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[2015] ZAGPPHC 311
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Hennie and Others v Minister of Correctional Services and Others (729/2015) [2015] ZAGPPHC 311 (7 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 729/2015
DATE: 7 May 2015
Not reportable
Not of interest
to other judges
IN THE MATTER
BETWEEN:
AMBROSE
HENNIE
(207291150)
............................................................................................
First
Applicant
JADE
JACOBS
(205040940)
..................................................................................................
Second
Applicant
SABELO
BUTHELEZI
(207045259)
.......................................................................................
Third
Applicant
and
MINISTER
OF CORRECTIONAL
SERVICES
..................................................................
First
Respondent
THE
HEAD OF PRISON, KGOSI MAMPURU II
PRISON
..........................................
Second
Respondent
THE
MANAGER OF THE COMPUTER TRAINING CENTRE,
KGOSI
MAMPURU
II
...........................................................................................................
Third
Respondent
JUDGMENT
KOLLAPEN, J
Introduction and
background
[1] This application
was brought as one of urgency by the Applicants who sought relief
that would enable them to use their personal
laptop computers
(without the use of a modem) in their cells for study purposes.
[2] During the
hearing of the matter on 2 March 2015 the Respondents counsel
requested that the Respondents be afforded the opportunity
to
reconsider their policy with regard to formal education programmes in
so far as it related to access to personal computers by
offenders in
communal and / or single cells. The matter was accordingly postponed
for that purpose.
[3] At the resumed
hearing of the matter on the 23
rd
April 2015, a written
report prepared by the Respondents served before the Court which
report in broad terms took the stance that
the existing policy which
prohibited the use of personal laptop computers in cells would be
retained.
Background facts
[4] The Applicants
are all registered students at recognised tertiary institutions in
South Africa and are currently incarcerated
at the Kgosi Mampuru II
prison in Pretoria. The Applicants are seeking an order to compel the
Respondents to allow them to have
their personal laptop computers as
well as their personal printers / scanners with them in their cells
for studying purposes. They
are all held in single cells at the
prison.
[5] The Applicants
where previously held in single cells in medium B at the Johannesburg
prison where they were allowed to have
their personal computers
(laptops) with them in their single cells. All three Applicants have
since been transferred to the Kgosi
Mampuru II prison in Pretoria
where they have access to their personal laptops only in the secured
study facility of the prison.
The secured study facility is open five
days a week, excluding public holidays and weekends, from 08:00 to
15:00 daily. The Applicants
also have access to a printer and
supervised access to the internet in the secured study facility.
[6] The Applicants
contend that their inability to use their laptop computers in their
cells undermines and compromises their ability
to pursue their
studies effectively. Most of the assignments and other tasks they are
required to submit are completed on computers
and often the time
available in the study centre is not sufficient. Without the
availability of a laptop in their cell they are
unable to study after
hours or over weekends, public holidays and other periods when the
study facility is closed. All of the personal
computers they own do
not have modems and therefore are unable to access the internet.
[7] The Respondents,
in opposing the relief sought, argued that the reason for allowing
laptops in single cell’s in the Johannesburg
prison facility is
due to the lack of infrastructure, as the Johannesburg prison does
not have a secured study centre, unlike the
one at the Kgosi Mampuru
II prison. The Applicants, however, disputed this and persisted in
their stance that such a secured facility
did exist in the medium B
section of the Johannesburg prison where they were held and that they
were nevertheless allowed to use
their personal laptops in their
single cells.
[8] The Respondents
further sought to justify the prohibition on the use of personal
computers in cells on the grounds that it compromised
the security
arrangements in the prison facility. As I understand it this
submission was based largely on the assumption that a
personal laptop
enabled access to the internet and that would constitute a possible
security threat. Counsel for the Respondent
accepted that where
access to the internet was not possible or was disabled on a laptop,
it largely eliminated any security risk.
The current
policy framework and its application
[9] The Respondents
policy procedures on formal education programmes was approved by the
Acting Commissioner of the Correctional
Services Department on 8
February 2007 and this policy is presently applicable to all
correctional centres across the country.
The applicable sections of
the above policy which is part of the Formal Education Programme
reads as follow:
“
3.5.
Utilization of Desk Top Computers / Note books / Lap Tops (Personal
Computers):
3.5.1 Only
registered students (offenders) who have a need for a computer as
supportive to his/her studies, and/or offenders who
have registered
for a study field / course that requires a computer as compulsory
part of the course are allowed to have a personal
computer within the
Correctional Facility.
3.5.2 In relation
to Computer Studies registration is subject to the following
conditions:
•
Prior
to registration, the Tertiary Institution must be contacted to
determine the requirement for the Hardware and Software.
•
the
minimum requirement of the institution should be in line with the
specified requirement within this procedure in term of: No
access to
the internet, CD writer, Modem, TV/Radio card and or any other
hardware devise that may impact negatively in the good
order and
administration of the Correction Centre.
•
All
Software should be originals and not copies.
All applications
relating to the utilization of personal computers received from
offenders must be approved by the Head of the Correctional
Centre
(HCC).
A secured room
within the Correctional Centre or at the School must be made
available specifically for the placement of the personal
computers of
students. In cases where there is no secured room for the personal
computers, the offenders may be allowed with a
personal computer in a
single cell where such cells are available.
...
3.5.5 Ensure that
a structured time table is available to students to have access to
their personal computers.
3.6 Management of
Personal Computers:
3.6.1
Ensure that an educationist
/
custodial official
is appointed in writing to supervise and control access to the
computer room.
3.6.2 Ensure that
offenders have no access to the internet, DCS Local Area Network,
communication service provider or remote computing
service.
3.6.3 Ensure that
personal computers of offenders does not include CD writers, Modem,
TV/Radio cards and or any other hardware devise
that may negatively
impact on the good order and security of the Correctional Centre.
3.6.4 Violation
of this procedure may result in disciplinary actions.
•
Ensure
that a structured time table is available to students to have access
to their personal computers.
•
No
computer shall be allowed in any cell (communal and / or single).
Management of
Personal Computers:
•
Ensure
that an educationist / custodial official is appointed in writing to
supervise and control access to the computer room.
•
Ensure
that offenders have
no
access
to the internet through the use of a computer, computer system,
network, communication service providers or remote computing
service.
Violation of this procedure may result in disciplinary actions.
•
Ensure
that all applications in relation to obtaining information from
internet, must be approved by the SH Formal Education. Authorization
should be kept in a register.
”
[10] The Respondents
state in their report to the Court that security of the prison
officials and other offenders are the main concern
in respect of
disallowing inmates to have access to personal computers (including
laptops) outside the secured study facility where
strict supervision
cannot be exercised. According to the Respondents, personal laptops
or notebooks in single cells in the prison
could compromise security
due to laptops having accessories like built-in modems, built-in hard
drives and cameras.
[11] The First
Applicant in his letter of complaint, dated 3 November 2014,
addressed to the Head of the Correctional Centre (hereinafter
referred to as “HCC”), provided the following motivation
in support of his request to have access to his personal laptop
in
his cell:
“
The
school will be closed from December to February and this means that I
won’t have access to my computer. During this time
I need to
study in preparation for the next semester since I have the material
already on my computer. I am a Unisa student in
my final year BA
Communications Science degree, so studying during holidays are
important to me. I therefore need constant and
more frequent access
to my computer. ”
[12] The First
Applicant’s letter of complaint was answered by the HCC
informing him that his request was denied and that
only desktop
computers are allowed in single cells.
[13] The Second
Applicant also addressed a letter of complaint to the HCC, dated 4
November 2014 and stated as motivation in support
of his request to
have his personal laptop in his single cell:
“
Please
take note that it does not have a build-in modem. My family told me
that they can’t afford to purchase another computer
(Desktop)
hence they bought me this laptop last year (2013). ”
[14] The Second
Applicants request to have his personal laptop in his single cell was
also denied by the HCC, on the same ground
as that of the First
Applicant, that only desktop computers where allowed in single cells.
[15] If regard is
had to the policy of the Respondents on its formal education
programmes, it is clear from the facts in this matter
that the policy
has not been applied consistently and that deviation from the policy
has taken place. Simply by way of example,
the policy states that no
computers ( desktop computers, notebooks and laptops) shall be
allowed in any cell (communal and / or
single), while it was clear
from the stance of the HCC in response to the letters of complaint by
the Applicants, that desktop
computers are allowed in single cells at
Kgosi Mampuru II. No explanation was offered by the Respondents for
the departure from
policy in this regard.
[16] Similarly, the
policy on the one hand purports to provide for a total prohibition on
all computers from all cells but in the
same breath makes provision
for allowing computers in single and / or communal cells in prisons
where there is not a secured study
facility available which the
Respondents argue is the reason for allowing personal laptops in
single cells at the Johannesburg
prison. It is certainly not clear
how security becomes compromised in these instances where the policy
allows for the use of laptop
computers in cells.
The failure to
exhaust interna! remedies
[17] The First
Respondents, in its answering affidavit, raised the fact that the
Applicants did not exhaust internal procedures
to resolve their
complaints, and that the Applicants did not comply with s 21 of the
Correctional Service Act, Act 111 of 1998
as amended by s 11 of Act
32 of 2001. The Applicants lodged a complaint with the HCC and it was
argued that if the Applicants were
not satisfied with the response by
the HCC, the next step would have been for them to refer the matter
to the National Commissioner
and from there, and if it became
necessary, to the Independent Correctional Centre Visitor.
[18] Having regard
to the response the Applicants received from the HCC in response to
their request to have their personal laptops
in their single cells as
well as the thirty day period that the court granted the Respondents
to reconsider their policy on its
formal education programmes and the
current stance of the Respondent , it is unlikely that the Applicants
would have received a
different outcome in regard to their request
even if they did escalate their complaint in terms of the s 21 of the
Correctional
Service Act 111 of 1998 as amended by s 11 of Act 32 of
2001.
[19] The Respondent
further indicated that it does not have any intention to revise the
provision which deals with the prohibition
of access to computers
being it personal computers or desktops in a communal and / or single
cell due to security considerations.
There is accordingly no merit in
my view on this leg of the defence in opposition to the relief
sought.
The security
consideration argument
[20] From the
factual background it is clear that the policy with regard to access
to computers in cells is applied inconsistently.
It appears to be
acceptable at the Kgosi Mampuru II prison to have a desktop computer
in a single cell even though the policy expressly
prohibits it. In
addition laptops and desktop computers are allowed in prisons where
there is no secured study facility. This must
in itself raise
concerns about the cogency of the security argument advanced by the
Respondents.
[21] When one has
further regard to the submissions around security concerns raised by
the Respondents, no argument or evidence
was presented to court that
a laptop without internet access (i.e. without a modem) would
compromise security, nor was there any
evidence presented that
allowing student offenders in other prisons to have access to their
personal computers in their cells,
as is the case at the Johannesburg
prison, have led to any security breaches. On the contrary the
Respondents were unable to point
out how a laptop without internet
access would compromise security.
[22]
In
Minister
of Home Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders (NICRO) & Others
1
the
Constitutional Court held that in order for government to justify a
limitation of the rights of a section of the population,
it was
obliged to provide the court with sufficient information to enable
the court to properly examine the purpose of the exclusion
and by so
doing assess the justification for the limitation.
[23] The
Constitutional Court articulated its stance in the following terms:-
“
In
a case such as this where the government seeks to disenfranchise a
group of its citizens and the purpose is not self-evident,
there is a
need for it to place sufficient information before the Court to
enable it to know exactly what purpose the disenfranchisement
was
intended to serve.
In so far as the government relies upon policy considerations, there
should be sufficient information to enable
toe Court to assess and
evaluate the policy that is being pursued."
[24] The Applicants
are willing to have their personal laptops searched and inspected on
a regular basis and it appears not in dispute
that none of the
Applicants laptops have access to the internet. In any event any
inspection of the computers will be able to establish
this but the
Applicants have informed the Respondents that their personal laptops
does not have built-in modems, subsequently all
security risks
relating to the laptops can be eliminated and it can be accepted that
the laptops will then be operating in the
same manner in which the
already allowed desktop computers in single cells operate.
[25]
In paragraph 6.6 of the written report submitted by the Respondents,
the Respondent are of the opinion that:
“
...should
the above Honourable Court allow the Applicants to use their personal
computers in their single cells, then the order
will open flood gates
for numerous applications whereby other offenders will seek
permission to use personal computers in single
cells. This will cause
immense prejudice to the Department and the safety and security of
correctional officials and other offenders
will be at risk;”
[26] The Respondents
again mention the possible security risks involved in allowing the
Applicants’ use of their personal
laptops without
substantiating or providing examples of security breaches that had
occurred by the use of personal laptops in cells
by inmates or
setting out the security risk that is likely to ensue.
[27]
Having regard to the Respondents concern that granting an order in
favour of the Applicants in this matter, will open flood
gates for
numerous applications similar to the current one, it needs to be
taken into account that prior to this application, only
two similar
applications were brought in this division, one of which was settled
between the parties
2
,
allowing the Applicant in the matter access to her personal computer
in her cell and the other an order of court, which granted
the
applicant access to his personal computer in his cell
3
.
Those orders have hardly resulted in the ‘opening of the
floodgates’ as it were.
[28] The court takes
into consideration that study methods and accessibility of study
material has changed considerably since the
approval of the formal
education programme in 2007 and that personal computers are certainly
going to continue to play an increasingly
important role as a means
to access information which was in the past confined to textbooks.
Personal computers have in many ways
replaced conventional textbooks
and therefore access to a personal computer by students has become a
necessity and not a privilege.
[29] Further, taking
into consideration that tertiary institutions provide guidelines to
students in regard to the amount of hours
required per registered
subject, there is a potential of student offenders being prejudiced
into taking only a limited amount of
subjects, due to their limited
access to the secured study centres.
[30]
In terms of s 29 (1) (b) of the Constitution
4
everyone has the right to further education, which the state, through
reasonable measures must make progressively available and
accessible.
The Department of Correctional Services in line with s 29 (1) (b) of
the Constitution makes provision for further education
of offenders
through its formal education programme. S 35 (2) (e) of the
Constitution provides that every detained person, including
a
sentenced prisoner, has the right to reading material.
[31]
Section 18
of
the
Correctional Services Act, 111 of 1998
provides for the
following, in respect of the use of reading material, by offenders:
“
18.
Reading material. -
(1) Every inmate
must be allowed access to available reading material of his or her
choice, unless such material constitutes a security
risk or is not
conducive to his or her rehabilitation.
(2)
Such reading material may be drawn from a library in the correctional
centre or may be sent to the inmate from outside the correctional
centre in a manner prescribed by regulation.
”
[32] The range of
Section 18(1)
is cast wide and as mentioned earlier in the judgment
the security concerns of the Respondents can be eliminated as the
Applicants
will not have internet access in their cells. The other
factor taken into account by
Section 18
(1), being that the reading
material must be conducive to the rehabilitation of the Applicants,
was never addressed by the Respondents.
[33]
Section 18(2)
contemplates that the offender, upon obtaining the reading material,
whether from the library or from outside the correctional
centre,
will proceed to using the reading material in his or her cell and
there should exist no differential regime between the
reading
material being in book form or electronic form.
[34]
Regulation 13(4)
5
,
reads as follow:
“
13.
Reading Material. -
(4) The Head of
the Correctional Centre or a correctional official designated by him
or her may prohibit: fa) the entry into the
correctional centre or
the circulation within the correctional centre of any publication,
video or audio material, film or computer
program that he or she
believes on reasonable grounds would jeopardise the security of the
correctional centre or the safety of
any person; and
(b)
the use by an inmate, including the display of, any publication,
video or audio material, film or computer program that he or
she
believes on reasonable grounds -would likely be viewed by other
persons; and would undermine a person’s sense of personal
dignity by demeaning the person or causing personal humiliation or
embarrassment to a person, on the basis of race, gender, sex,
pregnancy, marital status, ethical or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language or birth.
”
6
[35] In light of
Section 18
as well as
Regulation 13(4)
above, the term reading
material, refers to any publication, video, audio material and/or
film or computer program and should therefore
be interpreted, to
include reading material available in electronic form.
[36] The grounds on
which reading material for offenders which is brought into the
correctional facility may be disallowed are set
out in
Regulation
13(4)
and electronic study material does not fall within these
prohibited grounds of reading material.
[37] The study
material that the Applicants use, are downloaded, under supervision,
with prior authorization from the sectional
head of formal education,
within the secured study centre. It is therefore accepted that the
electronic study material does not
pose a security risk and that it
is instrumental to the rehabilitation of the Applicants providing
them with the knowledge to assist
them with their reintegration into
society upon their release.
[38]
The vision of the Department in respect of its formal education
programmes is stated as follow, on their webpage
7
:
“
To
be one of the best in the world in delivering formal education
programmes with integrity and commitment to excellence on excellent
education service that will provide diverse educational needs to
persons entrusted to our care. ”
[39] The mission of
the Department in regard to the formal education programmes is stated
as:
“
To
offer, in partnership with relevant stakeholders a variety of
learning fields that are, aimed at contributing towards the
developments
of essential skills and knowledge that will form the
foundation for life long learning.
To offer career
orientated needs-driven, adaptable and market related education
programmes and services to persons entrusted to
our care in a stable
and humane teaching environment. ”
[40]
The former Minister of Correctional Services, Minister Sibusiso
Ndebele, issued a media statement on 5 September 2013 announcing
the
Department of Correctional Services’ Reading for Redemption
Programme in promoting reading and writing in correctional
centres
8
:
“
Research
shows there is an inverse relation between knowledge, culture and
crime. The greater the knowledge, culture and access
to education,
the less the crime. It is for such reason that we have made
education, skilling and training of offenders compulsory
at DCS.
According to the Freedom Charter, ‘Imprisonment shall be only
for serious crimes against the people, and shall aim
at re-education,
not vengeance. ’
Ex-offenders must
be fully integrated into society. They must be able to meaningfully
participate in the knowledge economies of
the 21
st
century.”
[41]
In the matter of
August
and another v Electoral Commission and others
9
the
following is said in regard to the rights of prisoners to vote which
can also be applied in regard to the prisoners right to
further
education in terms of Section 29 of the Constitution:
“
They
must submit to the discipline of prison life and to the rules and
regulations which prescribe how they must conduct themselves
and how
they are to be treated while in prison. Nevertheless, there is a
substantial residue of basic rights which they may not
be denied; and
if they are denied them, then they are entitled to legal redress. ”
[42] In order for
the Department to ensure that it gives effect to the rights of the
offender students to have access to formal
education as stated in the
Constitution and to ensure that the Department gives effect to its
vision and mission in respect of
its formal education programme and
considering the precautionary measures that can be put in place to
ensure that security within
the prison is not compromised by the use
of personal laptops in single cells by the Applicants, as well as the
inconsistent application
of its policy on formal education, the
disallowing of the use of personal laptops by the Applicants in this
instance is without
merit.
[43] The Respondents
have in my view and on the facts of this case not advanced a
justification for the prohibition which they seek
to apply. While
security considerations will always remain an important feature of
how a correctional facility is managed, on what
is before me, there
is no evidence that personal laptops without modems compromise
security. On the other hand to refusal to allow
the Applicants access
to their laptop computers in their cells has the real risk of
compromising their ability to study and infringes
on their right to
further education.
[44] I am satisfied
that the Applicants have made out a case for the relief they seek and
subsequently the following order is made:
1. The Applicants
are allowed to use their personal laptops in their single cells
without the use of a modem;
2. The laptops will
be made available for inspection at any given time;
3. The Applicants
will have use of their laptops in their single cells for as long as
they remain registered students with a recognised
tertiary
institution in South Africa;
4. No order is made
as to costs.
N KOLLAPEN
JUDGE OF THE HIGH
COURT
APPEARANCE
HEARD ON THE: 2
MARCH 2015
DATE OF JUDGMENT:
7 MAY 2015
APPLICANTS
COUNSEL: APPEARED IN PERSON
RESPONDANTS’
COUNSEL : ADV H.O.R MODISA
1
[2004] ZACC 10
;
2005
(3) SA 280
(CC) at paragraph
[65]
.
2
Regina
Kgafela v The Minister of Correctional Services and Others, Case
number 40329/2013.
3
Tshepiso
Williams v The Minister of Correctional Services and Others, case
number 38906/2013.
4
The
Constitution of the Republic of South Africa, 1996.
5
GNR.914
of 30 July 2004: Correctional Services Regulation.
6
Sub-r.
(4) amended by GN 143 of 27 February 2012.
7
http://www.dcs.eov.za/Services/Formal%20Education.aspx
-
visited 30 April 2015.
8
Issued
by the Ministry of Correctional Services to all media on 5 September
2013.
9
1999
(3) SA 1
(CC) at paragraph [18].