Pretorius and Others v Minister of Justice and Correctional Services and Others, Case No. 83909/16
Court: High Court of South Africa (Gauteng Division, Pretoria)
Date of judgment: 14 May 2018
The High Court of South Africa (Gauteng Division, Pretoria) (the High Court) has ruled that the prohibition on the applicants’ use of personal computers in their prison cells, as contained in the Policy Procedures on Formal Education Programmes of 2007 (the Policy), constituted unfair discrimination against the applicants.
The applicants were all incarcerated as sentenced prisoners in the Zonderwater Prison – a maximum security prison in South Africa – and had been sentenced to long periods of imprisonment of between 20 to 30 years. The applicants were registered as students at tertiary institutions.
It was not in dispute that the applicants needed their computers to further their studies. In this regard, the first and second applicants had previously had the use of personal computers in their cells for 11 years, and access to modems for two of those years. However, the applicants had subsequently had restrictions placed on their computer usage: they were no longer allowed to have personal computers in their cells, and instead were allowed into the computer centre from 07h00 until 14h00. During this time, they could download study-related material under the control of a correctional services official and print documents that could be taken to their cells for reading.
The Policy provides as follows:
Only registered students (offenders) who have a need for a computer as supportive of 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.
All applications relating to the utilization of personal computers received from offenders must be approved by the Head of the Correctional Centre.
A room within the Correctional Centre or at the School must be made available specifically for the placement of the personal computers of students.
No computer shall be allowed in any cell (communal and/or single).
The applicants complained that they were deprived of sufficient time to study. In response, the respondents’ objection to the applicants using their personal computers in their cells is largely based on the contention that it would create a security threat, including that inmates may smuggle modems into their cells, or use illegal cell phones to create hotpots.
Before the High Court
As a point of departure, the High Court noted that the applicants have a right to further education, and that prisoners should be encouraged to obtain further education rather than being impeded from doing so. According to the High Court, the applicants have the right to study as much as they please, within the legitimate limitations that prison life inevitably presents. The High Court also had regard to the objectives of incarceration, which include enabling sentenced offenders to lead a socially responsible and crime-free life in future.
In considering the objection raised by the respondents, the High Court stated that there was no substance to the argument that inmates might initiate contact with the outside world and cause a security risk. The High Court noted that computers can be screened to ensure that they do not contain modems, and the use of external modems can be prevented by enforcing proper security protocols in prison facilities.
In reaching the conclusion that the applicants had been subject to unfair discrimination, the High Court held that:
To the extent that the [P]olicy prohibits computers in cells for study purposes, it unfairly discriminates against applicants on the basis that it imposes disadvantages on them, it withholds benefits, opportunities and advantages, on the grounds that they are prisoners, thereby adversely affecting the equal enjoyment of their right to further education. The [P]olicy not only discriminates between prisoners and the general public, the department, in the manner in which it implements the [P]olicy, discriminates between inmates in Zonderwater, as opposed to inmates in other prisons.
The High Court observed further that the Policy likely constitutes an unjustified limitation of the right to education of all inmates, and that it may well have declared the Policy inconsistent with the Constitution of the Republic of South Africa if it had been asked to do so. However, in the present case, the High Court was only asked to find that the applicants had been subject to unfair discrimination through the application of the Policy.
Order of the High Court
- The Policy, insofar as it relates to the use of personal laptops without a modem in any communal or single cell, is declared to constitute unfair discrimination against the applicants in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2000.
- The applicants shall be entitled to use their personal computers without the use of a modem in their cells, for as long as they remain registered students with any recognised tertiary institution in South Africa.
- The applicants’ computers shall be made available for inspection at any given time by any representative of the respondents.
- The first and second respondents shall pay the costs of the application jointly and severally, the one paying the other to be absolved.
The judgment is accessible here.
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