By Marcus Moloko
Convicted murderer and rapist Thabo Bester is preparing to appear in the Bloemfontein High Court on December 5, with his legal team intent on challenging not only the charges against him, but the conditions of his incarceration.
Bester has said that his treatment at Kgosi Mampuru II Correctional Centre violates his constitutional rights and undermines his ability to receive a fair trial.
Bester escaped from the Mangaung Correctional Centre in 2023 by faking his death in a cell fire, allegedly with the help of Dr Nandipha Magudumana. He is demanding that the Department of Correctional Services (DCS) relax his prison conditions.
He is seeking contact visits with family and legal counsel and has said he should be treated like a person awaiting trial and not a convicted inmate.
At the heart of Bester’s argument, according to social media ongoing discussions, is Section 35(3)(h) of the South African Constitution, which guarantees every accused person the right to have a trial that begins and concludes without unreasonable delay.
Bester will likely also invoke Section 174 of the Criminal Procedure Act, which allows for acquittal if the state fails to present sufficient evidence.
The Correctional Services Act (Act 111 of 1998) complicates the matter.
While inmates retain certain rights, these are subject to limitations based on security classification. The Act allows for contact visits, but not necessarily for those in maximum security or single-cell facilities like C-Max at Kgosi Mampuru.
In a detailed statement issued on July 31, 2024, the DCS refuted Bester’s previous claims of solitary confinement.
DCS said solitary confinement is not practiced in South Africa, and that C-max comprises single cells for all inmates, not isolation for punishment.
The department said Bester received daily exercise, access to legal counsel, and opportunities for telephonic and in-person visits when properly arranged.
The department also noted that Bester admitted to escaping custody during a June 3, 2024, pre-trial conference.
“Thabo Bester’s assertion that he is segregated is not correct,” the statement read.
The department also rejected Bester’s request for seven-hour daily consultations with legal representatives and access to digital devices, calling it “neither reasonable nor practical” given the needs of other inmates.
A viral tweet has reignited the debate, where it is being argued that Bester’s escape does not equate to guilt and that his solitary confinement is unconstitutional. The tweet calls for contact and conjugal visits, framing them as basic human rights.
While provocative, such claims raise complex legal and ethical questions:
Can a convicted criminal claim the rights of an accused?
Does the Constitution protect even those who have staged elaborate prison breaks?
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