About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 88
|
|
WP v Minister of Justice and Correctional Services and Others (66090/18) [2021] ZAGPPHC 88; [2021] 2 All SA 626 (GP); 2021 (2) SACR 76 (GP) (4 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION, PRETORIA)
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 ma
x
imum
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 sm
s
'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
rel
i
ance
on a
policy
document
[1]
that
said
i
t
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
condition
s
.
[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
[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 serv ices and the right to
access health care services .
[11]
The
application
i
s
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 r
i
ghts
have been violated or that a violat
i
on
is pending. The applicant noted that he is aware of the
l
imitation
of Section 36 of the Constitution and that he understands that part
of
detention
entails
a
limitation
of
his
Constitut
i
onal
Rights.
[3]
The
applican
t
,
however, contends
that
the
l
i
m
i
tations
i
mposed
by the
respondents
other
than that
i
mposed
on his
freedom of
movement and certain limitations required to maintain
l
aw
and order in
the
correctional facility does not pass the Section 36
test and is
therefore
unconstitutional.
[12]
The
appl
i
cant
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
rehabil
i
tation
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
i
mportance
of family life and in addition rel
i
es
on the marriage
policy
of
the
Department
of
Correctional
Services
which
provides
the
followin
g
:
"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
8-0rder 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
rel
i
ef
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
i
dea
of
i
mprisonment
as
a
species
of
punishment
has
always
been the
subject
of
much
debate
and
contestation
and
some
soc
i
eties
use
i
t
sparingly
and in
exceptional
circumstances
while
for
others
it
has
become
a
routine
part
of
the
punishment
regime open to the criminal
justice
syste
m
.
This is
i
nvariably
a matter of the pol
i
cy
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
l
evel
of
imprisonment
,
the
Constitution
and the
Correctional
Services
Act
[6]
(the Act)
forms
the
constitutional
and
l
egal
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
Eirich
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 pedigre
e
.
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 personalit
y
,
to
which
every
man
is
entitled.
Tru
e
,
the
plaintiffs'
freedom
had been greatly
impaired
by
the legal process
of
imprisonment; but
they were entitled to demand respect
for what
remaine
d
. 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
prisone
r
, 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
imprisonmen
t
. 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
substanti
a
l
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 th
e
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 Jaw 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
Jong 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
Jaw.
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
commonlaw rights.'
[7]
Th
e
common Jaw may not be
as
prominent
now
as
it was in
191
2
, 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
protect
i
on
than before.
There can
be no doubt
that
it is
in harmony
with
the
Constitutio
n
'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
Jaw
and
has
the
right
to
equal protection
and
benefit
of
the la
w
';
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 wit
h
, 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
i
nterests
may
at
times
result in
the
right
to
contact
being
lim
i
ted
for
just
cause.
I
n
Masileta
and
Others
v
Bouwers
And
Others,
[9]
the
Court had
to
consider
appl
i
cations
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.
Masileta
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
l
i
berty
enjoy all
the human
rights guaranteed by the
i
nternational
l
aw,
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
regulation
s
."
[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
possibl
e
.
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
correspondenc
e
",
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
e
x
ercise
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 establ
i
shed
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
pr
i
soners
should
be allowed
to
have
access to
l
awyers
during trial to
prepare
their defens
e
,
also have
access to
their
lawyers after convictions to discuss the prospects
of appeal
and for
l
awyers
to ensure that their clients are detained
in
conditions that are
i
n
l
i
ne
w
i
th
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
i
t,
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
on
e
'
s
family is psychological
trauma
that
is difficult
to
justify,
and may constitute inhuman treatment. Deprivation of light,
insufficient
food
and
Jack
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
Declarat
i
on
took
prison
cond
i
tions
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
condition
s
,
remand
prisoner
s
,
prison
staff
and
alternative
sentencin
g
.
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
permissibl
e
;
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
d
i
fferent
restrictions.
Howeve
r
,
while the Court has expressed
its
approval for the evolution in
several
European countries
towards
conjugal visits
,
it has not
yet
i
nterpreted
the European Convention as requiring Contracting
States to
make provis
i
on
for
such
visits
(Aliev
v.
Ukraine,
[24]
)
.
Accordingly,
Contracting States could enjoy a w
i
de
margin of
appreciat
i
on
in determining the steps to be taken to
ensure
compl
i
ance
w
i
th
the
European
Convention
with due
regard
to
the needs
and
resources of the community and of individuals
.
[51]
In
Vamas
v Lithuania
[25]
,
the
European
Court for
Human
Rights
found
that
a
difference
in
treatment
of
remand
prisoners
compared
to
convicted
prisoners
as
regards
conjug
a
l
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 cons
i
derations
relating to any criminal family
links were
absent
i
n
the case at issue as regards the visits by the applicant's wif
e
.
The Court
also did not
accept
the
argument
that
a
lack
of
appropriate
facilities justified
lack
of
access
to conjugal
vis
i
ts.
I
n
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 Ru
l
es
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 r
i
ghts
are upheld in
the
inherently restr
i
ctive
conditions of the pr
i
son.
This
is
inclusive
of
visits
to the
outside
world
of
a
prisone
r
.
Rule
24.4
is
s
i
gn
i
ficant
of visits not only to prisoners but also for their famil
i
es.
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
i
nmates
to have intimate relations with their partner
s
.
Shorter
"conjugal visits"
for this
purpose
can
be
demeaning
to
both
partners
.
[28]
In
a
number
of
eastern
European
countr
i
es
sentenced
prisoners
may receive private vis
i
ts
from their spouse, partners and famil
i
es
at regular intervals for
up to three
days.
These
vis
i
ts
take place in small flats w
i
thin
the secur
i
ty
of the prison.
The fami
l
y
visitors provide for their own meals for
duration of
the
i
r
sta
y
.
During
these day
s
,
prisoners
can
l
ead
a relatively normal l
i
fe
with fami
l
y
members.
However, although widely
availab
l
e
in practice,
many
families are prohib
i
ted
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
necessar
y
,
of
communicating with
and
being
visited
by
at
least
their
spouses
or partner
s
,
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
grante
d
.
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
l
egality
and
be
consistent
with
the
Constitution.
Failure to do so may
well
trigger a
l
egal
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
RESPONDNET: Adv S.S MAAKANE
SC
INSTRUCTED
BY
STATE ATTORNEY
PRETORIA
DATE
OF HEARING
Matter was decided on paper.
DATE
OF JUDGMENT
4 MARCH 2021
[1]
Correct
i
onal
Services 8-0rder. of
the
applicant's
right
to
just
administrative
action
in terms
of
Section
33
of
the
Constitutio
n
.
[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
I
nternational
Covenant on Civil and Political
Rights,
Sections
1
2
and
1
6(1)
of the Universal Dec
l
aration
of Human
Rights and Section
1
8(
1
)
and (2) of the Af
r
i
can
Charter.
[6]
Act 111
of
1
998.
[7]
2009 (1) SACR 588 (E).
[8]
The Const
i
tution
of the Republic of South
Africa,
1
996
[9]
2013
(2)
SACR
350
(GNP).
See
also
Mohammed
v
Minister
of
Correctional
Services
and
Others
2003
(6)
SA
1
69
(SE).
[10]
Cf.
in
particular
statement
by
the
Human
Rights
Committee in
i
ts
General
Comment
No.21 on article
1
0,
in United
Nations
Compilation
of
General
Comments,
para.3
at
p.
1
4
2.
[11]
Article 17 of the
I
nternational
Covenant on
Civiland
Political
rights,
1
966.
[12]
Human Rights and Prisons: Manual on Human Rights Training for Prison
officials.
https://
www
.
ohchr
.
org/documents/publications/traininq11
en.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]
Commun
i
cation
1
51/96,
13th
Annual
Activity Report of the African Commission on Human and Peoples'
Rights (
1
999-2000)
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/wpcontent/uploads/2013/06/rep-1996-kampala-declaration-en
.
pdf.
[22]
[22]
Africa's recommendation for
Penal
reform accessed
at
https
:
//cdn.penalreform
.
org/wpcontenVuploads/2013/05/rep-2008AfricasRecom
mendat
i
ons-en-1.pdf
at
page 45.
[23]
GC 2007 81
[24]
2003
1
88.
[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.inueuropean-prison-ru
l
es-978-92-871-5982-3/1
6806ab9ae
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."