The Constitutional Court has struck down legislation which it has found keeps the prisons watchdog under the department of correctional service’s financial thumb, highlighting the vital role an independent Judicial Inspectorate of Correctional Services (JICS) has to play in post-apartheid South Africa.
This marks the close of a protracted court case, launched by Sonke Gender Justice back in 2016, to have the Correctional Services Act declared unconstitutional and invalid.
“This court stands alongside the Old Fort Prison and is built, in part, with 150 000 bricks from the notorious awaiting trial block, the walls of which bore witness to flagrant abuses of the human rights of incarcerated persons,” Justice Leona Theron said in the poignant majority judgment, handed down in the apex court yesterday.
Theron described the Constitutional Hill precinct as “an icon of resistance and democracy, rising from the ashes of past oppression”.
“It is an architectural embodiment of the importance of bringing light into what were the darkest and most shameful corners of our justice system,” she said. “And, while our country has stepped decisively away from the darkness of our past, this is indisputably a continuing project.”
Last year, Western Cape High Court Judge Nolwazi Boqwana ruled in Sonke’s favour, finding the Act placed JICS’s independence in jeopardy by, among other things, making it financially beholden to the department of correctional services.
While the department had opposed the case before the high court, it chose not to in the Constitutional Court, where the case came for a confirmation hearing earlier this year.
Theron in yesterday’s judgment described prisons as “fertile breeding grounds for autocracy and human rights abuses, cloistered as they are from the view of society” – and imprisonment under the clandestine apartheid regime, in particular, as “a tool for social and political control”.
“Many incarcerated persons were political activists, who, as a result of their opposition to the apartheid system, were plucked from society, hidden from the national and international gaze and plunged into the horrifying darkness of human cruelty,” she said.
Theron said oversight was thus essential – and independence, key.
“The judicial inspectorate’s budget is both determined and controlled by the very department over which it is meant to exercise oversight.
“It is the department which has the final say on the judicial inspectorate’s funding. The department, in fact, has an ‘unfettered discretion’ over the judicial inspectorate’s level of funding,” Theron said.
“A government department should not determine or control the funding of an independent institution like the judicial inspectorate … such an arrangement is inappropriate for independent institutions.”
Parliament has now been given 24 months to bring the Act up to par.
In the meantime, Lawyers for Human Rights’ Clare Ballard, who represented Sonke in this case, has welcomed the outcome.
She said yesterday afternoon that aside from prisoners’ rights being enshrined in the constitution, the protection thereof helped further society’s long-term goals in terms of violent crime prevention.
“We often get lost in an us and them mentality when it comes to law-abiding citizens and offenders and I think that’s a mistake,” Ballard said.
She said in order to properly tackle violent crime, it was vital to understand criminals and why they did what they did.
“So often, the perpetrators of crime have themselves been victims and when someone is incarcerated we know the intergenerational effects are that their children are more likely to be incarcerated,” Ballard pointed out.
She said going forward, the focus would now be on engaging with parliament and putting forward an idea of what constitutionally compliant legislation looked like.