The Free State High Court has reserved judgment in Thabo Bester’s application against alleged unfair treatment by the Correctional Services Department.

The lawyer of escaped convicted serial rapist and murderer Bester had a hard time convincing the Free State High Court that his application against what he says is ill-treatment at Kgosi Mampuru Correctional Centre should be heard in a criminal court.

Bester wants this application to be heard by the criminal court as it emanates from a criminal case.

Free State High Court Deputy Judge President Martha Mbhele questioned what procedure Bester’s lawyer, Advocate Lerato Moela, followed to bring his application.

Judge Mbhele went as far as telling Moela to go back to criminal procedure 101, insisting that he had not follow the correct procedure to file his papers.

The judge wanted clarity on who the matter is brought against and whether they were notified.

She asked Moela to explain the identity of the person the state referred to in his papers.

Judge Mbhele: “That is not the question …  but how do you bring people to court Mr Moela, because that is the first step of bringing people to court.”

Advocate Moela: “If that was the issue My Lady, it wouldn’t be the directive from the Judge President, your Ladyship.”

Judge Mbhele: “Mr Moela I’m saying the first step of bringing people to court is notifying them that you want to bring them to court … and they are here… who is here? … all the respondents who were cited? Who are the respondents who were cited … the state … who is the state? The prosecutor? I’m saying the state is represented by the prosecutor… who is the prosecutor? Is the NPA, where is the NPA? … They are represented by the state … Mr Moela a lot still needs to be done.”

Advocate Moela on the other hand grew increasingly agitated as he attempted to reason with the court.

He said he had started the matter in the right court, but was referred to the wrong court.

He also told Judge Mbhele that they did not approach the civil court on their own volition, but had in fact been referred by the Judge President Cagne Musi to have jurisdiction of their case determined.

Moela argued that his client’s application must be heard by the criminal court as it emanates from a criminal case.

“The only … objection was that this is a civil matter because there’s a notice of motion. The caselaw is answering to that … does not lead to any assistance to that and further to this case, the case that I started with that is Van Ryan also deals with the issue the lady your Lordship has raised.”

“The issue of citation in that case it was before a criminal court. Correctional services was cited, minister of police was cited and I’m going to take you to the full citation and full words in the words of the presiding officer.”

Senior Counsel, Neil Snellenburg, representing Correctional Services, argued that looking at the relief sought by Thabo Bester, and parties taken to court – the high court is the suitable court to ventilate the matter.

“According to what the applicant is seeking here, the civil court is the right the court to listen to the matter. People who are cited here are not party to criminal cases.”

A legal commentator, Dikeledi Sinakgomo, foresees that even if the matter is dismissed, Bester will try another avenue.

“What we saw today is the same as what we saw in the pre-trial when Mr Bester’s lawyer presented the same case. What they are supposed to do is to start the process from the beginning and file according to procedure.”

Bester is arguing that his application against alleged unfair treatment by the Department of Correctional Services, is a criminal matter.

In that application, he is stating that he can’t prepare for his trial, as he is being kept in solitary confinement for 23 hours.

Bester demands to have private consultation with his lawyers for no less than seven hours.

He argues that his treatment is inhumane and the conditions of his jail cell are not conducive.

His lawyer told the court that his mental health is also at stake.

Bester was not in court for the latest application.