Concourt finds sections of Correctional Services Act unconstitutional

The Constitutional Court has upheld and confirmed that sections of the Correctional Services Act undermine the independence of the Judicial Inspectorate for Correctional Services (JICS), and are constitutionally invalid.

On Friday, the Constitutional Court handed down judgment on an application to confirm the constitutional invalidity of sections 88A(1)(b), 88A(4) and 91 of the Act.

The sections were found to affect the independence of the JICS, an organisation established to inspect and report on correctional services centres, as well as investigate incidents connected to the wellbeing of inmates, such as inmate deaths, use of force against inmates, and the imposing of solitary confinement.

The Judicial Inspectorate reports its findings to Parliament.

The judgment confirmed an earlier ruling by the Western Cape High Court.

That case was brought by Sonke Gender Justice, a non-profit company, in 2016. It had argued that certain sections of the Act failed to guarantee independence, and that the JICS was reliant on the correctional services department for funding and in several other ways.

Section 88A1b of the Act provides that the Judicial Inspectorate’s CEO is accountable to the National Commissioner for all money received by the Judicial Inspectorate. Section 91 providers that the department is responsible for all expenses of the Judicial Inspectorate. Section 88A 4 of the act obliges Judicial Inspectorate’s Inspecting Judge to refer any matters relating to misconduct or incapacity on the part of the CEO to the National Commissioner.

The high court declared sections 88A(1)(b), 88A(4) and 91 unconstitutional and invalid, with the Constitutional Court required to rule on whether the order of constitutional invalidity should be confirmed.

The main judgment of the Constitutional Court, which was a majority of seven judges to two, found that sections 88A(1)(b) and 91 are invalid.

The main judgment concluded that independence was an “inherent characteristic of an oversight entity” and that the Juridical Inspectorate should be structurally and operationally independent, and perceived as such, to execute its mandate.

The Constitutional Court found, however, that Section 88A(4) can be read in a “constitutionally compliant manner” so that the Inspecting Judge is empowered to make decisions regarding the misconduct or incapacity of the CEO.

Emerantia Cupido, spokesperson for the JICS, said Parliament would have 24 months to secure an adequate level of statutory independence for it.

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