Prisoners in South Africa can now have access to personal computers in their cells following an order handed down this week by the Supreme Court of Appeal (SCA) in Bloemfontein on the rights of inmates to further education.
This comes after a prisoner challenged a decision by the Department of Correctional Services turning down his request to use a personal computer in his cell to progress his studies.
Mbalenhle Sidney Ntuli, who since July 2018 is serving a 20-year sentence at the Johannesburg Medium C Correctional Centre, had registered with the Oxbridge Academy to pursue a computer studies course, with a focus on data processing.
He required the use of a computer to do so.
On 6 August 2018, Ntuli addressed a request to the head of the prison asking for permission to use his personal computer in his cell for his studies.
Ten days later, he received a response turning down his request on the basis that the department’s education policy did not allow personal computers in cells.
Ntuli escalated his request to the department’s regional commissioner, with no better outcome.
She responded as follows: “Due to security challenges of offenders utilising computers and laptops for other activities except for study purposes at most correctional centres, the offender cannot be allowed to have the computer in his cell but will be afforded an opportunity to use the computer room for study purposes.”
Ntuli decided to challenge the policy in the Gauteng High Court, which found that the policy infringed the constitutional right to further education in terms of Section 29(1)(b) of the Constitution and also constituted unfair discrimination.
The Minister of Justice and Correctional Services, together with the National Commissioner of Correctional Services and the head of Leeuwkop Medium ‘C’ Correctional Centre, then appealed to the SCA.
The SCA examined the policy and its objective and noted that the policy permits a prisoner to use a personal computer for their studies, but only in a designated room and during certain specified times.
The policy however excluded the use by a prisoner of their personal computer for study purposes in their cell.
The policy was challenged on two grounds: the first being that it amounted to unfair discrimination in terms of the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 and, secondly, that it infringed the constitutional right to further education.
With regards to the first challenge, the SCA found that the judge of the High Court who heard the matter was not designated as a judge of the Equality Court.
The High Court thus did not enjoy jurisdiction to make an order in terms of the Equality Act.
The order of the High Court declaring the policy to constitute unfair discrimination was accordingly set aside.
As to the second challenge, the SCA found that the right to further education is, at a minimum, a right to pursue further education, free of state interference.
Ntuli was prevented from effectively pursuing his chosen course of study.
The policy was therefore found to infringe his right to further education.
The SCA examined the blanket exclusion set out in the policy as well as the justifications proffered by the appellants, namely that sufficient access was provided during the hours set out in the policy and that security concerns militated against allowing electronic devices in cells.
However, the SCA was of the view that these justifications were insufficient to warrant limiting Ntuli’s fundamental rights.
In his ruling handed down on Wednesday, acting judge of appeal Judge David Unterhalter ordered the appellants to reformulate the policy within 12 months in order to ensure its compliance with the constitutional right of prisoners to pursue further education.
In the meantime, the SCA ordered that prisoners, on stipulated conditions, must be permitted access to their personal computers in their cells to pursue further education courses.
“As to the substance of the remedy, the blanket prohibition in the policy upon the use by prisoners of personal computers in their cells cannot stand. It is invalid and must be set aside,” Judge Unterhalter ruled.
“There are different ways in which the policy could be formulated so as to bring it into conformity with the Constitution, and the appellants should be afforded an opportunity to do so,” he added.
“Twelve months would be a reasonable time within which to accomplish this task.
“I consider that it would be just and equitable, therefore, to suspend the order of invalidity for this period of time to allow the appellants to revise their policy.” – Staff Reporter
