The Department of Correctional Services has been ordered to reimburse at least R1.7 million to the company overseeing the Mangaung Correctional Centre, from which convicted rapist and murderer Thabo Bester escaped in 2022.
This decision was made by the Gauteng High Court in Pretoria, which ruled that the department unlawfully took control of the privately managed prison in 2023 in response to growing public concern over Bester’s escape.
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Court Declares Thabo Bester Prison Seizure Illegal
Acting Judge DM Hinrichsen determined that the Correctional Services had no legal grounds to apply Section 112 of the Correctional Services Act nearly 10 months after Bester’s escape from the Mangaung Correctional Centre.
The prison operates as part of a public-private partnership with Bloemfontein Correctional Contracts (BCC), a consortium partly owned by the global security firm G4S. G4S Correctional Services has managed the facility under contract since 2000.
Bester, who was serving a life sentence, is believed to have escaped in May 2022 by bribing prison officials. Authorities suspect that a deceased body was smuggled into his cell and cremated to create a faux suicide scenario, allowing him to depart disguised as a prison staff member.
Initially, G4S reported the incident as a suicide. Subsequent DNA testing confirmed that the body found in the cell was not that of Bester.
It wasn’t until November 2022 that the Department of Correctional Services concluded that Bester had escaped. According to the contract, G4S faced a penalty of R880,000 due to the breach of security.
Thabo Bester’s Escape Led to Heightened Scrutiny
Concerns about Bester’s alleged death grew as media reports began to question the official story. Despite rising doubts, several months passed before authorities took formal action by alerting the police regarding the escape.
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In March 2023, new evidence emerged confirming that Bester had indeed escaped the prison. Shortly thereafter, on March 25, the department publicly recognized the escape and began efforts to track him down.
Just five days later, National Commissioner Makgothi Pathekile invoked Section 112 to temporarily take control of the prison. From March to July 2023, the department deducted R1.72 million from BCC for expenses related to managing the facility.
BCC paid this sum “under protest” before initiating a judicial review to challenge the decision and seek reimbursement.
Judge Hinrichsen determined that Section 112 is meant for emergencies where effective control of the prison has been compromised and immediate action is required for safety and security.
He described this provision as an “extraordinary power … to be utilized judiciously.”
According to the ruling, a memorandum prepared by the National Commissioner for the minister outlined the escape history and subsequent investigation.
“It did not identify any current threat to safety and security,” the judge remarked.
The court noted that all parties agreed the prison was functioning normally by March 2023, with no active security threats present at the facility.
Court Questions Logic Behind Thabo Bester Prison Seizure
The court also ruled that there was no evidence the commissioner properly consulted with the minister before enacting the takeover, as required by law.
“He merely presented a pre-formed opinion to the minister for signature. The distinction is not just semantic.
“The minister signed the document on the same day. There is no evidence of any deliberation, discussion, modification, or exchange between them.”
Judge Hinrichsen further implied that the decision may have been influenced by factors unrelated to prison security.
“The record contains several hints that the decision was made for ulterior motives,” Judge Hinrichsen observed, referencing the department’s description of Bester’s escape as an “embarrassing incident.”
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“The embarrassment experienced by the State due to the escape cannot lawfully influence the use of section 112 power.”
The ruling noted that an internal investigation concluded in November 2022 recommended sanctions against G4S but did not suggest invoking Section 112.
“That assessment stood for about four months. It was abandoned in March 2023 amid rising media scrutiny and a decision where the department aimed to portray itself as acting decisively.”
The judge pointed out that no further escapes had occurred, contractual penalties had already been imposed, and G4S had terminated the employment of nine workers linked to the incident.
“The decision was one that no reasonable decision-maker could have arrived at based on the information available to the commissioner,” the judge remarked.
The court annulled the decision, ordered all credits paid by BCC to be refunded, and directed the respondents to bear the legal costs of the case.
The 25-year contract between BCC and the Department of Correctional Services started on June 30, 2001, and is due to expire at the end of June. A separate legal challenge regarding the department’s earlier attempt to terminate the contract remains pending in court.
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