Jano Nortjé and Another v The Minister of Correctional Services and Others

The two appellants were serving long-term prison sentences for serious violent crimes. First appellant was sentenced to life imprisonment for murder in June 1996. Second appellant was sentenced to death three times and 65 years imprisonment (reduced to 22 years on appeal) for armed hijackings in August 1992. Both were detained in the general section of Pretoria Maximum Security Prison until 27 November 1997. On 13 November 1997, they were classified as Category A prisoners by the institutional committee, entitling them to maximum privileges including 48 contact visits of 40 minutes per year, radios, cassette players, portable TVs, canteen purchases, and smoking. On 27 November 1997, without prior notice or hearing, they were transferred to C-Max (Closed Maximum Security Unit), a special section with significantly reduced privileges. The decision to transfer them was made by Deputy Director FJ Venter, to whom the Commissioner had delegated powers, based on the view that appellants posed a high escape risk due to two alleged escape attempts on 26 May 1997 and 3 September 1997. Appellants admitted the first incident but denied the second. Four days after transfer, Venter visited them in C-Max and informed them they were considered escape risks, but this was not intended as a hearing.

• Whether the audi alteram partem rule applied to the decision to transfer prisoners to C-Max
• Whether the audi alteram partem rule was properly complied with in this case
• Whether a hearing after the decision was taken could satisfy the requirements of procedural fairness
• What constitutes a fair and reasonable opportunity to be heard in the context of administrative decisions affecting prisoners' rights

The appeal succeeded with costs. The order of the court a quo was set aside and replaced with an order setting aside the decision to transfer appellants to C-Max and ordering respondents to pay appellants' costs.

Where an administrative decision will significantly prejudice a person's existing rights or privileges, creating a legitimate expectation that no decision will be taken without affording a hearing, the audi alteram partem rule must be complied with. While in exceptional circumstances a hearing after the decision may suffice (particularly where prior hearing is impractical), such post-decision hearing must be genuine: the affected person must be informed of the gist of the case against them and given a fair and reasonable opportunity to present their case and rebut allegations. A casual discussion or inquiry that does not involve informing the person of the specific case against them or inviting them to respond does not constitute compliance with the audi rule. The test is whether, in all the circumstances, the decision-maker acted fairly in the manner of reaching the decision.

The court noted that the audi alteram partem rule is flexible and its specific requirements depend on context - there is no universally applicable set of requirements. The court observed that hearing after a decision should be the exception rather than the rule, as a person heard only after a decision is made is significantly worse off than one heard beforehand. Brand Acting JA stated that audi after the decision will generally only be sufficient where prior hearing was not possible. The court accepted (without deciding definitively) that it might not be practically feasible to hear prisoners before transferring them to C-Max due to the risk that candidates would go to extremes to prevent transfer (self-harm, escape attempts, harming others). The court also noted in passing that despite the new Correctional Services Act 111 of 1998 being on the statute books, the relevant provisions had not yet come into operation, so the Correctional Services Act 8 of 1959 remained applicable.

This case is significant in South African administrative law for clarifying the application of the audi alteram partem rule in the prison context under the constitutional dispensation. It demonstrates that section 33 of the Constitution (right to procedurally fair administrative action) applies to prisoners, and that significant deprivations of existing privileges trigger the requirement of procedural fairness. The judgment confirms that common law principles remain relevant in determining what is procedurally fair under the Constitution. It also establishes that where a post-decision hearing is relied upon, it must be a genuine hearing where the affected person is informed of the case against them and given a real opportunity to respond. The case reinforces that prisoners retain important procedural rights despite their incarceration.