Convicted rapist and murderer Thabo Bester has been become a regular in court challenging his re-arrest and his incarceration conditions.
Image: Oupa Mokoena / Independent Newspapers
Convicted rapist and murderer Thabo Bester has become a regular presence in court as he continues to challenge both his re-arrest and the conditions of his incarceration.
Bester had been serving a life sentence for murder and rape at Mangaung Correctional Centre since 2012 before his escape in May 2022. Authorities say he faked his death in a prison cell fire, allegedly with the assistance of his then girlfriend Nandipha Magudumana and several prison officials.
After nearly a year on the run, Bester was re-arrested in April 2023 in Arusha, Tanzania, alongside Magudumana, with authorities confirming he was alive despite the earlier claims surrounding his supposed death.
Since his return to custody, Bester has filed multiple unsuccessful court applications, asserting that he was lawfully released and denying that he escaped. He has also claimed that he has been held in prolonged solitary confinement since his re-incarceration in 2023, arguing that this constitutes a violation of his rights.
Bester further sought a transfer from eBongweni Super Maximum Correctional Centre to Kgosi Mampuru Correctional Centre. His legal team argued that his placement in KwaZulu-Natal hindered their ability to consult with him ahead of trial.
The courts, however, dismissed the request, noting that virtual communication options were available for legal consultations. The judge also cited Bester’s history of escaping custody as justification for his continued placement in a high-security facility requiring stricter supervision.
The Department of Correctional Services transferred Bester to the KwaZulu-Natal facility in January, citing security concerns.
Legal expert Lwando Mufune said constitutional protections apply to all individuals, including inmates and escapees.
“Every person has the right to approach a court to vindicate their rights, including an escapee who alleges that their constitutional rights have been infringed,” she said.
Mufune explained that even when a person is lawfully required to remain in custody, the processes of arrest and detention must comply with legal and constitutional standards.
“An escapee may challenge the lawfulness of the arrest or re-arrest, the procedure followed, and any violations of constitutional or statutory safeguards. However, such a challenge does not extend to disputing the underlying legal basis for their detention where it is otherwise valid,” she said.
She added that procedural irregularities do not automatically justify release.
“Where there are lawful grounds for detention, the court may uphold the continued custody of the individual despite procedural irregularities. In such instances, the appropriate remedy may lie in a claim for damages arising from unlawful conduct, rather than release from custody.”
On appeals, Mufune said there is no fixed limit to how many an accused person may pursue, but each stage requires meeting strict legal thresholds.
“A matter may proceed from the Magistrate’s Court to the High Court, then to the Supreme Court of Appeal, and ultimately to the Constitutional Court. However, progression through these levels is subject to leave to appeal being granted, which requires that the matter raises reasonable prospects of success or compelling legal questions warranting further judicial consideration,” she explained.
Mufune also rejected Bester’s claim that he had been released rather than having escaped.
“None of these applied to Bester, there is no evidence he was ever legally released, hence his re-arrest."