant is currently serving a life sentence for murder and twenty (20)
years for robbery with aggravating circumstances. He was sentenced on 10
June 2005.
3. At the time of the commission of the crimes in respect of which he is serving
the above sentence, the applicant also had a previous conviction of rape. It is
common cause that even after the imposition of life imprisonment in respect of
the above offences, the applicant was found to have committed disciplinary
offences whilst in prison.
4. After becoming eligible to be considered for parole, the first respondent ("the
NCCS"), a high-level body comprising, among others, judges, a magistrate, a
Director or Deputy Director of Public Prosecutions, and persons with
specialised knowledge of the correctional system, considered his placement for
parole and decided that he should not be placed on parole at that time. This
recommendation was referred to the Minister for final determination in terms of
Section 83(2) of the Correctional Services Act.
5. Acting in terms of section 78(2) of the Correctional Services Act of 1998, the
Minister upheld the recommendation of the NCCS and made further
recommendations to the applicant which will contribute to the likelihood of future
placement on parole.
6. It is this decision that the applicant seeks to have reviewed and set aside. The
application is opposed on the basis that, inter alia, the Minister had taken into
account all the factors he was required to take into account before making the
impugned decision, and he had placed such weight on the various factors as
he considered appropriate.
7. The question therefore is whether in making the impugned decision the Minister
complied with the relevant legal principles in reaching the decision.1.
Background
8. The applicant was arrested and tried in 2000 on charges of murder and robbery
with aggravating circumstances. At the time of the commission of the above
offences, the applicant had a previous conviction of rape. On 10 June 2005, the
applicant was sentenced to life imprisonment on a charge of murder and twenty
(20) years on a charge of robbery with aggravating circumstances.
9. The applicant is currently serving a sentence of life imprisonment at Kgosi
Mampuru II Correctional Centre and has accordingly been serving this
sentence since 10 June 2005. It is common cause that he has already served
the minimum detention period.
10. During his incarceration at the Kgosi Mampuru prison, it is also common cause
that the applicant had a history of disciplinary offences.
11. The applicant was first considered for placement on parole in 2023. This
application was refused and a further profile was approved. On that occasion,
the NCCS recommended to the Minister that the applicant should not be placed
on parole and it was further recommended that the applicant should:
11.1 Attend individual psychotherapy to address his criminogenic needs,
substance abuse and dishonesty.
11.2 Aris~ assessment by a non-treating Psychologist should be conducted.
11.3 The Applicant to undergo Moral Regeneration, Relapse Prevention and
Resilience Enhancement programs.
1 Rustenburg Platinum Mines (Rustenburg Section) v Commission for Conciliation, Mediation and
Arbitration 2007 ( 1) SA 576 (SCA) para 31. 3 10
11.4 The applicant's profile should be submitted to the NCCS again in not less
than 12 months.
12. The applicant was considered for placement on parole a second time in
December 2024. This application was also refused. On that occasion, the
NCCS recommended to the Minister that the applicant should not be placed on
parole. It further recommended that:
12.1 The applicant undergoes further individual psychotherapy to address his
violence propensity, cognitive distortions, criminogenic needs,
impulsivity and substance abuse.
12.2 A risk assessment by a non-treating Psychologist be conducted
indicating the risk level and tools used, if any.
13. The Minister's decision is recorded in a document dated 07 January 2025, it is
referred to as the NCCS recommendation form.
14. The decision of the Minister, according to this document, was recorded as
follows:
"Having considered the documentation of the aforesaid offender and the
recommendations of the NCCS, further profile is hereby approved".
15. This decision of the Minister forms the basis of this review application.
Statutory and policy framework
The Correctional Services Act of 1998
16. The Correctional Services Act of 1998 sets out the process through which
parole decisions are reached. The 1998 Act repealed the Correctional Services
Act of 1959.
17. The 1998 Act proceeds from the premise that a prisoner has no right to be
released on parole. He, however, has a right to be considered for parole. 2
18. In the matter of Mazingane and Others v Minister of Correctional Services and
Others, 3 the Court consolidated over nine review applications brought by
prisoners serving life sentences. The Court dismissed these applications and
emphasised in para 73 that:
"The sentenced offender thus has a right to be considered for parole but not a
right to be placed on parole"
19. The provisions of section 42(1) of the Act establishes the Case Management
Committee. The first step in the process is conducted by the Case Management
Committee and this committee is responsible for, inter alia, interviewing and
assessing longer-term offenders at regular intervals to the Correctional
Supervision and Parole Boards regarding the possible placement of offenders
on parole, and the conditions of such placement.4
20. In circumstances where the Case Management Committee recommends the
possible placement of offenders on parole, the process then escalates to the
Correctional Supervision and Parole Boards. The Correctional Supervision and
Parole Boards are established under the provisions of section 74 of the Act.
21. One of the functions of the Parole Boards is to consider reports submitted by
the Case Management Committee, and to make recommendations to the
Minister on the granting of parole to an offender serving a life sentence. In
circumstances where the Parole Board recommends the possible placement of
offenders on parole, the process then escalates to the National Council, which
2 Section 73 of the Correctional Services Act 111 of 1998
3 (2024/00411 ; 2024/00414; 2024/00353; 2024/00360; 037664/2022) [2024] ZAGPJHC 1092 (28
October 2024)
4 Section 42(2)(d)(vii) of the Act
is established under section 83 of the Act.
22. The Act requires that recommendations must be overseen by the National
Council, which is established under section 83 of the Act. After considering a
recommendation by a CSPB, together with the relevant record of proceedings,
the National Council may recommend to the Minister that parole be granted to
an offender serving a life sentence.
23. If the Minister does not approve the recommendation of the National Council,
and decides to refuse parole, he may, in terms of section 78(2):
" ... make recommendations in respect of treatment, care, development and
support of the sentenced offender which may contribute to improving the
likelihood of future placement on parole or day parole".
24. The Act further provides that in circumstances where the Minister refuses
parole, the matter must be reconsidered by the Minister, on advice of the
National Council, within two years.5
25. In essence, as is clear from the Act, with respect to life offenders, the Minister
has the power to reject any recommendation of parole received from the
correctional supervision and parole board and make recommendations in
respect of their treatment, care, development and support.
The Guidelines/policy applicable to the consideration of the applicant's parole
26. Taking into consideration the date on which the applicant was convicted and
sentenced, it is important to also make reference to the guidelines/policy
applicable to the consideration of the applicant's parole. The applicant's
5 Section 78(4) of the Act
eligibility for placement on parole is regulated in terms of the transitional
provisions of section 136 of the 1998 Act. The guidelines contained in Chapter
VI of the Correctional Services B-Order, commonly referred to as the Parole
Board Manual, particularly the 'Criteria for Parole Selection' set out in Chapter
VI (1A) thereof.
27. Simply put, the 1995 Parole Board Manual is applicable. The provisions of the
Parole Board Manual applicable when considering placement of offenders on
parole are, inter alia, the following:
27.1 Any remarks made by the court during the imposition of sentence.
27.2 The sentence imposed by the court.
27.3 Placement policy, community interests and public interests.
27.4 Crime prognosis as it manifests in physical/psychological abilities to
commit crime again.
27.5 Behaviour and adjustment in the prison.
27.6 The degree to which a prisoner participates in the multi-disciplinary
program and benefits from it; custodial and privilege classification.
27.7 Achievements that were obtained in prison (scholastic, academic,
technical and so forth).
27.8 The crime pattern of a prisoner (present and previous) and the threat that
imposes to community after release.
27.9 The degree which a prisoner has shown that opportunities granted to
him/her were utilized, for example with regard to suspended sentences,
postponed sentences and previous placements.
27.10 The probability of recidivism viewed against the background of criminal
history, crime rate, time lapse since previous placements/release, the
number of previous convictions; and
27.11 Previous non-compliance with conditions of parole provisions.
The applicant's grounds for review
28. The applicant contends in essence that the Minister's decision is reviewable on
the following two grounds:
28.1 It was procedurally unfair; and
28.2 that the Minister's decision is irrational and unreasonable.
Procedural unfairness as a ground of review
29. The applicant bases this ground for review on the assertion that he was not
afforded the opportunity to make any representation before the decision was
taken.
30. This ground of review appears to be premised on a number of misconceptions.
The first misconception is that the applicant is entitled to make representations
to the NCCS. The second misconception is that the applicant is entitled to make
representations to the Minister.
31. As set out in the legal framework alluded to above, the statutory scheme
requires the NCCS to oversee the recommendations of the correctional
supervision and parole board (CSPBS).6 The 1998 Act does not envisage the
making of representations by life offenders to the NCCS. Similarly, the Minister
considers the placement of the life offenders on parole by reviewing the profile
6 Section 83 of the 1998 Act
of the offender (from the CMC and the CSPB).
32. The Act does not envisage the making of representations by life offenders to
the Minister
33. In the matter of Booysen v Minister of Justice and Correctional SeJVices and
Others (33188/2022) [2024] ZAGPPHC 205 (8 March 2024), Retief J found that
the reliance on section 3 of PAJA stood to fail on the above basis.
34. This ground for review therefore cannot succeed.
Unreasonableness as a ground for review
35. The applicant bases this ground for review on the contention that the Minister
placed more weight on the negative factors than the positive factors when he
considered the applicant for parole. It is the applicant's argument that there is
overwhelming evidence in support of him being released on parole, and that
the Minister acted unreasonably in denying him parole.
36. The applicant attacks the Minister's reliance on certain reports from his profile,
and/or non-reliance on the reports which seem to favour his release on parole.
37. In determining whether an administrative action is unreasonable I first turn to
the provisions of section 6(2)(h) of the Promotion· of Administrative Justice Act
which provides that administrative action will be reviewable if the relevant
exercise of power is so unreasonable that no reasonable person could have so
exercised the power.
38. In the matter of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others7 the Constitutional court held that section 6(2)(h) does not introduce
7 2012 (1) SACR 103 (CC) (2010 (12) BCLR 1233; [2010] ZACC 17).
an exaggerated version of unreasonableness into our administrative law, and
that the standard envisaged under this section is simply that of
unreasonableness.
39. In paragraph 45 of the Batho Star judgment, the court further laid down a
framework to guide courts in determining whether a decision is unreasonable.
This involves considering various factors, including the following:
39.1 The nature of the decision;
39.2 The identity and expertise of the decision-maker;
39.3 The range of factors relevant to the decision;
39.4 The reasons given for it;
39.5 The nature of competing interests involved and the impact of the
decision on the lives and well-being of those affected.
40 In circumstances where the decision-maker, such as the Minister in the present
application, is given a discretion that is dependent on a consideration of a range
of competing factors, the approach to be adopted by Courts is as follows:8
" .. the decision maker must strike a reasonable equilibrium between the different
factors but the factors themselves are not determinative of any particular
equilibrium. Which equilibrium is the best in the circumstances is left to the
decision-maker. The court's task is merely to determine whether the decision
made is one which achieves a reasonable equilibrium in the circumstances".
41. In the matter of Barnard v Minister of Justice, Constitutionai Development and
Correctional Services and another [2015] 4 All SA 648 (GP) para 84, the court
held that in the context of review applications to set aside the refusal of parole,
it is clear from the principles and guidelines set out in the parole policy and
8 Batho Star Judgment at para 49.
parole manual that in making a parole determination in any particular case in
which an offender is serving a life sentence, the Minister is required to give
consideration to a complex matrix of factors.
42. These factors address competing interests: the individual interests of the
offender in securing his or her release from imprisonment on parole at an
appropriate time, against the interests of the community in being protected from
offenders who have been given the maximum sentence by virtue of the nature
and seriousness of their crimes.
43. The Minister must ensure that while each individual offender is dealt with in a
fair and just manner in the parole process, the individual interests of the
offender do not override the importance of the retention of public confidence in,
and ultimately the legitimacy of, the criminal justice and parole systems.
44. The question in the applicant's case is therefore whether the Minister applied
the criteria in the Parole Manual properly when he made the impugned decision.
45. In the matter of Barnard v Minister of Justice, Constitutional Development and
Correctional Services and another [2015] 4 All SA 648 (GP), the Minister
successfully defended a review application brought by an offender in
circumstances where the NCCS recommended the placement of the offender
on parole. The Honourable Judge Keightley AJ accepted the Minister's reasons
for refusing to release the offender on parole, and held that:
"It is clear from the reasons cited by the Minister that he considered both positive and
negative factors in deciding not to approve the National Council's
recommendation that the Mr Barnard be placed on parole. My task in reviewing
the Minister's decision for reasonableness is not to determine whether he was
correct in concluding that the negative factors outweighed the positive. The
question is whether the Minister achieved a reasonable equilibrium between
these factors in the circumstances".
46. In the recent matter of Booysen v Minister of Justice and Correctional Services
and Others (33188/2022) [2024] ZAGPPHC 205 (8 March 2024), the Minister
also successfully defended a review application brought by an offender in
circumstances where the NCCS recommended the placement of the offender
on parole. The Honourable Judge Retief accepted the Minister's reasons for
refusing to release the offender on parole. The court specifically accepted the
Minister's argument that in refusing parole, he applied all the criteria including
considering the interest of the community and in doing so, struck a reasonable
equilibrium, resulting in the interests of the community outweighing the
remaining considerations.
47. In the applicant's case, the Minister applied the criteria in Chapter Vl(1A)(19) of
the B-Order under the heading 'Criteria for Parole Selection' (Parole Board
Manual), section 63(1) of Act 8 of 1959 enjoining the Minister to consider the
nature of the offence, 9 the Policy document of the Department of Correctional_
Services, he therefore considered, inter alia, psychologist reports; the
recommendations of the NCCS, the CMG report and Parole Board report.
48. He applied positive factors in favour of the placement on parole, and the
negative factors that militate against the granting of parole.
49. From the record, it is clear that the applicant's profile that served before the
Minister and which was considered by the Minister in reaching his decision, led
the Minister to come to the conclusion that the identified conditions had not yet
been adequately addressed.
9 Derby-Lewis v Minister of Correctional Services and Others 2009 (6) SA 205 (GNP).
50. In essence, the Minister applied all the criteria including considering the interest
of the community and/or the state, and in doing so, struck a reasonable
equilibrium, resulting in the interests of the community/justice outweighing the
remaining considerations. The impugned decision is therefore rational and
reasonable in the circumstances.
51. The court is not tasked in this review application to determine whether the
Minister was correct in concluding that the negative factors outweighed the
positive. The question is whether the Minister achieved a reasonable
equilibrium between these factors in the circumstances. I am not satisfied that
the applicant has made out a proper case that the Minister acted unreasonably
taking into consideration all the information available to him in considering the
applicant's profile.
Irrationality as a ground for review
52. Save for stating that it is irrational to be denied parole because of his past and
nature of the crime, the applicant did not go further in his affidavits in making
out a specific case as to why he contends that the Minister had acted irrationally
in deciding to refuse him parole.
53. The applicant contends that the negative factors militating against his release
on parole are things that will never change, or have nothing to do with the
applicant's risk of reoffending, therefore it cannot be rational for the Minister to
refuse his release on parole.
54. The Minister concurred with the NCCS's observations and recommendations
after reviewing the reports of various professionals, particularly the risk factors
evident in the psychologists' report which forms part of the applicants profile.
55. According to the psychologists' report, the following factors raise the applicant's
level of risk for re-offending:
"63.1 Violent crime: The index crime was violent. The accused had already
planned to commit the crime and shot the victim in the head.
63.2. Previous violence: research conducted by Monahan (1981) argues that
"if there is one finding that overshadows all others in the area of
prediction, it is that the probability of future crimes increases with each
prior criminal act". The Applicant revealed that there had been an
escalation of crimes since the age of 15.
63.3. Substance use problems: substance use is associated with an
increased risk for general violence. The Applicant started using
substances at the age of 15 and his use reportedly increased with time.
The Applicant also reported that he had been drinking days before they
committed the index offence.
63.4. Criminal associates: This risk factor pertains to the presence of criminal
associates when committing a crime and/or most important associations
were criminal before or during the crime. It is on record that the Applicant
has three accomplices for the index offence. He also indicated that one
of them is in the same correctional facility as him.
63. 5. lmpulsivity: the Applicant indicated that he had planned to commit
robbery but not murder; therefore, the fact that they shot the victim all
because they suspected him of having a gun suggests that they were
impulsive which makes it a risk.
63.6. Prior supervision failure: this item is concerned with serious supervision
failures while the individual was on parole, probation, or under the
auspices of some correctional or mental health agency or institution. The
Applicant has been found guilty twice, this is further backed by the
available documents."
56. In essence, the psychological assessment of the Applicant raises areas of
uncertainty regarding his risk of re-offending. These factors cannot be equated
to the factors that will never change. Negative factors such as, inter alia,
substance abuse, prior supervision failures, impulsivity are issues that increase
the risk of reoffending, and which can be dealt with before the placement of the
applicant on parole.
57. It is also common cause that at the time of the commission of the offences of
murder and robbery with aggravating circumstances, the applicant had already
been found guilty of rape and/or was on parole and/or serving a suspended
sentence at the time.
58. The fact that the Minister requires the applicant to undergo certain
programme(s) to increase the future likelihood of his release on parole is neither
irrational nor unreasonable. In this regard Tokota AJ in the matter of Van Gund
v Minister of Correctional Services and Others2009 (2) SACR 522 (GNP) at
para 15, correctly in my view, held that:
"The fact that the applicant has undergone this anger-management programme
is no bar to the Board deciding that he should do it again if it did not achieve
the desired effect. It is up to the applicant to obey the authorities or stay longer
in prison. The choice is his. This Court would be inundated with urgent
applications for the release of prisoners on parole if it were to easily usurp this
power of the Parole Board. Courts ought to adopt a "hands off' attitude to
matters reserved for other arms of government, and only intervene when
circumstances warrant such intervention."
59. In applying the equilibrium principle, the Minister concluded that the negative
factors outweigh the positive factors, hence his refusal to place the applicant
on parole.10
60. The applicant heavily relies on the following caselaw in support of his
application:
a. Walus v Minister of Justice and Correctional Services and Others11 ;
b. Anderson v Minister of Justice and Correctional Services and Another12;
c. Van Der Hever v Minister of Correctional Services and Another 13
61. All three these matters do not assist the applicant and are distinguishable from
the applicant's case.
62. In the matter of Walus v Minister of Justice and Correctional Services and
another, the Minister's decision to not recommend parole was based on the
nature and severity of the crime, as well as the sentencing remarks of the trial
and Supreme Court of Appeal. These factors were incapable of being changed
as they were restricted to the past and remained static in time. Additionally, the
applicant exhibited a low risk of recidivism. The Court noted that the application
of the same factors that were immutable to all future decisions would yield an
inexplicable reason not to recommend parole, which is in stark contrast to the
empowering provision. This outcome would result in an unjust and unfair
10 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 (4) SA
490 (CC) at para 49.
11
CCT 221/21) [2022) ZACC 39:2023 (2) BCLR 224 (CC); 2023 (1) SACR 447 (CC) (21 November
2022).
12 (022949/2024) [2024] ZAGPPHC 1355 (23 December 2024).
13 (14495/2017) [2018] ZAGPPHC 867 (8 November 2018)
justification.
63. In the present case, the factors, while constant, differ from those considered by
the Court and the Minister in the Wa/us matter. This is because, in the present
matter, the constant factors refer to possible events that may occur after the
applicant is released on parole, future events that may trigger the applicant's
risk of relapse, affecting both the applicant and the community.
64. In the matter of Anderson v Minister of Justice and Correctional Services and
Another, unlike in the present matter, there was no explanation given by the
Minister at all as to why the applicant in that case was not placed on parole.
65. The Anderson case was decided on the basis that there was no opposition by
the Minister. The Court was therefore not in a position to decide if the Minister's
decision complied with the relevant statutory prescripts.
66. In the matter of Van Der Hever v Minister of Correctional Services and Another
both the parties agreed that pending the review application by the offender an
independent psychologist would be appointed to assess and to report to the
court on his findings.
67. The court found that the respondents took no cognisance and gave no
consideration to the report and conclusion of the independent psychologist and
that the Parole Board refused to consider representations of the applicant's
attorney.
68. In the present case, the Minister has emphasised multiple times that he took
cognisance of the positive factors in favour of the applicant's release. However,
in applying the equilibrium principle, he concluded that the negative factors
outweigh the positive factors, hence his refusal to place the applicant on parole.
69. In my view, the applicant has failed to make out a case that the Minister's
decision is tainted by procedural unfairness and therefore does not fall to be
reviewed on grounds of irrationality (in terms of section 6(2)(f)(ii) of PAJA), or
on grounds of unreasonableness of the decision (in terms of section 6(2)(h) of
PAJA).
Substitution of the decision by the Minister.
70. The applicant requests this court to substitute the decision by the Minister with
its own and to order that the applicant be released on parole,
71. In the matter of Derby-Lewis v Minister of Correctional Services and
Others2009 (2) SACR 522 (GNP), it was held that courts have no statutory
powers to substitute the respondent's decision with its own and place the
applicant on parole.
72. The applicant has failed to make out a case of exceptional circumstances as
envisaged in section 8(1)(c)(ii) of PAJA. In the matter of Gauteng Gambling
Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA) at para
28, the SCA held as follows regarding the meaning of 'exceptional
circumstances' in the context of section 8(1)(c)(ii) of PAJA:
"The power of a court on review to substitute or vary administrative action or
correct a defect arising from such action depends upon determination that a
case is 'exceptional': s 8(1)(c)(ii) of the PAJA. Since the normal rule of common
law is that an administrative organ on which a power is conferred is the
appropriate entity to exercise that power, a case is exceptional when, upon the
consideration of all the relevant facts, a court is persuaded that a decision to
exercise a power should not be left to the designated functionary".
Conclusion
73. The applicant has failed to show that the impugned decision is susceptible to
be reviewed under PAJA and the application is accordingly dismissed with
costs.
TR
AC
GA
0 THE HIGH COURT
ON, PRETORIA
DATE OF HEARING: 4 FEBRUARY 2026
DATE OF JUDGMENT: 4 SEPTEMBER 2026
APPEARANCES:
ATTONRNEYS FOR THE APPLICANT:
COUNSEL FOR THE APPLICANT
FOR THE RESPONDENTS:
COUNSEL FOR THE RESPONDENTS:
M.E Makgopa Attorneys
Tel: 071 209 3448
Email:admin@makgopaattorneys.
co.za o.za
M"r Matsobane Elias Makgopa
Advocate B Malinga
Tel : 076 4251113
Email : busisiwe@advmalinga.com
The State Attorney: Preto ria
Tel : 012 309 1677
Email : KKgaphola@justice.org .za
ADV RA RAMUHALA
Duma Nokwe Group
Chambers , Sandton