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[2016] ZAGPJHC 174
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Mapodile v Minister of Correctional Services and Others (1067\2016) [2016] ZAGPJHC 174; 2016 (2) SACR 413 (GJ) (24 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 1067\2016
DATE:
24 JUNE 2016
In the matter
between:
TUMELO
MAPODILE
............................................................................................................
Applicant
And
THE
MINISTER OF CORRECTIONAL
SERVICES
.................................................
1
st
Respondent
THE AREA
COMMISSIONER FOR
CORRECTIONAL
.........................................
2
nd
Respondent
SERVICES
(JOHANNESBURG MANAGEMENT AREA)
THE HEAD
OF JOHANNESBURG PRISON MEDIUM
B
.......................................
3
rd
Respondent
THE HEAD
OF SECURITY (MEDIUM
B)
..................................................................
4
th
Respondent
J
U D G M E N T
MABESELE,
J
:
[1]
The Applicant is currently serving sentence in the Johannesburg
Medium ‘B’ Correctional Centre, popularly known
as ‘Sun
City’. He is gay.
[2]
On the 06
th
April 2016 he brought an urgent application to this Court, seeking an
order, directing the Respondents, in particular the Third
and Fourth
Respondents, to accommodate him in a single cell or in the same cell
with inmates of the same sexual orientation.
[3]
The application was not formally opposed. The Respondents failed to
file opposing papers despite the fact that the application
was served
on them on the 30
th
March 2016 through the office of the State Attorney, Johannesburg.
[4]
After I had read the papers and considered the matter as well as the
submissions made by Mr Reggy Pooe from the office
of the State
Attorney I granted order dated 06 April 2016, directing the
Respondents to accommodate the Applicant in a single cell
or in one
cell with inmates of the same sexual orientation.
[5]
I undertook to provide reasons later which I now provide.
[6]
The legitimate complaint of the Applicant was that he was
accommodated in one cell with inmates of different sexual
orientation.
The inmates regarded him as a woman and
continuously harassed him. He had raised this matter with the
prison authorities
on numerous occasions and had provided them with a
letter from the medical doctor, recommending that he be accommodated
either
in a single cell or in a cell with inmates of the same sexual
orientation.
[7]
The letter forms part of the papers. It reads as follows:
“
The
Unit Manager
Section B
Johannesburg Prison
Medium
B
Re:
Mr T.Mapodile
Dear
Sir
The
above is presently under my treatment. Due to his gay
orientation he is being harassed in this section by inmates. Could
he
be placed in a single cell or share cell with inmates of the same
sexual orientation if possible, please.
Thanking you
R.C
Wrinbarnn”
[8]
The complaint of the Applicant and the recommendations of the medical
doctor fell into deaf ears. It was for this reason
that the
Applicant approached this Court for protection.
[9]
Mr Pooe advised me that accommodation was available for the Applicant
in the cell which was occupied by two inmates of the same
sexual
orientation provided the Applicant was prepared to sleep on the floor
as there are insufficient beds in that cell.
The Applicant did
not have difficulties sleeping on the floor. The Applicant
pointed out that he had been sleeping on the
floor in the cell
wherein he was accommodated.
[10]
Mr Pooe brought to my attention that due to overcrowding in the
Johannesburg Medium ‘B’ Correctional Centre, it
is not
always possible for the prison authorities to accommodate gay people
in separate cells.
[11]
Mr Pooe initially requested that the matter be postponed to Thursday
of that week of urgent Court to afford him an opportunity
to
investigate the reasons for the prison authorities not to address the
complaint of the Applicant and the recommendations of
the medical
doctor. I refused to postpone the matter due to continuous
harassment and humiliation of the Applicant by the
inmates and the
unwillingness by the prison authorities to address the legitimate
complaint of the Applicant.
[12]
Gays and lesbians had been part our society for many years. They are
not associated with a particular race as perceived by
some members of
our society. African people, particularly Basotho, guided
by their forefathers, had been using the
word ‘tarasi’
for many years to describe gay or lesbian.
[13]
There had not been any controversy around the issue of homosexuality
in the community of Basotho. They always discouraged homophobia
and
had accorded respect to gays and lesbians.
[14]
The point is that the era before democracy which preferred
Christianity from other religions promoted stereotype societal
behaviour which denied gays and lesbians freedom of expression
which includes freedom to express feelings. Their integrity
was not
accepted. They were subjected to emotional torture to say the least
and were forced to subordinate themselves to the societal
norms and
values and cultural practices which only recognised heterosexuality
and widely accepted definition of ‘man’,’
woman’
and ‘spouse’ as explained in the bible
[1]
[15]
Cameron JA, in
Fourie
and Another v Minister of Home Affairs
and Others
[2]
explains the hardships which gays and lesbians are still going
through in our society, as follows:
“
The sting of the past and continuing
discrimination against both gays and lesbians” lies in the
message it conveys, namely,
that viewed as individuals or in their
same-sex relationships, they “ do not have the inherent dignity
and are not worthy
of the human respect possessed by and accorded to
heterosexuals and their relationships.” This, “denies
to gays
and lesbians that which is foundational to our Constitution
and the concepts of equality and dignity” namely that
“all
persons have the same inherent worth and dignity,”
whatever their other differences may be’
[16]
He stated that cases have established that gays and lesbians are a
permanent minority in society who have suffered patterns
of
disadvantages and are consequently exclusively reliant on the Bill of
Rights for their protection.
[17]
These views are shared by Sachs J, in the matter of
Lesbian
and Gay Equality Project V Minister of Home Affairs
[3]
,
stating that our Constitution
[4]
acknowledges the variability of human beings (genetic and
socio-cultural), affirms the right to be different, and celebrates
the
diversity of the nation.
[18]
Sachs J added that a democratic, universalistic, caring and
aspirationally egalitarian society embraces everyone and accepts
people for who they are.
[19]
He pointed out previously that people were subjected to extensive
prejudice
[5]
because of what they were or what they were perceived to be, not
because of what they did. The result was that a significant
group, because of its sexual non-conformity, was persecuted and
marginalised.
[20]
The Constitution, in its founding provisions, describes the Republic
of South Africa as one, sovereign, democratic state founded,
inter
alia
, on human dignity, the achievement
of equality and the advancement of human rights and freedoms.
It is the supreme law of
the Republic. Law or conduct
inconsistent with it is invalid and the obligations imposed by it
must be fulfilled.
[21]
The Bill of Rights is the cornerstone of democracy in South Africa
[6]
. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and
freedoms.
[22] Section10 of the Constitution provides that:
‘
Everyone
has inherent dignity and the right to have their dignity respected
and protected’
[23]
O’ Regan J, in
Dawood,
Shalabi and Thomas V Minister of Home Affairs
[7]
states clearly that section 10 makes it plain that dignity is not
only a value fundamental to our Constitution, it is a justiciable
and
enforceable right that must be respected and protected.
[24]
With the view to comply with and to promote the spirit and objects of
the Bill of Rights the Minister of Correctional Services
has,
rightly, under section 134 of the Correctional Services Act
[8]
made the regulations in the Schedule which commenced on 31 July
2004. Chapter two of the regulations address human dignity
under the heading: ‘Custody of all prisoners under conditions
of human dignity’
[25]
The regulations protect,
inter alia,
the dignity and privacy of certain categories of the prisoners except
gay people.
[26] Regulation 2 (f) provides:
“
Whenever
separate correctional centre for males and females are established on
the same site or on separate sites but in proximity
of each other, or
whenever separate sections of a correctional centre are available for
the reception of male or female inmates,
the following requirements
must be observed:
(i)
The
locks of the doors and gates of the correctional centre or section
for males and those correctional centre or section for females
must
not correspond.
(ii)
The
keys of a correctional centre or section for females must be
permanently in the possession of a female correctional official.
(iii)
Any
male person visiting a correctional centre or section for females
must be accompanied by a female correctional official during
the full
period of visit”
.
[27]
It is apparent that male inmates are kept separate from female
inmates.
[28]
Regulation 2(h) provides that inmates between the ages of 18 and 21
years must be detained separately from inmates who are
over the age
of 21 years.
[29]
Regulation 2 (i) makes provision for inmates suffering from mental or
chronic illness or whose health status will be affected
detrimentally
or whose health poses a threat to other inmates if detained in a
communal cell to be detained separately on request
of the
correctional medical practitioner.
[30]
Gays who are in custody are part of the community of prisoners which
include categories of prisoners mentioned in regulations
(2) (f, h
and i) and whose right to dignity, to privacy and to health care are
protected due to their peculiar status.
[31]
It is beyond debate that gays, too, have their own peculiar status.
Therefore they are entitled to the same protection which
is afforded
to the categories of prisoners mentioned above. Such protection
should not be limited to dignity and privacy but should
include
equality.
[9]
[32]
The prison authorities are obliged to protect these rights and must
not create an impression to the prison community and to
gay people in
particular, as in the present case, that elevating gays to the same
level with the categories of prisoners mentioned
in regulation (2)
and accommodating them in separate cells is a favour.
[33]
For these reasons, I granted order dated 06 April 2016.
M.M
MABESELE
(Judge of Gauteng
Local Division)
Appearances for
the Applicant : In person
Appearance
for the Respondent : State Attorney, Johannesburg
[1]
Genesis 2: 21-25 reads: “And
while he was asleep he took out one of the man’s ribs and
close up the flesh. He
formed a woman out of the rib and
brought her to him. Then the man said: ‘At last here is
one of my own kind-bone
taken from my bone, and flesh from my
flesh. Woman is her name because she was taken out of man’.
That is why
a man leaves his father and mother and is united with
his wife, and they become one”
[2]
2005(3) SA 429 (SCA) at 439-C
[3]
2006(1) SA 524(CC) at 549-F
[4]
The Constitution of the Republic
of South Africa Act, 108 of 1996
[5]
National Coalition for Gay and
Lesbian Equality v Minister of Justice and Others 1998(12) BCLR 1517
at 1521-G
[6]
Section 7 of the Constitution
[7]
2000(3) SA
936 (CC) at 962-B
[8]
Act lll of 1998
[9]
Section 9(3) of the Constitution prohibits unfair discrimination
directly or indirectly against anyone on the grounds of sexual
orientation, amongst others.