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[2002] ZASCA 17
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Minister of Correctional Services and Others v Kwakwa and Another (60/2000) [2002] ZASCA 17; [2002] 3 All SA 242 (A); 2002 (4) SA 455 (SCA); 2002 (1) SACR 705 (SCA) (27 March 2002)

THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case
no: 60/2000
In
the matter between:
THE MINISTER OF CORRECTIONAL SERVICES
First Appellant
COMMISSIONER
OF CORRECTIONAL SERVICES Second
Appellant
THE AREA MANAGER OF PRETORIA PRISON
Third Appellant
HEAD OF PRETORIA FEMALE PRISON
Fourth Appellant
and
IGNATIUS
VISHINSKY KWAKWA
First Respondent
GODFREY ABEL MOTSHWANE
Second Respondent
___________________________________________________________________
Coram
:
Smalberger
ADP, Olivier, Zulman, Navsa and Mthiyane JJA
Date
of hearing:
15 February 2002
Date
of delivery:
27 March 2002
Summary: Legality of prison privilege system in
respect of unsentenced prisoners – Commissioner of prisons acting
beyond his statutory
powers and in violation of respondents'
constitutional rights.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NAVSA
JA:
[1]
This appeal concerns the rights of
prisoners who in terms of a new privilege system determined by the
second appellant are classified
as "unsentenced prisoners".
This category is made up of prisoners awaiting the commencement or
finalisation of their trials
(in every day language they would be
described as awaiting-trial prisoners – the respondents fall in
this group) and includes prisoners
who have been granted bail but
have been unable to raise the funds to secure their release. A
further part of the prison population
who fall into this category are
prisoners who have been convicted of an offence but who have not yet
been sentenced. Serving prisoners
who have been convicted and
sentenced on a previous occasion and who are awaiting the
commencement or finalisation of subsequent
trials or sentencing
proceedings are not regarded as unsentenced prisoners.
[2]
The
Department of Correctional Services ("the department")
established in terms of section 2 of the Correctional Services
Act 8
of 1959 ("the Act") is responsible for the administration,
management and maintenance of prisons in South Africa.
In terms of
the Act the department is under the control of the second appellant,
subject to the policy determinations and directions
of the first
appellant. The third and fourth appellants are officials of the
department whose titles are descriptive of their functions
and
responsibilities. On 1 November 1998 the second appellant,
purportedly acting in terms of section 22 of the Act, determined
a
new privilege system ("the new system") in terms of which
privileges were granted on a differential basis to prisoners
in
specified categories. A consequence of the introduction of the new
system is that several privileges previously enjoyed by unsentenced
prisoners were restricted or withdrawn. During December 1998 five
unsentenced prisoners ("the applicants"), including
the two
respondents, held at different sections of the Pretoria Prison, who
were aggrieved at the introduction of the new system,
brought an
urgent application in the Transvaal Provincial Division of the High
Court for an interdict prohibiting the introduction
and application
of the new system and an order reinstating the privileges previously
enjoyed by them, pending an application for
an order reviewing and
setting aside the determination by the second appellant and restoring
the privileges hitherto enjoyed by them.
They failed to obtain an
interim order. The review application was set down in the same
division of the High Court and heard by
Maritz AJ. On 2 November
1999 the learned judge held that the application should succeed in
part, restoring a number of privileges,
which were previously enjoyed
by unsentenced prisoners, and ordering that certain privileges be
extended to them. Maritz AJ used
the terms awaiting-trial prisoners
and unsentenced prisoners interchangeably. He made the following
order in favour of the applicants
before him:
"That
it is hereby stressed that these orders relate only to awaiting-trial
prisoners:
1. The decision not to allow visits over weekends is set
aside.
2. The embargo placed on receiving delicacies from
visitors is set aside. Applicants are to be allowed the same rights
as those afforded
to A-group prisoners.
3. The embargo relating to private musical instruments
is set aside.
4. The embargo relating to the practice of hobbies is
set aside. The applicants are to be accorded the same rights as
those of A-group
prisoners.
5. The regulation in respect of radios is amended to
include cassette players and compact disc players.
6. The embargo in respect of access to library
facilities is set aside.
7. The embargo in respect of the applicants'
participation in a choir or choirs, is set aside.
8. The respondents are ordered to pay the
applicants' costs."
[3]
The
present appeal is with the leave of this Court. The respondents

case in the Court below was based, first, on the second appellant's
failure to observe procedural fairness, it being asserted that
there
was no, or insufficient, consultation with interested parties,
rendering the determination invalid. Secondly, the respondents
contended that the determination is invalid because it is
ultra
vires
the powers of the second appellant, in that it violates the
Constitutional rights of unsentenced prisoners and is unreasonable.
It
is the respondents' case that the new system violates a prisoner

s
rights in terms of the Constitution of the Republic of South Africa
Act 108 of 1996 ("the Constitution") to have reading
material supplied at State expense; it discriminates against
unsentenced prisoners unfairly in that they are treated less
favourably
than sentenced prisoners; and it offends against their
right to dignity and the presumption of innocence. Maritz AJ
rejected the
first ground of challenge. Before us, the procedure
adopted by the second appellant in determining the new system was no
longer
an issue. The legality of the determination of the new system
in so far as it applies to unsentenced prisoners is the only issue
in
this appeal.
[4]
Maritz
AJ recognised that unsentenced prisoners have rights, which ought not
to be invaded to a greater extent than is necessary
for regulating
life in prison. He considered each of the applicants’ objections
against the new system and struck down such parts
of the new system
as in his view infringed their rights. He was disinclined to set
aside the new system in its entirety. I will
in due course deal with
this line of reasoning.
[5]
The
appellants contended before us, as they did in the Court below, that
the determination by the second appellant was good in law
and that it
must be seen in the light of security needs and within the
constraints of available resources. It was submitted on their
behalf
that the Court below erred in adopting a subjective approach to the
new system, refashioning it in the light of its own wishes.
[6]
It
is necessary at the outset to consider the structure of the new
system: For the purpose of determining an entitlement to specific
privileges, sentenced prisoners are grouped together,
inter alia
,
on the basis of behavioural patterns. The designated groups are:
A
,
B
and
C
. Mr Rufus Ntotho ("Ntotho"),
a deputy director within the prison services, who deposed to the main
affidavit in support
of the appellants' case, describes this
classification of prisoners as a security classification, explaining
that prisoners in group
A
pose the least security risk. The
security risk escalates from group
A
downwards. Group
A
prisoners are granted a greater number of privileges than prisoners
in groups
B
and
C
. Prisoners in group
B
are in
turn granted a greater number of privileges than those in group
C
.
In terms of the new system there is a fourth group of prisoners,
namely, unsentenced prisoners constituted as described earlier
in
this judgment. Groups
A
,
B
,
C
and unsentenced
prisoners, as categories of prisoners within the new system,
constitute the entire spectrum of the South African
prison
population. The standardised privilege system which was in force
before the introduction of the new system ("the old
system")
applied only to groups
A
,
B
and
C
. Such
privileges as were granted to unsentenced prisoners, before the
introduction of the new system, were at the discretion of
the head of
each prison, acting in the Commissioner’s stead, in terms of
sections 22, 82 and 93 of the Act, read with the provisions
of
regulation 132 of the Consolidated Correctional Services Regulations
(as amended) promulgated in terms of section 94 of the Act
("the
Regulations"). Ntotho states that the motivation for the
introduction of the new system is "standardisation
in the light
of security needs". He also states that the purpose of the new
system is to "primarily encourage prisoners
towards good
behaviour; to engender a sense of responsibility in them and to
ensure their interests and co-operation in the integration
into
detention and treatment programmes". The standardised new
system does not allow for a residual discretion to deal with
prisoners whose circumstances may require measures or treatment not
catered for by it.
[7]
In
the period between the judgment in the Court below and the hearing of
this appeal the three awaiting trial prisoners who are not
party to
this appeal but who were the first, fourth and fifth applicants in
the review application before Maritz AJ, were acquitted
and freed at
the end of their respective trials on the charges referred to later
in this judgment. For them this appeal is academic.
However, their
stated individual complaints and the answers they elicited from the
appellants are relevant to the determination
of this appeal. It is
therefore necessary to allude in detail to their circumstances, the
grounds on which they and the respondents
relied for the attack on
the validity of the new system and the appellants’ answer to their
case. The other erstwhile prisoners
who were applicants in the Court
below were Ms Masefako Julia Mashele, Mr Mafika Philemon Mahlangu and
Mr Patrick Hlongwane. Where
it is necessary to refer to them
distinctively I will refer to them as they were in the Court below:
first, fourth and fifth applicants
respectively. The first and
second respondents in this appeal were the second and third
applicants respectively in the Court below.
I will in the main
continue to refer to them as they are in this Court; the first and
second respondents.
[8]
I
do not intend to allude to every detail of the old and new systems.
I will refer to such provisions as are relevant to a determination
of
the present appeal. I interpose to state that the case of the
applicants before Maritz AJ, as set out in the supporting affidavits,
was short on detail and fact. It was inadequately presented and
poorly answered by the appellants. The applicants whilst stating
that the withdrawal or restriction of privileges cannot be justified
for lack of facilities, or on the basis of security risks or
for
other reasons, did not supply sufficient detail of the practical
implementation of the old system and the problems encountered
in
giving effect to it. No reliable statistical information was
supplied. The number of unsentenced prisoners at the Pretoria Prison
was not provided. The Court was not informed about the average time
for finalisation of trials. The extent of the Pretoria Prison

s
resources was not set out by any of the parties.
[9]
The
second appellant did not himself furnish an affidavit on the
motivation for the determination of the new privilege system. Ntotho
deposed to his affidavit based on his experience of prison policies.
His answers to the case presented by the applicants, as will
become
apparent, are scanty and generally unhelpful.
[10]
The
first respondent has been in detention as an awaiting trial prisoner
since 3 February 1998 facing charges of armed robbery.
He was
initially held at Pretoria Local Prison. On 20 November 1998, when
he was 52 years old, he was transferred to Pretoria Maximum
Prison
where he was held at the time that the review application was heard
in the Court below. He is presently back at the Pretoria
Local
Prison, pending the finalisation of his trial. At the time of the
urgent application the first respondent’s trial had not
yet
commenced. At the time of the hearing of this appeal the first
respondent had been awaiting trial for longer than four years.
[11]
The
second respondent, a Botswana citizen who faces charges related to
the possession of and the dealing in mandrax tablets, was
sixty years
old when he was first taken into custody. He too was held at the
Pretoria Maximum Prison at the time that the matter
was heard in the
Court below. He is presently held at the Pretoria Local Prison. At
the time of the urgent application the second
respondent had been
awaiting trial for approximately twenty-four months. At the time of
the hearing of this appeal he had been in
custody for approximately
five years.
[12]
The
first applicant was taken into police custody on 14 May 1993.
Together with a number of co-accused she faced prosecution on
approximately 100 charges, mostly of fraud and theft. On 23 December
1993, the first applicant, who was then 41 years old, was transferred
to the Pretoria Female Prison. At the time that judgment was
delivered in the Court below her trial had started but had not been
finalised. At the time of the urgent application in 1998 she had
been awaiting trial for longer that 5 years.
[13]
The
fourth and fifth applicants were co-accused charged with armed
robbery. At the time of the urgent application they were in their
early thirties and had been awaiting trial for periods longer than
eight and thirteen months respectively.
[14]
The
respondents and the first and fourth applicants were assigned to
single cells whilst the fifth applicant shared a cell with six
other
prisoners.
[15]
All
the periods of detention referred too are deplorable. This aspect
will be dealt with later in this judgment.
[16]
I
turn to describe the privileges previously enjoyed by the respondents
and the other applicants in the Court below and their specific
and
general complaints about the new system. It is necessary to deal
with the first applicant's affidavit in some detail, as it
was the
principal affidavit on which the applicants relied in the Court
below. Before the introduction of the new system the first
applicant
had the use in her cell of a television set, a compact disc player
and a radio/tape hi-fi combination all of which were
owned by her.
Prison authorities took the television set away and her compact disc
player was removed from the hi-fi combination
set. The new privilege
system allows
A
group prisoners to have the use of cassette
players. Unsentenced prisoners are denied the use of cassette
players. The removal
of the first applicant’s compact disc player
and television set should be seen against the fact that the new
system denies all
unsentenced prisoners access to the prison library.
The new system allows all sentenced prisoners access to the prison
library.
The first applicant complained that although the new
privilege system does not provide for study and developmental
programmes, the
practice at the Pretoria Prison is that study
programmes for sentenced prisoners are conducted and they are
permitted to enrol, at
own cost, with outside distance education
institutions. No such courses are conducted for unsentenced
prisoners. They may, however,
enrol at own cost with outside
distance education institutions. The first applicant who, before the
introduction of the new system,
did not practice a hobby, complained
that in terms of the new system she would be unable to pursue a hobby
to make up for the loss
of her appliances and denial of access to the
library. The new system denies unsentenced prisoners the practice of
any hobby whilst
Group
A
prisoners are allowed the practice of
a hobby that does not include the use of tools which pose a security
threat. Before the introduction
of the new system the first
applicant was allowed to sing in the prison choir. The new system
allows only
A
group prisoners to sing in the prison choir.
The first applicant claimed that prior to the introduction of the new
system she was
allowed contact visits. The appellants denied this.
The new system prohibits unsentenced prisoners from having contact
visits and
allows them only two visits per week for a limited
duration of 30 minutes at a time, restricted to two adults at a time.
Previously,
visits were allowed every day for an hour without a
limitation on the number of visits. The first applicant complained
about not
being able to have contact with her three minor foster
daughters. Group
A
prisoners are entitled to contact visits,
facilities permitting. The first applicant complained about the
prohibition on weekend
visits, stating that it made it impossible for
her foster children to visit her during school terms. Another
complaint raised by
the first applicant was that the new system
placed an unwarranted restriction on the receipt by unsentenced
prisoners of foodstuff
and delicacies from visitors and next of kin.
She submitted that the restrictions on the receipt of foodstuffs and
delicacies are
in contravention of section 82 of the Act. This
complaint appears to be based on a misreading of the relevant part of
the new privilege
system. In this one respect unsentenced prisoners
appear to be better off than sentenced prisoners. They are able to
receive foodstuff
from family and friends for consumption at the next
meal whilst sentenced prisoners are prohibited from doing so. The
first applicant
used her own frying pan to prepare food in accordance
with a diet prescribed by her doctor. The new system prohibits the
preparation
of food by all prisoners. The respondents and the other
applicants all of whom previously had access to a television set made
common
cause with the first applicant's complaints about the
introduction of the new system. In their affidavits they complained
about
the prohibition on the use of appliances. The respondents are
both directly affected by the restrictions on visits. The second
respondent is particularly hard hit by the restrictions on visits as
he is a Botswana citizen whose wife and four children have to
make
trips from that country to visit him. In his affidavit the fifth
applicant raised a complaint about telephone access. He has
two
daughters with whom he kept regular telephonic contact whilst
imprisoned. The new system places restrictions on the making of
telephone calls by allowing only one telephone call per day for a
maximum of ten minutes. Prior to the introduction of the new system
the fifth respondent had greater access to the telephone. The
respondents are physically locked in their cells from 15h00 until
7h00. They contend that against that background the withdrawal of
privileges hitherto enjoyed is oppressive and unlawful.
[17]
Although
no applicant in the Court below complained about the prohibition on
the use by unsentenced prisoners of private musical
instruments,
Maritz AJ saw fit to lift this prohibition. In terms of the new
system A group prisoners are allowed the use of private
musical
instruments.
[18]
Counsel
for the appellant submitted before us that the attack on the new
system by the applicants in the Court below was specific
and limited
to their personal circumstances and that Maritz AJ erred in not
confining his order to their specific complaints. It
was submitted
that in the event of this Court holding that the respondents'
specific complaints were warranted it would be inappropriate
to
strike out the new system in its entirety. It is consequently
necessary to consider the basis of the applicants’ attack on
the
validity of the new privilege system. In paragraph 24 of her
founding affidavit the first applicant states:
"The
conditions under the new privilege system are not necessary or
reasonable limitations of our rights of access to amenities."
In
paragraph 45 the following appears:
"I
also respectfully submit that it is unreasonable to allow certain
privileges to sentenced prisoners, more particularly the
A group, and
not to allow it to unsentenced prisoners."
In
paragraph 46 she states:
"The
above situation was obviously designed under circumstances where
trial awaiting periods are very short and are mainly taken
up by
trial days. This is obviously no longer the case and the Respondents
[Appellants] have completely failed to consider the extended
periods
endured by trial awaiting prisoners these days."
In
paragraph 53 of the first applicant’s affidavit she states:
"Apart
from the procedural unfairness of the Respondents' actions and
decisions, I respectfully submit, for the reasons stated
above, that
there is ample reason for a review on substantive grounds as well.
None of the measures are justifiable in respect of
trial awaiting
prisoners."
Paragraph
55 is also relevant:
"I
also respectfully submit that the balance of convenience favours me.
Firstly, I respectfully submit that there are clear
violations of
rights of trial awaiting prisoners in terms of the new privilege
system. Furthermore, I respectfully submit that the
new privilege
system violates the basic principle that prisoners, and more
particularly trial awaiting prisoners, retain all the
rights they had
as free citizens."
Maritz
AJ recorded in his judgment that the applicants before him urged him
to strike down the new system in its entirety. Given
the limited
recreational facilities available to them, all of the applicants had
an interest in the amenities which were withdrawn,
and to which group
A prisoners have access. In their notice of motion the applicants in
the Court below
inter alia
sought the following relief:
"1. That the introduction of a new 'Privilege
System' as annexed hereto as Annexure 'A' as decided upon by Second
Respondent
in respect of trial awaiting prisoners be reviewed and set
aside."
To sum up, the applicants in the Court below sought
nothing short of the setting aside of the new system in its entirety.
The respondents
(and the other applicants in the Court below) were
directly affected by the introduction of the new regime for
unsentenced prisoners.
The new system in so far as it applied to
unsentenced prisoners impacted on their lives in prison. The
respondents continue to
be affected by the implementation of the new
system.
[19]
The
appellants’ answer to the respondents’ case is as described in
this and the following three paragraphs. The new system is
applied
nationally and has been implemented without problems. If the new
system were to be reversed at the Pretoria Prison it would
result in
chaos and a number of unsentenced prisoners who submitted to the new
system would be prejudiced. No details are supplied
of the kind of
prejudice and chaos that would ensue. In justifying the new system
Ntotho refers in general terms to the budgetary
constraints faced by
the department asserting that this makes it difficult to structure a
privilege plan for unsentenced prisoners.
No details of the Pretoria
Prison

s
available facilities are supplied. Ntotho does not describe the
shortcomings of the old system nor are we supplied with any details
of how security was compromised by that system. He states that
unsentenced prisoners present particular policy problems. Whenever
they leave prison to attend court they are entrusted to the custody
of police services. When they are handed over it is uncertain
whether they will be returning. Consequently their names are removed
from the prison’s computer records for the time they are
away. In
the event that they return to prison they are readmitted on the
strength of a new warrant of detention and reintroduced
into the
prison’s records. An unsentenced prisoner may be held at a prison
in terms of a number of warrants of detention. Of
particular
significance is the fact that prison authorities are unaware of the
unsentenced trial prisoner’s history – he or she
is presumed
innocent and there is no conviction or findings by a court on which a
grading can be based. He may be innocent or may
be a hardened and
violent criminal who presently may be facing a minor charge. He may
also be a first offender. One of the problems
with unsentenced
prisoners is that they are often granted bail and spend short periods
in prison making it difficult for prison officials
to place them in a
designated group according to behavioural patterns. This last
statement should be seen against an admission by
Ntotho that the
trial awaiting periods are no longer short. Ntotho also states that
prison authorities regard awaiting trial prisoners
as a high security
risk. It is not uncommon for them to escape from custody. Elsewhere
in his affidavit he states, somewhat contradictorily,
that an
unsentenced prisoner’s "inherent tendency" to escape is
not known to prison authorities. The appellants do not
supply any
statistical information concerning escapes by sentenced prisoners
compared to escapes by unsentenced prisoners. According
to the
appellants the fluidity of the position of unsentenced prisoners and
the attendant security risks create a problem in extending
privileges
to them. We are not told what those problems are. Ntotho, in
attempting to explain the reason for denying unsentenced
prisoners
access to the prison library, states that they may be released on
bail or be released without returning a library book.
He states that
it is difficult to extend the same privileges to them as are enjoyed
by sentenced prisoners. Details of the difficulties
are not
supplied. The appellants state that many prison programmes are
rehabilitative in nature and it is absurd to speak about
rehabilitating an unsentenced prisoner. Contact visits are denied to
them because they may escape by exchanging clothes with visitors
and
because investigating officers are against such visits. Ntotho
states further that unsentenced prisoners are not well-known
to
prison officials and that this makes it easier for them to escape by
changing clothes with visitors. He does not explain why
a sentenced
prisoner in the
A
group of prisoners in the early stages of
his imprisonment does not present the same problem nor does he
explain why prisoners such
as the applicants in the Court below would
not because of the length of their stay become familiar to prison
officials. If visits
were to be conducted under supervision the
security problem would diminish.
[20]
The
appellants assert that prisoners are allowed access to television in
designated general areas at prescribed times and that a
denial of
television is not consonant with a denial of human dignity. The
appellants adopt the position that the respondents are
entitled to
receive books from their next of kin. They also state that those
prisoners wishing to study and who wish to enrol with
outside
educational institutions, at own cost, may consult a prison
educationist for assistance. Since unsentenced prisoners are
prohibited from mixing with sentenced prisoners, prison authorities
cannot allow them to attend lessons given to the latter category.

The uncertainty of the future of the unsentenced prisoner makes it
difficult to arrange formal lessons for them. The prohibition
on
limiting food intake or preparation is justified by the security
consideration that a prisoner may be exposed to the risk of burning
or may burn others.
[21]
The
appellants denied that any of the respondents were previously allowed
contact visits other than consultation visits. They contended
that
the first applicant was free to apply for her children and mother to
visit her during weekends. Her response, as set out in
her replying
affidavit, was that she applied and was refused permission.
[22]
Mrs
Dorah Maako, the head of the female section of the Pretoria Prison,
in an affidavit in support of the appellants’ case, states
that 80
unsentenced prisoners and 70 sentenced prisoners constitute the
prison population in her section. As can be seen the questions
raised in this appeal affect a significant number of inmates in one
section of one prison. The number of people affected nationally
by
the introduction of the new system must be fairly high.
[23]
I
turn to consider relevant provisions of the Act and the regulations
promulgated thereunder. Section 22 of the Act reads as follows:
"
22. Security measures, privileges
and indulgences.
- (1) The Commissioner shall determine –
(
a
) the security measures applicable
at prisons, and may determine different security measures applicable
at prisons, and may determine
different security measures in respect
of different prisons;
(
b
) the groups into which prisoners
are to be classified.
(2) The
Commissioner may –
(
a
) grant such privileges and
indulgences as he may determine to any prisoner;
(
b
) withdraw or amend any privilege
or indulgence granted in terms of paragraph (
a
) to any
prisoner if it is in the interests of the administration of prisons."
(By
definition – see section 1 of the Act – a "prisoner"
means "any person, whether convicted or not".) In
terms of
this section prisoners may be grouped together and classified for
security purposes. The Commissioner is expressly authorised
to
determine different security measures in respect of different
prisons. This may be compelled by the difference in physical
conditions
of prisons or by differing resources or by the nature of
the particular prison population. In terms of section 22 (2)
privileges
and indulgences may be determined and granted to "any
prisoner". This enables prison authorities to deal with the
needs
of prisoners whose personal circumstances are such that they
may require specialised treatment. The second appellant also has the
power to withdraw such privileges if it is in the interests of the
administration of prisons. Section 82 of the Act provides,
inter
alia,
that unconvicted prisoners awaiting trial for an alleged
offence, may, subject to such limitations and restrictions as may be
prescribed
by the second respondent be allowed:
"(i) to write and receive letters;
(ii) to
receive visits; and
(iii) to procure for themselves from outside the
prison and to receive at prescribed hours therein such food,
unfermented drink,
bedding clothing, literature and other articles as
may be approved by the Commissioner, subject to a strict examination
thereof."
Section
94 of the Act authorises the Minister to make regulations not
inconsistent with the Act, which regulate the management and
administration of prisons in a generalised or specific manner.
Regulation 132 of the Regulations deals with unsentenced prisoners
and provides,
inter alia
,
that subject to the necessary
controls an unsentenced prisoner may receive stationary and reading
matter from outside sources or may
purchase them. Regulation 132 (8)
of the Regulations reads as follows:
"A
prisoner who has been unable to comply with the conditions of bail,
shall be granted visits at reasonable times during any
day and also
the opportunity and facilities to write and receive letters in order
to comply with such conditions."
Section
93 (2) of the Act provides:
"The Commissioner may delegate any of the powers
vested in him by this Act to any correctional official or other
person employed
in the Department."
This
provision facilitates prison administration and allows for the head
of each prison to deal with prisoners relative to the conditions
and
resources at each prison.
[24]
In
addressing the merits of this appeal it is useful to bear in mind
what was said by Gubbay CJ in
Conjwayo v Minister of Justice,
Legal and Parliamentary Affairs and Others
1992 (2) SA 56
(ZS)
at
60 G - 61 A
:
"Traditionally,
Courts in many jurisdictions have adopted a broad 'hands off'
attitude towards matters of prison administration.
This stems from a
healthy sense of realism that prison administrators are responsible
for securing their institutions against escape
or unauthorised entry,
for the preservation of internal order and discipline, and for
rehabilitating, as far as is humanly possible,
the inmates placed in
their custody. The proper discharge of these duties is often beset
with obstacles. It requires expertise,
comprehensive planning and a
commitment of resources, all of which are peculiarly within the
province of the legislative and executive
branches of government.
Courts recognise that they are ill-equipped to deal with such
problems. But a policy of judicial restraint
cannot encompass any
failure to take cognisance of a valid claim that a prison regulation
or practice offends a fundamental constitutional
protection.
Fortunately the view no longer obtains that in consequence of his
crime a prisoner forfeits not only his liberty but
all his personal
rights, except those which the law in its humanity grants him. For
while prison officials must be accorded latitude
and understanding in
the administration of prison affairs, and prisoners are necessarily
subject to appropriate rules and regulations,
it remains the
continuing responsibility of Courts to enforce the constitutional
rights of all persons, prisoners included."
The
learned Chief Justice went on to refer to two decisions of the
Supreme Court of India and the decision of the Supreme Court of
the United States of America in
Rhodes v Chapman
[1981] USSC 144
;
(1981)
452
US 337
in which this approach is followed. It is an
approach that I endorse and intend to follow.
[25]
In
the
Conjwayo
case (at
62 C – 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
39 C – 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.
[26]
The
case of
Charles Sobhraj v Superintendent, Central Jail, Tihar,
New Delhi
(1979) 1 SCR 512
(Sup Ct India)
is one of the cases
cited by Gubbay CJ in the
Conjwayo
case,
supra
.
In the
Sobhraj
case, although it is asserted that
courts cannot take over the running of prisons, the following appears
at 518 – 519:
"Whatever fundamental rights are flouted or
legislative protection ignored, to any prisoner's prejudice, this
Court's writ will
run, breaking through stone walls and iron bars, to
right the wrong and restore the rule of law."
[27]
In
Constitutional Law of South Africa
by Chaskalson,
Kentridge
et al
the learned authors state the following at
28
- 24
:
"A key requirement of the principle of
legality is that even those rights of prisoners which are restricted
as a necessary consequence
of incarceration may only be limited if
this is done by legislation, either expressly or by necessary
implication. The laws regulating
prisons in South Africa must
therefore be scrutinized 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."
They
are referring specifically to the Act and the regulations made
thereunder (see footnote
4
). The cases referred to in the
preceding paragraphs deal with the rights of convicted prisoners.
Unconvicted and unsentenced prisoners
cannot have fewer rights.
[28]
The
comment of Maritz AJ that the word privilege as used in the new
system is a misnomer is wholly justified. Curtailed as their
rights
may be unsentenced prisoners retain certain personal rights. As
early as 1912 this Court, in the case of
Whittaker v Roos and
Bateman, Morant v Roos and Bateman
1912 AD 92
,
dealing with
the rights of awaiting trial prisoners said the following, (
per
Innes CJ at
122 - 123
):
"True, the plaintiffs' freedom had
been greatly impaired by the legal process of imprisonment; but they
were entitled to demand
respect for what remained. The fact that
their liberty had been legally curtailed could afford no excuse for a
further illegal encroachment
upon it. Mr.
Esselen
contended
that the plaintiffs, once in prison, could claim only such rights as
the Ordinance and the regulations conferred. But the
directly
opposite view is surely the correct one. They were entitled to all
their personal rights and personal dignity not temporarily
taken away
by law, or necessarily inconsistent with the circumstances in which
they had been placed. They could claim immunity from
punishment in
the shape of illegal treatment, or in the guise of infringement of
their liberty not warranted by the regulations or
necessitated for
purposes of gaol discipline and administration."
This
has become known as the Innes
dictum
. In
Minister of
Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A)
Hoexter JA referred
with approval to
Cassiem and Another v Commanding Officer,
Victor
Verster Prison, and Others
1982 (2) SA 547
(C)
where Grosskopf J said the following concerning the Innes
dictum
(at
551 G
):
"In respect of awaiting-trial
prisoners, the correctness of the approach stated by INNES J
as far back as 1912 has to my knowledge never
been questioned."
With
reference to section 82 of the Act Grosskopf J went on to state the
following (at
552 B – D
):
"When this section states that
awaiting-trial prisoners 'may be allowed' certain amenities, it does
not in terms purport to grant
any rights. If, however, one
approaches the position of awaiting-trial prisoners along the lines
laid down by INNES J in
Whittaker's
case
supra
, it is
more significant that s 82 does not in terms take away rights which
awaiting-trial prisoners may have to the amenities mentioned
in the
section, but merely subjects them to various forms of control."
In
South African Prison Law and Practice
by Van Zyl Smit
(1992) at
263
the learned author states with reference to the
Cassiem
case,
supra
:
"The
implications of this decision do not appear to have been recognized
fully by the prison authorities who label as 'privileges'
of
prisoners awaiting trial, the amenities referred to by Grosskopf J.
This terminological imprecision would not matter if all that
the
authorities in fact do is to regulate access to these amenities to
the extent that they are empowered to do so…"
At
141 C - D
of the
Hofmeyr
judgment Hoexter JA
said the following:
"The Innes
dictum
serves to
negate the parsimonious and misconceived notion that upon his
admission to a gaol a prisoner is stripped, as it were, of
all his
personal rights; and that thereafter, and for so long as his
detention lasts, he is able to assert only those rights 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 rights save those abridged or proscribed by
law. The root
meaning of the Innes
dictum
is that the extent
and content of a prisoner's rights are to be determined by reference
not only to the relevant legislation but
also by reference to his
inviolable common-law rights."
Hoexter
JA stated (at
141 H
), that he was in agreement with the
residuum
principle as enunciated by Corbett JA in the
Goldberg
case,
supra
. The approach followed by this Court in
the
Hofmeyr
case,
supra
, has been given fresh
impetus by a number of our Constitutional values such as dignity,
equality and humanity. In the
Conjwayo
case Gubbay CJ,
in referring to these values in the Constitution of Zimbabwe, stated
the following (at
63 E
):
"Punishment
or treatment incompatible with the evolving standards of decency that
mark the progress of a maturing society, or
which involves the
infliction of unnecessary suffering, is repulsive. What might not
have been regarded as inhuman decades ago may
be revolting to the new
sensitivities which emerge as civilisation advances."
[29]
At
a time in our history when crime is rampant and prisons overflowing,
the public might feel particularly unsympathetic towards
prisoners
and even against those who are yet to be tried on criminal charges,
thereby undervaluing the presumption of innocence and
the judicial
process. We cannot dispense with the essential values that make us a
civilised society. We are bound to the values
entrenched in our
Constitution. It is accepted that prison is a bleak place and that
prisoners are not entitled to be imprisoned
with all the comforts
that they enjoyed before their incarceration. The essential question
is whether the rights of the respondents
have been violated. In the
present case we are dealing with persons who have not yet been
convicted and whose incarceration at this
point is to secure their
attendance at trial. They have spent an inordinately long time in
prison awaiting the finalisation of
their trial as was the case with
those applicants before Maritz AJ who have since been acquitted.
[30]
The
applicants in claiming access to the prison library relied on section
35 (2) (e) of the Constitution, which reads as follows:
"Everyone
who is detained, including every sentenced prisoner, has the right –
to
conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense,
of
adequate accommodation, nutrition, reading material and medical
treatment."
Ntotho's
response to the respondents' reliance on the Constitution is that
only sentenced prisoners are allowed access to library
facilities and
that unsentenced prisoners may receive books from their next of kin.
This ignores the clear wording of section 35
(2) (e) of the
Constitution. His other response, recorded earlier in this judgment,
namely, that prison authorities fear that a
prisoner may be released
without returning a library book, cannot be taken seriously.
Appellant’s counsel rightly accepted that
Ntotho’s response in
respect of this issue was no response at all. The second respondent
should know better than to ignore Constitutional
guarantees.
[31]
It
is abundantly clear that in fashioning the new system the second
appellant did not take into account that there is a substantial
part
of the prison population that spends a lengthy period of time waiting
for their trials to commence or be finalised. It is accepted
that
the long delays in the commencement or finalisation of trials cannot
be laid at the appellants’ door. The fault lies with
our system of
the administration of justice. The periods that all the applicants
before Maritz AJ spent awaiting trail are unacceptable
in a
democratic society that subscribes to the values enshrined in the
Constitution. The two respondents continue to be incarcerated
pending the finalisation of their trials. That their trials have not
yet been concluded is scandalous and calls for an immediate
and
urgent investigation by the Minister of Justice. Faced with the
reality of a substantial awaiting trail prison population there
has
been a fundamental failing by the second appellant to consider the
needs and rights of persons such as the respondent and to
fashion a
system catering for their circumstances and which does not violate
any of their rights. Proper effect must be given to
the
residuum
principle. The new system cannot be justified by a vague and
generalised reference to security needs and resource limitations.
[32]
Whilst
there appears to be no statutory or other prohibition on some form of
standardisation and whilst it is arguable that a measure
of
standardisation is desirable, particularly when one is dealing with a
large national prison population, the rigidity of the new
system does
not allow for cases where the circumstances are such that applying
the norm would be oppressive. The First United Nations
Congress on
the Prevention of Crime and the Treatment of Offenders recommended
standard minimum rules for the treatment of prisoners.
These are
recommended minimum standards to ensure that discipline and order are
maintained without over-restriction and without
an infringement of
the rights of prisoners. An examination of these standard minimum
rules shows that the purpose is to ensure that
the rights of
prisoners are respected and not infringed. Standardisation
per se
cannot be justification for an infringement of prisoners’ rights.
The new system does not cater for the needs of those prisoners
waiting for an inordinately long time for their trials to commence or
be finalised. The new system treats all unsentenced prisoners
as if
they are in prison for a short time. In addition the second
appellant discriminates against unsentenced prisoners in a manner,
which is unjustified in logic and law. There is no explanation for
allowing
A
group prisoners the use of cassette players whilst
denying them to unsentenced prisoners. There is no explanation for
denying unsentenced
prisoners the use of private musical instruments
whilst group
A
prisoners are entitled to use their own musical
instruments. The bar on hobbies is not justified. The rights of
unsentenced prisoners
who have been granted bail to have daily visits
as provided for in regulation 132 (7) are being transgressed by the
restrictions
that the new system places on visits. Denying
unsentenced prisoners contact visits may well be justified by
reference to conditions
in prison and because of security
considerations, but simply to state that contact visits may lead to
escapes without explaining
why the same rationale does not apply to
group
A
prisoners is insufficient justification. The
structure of the Act and the regulations is such that it does not
countenance such rigidity
and discrimination as flows from the new
system. The provisions of the Act referred to earlier in this
judgment, establish a system
which takes into account the conditions
in different prisons, allowing the second appellant to make
determinations relative to local
conditions. In so far as the
appellants experience problems in predicting the length of detention
of unsentenced prisoners, it appears
to me that it will not require
much effort to establish, by liaising with prosecution authorities
and defence counsel, which trials
will be conducted over a lengthy
period and to then deal with the prisoners concerned accordingly.
[33]
In
section 35 of the Bill of Rights the rights of all detained persons
are spelt out in detail. The manner in which we treat our
prisoners
should not be out of line with the values on which the Constitution
is based. Human dignity and the advancement of human
rights and
freedoms and respect for the rule of law are not just hollow phrases.
They must be made real.
[34]
The
learned judge in the Court below considered that the introduction of
the new system was a matter of policy and was more akin
to a
legislative rather than an administrative act. However, with
reference to
Fedsure Life Assurance Limited and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
he concluded that since the
determination cannot be said to be an original legislative act, in
law it amounts to an administrative
act and that section 33 of the
Constitution, which requires that administrative action should be
fair and just, applies. Counsel
for the respondents submitted before
us that the act was administrative in nature.
[35]
For
the reasons that follow it is in my view, for present purposes, not
necessary to define more precisely the nature of the act
of the
second appellant in determining the new system. This is because,
whatever its nature, the second appellant's conduct was
subject to
constitutional scrutiny and review. In the
Fedsure
case,
supra
, the Constitutional Court held that the doctrine of
legality, an incident of the rule of law, was an implied provision of
the interim
Constitution (at
400 D – E
paragraph
[58]
):
"It
seems central to the conception of our constitutional order that the
Legislature and Executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law."
See
also:
President of the Republic of South Africa and Others v
South African Rugby Football Union and Others
2000 (1) SA 1
(CC)
(
at
70 G - H
paragraph
[148]
). Like the President
of the country, like members of the Executive and like the
Legislature and other repositories of power, the
appellants, in
exercising public power, must comply with the Constitution and must
act within the parameters of their statutory powers.
In
Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte President of the Republic of South Africa
and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
Chaskalson P (at
687 H –
688 A
paragraph
[20]
)
states the following:
"The exercise of all public power must
comply with the Constitution, which is the supreme law, and the
doctrine of legality which
is part of that law. The question whether
the President acted
intra vires
or
ultra vires
in
bringing the Act into force when he did is, accordingly, a
constitutional matter. The finding that he acted
ultra vires
is
a finding that he acted in a manner that was inconsistent with the
Constitution."
Later
(at
692 E - G
paragraph
[33]
)
the following
appears:
"The control of public power by the Courts through
judicial review is and always has been a constitutional matter.
Prior to
the adoption of the interim Constitution this control was
exercised by the courts through the application of common-law
constitutional
principles. Since the adoption of the interim
Constitution such control has been regulated by the Constitution
which contains express
provisions dealing with these matters. The
common-law principles that previously provided the grounds for
judicial review of public
power have been subsumed under the
Constitution and, insofar as they might continue to be relevant to
judicial review, they gain
force from the Constitution. In the
judicial review of public power, the two are intertwined and do not
constitute separate concepts."
At
698 D – F
paragraph
[50]
Chaskalson P states:
"What would have been
ultra vires
under the common-law by reason of a functionary exceeding a
statutory power is invalid under the Constitution according to the
doctrine
of legality. In this respect, at least, constitutional law
and common law are intertwined and there can be no difference between
them. The same is true of constitutional law and common law in
respect of the validity of administrative decisions within the
purview
of section 24 of the interim Constitution. What is 'lawful
administrative action', 'procedurally fair administrative action' and
administrative action 'justifiable in relation to the reasons given
for it' cannot mean one thing under the Constitution and another
thing under the common law."
[36]
The
challenge to the new system by the respondents, seen in proper
prospective, is premised on the principle of legality. In the
present case it is clear that the second appellant fundamentally
misconceived his powers in terms of the Act and that he acted beyond
his powers. He disregarded the provisions of the Constitution and
fashioned a privilege system inconsistent with its core values
and
not countenanced by the statutory regime from which he assumes his
powers. In my view there is some merit to the conclusion
by Maritz
AJ that complaints such as those related to the preparation of food
and the use of a private television set may be unfounded.
However,
since the second appellant so fundamentally misconceived his powers
the system designed by him cannot be allowed to stand.
It is not for
this or any other court to fashion a workable privilege system. The
learned judge in the Court below did not err
in his conclusions that
the specific restrictions lifted by him were in violation of the
rights of unsentenced prisoners. However,
given the fundamental flaw
in the second appellant's approach to the determination made by him
the new system so far as it relates
to unsentenced prisoners is
liable to be set aside in its entirety. Prison authorities if they
intend to fashion a new privilege
system for unsentenced prisoners
must take into
account
the
residuum
principle, act within the confines of their
statutory powers and, most importantly, must respect the
Constitution. Appellants’
counsel was constrained to concede that
in the event of it being held that the new system should be set
aside in its entirety,
prison authorities could revert to the
provisions of the Act and the regulations to continue to manage and
administer unsentenced
prisoners as they did before the introduction
of the new system. There will be no vacuum. Prison authorities in
exercising their
statutory powers must take care to ensure that they
act in accordance with the principle of legality.
[37]
This
judgment should be made available to senior officials in the
Department of Correctional Services who have been delegated in
terms
of the Act to act in the second appellant's stead and it is directed
accordingly.
[38]
For
the reasons set out the appeal is dismissed with costs. The order
of the Court below, up to and including paragraph 7, is
set aside
and substituted as follows:
"The
new privilege system (Annexure A to the notice of motion) as
determined by the second respondent in respect of unsentenced
prisoners is reviewed and set aside."
The
costs order in the Court below remains unaffected.
_________________
M S NAVSA
JUDGE OF
APPEAL
CONCUR:
SMALBERGER
ADP
OLIVIER
JA
ZULMAN
JA
MTHIYANE
JA