About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2018
>>
[2018] ZAECPEHC 16
|
|
Wardle v Minister of Justice and Correctional Services and Others (3561/2017) [2018] ZAECPEHC 16 (3 May 2018)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 3561/2017
In
the matter
between:
BRENDA
WARDLE
Applicant
And
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
First Respondent
NATIONAL
COMMISSIONER: CORRECTIONAL SERVICES
Second Respondent
AREA
COMMISSIONER: PORT ELIZABETH: DCS
Third Respondent
HEAD:
CORRECTIONAL SERVICES CENTRE
Fourth Respondent
REGIONAL
MAGISTRATE J.J CLAASEN
Fifth Respondent
REGIONAL
MAGISTRATE L. LINDOOR
Sixth Respondent
ADVOCATE
VAN
ZYL
Seventh Respondent
Coram:
Chetty J
Heard:
26 April 2018
Delivered:
3 May 2018
JUDGMENT
Chetty
J:
[1]
The applicant, an adult female, incarcerated at the Port Elizabeth
Correctional centre for females awaiting trial, stands arraigned
in
the Commercial Crimes Court on charges of fraud. Those proceedings
stand adjourned pending the determination of this application.
The
relief which she seeks is widely framed but at the hearing before me
was confined to the question whether she be afforded the
privilege of
using her laptop and modem in her cell in order to prepare for her
trial. The matter is opposed. The deponent to the
answering
affidavit, Mr
Mzwandile
Ciki
(
Ciki
),
ostensibly acting on behalf of the first respondent, admitted that on
21 September 2017, he had granted the applicant approval
to use a
laptop and internet modem to enable her to prepare her defence and to
register for online studies.
[2]
It appears that he thereafter had misgivings about the extent of the
approval granted and, on the advice of his superior, and
what he
referred to as “
prescripts
”
,
directed that the applicant’s entitlement to the internet modem
was limited to its use only under his supervision and in
a designated
area. During the hearing I enquired from Mr
Nobatana
,
who appeared for the respondent at short notice whether, in light of
the fact that the applicant’s criminal trial had been
held in
abeyance pending the resolution of these proceedings, whether she
could not be afforded the use of both the laptop and
modem to enable
the trial to resume without further delay. I allowed the matter to
stand down to enable him to obtain instructions
and, on resumption of
the hearing, Mr
Nobatana
indicated that he held instructions merely to record that the
applicant would be permitted to use her laptop in her cell but not
the internet modem. In her limited address, Ms
Wardle
remained steadfast that she could only adequately prepare her defence
if she had access to the modem throughout the day and night
in her
cell.
[3]
The respondent’s acquiescence in permitting the applicant the
use of her laptop in her cell is an indulgence not accorded
to other
inmates and granted, no doubt, as a salutary gesture. The modem can
be accessed and used throughout the course of the
day and there is no
plausible explanation tendered by the applicant why such use will
impact deleteriously upon her trial preparation.
Ciki
has adverted to the Correctional Services policy directives relating
to internet access and has raised legitimate concerns about
its
untrammelled use. An inmate’s usage of a laptop and modem
within the confines of a prison falls within the competence
of the
Department of Correctional Services and I am unpersauded that the
restrictions imposed by
Ciki
are unreasonable. As the Constitutional Court emphasized in
Bato
Star
[1]
“
[48]
In treating the decisions of administrative agencies with the
appropriate respect, a court is recognising
the proper role of the
executive within the Constitution. In doing so a court should
be careful not to attribute to itself
superior wisdom in relation to
matters entrusted to other branches of government. A court
should thus give due weight to
findings of fact and policy decisions
made by those with special expertise and experience in the field.
The extent to which
a court should give weight to these
considerations will depend upon the character of the decision itself,
as well as on the identity
of the decision-maker. A decision
that requires an equilibrium to be struck between a range of
competing interests or considerations
and which is to be taken by a
person or institution with specific expertise in that area must be
shown respect by the courts.
Often a power will identify a goal
to be achieved, but will not dictate which route should be followed
to achieve that goal.
In such circumstances a court should pay
due respect to the route selected by the decision-maker. This
does not mean however
that where the decision is one which will not
reasonably result in the achievement of the goal, or which is not
reasonably supported
on the facts or not reasonable in the light of
the reasons given for it, a court may not review that decision.
A court should
not rubber-stamp an unreasonable decision simply
because of the complexity of the decision or the identity of the
decision-maker.”
[4]
In my judgment, the applicant has failed to make out a case that the
respondents’ decision not to permit her the use of
the internet
modem in her cell is unreasonable and she must accordingly be
non-suited. In the result the following order will issue:
-
The
application is dismissed.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicant:
In Person
Obo
the 1
st
to 4
th
Respondents:
Adv Nobatana
Instructed
by
State Attorneys
29 Western Road,
Central, Port Elizabeth
Tel: (041) 585 7921
Ref: 21/2018/J
[1]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Toursim
[2004] ZACC 15
;
2004 (4) SA 490
(CC)