Current policies are unconstitutional and court rules
The current policy of the Constitutional Court prohibiting prisoners from using personal computers within their cells is unconstitutional. In its unanimous decision, the court directed the National Correctional Services committee to amend the policy. Meanwhile, inmates must be allowed to use personal computers without a modem, the court said. The judge upheld the decision by the Supreme Court of Appeals in November 2023. This was challenged by the Minister of Correction Services and the National Committee.
In its unanimous decision, the Constitutional Court declared that it was unconstitutional to prohibit prisoners from using intracellular personal computers for study.
The court ordered the invalidity of the constitution to be suspended for a year and directed the national committee of the Corrections Services to promulgate revised policies.
Pending that, the court stated that prisoners who are registered as students with recognized tertiary or further educational institutions and who reasonably need computers to support research are entitled to use individuals in their cells without using Internet modems.
Such inmates should always have their computers available for testing. In the event of a violation of the rules, after considering expressions from the inmate, the head of the corrections center may instruct the inmate not to use his or her computer on his or her cell phone.
Read the judgment here.
Wednesday’s order is as close to the ruling taken over by the Supreme Court of Appeals in November 2023 that found the blanket ban unconstitutional.
The order was appealed by the Minister of Justice and the national committee of the Department of Corrections and the Department of Corrections.
Judge Stephen Magiett, who ruled the Constitutional Court, said the issue is the right to further education.
He said a comprehensive ban was issued from sector policies approved in February 2007.
The first challenge to that was launched in the High Court by Mbalenl Sydney Nutchuri, represented by a human rights lawyer who had been sentenced to 20 years for the robbery. Ntuli complained that he was struggling to complete his data processing course as he couldn’t work from his cell, which he spent most of his time.
While prisoners acknowledge that they have the right to further education under Article 29 of the Bill of Rights, the minister and commissioner argued that allowing prisoners to maintain laptops in their cells creates a security threat.
Judge Majiedt said that it was a common cause for Ntuli to pass and graduate since. “Almost every fact matrix is uncontroversial,” he said.
After ntuli was moved from medium b to medium c, his laptop was taken away and told to use the computer in the computer room.
However, the computer room was only open at certain times, but only occasionally open on weekends and never had public holidays. It was very loud.
Ntuli said he was deprived of enough time to study.
The minister and commissioner opposed the application, expressing concern that inmates could smuggle modems into cells or use illegal mobile phones to create hotspots.
“The High Court took the view that even with a modem, the applicant did not provide evidence that there was a security breach if the computer was permitted in the cell,” Judge Majiedt said.
“In addition, the respondents determined he had the right to be willing to study within the reasonable restrictions that prison life necessarily presents.”
On the first appeal, the SCA found that the policy violated the right to further education.
In the Constitutional Court, the Minister and the Commissioner argued that Ntuli had not sold the rights to further education, but that the rights were simply regulated in a reasonable manner.
Ntuli was allowed to use his computer only in his cell in the middle b since there was no computer room at that time.
Their security concerns are justified and the court should not “predict” the authorities on this issue.
However, Ntuli’s lawyer argued that the policy is outdated and that personal computers are important for success in his field of research.
The judicial inspector, recognized as Amicas Curiae (friend of the court), submitted that from an international law perspective, South Africa has an obligation to adopt and implement education policies that meet the needs of those who are incarcerated to be part of an equal, fair and just society.
This policy should not unfairly infringe on education rights by prohibiting the use of necessary tools.
Judge Majiedt said: “Incarceration does not deprive or restrict fundamental rights such as education, dignity, and access to reading materials.”
He said the virtues of education were not properly discussed.
“We are concerned here about the limitations of the rights of those who pursue further education to access electronic learning materials. It is not important that the person is a prisoner, because he enjoys and is reasonably limited to all rights given to the non-resident as he is reasonably limited as a result of his incarceration,” he said.
“The national obligation is to remove barriers to education and actively grant access to the resources needed to realize the right to education.”
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Blankets ban that right, he said.
Justification of restrictions – the right to further education does not mean that you always have a personal computer in your cell. Judge Majaed said:
Regarding the fear of security violations, he said “this attempted justification will not leave the departure gates” as the minister and commissioners had not produced any evidence to support their claims.
“There is simply an obvious shortage of evidence to demonstrate these security concerns. That’s not what we expect from people responsible for policy,” he said.
He said the minister and commissioner complained that the SCA “explored the exclusive policy terrain of executives.”
“This argument is difficult: Courts have a constitutional obligation to determine the constitutional validity of a law or conduct, and a constitutional obligation to determine the constitutional validity of an executive authority.
Judge Majiedt said the case was only concerned with prisoners’ rights to personal computers for educational purposes.
“Nothing of this judgment should be considered to express any view regarding the legitimacy of restrictions on the use of personal computers within a cell for other purposes.”
