ConCourt reserves judgment in prisons watchdog’s bid for independence

Seven months after he retired from the bench of the Constitutional Court, Justice Edwin Cameron was yesterday back among his former colleagues in his new role as the head of the prisons watchdog.

Sonke Gender Justice has approached the Constitutional Court for an order declaring sections of the Correctional Services Act unconstitutional and invalid because they compromise the independence of the Judicial Inspectorate of Correctional Services (JICS), which Cameron leads. He became inspecting judge for correctional services in January.

Cameron was in the gallery yesterday when the case came before the court and he said in an affidavit the order being sought would “significantly enhance the independence, efficiency, operational capacity and functioning of JICS”.

Sonke Gender Justice first approached the courts in 2016, as part of its prisons transformation project. Its case is that the Act puts JICS under the control of the department of correctional services and thus hampers its independence.

Advocate Nazreen Bawa, for Sonke Gender Justice, said this affected its budget, the institution’s control thereof, and its ability to carry out day-to-day functions.

She also said the public’s and detainees’ perception of the institution was affected.

Last year, Western Cape High Court Judge Nolwazi Boqwana ruled the sections in question were indeed unconstitutional and invalid.

She highlighted the importance of JICS’ work “facilitating inspection and reporting on the vulnerable (the inmates), how they are treated and the conditions they are held in”.

Judge Boqwana’s order is now before the Constitutional Court, to be confirmed.

Cameron said in his affidavit JICS had already started working towards a new draft Bill.

“JICS has been authoritatively mandated and encouraged to get on with the job of putting together a draft statute that, should this court confirm its order and reasoning, will embody the requirements indicated in the judgment of the high court,” he said.

The department opposed the matter in the high court but not in the Constitutional Court.

“Doesn’t the fact that we have an independent judge water down whatever lack of independence there may be?” Justice Mbuyiseli Madlanga asked yesterday.

Cameron’s legal team argued that the inspecting judge’s independence was not enough “because the judge cannot perform the function of inspection on his own”.

Judgment was reserved.

– bernadettew@citizen.co.za

For more news your way, download The Citizen’s app for iOS and Android.