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[2011] ZAECMHC 24
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Mvoko and Another v Minister of Correctional Services and Others (2874/11, 2875/11) [2011] ZAECMHC 24; 2012 (1) SACR 472 (ECM) (2 December 2011)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : MTHATHA
CASE NO. 2874/11 and
2875/11
In the matter between:
SAKHUMZI MVOKO
…..................................................................
1
st
Applicant
ODWA SITHOLE
…........................................................................
2
nd
Applicant
and
MINISTER OF CORRECTIONAL SERVICES
…....................
1
st
Respondent
CAPTAIN MALUNGELO DIKO
…...........................................
2
nd
Respondent
MINISTER OF POLICE
…..........................................................
3
rd
Respondent
JUDGMENT
GRIFFITHS,
J.:
[1] As a matter of extreme urgency the two applicants
applied for various orders which, in essence, amounted to a review of
a decision
by the second respondent ("prison officials") to
the effect that whilst testifying in their criminal trial the
applicants
were to remain handcuffed and to wear prison clothing.
[2] The trial in this matter, in which the first
applicant is accused two and second applicant is accused three, is a
criminal trial
which is presently being prosecuted before my brother,
White J, in the Mthath High Court. This matter apparently commenced
during
June this year and has continued, I am given to understand,
without significant interruption until these applications were
launched.
According to the application papers, on Tuesday, 22
November 2011, the first applicant was due to take the witness box in
order
to present his testimony in the trial. After completion of his
evidence, the second applicant was likewise due to testify. According
to the papers and subsequent evidence to which I shall refer later,
an application was brought by the applicants before the criminal
court prior to commencement of such testimony for them to have their
handcuffs removed during the course of thereof. After various
discussions had been held, White J came to the conclusion that it
might be prejudicial to the applicants should he hear a formal
application in this regard and he accordingly indicated that should
the applicants wish to pursue such application, they were to
do so
before the duty judge.
[3] Because I was the duty judge concerned, the matter
thereafter served before me during the course of late Wednesday
morning,
23 November 2011. Upon seeing the papers and having heard
Mr. Gabavana (who appeared for both applicants) and Mr. Hinana (who
appeared
on behalf of the respondents), and because the matter was of
a very urgent nature given the fact that the trial was being delayed
by these applications, it was agreed between counsel that oral
evidence would be heard during the course of that afternoon and
I
ordered accordingly. Oral evidence was thereafter proceeded with
after which I heard argument and at 7:45 p.m. on Wednesday evening
I
dismissed the applications without reasons.
[4] Subsequent thereto, applications for leave to appeal
have been delivered on behalf of both applicants together with a
request
for reasons for such order. These are those reasons.
[5] At the outset of the application Mr. Hinana argued
in limine
that these matters ought not to be heard as matters
of urgency, let alone extreme urgency, by virtue of the fact, in his
submission,
that such urgency was self created by the applicants
themselves. In this regard he argued that as the matter had been
running for
many months in the criminal court it must have been
patently obvious to all concerned that there would be more than a
likelihood
that the applicants might, in the long run, be obliged to
enter the witness box in order to testify. In the circumstances, and
in his submission, no reason had been advanced as to why this
application could not have been launched and prosecuted to finality
during the course of the early stages of the trial. Mr. Gabavana, in
turn, raised various aspects,
inter alia
the fact that, in his
submission, the applicants had already participated in a trial within
a trial dealing with the admissibility
of certain evidence and had
been allowed to remove their handcuffs whilst testifying during those
proceedings.
[6] Although it ultimately emerged that there is a
dispute of fact with regard to whether or not the applicants were so
allowed
to remove their handcuffs during the course of those
proceedings and although Mr. Hinana made out a compelling argument in
this
regard, the fact that they may have been allowed to remove their
handcuffs in the trial within a trial coupled with the fact that
had
I ordered that the matter not be heard as an urgent application this
would have resulted in the matter being dealt with on
the ordinary
application roll and thus seriously delaying completion of the main
trial, I ruled that the matter should proceed
as an urgent
application despite the protestations of Mr. Hinana.
[7] Both applicants testified and described what had
happened the previous day before the criminal court. When he was
requested
to take the oath, the first applicant stated that he could
not do so as he was handcuffed, which he demonstrated by raising both
his arms. I informed him that for these purposes it was necessary for
him to nonetheless take the oath, which he proceeded to do.
I asked
him to explain the reasons as to why he should testify without
handcuffs and he indicated, firstly, that he believed that
whilst in
the witness box he should be regarded as a witness in the same manner
as any other witness and, secondly, that when he
had given evidence
during the course of the trial within a trial, his hands had been
released. Later during evidence he also alluded
to the fact that, in
his belief, the trial court might not give proper credence to his
demeanor whilst in the witness box due to
the fact that he could not
move his hands as freely as he might otherwise have done because of
the restrictive nature of the handcuffs.
It also appeared from his
affidavit that the trial Judge had suggested that his handcuffs be
removed and that, in order to ensure
security, a number of the
security personnel from correctional services and SAPS be delegated
to stand in a circle around the witness
box to prevent him from
escaping. He testified that accused one had completed his testimony
without being handcuffed as had an
awaiting trial prisoner who had
testified for the state. The clothing which he was wearing, which
appeared to be in the form of
a tracksuit type of outfit, darkish
maroon colour, he understood to be prison clothing worn by juveniles.
His view was this would
create a stigma in the mind of the presiding
judge.
[8] Under cross-examination he conceded that he is
presently serving three years imprisonment for escaping from lawful
custody.
He denied that the type of prison clothing that he was
wearing is what is referred to as "release clothing" within
the
correctional services parlance. It was put that, in accordance
with a document handed in as an exhibit, these are clothes given
to
prisoners who do not have suitable private clothes when attending
court and are not the clothing normally worn in the type of
prison
where the applicants are detained, namely a "Closed Maximum
Prison" ("CMax"). He denied this. It appeared
that
both he and the second applicant are, for the duration of this trial,
being detained in the CMax prison, Kokstad. It was furthermore
put to
him that, in accordance with a further document handed in, he is in
fact facing a further five charges of escaping from
lawful custody,
which he also denied save for one of which where he indicated that
the charges had been withdrawn during 2011.
It was also put to him
that he had not in fact testified during the course of the trial
within a trial without handcuffs on. Under
re-examination he stated
that he had never escaped from lawful custody during the course of
his giving testimony in a court.
[9] The second applicant confirmed the evidence of the
first applicant as also being applicable to himself and added that
the prison
authorities had strapped onto both his and the first
applicant’s backs a device which, when operated remotely by the
correctional
services authorities, would electrocute him should he
try to escape. Under cross-examination however it was put to him that
this
was a fallacy and that in fact this device, which was indeed
operated by remote, merely emitted a loud noise when activated. The
device would be activated if a prisoner were to escape in order to
assist in tracking him down.
[10] He also confirmed that he was serving three years
imprisonment for escaping from lawful custody and that this had in
fact occurred
whilst the main criminal trial in this matter was
underway. It was put to him that there are a further three charges of
escaping
from lawful custody pending against him. He admitted to two
of them but denied any knowledge of the third. It was also put to him
that he, like the first applicant, was a serious flight risk in that
he had,
inter alia
, managed to escape from Mthatha Maximum
Prison which enjoyed a high degree of security. He again denied that
he had escaped from
that prison. It was also put to him that it would
be extremely dangerous to remove his handcuffs and to have him
surrounded, in
substitution, by a number of security personnel whilst
he testified. His response was one of surprise, in that he had,
according
to him, testified in the trial within a trial without such
handcuffs. He agreed that both he and first applicant are facing a
large
number of charges in the criminal case which involves three
armed robberies and allied charges of attempted murder and unlawful
possession of firearms and ammunition, all of which he agreed are
serious in nature.
[11] It emerged during the course of this evidence that
the "handcuffs" which had been referred to in this
application
are in fact not "handcuffs" in the traditional
sense of the word. Neither of the applicants had their wrists
handcuffed
together by the device normally used for this purpose by
the police and security personnel. In fact, their wrists were linked
on
either side of the body to a chain which surrounded the waist and
which gave them a fair degree of lateral and vertical movement.
During the course of their testimony, I particularly observed that
they had a reasonable degree of movement of both their hands
and arms
such that if one's attention had not been called to the fact that
they were so chained, one would probably not have noticed.
They were
required under cross examination to look at, and read, certain
documentation placed before them which they did with ease.
They
admitted to the fact that they are able to perform various other
necessary functions, such as eating, whilst linked with this
restraining device. They did say however that it is restrictive, but
in my view such limitation and restriction in movement as
there may
be is nowhere near as restrictive as a pair of handcuffs.
[12] The respondents called two witnesses, namely
warrant Officer Mdepa, the investigating officer in the criminal
trial and one
Ralls, from Correctional Services, who is in charge of
the security of,
inter alia
, the applicants.
[13] Warrant Officer Mdepa confirmed in testimony that
the accused are facing a large number of serious charges as described
earlier.
The firearms involved include prohibited firearms and two
rifles. He confirmed that the applicants are in fact facing further
charges
both in Mthatha and elsewhere. He had prepared the document,
exhibit “B” (which had been handed in during the course
of cross examination of the applicants), which reflected the five
charges of escaping from lawful custody pending against the first
applicant together with the conviction for the same offence, and the
three pending against the second applicant and his similar
conviction. He confirmed the correctness of what is stated in this
document which had been prepared by himself and other members
of his
office. He also confirmed the most recent pending charge, that being
escaping from lawful custody from Mthatha Maximum Prison,
that it
involved the shooting of a prison official and the robbery of his
vehicle, and that these facts form the basis of further
pending
charges against both applicants. In this regard, after they had
escaped on 20 March 2011, both applicants were rearrested
almost 2
months later, on 18 May 2011 in Gauteng.
[14] Under cross-examination he conceded that a court
order existed against him interdicting him from assaulting the first
applicant.
It was also put to him that it is quite coincidental that
the document, exhibit "B", had been prepared at the time
when
the applicants had launched this application. He agreed that it
was coincidental as he did not know at the time when he prepared
the
document that the application was to be moved. He however denied that
the purpose of preparing this document was merely to
deprive the
applicants of their rights. He confirmed that he had the dockets
relating to the escaping charges in his possession
but he had not
brought such to court as he had not known that this was necessary.
[15] Mr. Ralls testified that he is part of an emergency
team from Empangeni in KwaZulu Natal who, amongst others, was
specifically
brought in by Head Office, Correctional Services, to
deal with the security of the applicants in this matter because his
team is
regarded as being the most highly trained within the
Correctional Services sphere in dealing with serious and violent
criminals,
into which category the applicants fall. He testified that
the Kokstad CMax prison is a prison which houses prisoners charged
with
serious crimes, escapees, potential escapees and violent
prisoners. The applicants are classified as "high risk inmates".
It was for this very reason, that is the applicants’ high-risk
category, that his highly skilled and qualified team had specially
been imported from Empangeni. Security at the Kokstad prison is
regarded as extremely good and one of the best, if not the best,
in
this regard on the continent. The maximum-security prison in Mthatha
does not have the same level of security as that which
exists in
Kokstad. When the accused in this matter first appeared in the
Magistrates’ court in Mthatha, the streets surrounding
the area
had to be closed off and the general public was removed from the
first floor of the court in order to ensure maximum security
and
control because of the dangerous nature of the applicants. This
increased security was and is, in his view, absolutely essential
in
view of the applicants’ dangerous nature and propensity for
escaping as evidenced by their pending charges and, in particular,
by
the nature and manner of their escape from Mthatha prison earlier
this year.
[16] Ralls also explained more fully that the type of
"handcuffs" used on the applicants is referred to as a
"belly
chain". This chain surrounds the waists of the
applicants and, as indicated earlier, their wrists are cuffed by
separate chains
to this belly chain on the left and right sides of
their waists giving them some freedom of movement whilst, at the same
time,
providing some restriction for the purposes of security. They
are able to use their hands, but there is a limitation. The essential
purpose thereof is to prevent the applicants from obtaining dangerous
objects from other people and to ensure their security. As
compared
with traditional handcuffs, a belly chain is more user friendly to
the prisoner concerned.
[17] This witness also honestly conceded that the
applicants may well have been informed by a Correctional Services
official that
the devices strapped to their backs were in fact
capable of electrocuting them as described by them. However, this was
not in fact
so as the purpose of this device is to emit a noise as
described earlier. He denied that the applicants had testified
without the
belly chain during the course of the trial within a
trial. He was adamant that the suggestion of removing the belly
chains and
having security personnel surround the witness box whilst
the applicants give evidence would seriously compromise security.
Such
unfettered freedom of movement with dangerous accused of this
nature, could well result in their stretching out and taking hold
of
a firearm from one of the security personnel, which would have
obvious and serious consequences.
[18] As regards the clothing worn by the applicants,
these are "release clothes" as described earlier. Normally
inmates
wear bright orange clothing and the Correctional Services
officials are of the view that should they appear in court in such
clothing
this might be prejudicial to them. The somewhat toned down
clothing worn by the applicants has as its purpose to reduce this
risk
of prejudice by making it less obvious that they are wearing
prison garb. He however added that it is essential that they do wear
such clothing as this assists in identifying the applicants should
they escape. Thus such clothing is, in his view, absolutely
essential
for security purposes. It was his view that for these reasons the
belly chains and release clothing should not be removed.
[19] This witness also added that during the course of
the criminal proceedings one of the security personnel found a
sharpened
piece of wire under the accuseds’ seat. This piece of
wire could be dangerous and could have been used to open the locked
belly chains. This was an additional factor, in his view, which
clearly supported his contention that every means possible should
be
employed to secure the applicants so as to prevent them from
escaping.
[20] Under cross examination he intimated that he had
not brought the fact of this piece of wire to the attention of the
court or
the legal representatives as the court is not part of his
security detail. He admitted that he was not always present in court
and that he might not have followed the trial within a trial
proceedings fully, but that many of his security personnel are ever
present in court and that they had reported to him that the belly
chain had not been removed. It should further be mentioned that
it is
common cause that both the applicants have been subjected, during the
course of the main trial, to wearing leg restraints.
[21] Mr. Gabavana argued that, based on this evidence,
both the belly chain and the prison clothing of the applicants ought
to be
removed whilst they testify as the applicants have a clear
right not to be treated in a cruel, demeaning or inhuman manner and
that their right to equality and a fair trial will, should such order
not be made, be infringed. He further argued that a proper
case has
been made out for the removal of the belly chains as long as an
additional condition is imposed that security not be compromised.
As
I understood his argument, he persisted in the contention that should
the belly chain be removed and, in substitution, the security
personnel be ordered to surround the witness box to prevent escape,
this would suffice for the purposes of security. His submission
was
to the effect that, should the applicants not have been given such
leave, they would be emotionally unprepared to give evidence
which
would result in an unfair trial.
[22] Mr. Hinana in turn argued that by virtue of the
provisions of sections 26 and 29 of the Correctional Services Act
(No. 111
of 1998 – “the Act”), the rights accorded
an accused in a criminal trial in this regard are not absolute and
are thus subject to the reasonable limitations reflected therein. On
this basis, and on the evidence tendered by the respondents
in this
matter, he has submitted that it is clear that the rights of the
applicants in this regard must necessarily be curtailed
within reason
so as to ensure the safety and security of all court staff, inclusive
of the presiding judge and counsel.
[23] Having regard to these sections of the Act it seems
to me that Mr. Hinana's submission that the applicants’ rights
in
this regard cannot be absolute and stand to be limited within
reason, is clearly correct. Section 26 of the Act reads as follows:
"
26
Safe custody
(1) The right of every inmate to personal integrity and privacy is
subject to the limitations reasonably necessary to ensure the
security of the community, the safety of correctional officials and
the safe custody of all inmates.
(2) In order to achieve these the objectives referred to in
subsection (1) and subject to the limitations outlined in sections
27
to 35, a correctional official may-
(a) search the person of an inmate, his or her property and the place
where he or she is in custody and seize any object or substance
which
may pose a threat to the security of the correctional centre or of
any person, or which could be used as evidence in a criminal
trial or
disciplinary proceedings;
(b) take steps to identify the inmate;
(c) ......
(d) apply mechanical means of restraint; and
(e) use reasonable force.
(3) In order to achieve the objectives referred to in subsection (1)
and subject to the limitations outlined in sections 27 to
35, the
National Commissioner may classify and allocate accommodation to
inmates."
Section 29, reads as follows:
"29
Security classification
Security classification is determined by the extent to which the
inmate presents a security risk and so as to determine the
correctional
centre or part of a correctional centre in which he or
she is to be detained."
[24]
As regards the "
limitations
outlined in sections 27 to 35
" to which
the objectives in subsection 26(1) are subject, it appears for the
present purposes that it is only sub-sections
31(1) and 31(2) which
have any relevance. These subsections read as follows:
" 31
Mechanical restraints
(1) If it is necessary for the safety of an inmate or any other
person, or the prevention of damage to any property, or if a
reasonable
suspicion exists that an inmate may escape, or if
requested by a court, a correctional official may restrain an inmate
by mechanical
restraints as prescribed by regulation.
(2) An inmate may not be brought before court whilst in mechanical
restraints, unless authorised by the court."
[25] "Mechanical restraints" are, in turn,
defined in section 1 as follows:
" '
mechanical restraints
' means a device which limits or
prevents freedom of physical movement;"
[26] It seems to me that the belly chain referred to in
evidence and which is used to restrain the applicants is clearly a
"mechanical
restraint" as defined in the Act.
[27] These sections of the Act have not been declared
unconstitutional and there is no attack on their constitutionality in
these
proceedings. It seems to me that it is safe to accept that
these limitations are reasonable taking into account the provisions
of section 36 of the Constitution (No. 108 of 1996).
[28] The rights of a convicted person are necessarily
curtailed. This is clearly recognized by the provisions of the Act.
Corbett
JA in a dissenting judgment delivered prior to the passing of
the present Constitution, aptly expressed this necessary limitation
as follows
1
:
" It seems to me that fundamentally a convicted and sentenced
prisoner retains all the 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 make upon a prisoner's personal rights and liberties (for
sake of brevity I shall henceforth speak merely of "rights")
are very 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 the
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. I would
emphasize
the use of the words "basic" and "denied" in this
connection because I do not wish to convey the
impression that every
alleged infraction of a prisoner's rights should be allowed to be a
cause for legal action. If that were
permitted, the position of the
prison authorities could become intolerable and the proper
administration of gaols exceedingly difficult.
In terms of the
regulations prisoners who have complaints about their treatment in
gaol are given the opportunity to voice them
and the regulations also
prescribe how such complaints are to be dealt with (see reg 103 and
also reg 104). This should be the
remedy for complaints not amounting
to a denial of basic rights."
[29]
In the case of
Minister of
Correctional Services and Others v Kwakwa and Another
2
Navsa JA referred to this dictum with approval when he
said:
" In the Conjwayo case (at 62C - D) Gubbay CJ referred with
approval to the dissenting judgment of Corbett JA in Goldberg
and
Others v Minister of Prisons and Others
1979 (1) SA 14
(A) which was
decided at a time when the Legislature was supreme and where the
transgression of human rights was not susceptible
to constitutional
challenge. In the Goldberg case (at 39C - D) the following appears:
'It seems to me that fundamentally a convicted and sentenced prisoner
retains all the basic rights and liberties . . . 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.'
This dictum has become known as the residuum principle and has been
endorsed in subsequent decisions of this and other Courts."
[30] With regard to the provisions of section 31(2) of
the Act referred to above, it seems to me that when a prisoner is
brought
before a court in some form of mechanical restraint and
neither the court nor the prisoner’s counsel, or indeed the
prisoner
himself, object thereto, it must be accepted that the court
has, for the purposes of this subsection, authorized the application
of such mechanical restraint. This is clearly the position in the
present matter in that the applicants have remained in mechanical
restraints both in the form of leg restraints and the belly chains
for the duration of the trial save, perhaps, whilst they were
giving
evidence in the trial within a trial, a matter to which I shall
return later. The only question, which White J correctly
felt that he
was constrained not to deal with due to the potential for prejudice,
was whether or not the applicants were entitled
to an order that the
belly chain restraints be removed whilst they give evidence. Having
regard to the relevant provisions of the
Act and the above-mentioned
dicta, it is my view that this question must be answered by
considering whether or not, in all the
circumstances of this case, it
may be said that such limitation is reasonable and in the interests
of justice.
[31] In my view, the evidence in this matter is
overwhelmingly in favour of the applicants remaining so restrained
for the duration
of the trial, including during the course of their
testimony. My essential reasons for saying so are set out hereunder.
[32] As to the factual question as to whether or not the
applicants were so constrained during the course of their evidence
during
the trial within a trial, I do not believe that it is
necessary to decide this question. It is possible on the evidence of
Ralls
that he may have been mistaken in this regard. However, in my
view this does not make a difference to the potential security risk
involved.
[33] The fact that the two applicants are regarded as
both dangerous and a high security risk is reflected in the presence
of a
large contingent of security personnel, both from Correctional
Services and from SAPS, who have apparently been ever present during
the course of the main trial and who were present during the course
of this hearing. Not only are such security personnel ever
present,
but the security personnel involved are specialists who have been
specifically imported from elsewhere in order to deal
with the
applicants, as they are regarded as the best in their field. The
applicants are housed in what has been referred to as
one of the most
secure prisons on the continent, that being the CMax prison at
Kokstad. All of these factors clearly support the
contention that the
Correctional Services personnel have determined that anything less
for the applicants will almost certainly
result in disastrous
consequences for not only them, but for the court staff and any
member of the public who may find him or herself
in the vicinity of
the courts. It is clear that the security staff attached to
Correctional Services are possessed of the necessary
expertise with
regard to the handling of security matters of this nature and that
when they reach such a determination, it should
not be lightly
disregarded. I was most impressed in this regard with Ralls as a
witness. He struck me as being a person who was
both fair but firm.
He made concessions wherever they were necessary but was adamant that
the applicants are persons who are both
dangerous and a severe flight
risk. This is again underscored by the fact that an object was found
where the accused sit in court
which could have been utilized for the
purposes of releasing the restraints. Whilst Mr. Gabavana has argued
that there is no evidence
that the applicants themselves were
responsible for this, the fact that they may well have been is
sufficient to underscore the
seriousness with which the Correctional
Services personnel regard the security of the applicants.
[34] It is also clear that the applicants themselves, as
represented by Mr. Gabavana in these proceedings, have clearly
accepted
that such security is in fact necessary. At no stage since
the commencement of this trial have they applied for any of the two
sets of restraints, leg or arm, to be removed until it became
necessary for them to testify in the main trial. Had they, for one
moment, believed that their rights in this regard have been seriously
violated, one would have expected similar applications at
an earlier
stage. On the contrary, and despite the provisions of section 31(2)
of the Act, no such application has hitherto been
launched.
[35] As regards the contention that both their clothing
and the fact that their arms are to some extent restrained will
prejudice
them whilst giving evidence, it is my view that White J,
being as he is a senior retired judge of this division, is acutely
aware
of his duties in this regard and has sufficient experience and
training on the High Court bench to disabuse his mind of any
potential
prejudice. Furthermore, and once again, the fact that the
applicants have worn such clothing throughout the trial without an
apparent
murmur up until this point, is, to my mind, evidence of
their lack of belief that such potential prejudice would in fact
eventuate.
[36] In this regard it is also apposite to again mention
the fact that I have had the opportunity to observe both the
applicants
in the witness box when giving evidence. As mentioned
earlier, after an initial objection by the first applicant to the
fact that
he was required to raise his right hand for the purposes of
being sworn in, they both relaxed in the witness box and used their
arms and hands extensively to gesticulate and enforce their points.
They were also given documents to look at and read and had
no
difficulty whatsoever in this regard. It must be remembered that the
application was aimed at removing "handcuffs"
and that it
is not in fact handcuffs in the traditional sense that are the
mechanical restraints involved. The belly chain type
of restraint is
far less restricting than traditional handcuffs and gives the
applicants much more freedom of movement in this
regard. In fact, had
it not been so that White J has been alerted to the presence of such
mechanical restraint, I doubt that, as
the judge hearing their trial,
he would even have been aware thereof.
[37] As regards the clothing, I have already alluded to
the fact that, in my view, there is unlikely to be any prejudice in
this
regard. This is so particularly because of the fact that the
clothing, or "prison garb", that the applicants are wearing
is a toned down version of the prison garb normally worn by such
prisoners and, once again, had attention not been drawn to the
fact
that this clothing has been provided by the prison, I would not have
realized that this was so. However, of more importance
is the fact
that Ralls testified that such clothing has far more significance in
dealing with the question of security. It was
his evidence that this
clothing is used for identification in the event of the applicants
attempting to escape. In my view, this
is a very compelling reason,
amongst the various others, for not allowing the applicants to wear
their own clothing during the
course of the trial.
[38] As mentioned earler, it was suggested during
cross-examination and in argument that, as an alternative to their
having hand
restraints in place whilst giving evidence, the security
personnel should surround the witness box so as to secure the
applicants
whilst they are not so restrained. This very suggestion
seems, in my view, to be to some extent self-defeating. One of the
very
purposes which the applicants have expressed for removing the
hand restraints whilst giving evidence is to allow them freedom of
expression and to prevent the court from gaining a negative view of
their demeanor. I would have thought that the very fact of
having a
number of seriously armed personnel standing in a semicircle around
the witness box would, if at all, have had that very
same effect. In
any event, as Ralls clearly stated in evidence, this amounts to a
very clear security risk.
[39] Finally, I was not impressed with the applicants as
witnesses. Despite Mr. Gabavana's attempts to argue that there is no
proper
evidence before this court that the applicants have charges
pending against them for escaping, it seems to me to be most unlikely
that the investigating officer would compile, in conjunction with his
colleagues, a totally spurious and false document in this
regard. The
investigating officer testified that he had, in his possession at his
offices, all the dockets relating to these charges.
To disregard this
would, in my view, not be in the interests of justice. In the face of
such evidence, the applicants' denial simply
cannot wash. There were
a number of other aspects of their evidence which struck me as most
improbable.
[40] It should also be recalled that the applicants
have, in both notices of motion, sought a review of the decision by
the Correctional
Services officials that the applicants ought to be
so restrained and that they are to wear such clothing whilst
testifying, and
whilst in court. Whilst I am not sure that this is
the correct cause of action, given the relevant provisions of the
Act, it is
my view that, in any event, no case has been made out for
a review and setting aside of that decision. In my view, and because
of the reasons set out above, it has not been shown that such
decision was procedurally flawed or unfair, that it was not
authorized
by the empowering statute or that it was in bad faith or
otherwise. It has also not been shown that it was not rationally
connected
to the purpose for which it was taken or otherwise as set
out in section 6 of the Promotion of Administrative Justice Act (No.3
of 2000). It is also so that the applicants have, by the very nature
of their applications, accepted that all formal procedures,
such as
formal hearings, before such a decision could be made, are not
countenanced by the Act for obvious reasons of security.
[41] In all these circumstances I was of the view that
the respondents had made out a very strong case for resisting the
applications
and I accordingly dismissed both applications with
costs.
JUDGE OF THE HIGH COURT
HEARD ON : 22 NOVEMBER 2011
DELIVERED ON : 02 DECEMBER 2011
COUNSEL FOR APPLICANTS : Mr Gabavana
INSTRUCTED BY : M. A. Mahlutshana Attorneys
COUNSEL FOR RESPONDENTS : Mr Hinana
INSTRUCTED BY : State Attorney
1
Goldberg
and Others v Minister of Prisons and Others
1979 (1) SA 14
(A) p
39c-d
2
2002
(4) SA 455
SCA at page 468, paragraph 25