Thabo Bester approaches ConCourt over which court, civil or criminal, should hear his case

Convicted rapist and murderer Thabo Bester has turned to the Constitutional Court in a battle over his prison conditions and access to his lawyers, which he says have prevented him from preparing for his criminal trial.

Bester, apprehended in Tanzania in April 2023, is facing multiple charges relating to his alleged dramatic escape from prison in May 2022. He and his lawyers have been raising concerns about his treatment in prison since June last year, saying it was impossible for him to properly consult with his lawyers — in breach of his rights to a fair trial.

But these complaints have yet to even be considered, let alone decided, by a court. Instead, the judgment Bester wants to appeal at the apex court deals only with one preliminary, legal question: whether this case — on access to lawyers, to a laptop and on his prison conditions — should be heard by the criminal court or by a civil court.

Bester’s application to the ConCourt does not explain why it is important for the vindication of his rights that his application go to the criminal court rather than a civil court. But his attorney, Dinana Reid, said it would be “a travesty of justice if the judgment is left unchallenged. It would and/or has created a dangerous precedent that would probably create judicial chaos in our law.”

He launched the application on his prison conditions in July last year, asking the court to declare that the prison authorities acted unlawfully by refusing him the opportunity to have “meaningful legal consultation” and by refusing him a laptop to prepare.

He also wanted the court to order that he should be removed from solitary confinement (he is currently only allowed out of solitary confinement for one hour a day to exercise), and that he should not be handcuffed or put in leg-irons while in court. He asked the court to declare that keeping him handcuffed and in leg-irons on the long journey from Kgosi Mampuru prison in Pretoria to court in Bloemfontein was unconstitutional. 

Those questions have not yet been considered by any court. Instead, Bester and his legal team got in a wrangle with the registrar of the Bloemfontein High Court about whether the application should be allocated to a civil or criminal court. Eventually the judge president directed that another judge should hear argument and decide whether “this application is civil or criminal in nature”.

Argument was heard by deputy judge president Nobulawo Mbhele. She decided that Bester’s objection to a civil court hearing his application was without merit. “The competent court to hear the matter is the civil court,” she said. 

The next court date for the criminal trial is scheduled for July. If the trial is to be delayed pending a resolution of this dispute, it may mean a long wait

But Bester’s legal team said to the ConCourt that this was not the question the court was asked to answer. “It was for the JP to determine the forum to hear the substantive merits of the application,” and the judge failed to answer whether Bester’s complaints were “criminal or civil in nature”, said Reid. Nor was there any “objection that the learned justice needed to resolve”, she said.

Reid also said Mbhele’s judgment raised “a reasonable apprehension of bias” because “the judgment appears to be a substantial reproduction of the respondents’ heads of argument”. 

The next court date for the criminal trial is scheduled for July. If the trial is to be delayed pending a resolution of this dispute, it may mean a long wait. Bester’s application was not made on an urgent basis and an academic study, published in October last year, said the “processing of most petitions at the Constitutional Court can take more than three months”.

The study looked at petitions received between January 2023 and July 2024. “For the period we reviewed, around half of pending petitions before the court had not had any movement for six months or longer, and almost a quarter had been on the court's docket for over a year,” it said.

The processing times refer to the time from when an application is received to when the court decides on the next step — to hear the case or decide it in chambers. If it were to hear the case, things would take even longer. 

Then the merits of the dispute would still need to be argued and determined — by either the criminal or civil court. 

Bester’s lawyers said he would also conditionally apply for leave to appeal to the high court.