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[2021] ZAGPPHC 77
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WP v Minister of Justice and Correctional Services and Others (66090/18) [2021] ZAGPPHC 77 (4 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/
NO
(3)
REVISED: YES/
NO
4
MARCH 2021
CASE NO: 66090/18
In
the matter between:
W
P
APPLICANT
And
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
FIRST RESPONDENT
THE
NATIONAL COMMISSIONER OF
CORRECTIONAL
SERVICES
SECOND RESPONDENT
THE
HEAD OF THE ZONDERWATER
CORRECTIONAL
CENTRE
THIRD RESPONDENT
JUDGMENT
KOLLAPEN,
J
Introduction
[1]
The applicant brings these proceedings in person to seek relief
against the respondents
relating to the conditions of his
incarceration and in particular to matters relating to contact and
non-contact visits, including
conjugal visits with his spouse. In
addition, he seeks to have the use of a mobile telephone to enable
him to communicate with
his spouse and relatives. The relief sought
is opposed by all of the respondents.
[2]
The precise terms of the relief sought as set out in the Notice of
Motion
inter alia
reads as follow:
“
1. …
2. …
3. That the court order the
respondents to allow the following:
3.1
That the applicants’ wife be
allowed to visit him in the Correctional Centre for private marriage
visits;
3.1.1
That the mentioned marriage visits
be allowed one per month for three hours per visit;
3.1.2
That the mentioned marriage visits
be dealt with by the Correctional Services on such a basis as to
ensure the maximum protection
of the human dignity of both the
applicant and his wife.
3.2
The applicant be allowed to receive
contact visits every weekend and Public Holiday.
3.2.1
That the mentioned visits be allowed
to take place between 08:00 and 13:30;
3.2.2
That the visits be unlimited within
the allowed visiting hours, in terms of the following guidelines:
3.2.2.1
That it should be a minimum of an
hour;
3.2.2.2
That the only limitation on the
maximum time of the visit be the cut-off time of the general visiting
hours, namely 13:30 or in
case space is required by other visitors
that haven’t yet received an hour of visitation.
3.2.2.3
That during these visitation, three
adults and three minors be allowed to visit;
3.2.2.4
That the chairs of the visitor be
spaced so that maximum privacy be achieved;
3.2.2.5
That the chairs between the
applicant and his visitors be at such a distance that they are at
least able to sit hand in hand and
easily hear each other.
3.3
That the applicant, during weekdays,
Public Holidays excluded, be allowed to have non-contact visits.
3.3.1.1
That the duration of the visits be
at least an hour;
3.3.1.2
That the non-contact visits be
between 08:00 and 13:00;
3.3.1.3
That it be unlimited and that it
will only end after a minimum time of an hour, in case there are
other visitors or inmates who
also need to use the space.
3.4
That all visitors in the course of
visiting, be treated with respect and dignity.
3.5
That the applicant be allowed to use
a cellphone, under the following terms, or alternative terms that the
court allow:
3.5.1
The cellphone is without a camera
and not connected to the internet but only enabled to take phone
calls and receive sms’s.
3.5.2
The applicant accepts all
responsibility for the content contained on the cellphone as well as
persons that came into contact with
the cellphone as well as the
costs involved with having the phone.
3.5.3
Correctional Services is exempted of
any liability of costs in regard to the cellphone.
3.5.4
The cellphone and sim-card, with
necessary proof of RICA registration, must be registered with
Correctional Services with regard
to serial numbers and other
identifying numbers.
3.5.5
Only the cellphone and sim card are
allowed to be used.
3.5.6
The phone may be inspected at any
time by correctional officers to verify that it is the registered
phone and sim-card.
3.5.7
The applicant must provide consent
to the correctional officers to obtain at any time the register of
phone calls from the service
provider.
3.5.8
Despite the facilitating competence
which is given to the correctional officers, the applicant’s
privacy should always remain
protected.
The
factual background
[3]
The applicant who is 41 years old is currently being held at the
Zonderwater Correctional
facility where he has been imprisoned since
the 9 July 2014.
[4]
The applicant was part of a group of persons who stood trial in this
Division of the
High Court and was subsequently convicted of high
treason and other related crimes. He was sentenced to 25 years’
imprisonment
on 29 October 2013.
[5]
The applicant became engaged in February 2017 and thereafter sought
and was granted
permission to marry. On the 21 July 2017, he married
Mrs. RP. Prior to entering into marriage, the applicant and his then
fiancé
expressed the desire to have children and engaged with
the respondents with a view to securing the necessary permission to
have
access to the technology of artificial insemination to enable
them to attempt to have a child.
[6]
The request was initially refused in January 2018 and the respondents
say that the
refusal was based on their incorrect reliance on a
policy document
[1]
that said it
did not allow for such a process. They say that it was a genuine and
bona
fide
error on their part. Shortly thereafter on the 5 March 2018, the
decision was reversed and the applicant was advised that the
necessary permission was granted subject to certain terms and
conditions.
[7]
The applicant bemoans the long period of some 14 months it took for
the National Commissioner
to grant permission and says that this
constituted a violation of the applicant’s right to just
administrative action in
terms of Section 33 of the Constitution.
[8]
While the applicant seeks no relief in this regard, it is important
to point out that
the applicant got married in July 2017 and that the
application for permission to have access to the process of
artificial insemination
could only properly have been considered
after the marriage was concluded. The respondents in addition say it
was an unusual application
which they initially refused, relying on
the incorrect policy document which refusal was reversed two months
later. I am not sure
if the applicant is justified in taking the
stance that what occurred, constituted a violation of his
constitutional rights.
[9]
It appears that there were some logistical, biological and other
difficulties with
the process but that ultimately success was
achieved, Mrs. RP fell pregnant and thereafter gave birth to a child.
The
basis upon which the relief is sought
[10]
All of the relief sought says the applicant, is based on his right to
establish and maintain
healthy family relations, including with his
wife as well as other members of his family. He relies on the right
to marry and found
a family located in the Universal Declaration of
Human Rights and the International Covenant on Civil and Political
Rights, the
right to bodily and psychological integrity and the right
to have access to reproductive health services and the right to
access
health care services.
[11]
The application is brought under Section 38 of the
Constitution
[2]
which
provides that a person can approach a Court with an allegation
or complaint that his/her human rights have been
violated or that a
violation is pending. The applicant noted that he is aware of the
limitation of Section 36 of the Constitution
and that he understands
that part of detention entails a limitation of his Constitutional
Rights.
[3]
The applicant,
however, contends that the limitations imposed by the respondents
other than that imposed on his freedom of movement
and certain
limitations required to maintain law and order in the correctional
facility does not pass the Section 36 test and is
therefore
unconstitutional.
[12]
The applicant further contends that contact with family and other
member of society together
with the building of family relationships,
is central to the objective of the Department of Correctional
Services in order to fulfill
its Constitutional mandate of
rehabilitation and upholding human rights.
[4]
The
claim to have conjugal visits
[13]
The applicant seeks relief that will allow him to have a conjugal
visit with his wife, once per
month for three hours in duration.
[14]
The applicant relies on various national and international human
rights instruments
[5]
which
proclaim the importance of family life and in addition relies on the
marriage policy of the Department of Correctional Services
which
provides the following:
“
No
prisoner shall be excluded from the benefit of this policy but shall
not be allowed to exercise their conjugal rights.
Every prisoner
has the right to make decisions concerning reproduction in exercising
the right to family life but only limited to
adoption and artificial
insemination at own cost.
No offender will
be excluded from the benefit of the marriage policy; however,
conjugal rights and the right to reproduction may
not be exercised
whilst in correctional centres.”
[15]
From this it would appear that while prisoners have the right to make
decisions regarding reproduction
as part of family life, such a right
is limited to adoption and artificial insemination. The applicant
takes issue with the policy
and contends that when he was granted
permission to marry it was implied that with the giving of the
consent, the policy or rule
that prohibited conjugal visits was
abandoned. It is not clear how the granting of permission to marry
automatically entailed the
lifting of the prohibition on conjugal
visits.
[16]
In this regard the respondents point out, that when permission to
marry was granted the applicant
and his then fiancé had a
pre-marital session with the Social Worker of the Department during
which the policy of the Department
was fully explained to them,
including the limitations on conjugal visits and that both the
applicant and his fiancé accepted
that when they decided to
get married, those would be the circumstances the marriage
relationship would be subjected to.
[17]
The applicant submits that the marriage policy of the Department is
unreasonably and unjustifiably
limits the right to make decisions
concerning reproduction in exercising the right to family life by not
making provision for conjugal
visits in prison facilities.
The
claim to further contact and other visits
[18]
There is no dispute that the right to communicate with, and be
visited by a spouse, partner or
next of kin is both constitutionally
recognized but also an important part of the policy and legal
framework of the respondents
in order to advance rehabilitation and
to promote the building of healthy familial relations. It is the
scope and extent of such
visitation rights that is in dispute.
[19]
The applicant seeks relief that would allow him to have a contact
visit every weekend and Public
Holiday for a minimum of one hour but
subject to a maximum of five and a half hours if the space used for
such visits is not required
for visitors of other prisoners.
[20]
In addition the applicant seeks to have non-contact visits during
weekdays (excluding Public
Holidays) which should last for a minimum
of one hour and a maximum of five and a half hours, if the visiting
space is not required
for other visitors.
[21]
The applicant also seeks relief to the effect that the location and
spacing of the chairs in
the visiting hall during contact visits be
spaced in such a manner that allows for privacy in communication with
his visitors as
well as for the applicant and his family to be able
to be close enough to each other to hold each other and each other’s
hands.
[22]
In summary what the applicant seeks is to have contact visits for
each of the 52 weekends per
year as well as the approximately twelve
Public Holidays per year. He also seeks non-contact visits for every
other weekday of
the year excluding Public Holidays as well as twelve
conjugal visits per year.
Access
to a cellphone
[23]
The applicant further seeks permission to have a mobile phone which
he undertakes to use subject
to a various terms and conditions which
he has proposed including that the phone may not have internet access
or a camera, that
it be procured at the applicant’s own costs,
be registered with the respondents and be subject to monitoring.
[24]
The applicant relies in this regard on Section 25(2) of the
Constitution which provides for the
right of every sentenced prisoner
to communicate with and be visited by that prisoners’ spouse,
or partner or next of kin.
[25]
Again there is no dispute with regard to how the parties understand
the right to communicate,
it is rather the mode of that communication
that is in dispute, the respondents contending that the policy, rules
and regulations
of the Department does not provide for any prisoner,
sentenced or un-sentenced to have a cell phone.
[26]
The applicant submits in this regard that B-Order is the only
authority for the explicit ban
on the use of a cell phone in
correctional facilities and the applicant in this regard submits that
B-Order is in violation and
contradictory to Section 8(4) of the
Correctional Regulations which makes provision of electronic
communication which the respondents
say is limited to use during
visits.
The
Legal framework in South Africa
[27]
All of the relief sought by the applicant relates to the interaction,
engagement and the type of contact
the applicant says he is entitled
to have with his family and other relatives. The idea of imprisonment
as a species of punishment
has always been the subject of much debate
and contestation and some societies use it sparingly and in
exceptional circumstances
while for others it has become a routine
part of the punishment regime open to the criminal justice system.
This is invariably
a matter of the policy choice for different
jurisdictions and shaped and informed by the particular circumstances
the prevail at
any given time. In South Africa where there is a
high level of imprisonment , the Constitution and the
Correctional
Services Act
[6]
(the Act) forms the constitutional and legal framework against which
the relief that is sought is to be adjudicated.
[28]
In all of that however, what has not been in dispute is the idea that
imprisonment does not strip
the individual of all the rights and
entitlements he/she would ordinarily have albeit that the context of
imprisonment means that
those rights are given effect to differently
where it is possible to do so, while others necessarily inconsistent
with imprisonment
do not enjoy recognition.
[29]
In
Elrich
v Minister of Correctional Services and Another
[7]
Plasket,
J found it necessary to preface his judgment with a short discussion
of the central principle that applies to the treatment
of prisoners
before turning to the provisions of the Act that are applicable:
“
[4]
That the principle is one that, in its articulation by the highest
court of land, predated the 1996 Constitution and has a much
older
but just as august pedigree. The line of cases start in 1912 in the
matter of Whittaker and Morant v Roos and Bateman in
which Innes JA
held:
‘
The
action of the Governor [of the prison] was a wrongful and intentional
interference with those absolute natural rights relating
to
personality, to which every man is entitled. True, the plaintiffs’
freedom had been greatly impaired by the legal process
of
imprisonment; but they were entitled to demand respect for what
remained. The fact that their liberty had been legally curtailed
could afford no excuse for a further illegal encroachment upon it. Mr
Esselen contended that the plaintiffs, once in prison, could
claim
only such rights as the Ordinance and the regulations conferred. But
the directly opposite view is surely the correct one.
They were
entitled to all their personal rights and personal dignity not
temporarily taken away by law, or necessarily inconsistent
with the
circumstances in which they had been placed.”
[30]
In
Goldberg and
Other v Minister of Prisons and Others
,
Corbett, JA said in a dissenting judgment:
‘
It
seems to me that fundamentally a convicted and sentenced prisoner
retains all basic rights and liberties (using the word in its
Hohfeldian sense) of an ordinary citizen except those taken away from
him by law, expressly or by implication, or those necessarily
inconsistent with the circumstances in which he, as a prisoner, is
placed. Of course, the inroads which incarceration necessarily
makes
upon a prisoner’s personal rights and liberties (for sake of
brevity I shall henceforth speak merely of ‘rights’)
are
considerable. He no longer has freedom of movement and has no choice
in the place of his imprisonment. His contact with the
outside world
is limited and regulated. He must submit to discipline of
prison life and to the rules and regulations which
prescribe how he
must conduct himself and how he is to be treated while in prison.
Nevertheless, there is a substantial residuum
of basic rights which
he cannot be denied; and, if he is denied them, then he is entitled,
in my view, to legal redress.’
but also by
[6]
Even though that dictum was in a dissenting judgment, it relied on
the judgment of Innes AJ, cited above, in Whittaker
and Morant v Roos
and Bateman, Subsequently, Corbett JA’s dictum was held to
correctly reflect the law in Hoexter JA’s
judgment in Minister
of Justice v Hofmeyr. In this matter, prior to expressing his
agreement ‘with the general approach reflected
in the residuum
principle enunciated by Corbett JA in the Goldberg case, Hoexter JA
held:
‘
The
Innes dictum serves to negate the parsimonious and misconceived
notion that upon his admission to a goal a prisoner is
stripped, as it were, of all his personal rights; and that
thereafter, and for so long as his detention lasts, he is able to
assert
only those right for which specific provision may be found in
the legislation relating to prisons, whether in the form of statutes
or regulations. The Innes dictum is a salutary reminder that in
truth the prisoner retains all his personal right save those
abridged
or proscribed by law. The root meaning of the Innes dictum is that
the extent and content of a prisoner’s rights
are to be
determined by reference not only to the relevant legislation
reference to his inviolable common-law rights.’
[7] The common
law may not be as prominent now as it was in 1912, 1979 or 1993 for
the protection of fundamental rights and it was,
of course, subject
to legislative override, as a result of parliamentary sovereignty
being a central tenet of the constitutional
order at the time. Now,
in a era of democratic constitutionalism, in which fundamental rights
are justiciable and in which they
may only be limited by laws of
general application ‘that are reasonable and justifiable in an
open and democratic society
based on human dignity, equality and
freedom’, the residuum principle has stronger protection than
before. There can be no
doubt that it is in harmony with the
Constitution’s values.
[8]
Section 35(2)(e) of the Constitution provides that everyone who is
detained, including every sentence prisoner, had the
fundamental
rights ‘to conditions of detention that are consistent with
human dignity’. In addition, s 9(1) provides
that every persons
‘is equal before the law and has the right to equal protection
and benefit of the law’; s 10 entrenches
a fundamental right to
human dignity; and section 33(1) of the Constitution gives everyone
the right to ‘administrative actions
that is lawful, reasonable
and procedurally fair.”
[8]
[31]
The Constitution of the Republic of South Africa in Section 35
thereof, in dealing with the rights
of arrested, detained and accused
persons provide in part as follows:
“
(e)
to conditions of detentions that are consistent with human dignity,
including at least exercise and the provisions, at state
expense, of
adequate accommodation, nutrition, reading material and medical
treatment; and
(f) to
communicate with, and be visited by, that person’s-
(i) spouse or
partner;
(ii) next of kin;
(iii) chosen
religious counsellor; and
(iv) chosen
medical practitioner.”
[32]
In this regard the constitutional right to communicate and be visited
is also captured in Section 13
of the Correctional Services Act in
the following terms:
“
(1)
The Department must encourage inmates to maintain contact with the
community and enable them to stay abreast of current affairs.
(2) The
Department must give inmates the opportunity, under such supervision
as may be necessary, of communicating with and being
visited by at
least their spouses or partners, next of kin, chosen religious
counsellors and chosen medical practitioners.
(3) In all
circumstances, a minimum of one hour must be allowed for visits each
month.”
[33]
What emerges is that a prisoner even on entry into the prison system
retains a residuum of rights
and in particular those rights that are
not necessarily inconsistent with the institution of imprisonment. In
addition, Section
35(2) guarantees a host of rights that are intended
to provide for and create the conditions of detention consistent with
human
dignity. The question that will arise for determination is
whether the kind of contact rights the applicant seeks are
necessarily
inconsistent with his incarceration as well as whether
the rights that the applicant is entitled to assert in terms of
Section
35(2) have been infringed.
[34]
In one of the few cases that the Courts have interacted with the
Section, the Courts have inferred
that competing interests may at
times result in the right to contact being limited for just cause.
In
Masilela
and Others v Bouwers And Others
,
[9]
the Court had to consider applications to transfer the
applicants — who were prisoners incarcerated in a
maximum-security
facility — from the maximum-security centre
far from their homes to a lesser security centres closer to their
homes so that
they could be closer to their families. The Court
found that the applicants had failed to establish grounds for the
relief
sought. As such, the applications were dismissed.
Masilela
seemingly
demonstrates that whilst the right to outside contact as mandated by
the Constitution and the Correctional Services Act
does apply to
prisoners as a basic human right, competing interests may at times
limit the right.
International
Framework
[35]
An important premise in dealing with the rights of detainees and
prisoners to maintain contact
with the world outside the institutions
where they are held is that, like free persons, those deprived of
their liberty enjoy all
the human rights guaranteed by the
international law, however subject to those restrictions that are an
unavoidable consequence
of the confinement.
[10]
This means,
inter
alia
,
that no detainee or prisoner “
shall…
be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence
”
[11]
[36]
The primary source of authority for the promulgation of human rights
standards by United Nations
bodies may be found in the Charter
itself. The second paragraph of the Preamble states that one of the
principles aims of the United
Nations is:
“
to
reaffirm faith in fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women
and of
nations large and small ...”
[12]
[37]
Furthermore, article 1, paragraph 3, of the Charter states that one
of the purposes of the United
Nations is to achieve international
cooperation in:
“
promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language
or religion
...
”
[38]
The international instruments that inform the rights of inmates
include Article 12 of the United
Nations Universal Declaration of
Human Rights of December 1984 which provides that:
“
No
one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence
.”
[13]
[39]
In a similar vein, Article 17 of the International Covenant on Civil
and Political Rights states
that:
“
1.
No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence…
2.
Everyone has the right to the protection of the law against such
interference and attacks.”
[40]
Principle 19 of the Body of Principles for the Protection of All
Persons under Any Form of Detention
or Imprisonment provides that:
“
a
detained or imprisoned person shall have the right to be visited by
and to correspond with, in particular, members of his family
and
shall be given adequate opportunity to communicate with the outside
world, subject to reasonable conditions and restrictions
as specified
by law or lawful regulations
.”
[41]
The Standard Minimum Rules for the Treatment of Prisoners, 1958
provides that:
“
Prisoners
shall be allowed under necessary supervision to communicate with
their family and reputable friends at regular intervals,
both by
correspondence and by receiving visits.”
[14]
[42]
In a manual drafted by the Office of the United Nations High
Commissioner for Human Rights on
Human Rights and Prisons, the
objective of the Commissioner in respect of the rights of an inmate
to outside contact reads as follows:
“
The
objective of this section is to emphasize that, despite being
deprived of liberty, prisoners retain a right to have contact
with
their family and friends and the outside world.”
[43]
The manual goes on to further emphasize that the essential principles
underscoring the right
to outside contact are underlined by the fact
that:
“
No
one shall be subjected to arbitrary interference with his or her
privacy, family, home or correspondence.
All prisoners
shall have the right to communicate with the outside world,
especially with their families.
Foreign prisoners
shall be allowed to communicate with their diplomatic
representatives.
A prisoner
request to be held in a prison near his or her home shall be granted
in as far as possible.
Prisoners
shall be kept informed of important items of news
.”
[44]
Article 8(1) of the European Convention provides that “
everyone
has the right to respect for his private and family life, his home
and his correspondence
”, paragraph 2 allows for the
following restrictions on the exercise of this right:
“
2.
There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of
the country,
for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights
and freedoms of
others.”
[45]
The United Nations Standard Minimum Rules for the Treatment of
Prisoners (The Nelson Mandela
Rules) of 17 December 2015 stipulates
as follows:
“
Rule
58
1.
Prisoners shall be allowed, under necessary supervision, to
communicate with their family and friends at regular intervals:
(a)
By corresponding in writing and using, where available,
telecommunication, electronic, digital and other means; and
(b)
By receiving visits.
2. Where
conjugal visits are allowed, this right shall be applied without
discrimination, and women prisoners shall be able
to exercise this
right on an equal basis with men. Procedures shall be in place and
premises shall be made available to ensure
fair and equal access with
due regard to safety and dignity.”
[46]
The African Charter on Human and Peoples’ Rights (Africa
Charter) has no provision that
explicitly relates to prisoners’
rights or the rights of people in detention, but these rights are
implied in other rights
such as the right to human dignity and the
right not be subjected to any form of torture cruel, inhuman and
degrading treatment
or punishment.
[15]
The African Commission on Human and Peoples’ Rights (African
Commission) was established under the Article 30 of the African
Charter to promote and protect human rights in Africa. The
African Commission interprets the provisions of the Charter and
is
empowered to receive complaints of human rights violations from
States, individuals and groups.
[16]
The African Commission encourages governments to hold detainees and
prisoners in humane conditions. During detention detainees
and
prisoners should be allowed to have access to lawyers during trial to
prepare their defense, also have access to their lawyers
after
convictions to discuss the prospects of appeal and for lawyers to
ensure that their clients are detained in conditions that
are in line
with international standards. Prisoners should also be granted access
to their family members, doctors and should also
be allowed
sufficient light in their cells and enough food.
[17]
[47]
In
Civil
Liberties Organisation v Nigeria
[18]
,
in which the Federal Military government of Nigeria imprisoned
civilians and military officers in military camps who allegedly
wanted to overthrow it, the African Commission held that:
“
While
being held in a military detention camp is not necessarily inhuman,
there is the obvious danger that normal safeguards on
the treatment
of prisoners will be lacking. Being deprived of access to one's
lawyer, even after trial and conviction, is a violation
of article
7(1)(c) of the African Charter
[19]
being
deprived of the right to see one’s family is psychological
trauma that is difficult to justify, and may constitute inhuman
treatment. Deprivation of light, insufficient food and lack of access
to medicine or medical care also constitute violations of
Article
5.
[20]
”
[48]
The Kampala Declaration on Prison Conditions in Africa arose out of
an international seminar
on prison conditions in Africa held in
September 1996 in Kampala
[21]
.
The Kampala Declaration took prison conditions into account and
considered that in many African countries “
the
level of overcrowding in prisons is inhuman, that there is a lack of
hygiene, insufficient or poor food, difficult access to
medical care,
a lack of physical activities or education, as well as an inability
to maintain family ties.
”
The Kampala Declaration recommends action be taken by states and
non-governmental organizations on four fronts, prison conditions,
remand prisoners, prison staff and alternative sentencing. The
Kampala Declaration recommends:
“
That
the human rights of prisoners should be safeguarded at all times…;
that prisoners should retain all rights which are
not expressly taken
away by the fact of their detention; that conditions in which
prisoners are held and the prison regulations
should not aggravate
the suffering already caused by the loss of liberty; that the
detrimental effects of imprisonment should be
minimized so that
prisoners do not lose their self-respect and sense of personal
responsibility…”
[49]
The Ouagadougou Declaration and Plan of action under one of the main
areas which relates to promoting
the reintegration into society of
alleged and convicted offenders recommends,
inter alia
:
“
Promote
contact with the family and community by: encouraging civil society
groups to visit the prison and work with offenders;
improve the
environment for visitors so that physical contact is permissible;
provide facilities for conjugal visits; setting up
a privilege system
including day, week-end and holiday leave subject to satisfying
appropriate criteria.
”
[22]
The
international position with regard to conjugal visits
[50]
In
Dickson
v. the United Kingdom
[23]
,
the Court referred to the fact that more than half of the Contracting
States allow for conjugal visits for prisoners, subject
to a variety
of different restrictions. However, while the Court has expressed its
approval for the evolution in several European
countries towards
conjugal visits, it has not yet interpreted the European Convention
as requiring Contracting States to make provision
for such visits
(
Aliev
v. Ukraine
,
[24]
).
Accordingly, Contracting States could enjoy a wide margin of
appreciation in determining the steps to be taken to ensure
compliance
with the European Convention with due regard to the needs
and resources of the community and of individuals.
[51]
In
Varnas
v Lithuania
[25]
,
the European Court for Human Rights found that a difference in
treatment of remand prisoners compared to convicted prisoners as
regards conjugal visits was not justified within the meaning of
Article 14
[26]
in conjunction with Article 8 (Right to respect of private and family
life). The Court further noted that security considerations
relating
to any criminal family links were absent in the case at issue as
regards the visits by the applicant’s wife. The
Court also did
not accept the argument that a lack of appropriate facilities
justified lack of access to conjugal visits. In sum,
the Court found
that the authorities had failed to provide reasonable and objective
justification for the difference in treatment
of remand prisoners
compared to convicted prisoners and had thus acted in a
discriminatory manner.
[27]
[52]
Rule 24 of the European Prison Rules can be read as setting out the
duties, as stipulated in
Article 8 of the European Convention, the
duties of prison authorities need to have to ensure these rights are
upheld in the inherently
restrictive conditions of the prison.
This is inclusive of visits to the outside world of a prisoner.
Rule 24.4 is
significant of visits not only to prisoners but also for
their families. It is important that where possible intimate
family
visits should extend over a longer period, for example, 72
hours, as is the case in many eastern European countries. Such long
visits enable inmates to have intimate relations with their
partners. Shorter “conjugal visits” for this
purpose
can be demeaning to both partners.
[28]
In a number of eastern European countries sentenced prisoners may
receive private visits from their spouse, partners and families
at
regular intervals for up to three days. These visits take place
in small flats within the security of the prison.
The family
visitors provide for their own meals for duration of their stay.
During these days, prisoners can lead a relatively
normal life with
family members. However, although widely available in practice, many
families are prohibited due to distances
and expense from making
these visits.
[29]
The
applicant’s classification as a prisoner and his entitlement to
visits and communication
[53]
The Zonderwater Correctional Centre is classified as a maximum
facility and caters for offenders
who are serving lengthy periods of
imprisonment as well as those convicted of very serious crimes.
Section 2 of the Act describes
the purpose of the Correctional system
in the following terms:-
“
The
purpose of the correctional system is to contribute to maintaining
and protecting a just, peaceful and safe society by-
(a)
enforcing sentences of the courts in
the manner prescribed by this Act;
(b)
detaining all inmates in safe
custody whilst ensuring their human dignity; and
(c)
promoting the social responsibility
and human development of all sentenced offender.”
[54]
Section 13 of the Act purports to give effect to the rights of
contact and while it is styled
contact with the community, its
provisions relate to both the community at large as well as family, a
spouse, partner or next of
kin.
It
provides as follows:
“
(1)
The Department must encourage inmates to maintain contact with the
community and enable them to stay abreast of current affairs.
(2) The
Department must give inmates the opportunity, under such supervision
as may be necessary, of communicating with and being
visited by at
least their spouses or partners, next of kin, chosen religious
counsellors and chosen medical practitioners.
(3) In all
circumstances, a minimum of one hour must be allowed for visits each
month.”
[55]
Finally the Act also provides for the security classification of
prisoners based on the security
risk posed by the prisoner. This
determination informs the physical location within the system where
such prisoner would be detained
as well as the nature of the rights
and entitlements that may accrue to such a prisoner.
The
position of the applicant
[56]
The applicant is currently classified as a Group A offender and is
entitled to a maximum of three
contact visits per month. On such
visits he may be visited by two adults and any number of children
under the age of 16. Such visits
take place during weekends and
Public Holidays. Group B and C offenders are not allowed contact
visits but are only entitled to
non–contact visits.
[57]
The respondents say that all contact visits take place in an open
hall where there are loose
chairs and that the applicant is free to
make his own seating arrangements with his contact visitors. The
applicant denies that
this is the case and while he admits that there
are loose chairs in the hall, he says that they are placed in
designated positions
and may not be moved and that officials of the
respondent indicate where offenders and visitors may sit during
visiting times.
The result of this, the applicant says, is to prevent
such visits from happening within the bounds of privacy given the
close proximity
of visitors to each other. The applicant says he is
not even able to touch his spouse or other relatives due to the
spacing of
the chairs.
[58]
On this score there appears to be no dispute that the applicant is
able to enjoy three contact
visits per month with his family
including his wife as well as other contact visits with his doctor,
religious counselor and legal
representatives. The issue in dispute
relates to his request to have more extensive contact visits as well
as non-contact visits.
In an ideal world maximizing visits may well
be desirable both in contributing to establishing strong community
and family contact
as well as the rehabilitation of the offender. At
the same time however, regard must be had to the large number of
prisoners housed
in South Africa’s penal system, the practical
and logistical arrangements that go into the process as well as the
need for
the Department to take care of the other business of the
penal system as well as maintaining safety inside the facility.
[59]
The constitutional guarantee of contact which is mirrored in the
provisions of the Act is given
effect to by the system that is in
place and my view is that the current visitation regime does not
constitute a limitation on
the right to contact as it could not be
contended that the scope and extent of contact that the applicant
seeks is consistent with
the conditions of his incarceration. Even if
it did constitute a limitation then such limitation is reasonable and
justifiable.
The respondents say that the Zonderwater Facility houses
some 1500 offenders of different categories and that the
classification
system enables them to make proper and suitable
arrangements for visitation times and arrangements for all
offenders.
[60]
The relief sought in respect of extended contact visits as well as
non-contact visits must accordingly
fail. The matter of the
arrangements in the visiting hall has given rise to a dispute which
should be capable to easy resolution.
If the respondents say that
prisoners are entitled to make their own seating arrangements in the
hall then this should not pose
a problem, regard being had to the
number of visitors in the hall at any given time, I would be
reluctant to make any order in
this regard given the largely unknown
factors of the size of the hall, the number of visitors that may
occupy it at any given time
and the spacing that should be put in
place. It is an operational issue that requires a measure of
flexibility and adjustment.
Having said that I would expect the
respondents to then implement, within reason, the practice of
allowing prisoners to make their
own seating arrangements at visiting
times.
Access
to a cell phone
[61]
The applicant says that while there are public telephone facilities
within the prison, these
break down from time to time resulting in
difficulties in making telephonic contact with the outside world. The
respondents take
the view that there are sufficient facilities
available and when they do break down, the service providers are
contacted, and they
attend to the repairs thereof.
[62]
In addition they say that the policy that prohibits the possession of
cell phones is also related
to the increased security risk posed by
such devices. They point to an escape attempt that was planned from
the Zonderwater prison
where a cell phone that had been illegally
smuggled into the prison was used to make arrangements to facilitate
the planned escape.
[63]
The right to communicate is important in the rehabilitation of a
prisoner and the system in place
gives effect to that right in number
of ways including visits (both contact and non-contact visits) in the
case of the applicant
this is limited to contact visits which lend
themselves to create a greater level of interaction between the
prisoner and his/her
visitors and telephonic contact as well as
contact with a doctor, religious counselor and legal representatives.
All of this in
my view provides sufficient opportunity for contact
and the demand for a cell phone cannot be sustained both in terms of
any entitlement
to a cell phone that a prisoner may have but also
regard being had to the security risk posed by cell phones in general
in a penal
context. The monitoring of cell phone usage by prisoners
would in any event be a full-time duty further stretching the human
resources
at correctional facilities.
The
right to marry and the right to found a family
[64]
The right to marry and to found a family located in the Universal
Declaration of Human Rights
is a central pillar in the recognition of
the family as a central and fundamental group unit of society. In the
context of South
Africa’s penal system provides the policy and
legal framework for the realization of this important right.
[65]
Prisoners may marry upon the consent of the Commissioner of
Correctional Services being sought
and granted. In addition, those
who desire to start a family may seek permission to have access to
the artificial insemination
technology. While these processes are not
the subject of any challenge in these proceedings, my understanding
is that when the
Commissioner’s consent is sought, the decision
taken must accord with the principle of legality and be consistent
with the
Constitution. Failure to do so may well trigger a legal
challenge.
[30]
[66]
That being said the applicant, while a prisoner, sought and obtained
the permission of the Commissioner
to marry and then entered into a
marriage with the now Mrs. RP. Subsequent to that he sought and
obtained the permission of the
Commissioner to have access to the
artificial insemination technology so that he and his wife could
start a family. They were successful
in doing so.
[67]
Accordingly, it cannot be said that the applicant’s right to
marry or his right to found
family has been limited in any manner. On
the contrary the evidence compellingly displays that those rights
have been honored and
the fact that the applicant is today a married
man and a father is in part due to the enabling policy and
legislative framework
that made it possible for him to attain such a
status while being a prisoner. In saying this I do not do so to
suggest that the
applicant owes some debt of gratitude to the
Department - he does not - but rather to simply point out that
the enabling
legal framework gives effect in the most substantial
manner to the right to marry and the right to found a family.
The
entitlement to conjugal visits
[68]
While both international human rights law as well as South Africa’s
own human rights framework
and commitment provides for the right of
prisoners to have contact with a spouse partner or next of kin, there
appears to be no
express self-standing right of prisoners to conjugal
visits. Of course, the question may arise whether the right to have
contact
with one’s spouse or partner may well entail the right
to a conjugal visit.
[69]
In the context in which it is used, the idea of and the language used
to give effect to the right
to contact in the Constitution, contact
is used in the generic sense with little distinction drawn between
the various categories
of persons mentioned in Section 35. The
detained person is entitled to have contact with a partner, spouse,
doctor, priest
etc. and they all relate to the same enterprise –
the idea of human interaction with another and even though they may
seek
to advance different objectives, they all take the same form –
the right and the ability of the prisoner to see, meet and
engage
another.
[70]
On the other hand, sexual relations between two people may well, at
the physical level constitute
contact, but it can hardly be said to
be contact in the context described in the Constitution which is not
about physical contact
but rather the process by which two or more
people interact with each other – in many instances the absence
of any physical
contact does not render or undermine the right to
contact that is given effect to.
[71]
Therefore to suggest that contact with a spouse or a partner entails
sexual relations is to give
to Section 35 a meaning that is not
consistent with the ordinary meaning of the word or the context
within which it is used. It
would have clearly been open to the
drafters of the Constitution, if they so intended, to include under
contact the right to a
conjugal visit. That they elected not to do so
is instructive.
[72]
On this issue I therefore conclude that the right to contact or
indeed the right to marry or to found
a family in the context of the
penal system does not entail the right to conjugal visits. As
explained and indeed in the
case of the applicant those rights have
been fully given effect to without the need for a concomitant right
to a conjugal visit
that the applicant contends exists.
[73]
In conclusion, I find that the right to conjugal visits is not part
of the rights that the Constitution
guarantees to prisoners and that
the current policy of the Department that prohibits conjugal visits
does not constitute a limitation
of the right to contact but that
even if it did it is a limitation that is consistent with the
limitation on the freedom that imprisonment
necessarily entails.
[74]
This may not necessarily be the last word on the matter. The
matter of conjugal visits
however remains an important issue and has
complex policy and legal implications. Ordinarily many personal and
intimate human relationships
are characterized by a physical
closeness and sexual intimacy is often, though not always a vital
part of those relationships.
It is said that such intimacy and the
physical connection between people often adds value and quality to
such relationships. On
the other hand, there are many personal and
intimate relationships that exist and thrive without the need for any
physical intimacy
or sexual connection. The complexity of the human
condition and the diverse range of human relationships and
interaction simply
mean that there is not a single model that fits
all.
[75]
I am however willing to accept that for many a normal relationship
may well encompass a measure
a physical closeness expressed through
physical intimacy and sexual interaction.
[76]
Much has been written and said on the matter whether prisoners should
enjoy conjugal visits and
there are many who argue with great force
and persuasion that if the object of imprisonment is not to punish
but to create the
conditions under which rehabilitation can
meaningfully take place conjugal visits should be permitted. They
argue that conjugal
visits contribute to healthy relationships
between individuals and the strengthening of such bonds contributes
to the rehabilitation
of offenders and ensures that the important
component of their private lives, including that of physical intimacy
is maintained.
[77]
On the other hand it is argued that the deprivation of liberty that
imprisonment necessarily
entails, has as its consequence that for
those whose freedom is curtailed, they of necessity give up much of
what is associated
with that freedom. Included in that is what may be
regarded as a normal family life and a normal relationship with their
spouse
or partner. They point out that under these circumstances the
ability to enjoy conjugal visits are incidental to the loss of
freedom
and liberty that imprisonment entails.
[78]
At other levels the debate around conjugal visits in prisons
implicates a host of other related
and relevant issues and they
include the commitment to equality for all within the penal system,
the recognition of human dignity
and the physical, logistical and
other challenges such a shift in policy would create. The recognition
of gender equality and given
that the large majority of prisoners are
male and heterosexual, how their partners may feel about such a
change in policy may also
be relevant. Coupled with that the issues
of consent, patriarchy and the significant imbalance in power
relations between men and
women which still characterize our society
all become relevant considerations in the debate about conjugal
visits.
[79]
These issues all become relevant in how society is to approach such a
matter and make a determination
thereof if it is called upon to do
so. It does appear that it is in nature a matter that is largely a
policy choice that would
ultimately require a consideration of a
number of factors and the views from a number of stakeholders. It is
hardly a matter that
Courts are necessarily well suited or well
equipped to determine given the nature of and the wide ranging
interests and stakeholders
who are relevant in such a process.
Conclusion
[80]
In conclusion and for the reasons given, I find
that our law does not expressly recognize a right to a conjugal
visit
nor can the Constitution be interpreted to provide support for the
existence of such a right which is inconsistent with the
notion of
incarceration. To that extent the relief sought by the applicant must
fail. I have already dealt with the relief sought
in respect of
contact and non- contact visits as well as that relating to the
applicant’s claim to the use of a cellphone.
[81]
On the other hand, the question of whether conjugal visits should be
a feature of our correctional
system is a question that will require
debate and the weighing of diverse, complex and contested issues.
Whether such a debate
and a process are triggered in the body politic
of our country remains to be seen but it is not a debate whose
outcome this Court
is called upon to determine.
Order
In
the circumstances I make the following order :-
1.
The application is dismissed.
2.
No order is made as to costs.
NJ.
KOLLAPEN
JUDGE
OF THE HIGH COURT, PRETORIA
APPEARANCES
APPLICANT
: DR W
PRETORIUS
(in person)
COUNSEL
FOR THE 1
st
RESPONDENT
:
Adv S.S
MAAKANE SC
INSTRUCTED
BY
: STATE
ATTORNEY
PRETORIA
DATE
OF HEARING
:
Matter
was decided on
paper.
DATE
OF JUDGMENT
:
[1]
Correctional
Services B-Order.
[2]
The
Constitution of the Republic of South Africa, 1996.
[3]
Page
6 of the Applicant’s Heads of Argument at 3.1.
[4]
Page
7 of the Applicant’s Heads of Argument at 3.3.
[5]
Sections
12(2)(a) and 27(1)(a) and (2) of the Constitution, Section 23(2) of
the International Covenant on Civil and Political
Rights, Sections
12 and 16(1) of the Universal Declaration of Human Rights and
Section 18(1) and (2) of the African Charter.
[6]
Act
111 of 1998.
[7]
2009 (1) SACR 588 (E).
[8]
The
Constitution of the Republic of South Africa, 1996.
[9]
2013
(2) SACR 350
(GNP). See also
Mohammed
v Minister of Correctional Services and Others
2003
(6) SA 169 (SE).
[10]
Cf.
in particular statement by the Human Rights Committee in its General
Comment No. 21 on article 10, in United Nations Compilation
of
General Comments, para. 3 at p. 142.
[11]
Article
17 of the International Covenant on Civil and Political rights,
1966.
[12]
Human
Rights and Prisons: Manual on Human Rights Training for Prison
officials.
https://www.ohchr.org/documents/publications/training11en.pdf
Office
of the United nations High Commission for Human Rights at page 8.
[13]
See
fn. 9 at page 115.
[14]
Rule
37.
[15]
Protecting
Prisoners' Rights before the African Commission on Human and
Peoples' Rights: The Role of Civil Society By Jamil Ddamulira
Mujuzi, Doctoral Research Intern, CSPRI newsletter No 22 June 2007
https://acjr.org.za/resource-centre/22%20-%20June%202007.pdf.
[16]
See
fn. 9 at page 9.
[17]
See
fn. 14.
[18]
Communication
151/96, 13th Annual Activity Report of the African Commission on
Human and Peoples' Rights
(1999-2000)
Annex V.
[19]
See
fn. 17 at para 26.
[20]
See
fn. 17 at para 27.
[21]
Kampala
Declaration on Prison Conditions in Africa accessed at
https://cdn.penalreform.org/wp-content/uploads/2013/06/rep-1996-kampala-declaration-en.pdf
.
[22]
Africa’s
recommendation for Penal reform accessed at
https://cdn.penalreform.org/wp-content/uploads/2013/05/rep-2008-AfricasRecommendations-en-1.pdf
at
page 45.
[23]
GC
2007 81
[24]
2003
188.
[25]
2013,
116-122.
[26]
Article
14 of the European Convention for Human Rights states “
The
enjoyment of the rights and freedoms
set forth in [the] Convention
shall
be secured without discrimination on any ground such as
sex, race, colour, language, religion, political
or other opinion,
national or social origin, association with a national minority,
property, birth or other status
.”
[27]
See
also Costel Gaciu v. Romania, 2015, 56-62.
[28]
European
Prison Rules accessed at
https://rm.coe.int/european-prison-rules-978-92-871-5982-3/16806ab9ae
at
page 53-54.
[29]
See
fn. 18 at page 118.
[30]
In
this regard see
Constitutional
Law of South Africa
by
Chaskalson, Kentridge
et
al
the
leaned authors state the following at 28-24: “
A
key requirement of the principle of legality is that even those of
prisoners which are restricted as a necessary consequence
of
incarceration may only be limited if this is done by legislation,
either expressly of by necessary implication. The laws regulating
prisons in South Africa must therefore be scrutinised to see whether
they provide the necessary authority for the restriction
of
prisoners’ rights. The restrictions must, in addition, be
formulated sufficiently narrowly to ensure that prisoners
are not
exposed to overbroad discretionary powers which deny them protection
of the law.”