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
>>
2021
>>
[2021] ZAECPEHC 8
|
|
Wardle v Minister of Justice and Correctional Services and Another (1027/2020) [2021] ZAECPEHC 8 (2 February 2021)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 1027/2020
Date Heard: 30 July 2020
Date Delivered: 2 February 2021
In
the matter between:
BRENDA
WARDLE
Applicant
and
THE
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
First
Respondent
THE NATIONAL COMMISSIONER OF
CORRECTIONAL
SERVICES
Second Respondent
JUDGMENT
RONAASEN
AJ:
Introduction
[1]
The applicant is an awaiting trial prisoner
in the North End correctional facility (“the correctional
facility”), where
she has been detained since 30 June 2017.
[2]
The applicant is not represented in these
proceedings. Although the applicant claims to have a legal
education the relief
she seeks in terms of the notice of motion has
not been elegantly formulated and suffers from excessive verbiage as
indeed do her
affidavits filed in support of her application.
[3]
Thus, rather than attempting to paraphrase
the relief set out in the notice of motion I rather repeat it, below,
verbatim:
“
7.
That the Court grants a Rule
Nisi
directing the Respondents, within fifteen (15) days of the Order, to
show cause why the interim interdict, in the terms set out
infra,
should not be made final –
7.1.
Respondents and/or their officials are prohibited from conducting
unlawful, disorderly, baseless,
inhumane an degrading searches of the
Applicant’s cell and personal item;
7.2.
Where Respondents harbour a reasonable suspicion that Applicant has
contravened DCS regulations,
they are first to call and speak to the
duty Judge in Order to set out what the suspicions are and seeking
judicial authorization,
prior to conducting the search;
7.3.
The Respondents are directed to return to the Applicant, within 24
hours of this Order, all items
which were in the lawful possession of
Applicant, and which were confiscated during searches;
7.4.
The Respondents are directed to return to the Applicant, within 24
hours of this Order, a flip-file
with personal, and privileged, legal
documents which were handed over to the officials at the gate during
the week, preceding the
lockdown;
7.5.
The Respondents are directed during this Lockdown period, whilst
visits are suspended, to ensure
that Applicant is permitted to
purchase from the centre tuck shop at least twice a week;
7.6.
The Court grants an Essential Services permit to Mr Themba Qupe,
authorizing him to purchase
essential items for Applicant once a
month during the period of Lockdown, and for the said items to be
dropped off for handling
over to Applicant at the Centre, at a
non-contact, two minute visit or alternatively at the Specialized
Commercial Crimes Court
when Applicant appears in Court;
7.7.
That items of the Essential Services permit referred to in paragraph
7.6
supra
, Mr Qupe, is immediately authorized to purchase a
few items, most importantly bread and a few essential immediate
needs, to save
the Applicant from starvation and for these to be
dropped off at the Correctional Centre on the date of the granting of
this Order;
7.8.
Furthermore, Mr Qupe must be permitted to continue dropping off these
few essential items at
least twice a week, until the Respondents sort
out the logistical arrangements of supplying Applicant with bread
from Sasko and,
until the prison tuck shop starts operating weekly;
7.9.
The Respondents are directed to ensure that Applicant is permitted to
keep all items purchased
from the tuck shop in her cell as has been
the case since 2017;
7.10.
The Respondents ordered to ensure that amongst the items to be
returned to Applicant, are her two toasters
for which Applicant has
written, prior, managerial approval;
7.11.
The Respondents are directed to ensure the Applicant, is permitted to
make use of the public phone daily,
Monday to Friday, in order to
call her family, the courts, her employees, witnesses as well as her
legal representation in the
Gauteng matter.”
Background
[4]
This application is a riposte to the
measures the respondents were required to introduce in the
correctional facility and similar
facilities as a result of the
declaration of a national state of emergency to deal with the effects
of the Covid-19 pandemic which
quite obviously poses a severe threat
to inmates of correctional facilities. The respondents have to
meet great challenges
to ensure the continued safety of inmates in
correctional facilities in the face of the pandemic. Of
necessity this has required
imposing restrictions on inmates which
would not necessarily ordinarily apply.
[5]
Principally the restrictions placed on
inmates at the correctional facility included the barring of visitors
to ensure that visitors
who were infected with the virus do not pass
on the virus to inmates and limiting the use of public telephones by
inmates in the
correctional facility.
The applicant’s complaints and the
respondents’ response thereto
[6]
The applicant’s complaints are
foreshadowed and summarised in the notice of motion.
[7]
In the following paragraphs I summarise the
respondents’ response to the applicant’s complaints.
[8]
Inmates in the correctional facility have
access to the cafeteria to buy items on sale of their choice.
To this end they are
entitled to receive money from outside through
an approved money transfer system. The applicant has utilised
the money transfer
system in place and has utilised funds so received
to purchase items at the cafeteria. The applicant’s
access to the
cafeteria has never been restricted and the
respondents’ records bear this out. Significantly the
respondents point
out that prior to the launching of the application
the applicant did not complain or suggest that the system in place
was inadequate.
[9]
It is a fact of prison life that searches
are conducted of inmates and their living quarters in order to ensure
the safety of all
inmates and correctional staff. Weapons and
contraband, which are the focus of the searches, are regularly
smuggled into
prisons. The applicant’s unique situation
in terms of which she has been granted certain privileges to enable
her to
prepare for her trial, furthermore, necessitates searches of
her cell. Despite having no entitlement in this regard the
applicant
has been allowed to keep a computer and a modem in her
cell. This entails additional searches to ensure that she uses
these
items in terms of the conditions imposed when she was allowed
to keep them in her cell. So too the fact that the applicant
keeps a large volume of paperwork contained in files in her cell
necessitates searches to ensure that contraband is not secreted
in
these files.
[10]
The applicant, by her own admission, has
access to a cellular telephone, which is not permitted. This
also necessitates searches
of her cell.
[11]
Item such as a second toaster have been
confiscated from the applicant because she came into possession of
the toaster without explanation
and in particular without consent of
the respondents. The applicant has generally received
favourable treatment in that she
has been allowed to keep a large
number of items in her cell which are not ordinarily allowed.
[12]
The applicant has full access to the public
telephones in the correctional facility in the manner prescribed by
the respondents
and there is no truth in her allegations that calls
are monitored or recorded.
[13]
The applicant has enjoyed the benefits of
all measures taken to avoid exposure to the Covid-19 virus and she is
not at greater risk
to be exposed to the virus.
[14]
The confiscation of food contained in tins
is in accordance with standard operating procedure and is for the
safety of all inmates.
[15]
The applicant’s dietary concerns have
been satisfactorily addressed and she is being provided with bread
from a reputable
baker.
[16]
The respondents have no knowledge of the
documents which the applicant claims were confiscated from her.
Confiscations are
recorded and there is no record of the alleged
confiscation.
Discussion
[17]
This court, previously, has had occasion to
comment on the lenient manner in which the applicant has been treated
by the respondents.
So, for instance, despite this court
confirming that the applicant has no entitlement to keep a computer
and a modem in her cell,
she has been accommodated by the respondents
in this regard and allowed to keep these items, together with many
other items which
would normally be prohibited, in her cell.
[18]
A comparison of the two versions before me
confirms a substantial dispute of fact, which must be resolved in
favour of the respondents
in the light of the well-established
principle set out in
Plascon Evans
(Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634E-635D.
[19]
I am not satisfied as to the inherent
credibility of the applicant’s factual averments and cannot
therefore proceed on the
basis of the correctness of these
averments. On the contrary the applicant’s version
appears to me to be far-fetched
and inherently improbable. The
respondents, in turn, have succinctly and cogently dealt with the
applicant’s averments
and supported their response with
appropriate objective corroboration in the form of documents and
registers. The respondents’
version cannot be rejected as
being untenable and must be accepted by me as being correct and
dispositive of the applicant’s
case.
Conclusion
[20]
I am therefore of the view that the
applicant has not made out a case for the relief she seeks.
Order
[21]
In the result the application is dismissed
with costs.
O H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: In person
For the respondents: Adv. M Nobatana, instructed
by the State Attorney, Port Elizabeth