1. ALLEGED GROUNDS FOR REVIEW

1. There was a failure to consider relevant facts whilst no allegation was made as to the consideration of irrelevant facts.
2. The decision made was so unreasonable that no reasonable person would have made same
3. The decision of the Judicial Inspectorate was made in vacuo.
4. The conduct of the Judicial Inspectorate is ultra vires

2. ISSUES TO BE CONSIDERED

1. It is common cause that the conduct of Mnisi and Dimo does not in ordinary circumstances constitute a crime in keeping with the doctrine of nullum crimensine lege which ensures legality but there is a dispute in respect of the doctrine of nullum crimen sine poena
2. Whether the decision entered on 18 November 2003 should be set aside and substituted with a different one or amended so as to protect good governance by the Department of Correctional Services as well as the interests of prisoners in custody.
3. Whether the decision made by the Judicial Inspectorate is in keeping with the spirit and purport of Act 108 of 1996 and also whether there is compliance with sections 9, 10, and 18 of same.
4. Whether the Conduct of the Judicial Inspectorate is ultra vires and should be set aside.
5. Whether exclusion ofMnisi from Aquanon recreation Club is lawful.

FACTS

Briefly the facts are as follows. Offenders Mnisi and Dimo held at Zonderwater Maximum, by prior arrangement entered into consensual sex involving penetration per anum. This was performed in a communal cell within an "UmKhuku" which is temporary enclosure created by blankets so as to ensure that the sexual intercourse would be private given the circumstances. Oblivious to Mnisi and Dimo a plan had been hatched by offender Zondo and others to expose the sexual escapades of Dimo and Mnisi. On the fateful night while Dimo and Mnisi were engaged in sexual intercourse within their umkhuku they were exposed by Zondo and his accomplices. Action was taken against Mnisi and Dimo in that they were subjected to a disciplinary hearing. It seems that a finding of guilty was made on 2003 -09-23 and the sanction imposed was the deprivation of secondary privileges for 30 days suspended for 6 months.

Initially the matter was referred to the Judicial Inspectorate of Prisons (JIOP) in terms of Section 90 (2) of Act III of 1998. It was considered and a recommendation in the style of a ruling was made in favour of the offender on 18 November 2003. The matter is now on review before the National Manager Advocate K Anirudhra.

AREA OF LAW

The Constitution in Section 35 (2) (e) provides that every detained, arrested and accused person has the right to conditions of detention that are consistent with human dignity, ... of adequate accommodation nutrition and medical attention.

In terms of Section 9 (3) of the Constitution the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including sexual orientation.

In terms of Section 10 everyone has inherent dignity and the right to have their dignity respected. This is expanded in section 35 (2) (e) of the Constitution.

In Section 14 of the Constitution the Right to Privacy comes to the fore and is laid down as follows - Everyone has the right to privacy, which includes the right not to have (a) their home searched (b) their property searched (c) their possession seized and (d) the privacy of their communications infringed.

Section 18 of die Constitution stipulates that everyone has the right to freedom of association.

In terms of the common law the right to acceptable conditions of detention or imprisonment consistent with the tenets of human dignity has long been established in our jurisprudence. In the seminal case of Whittaker v Roos and Bateman 1912 AD 92 Innes J stated that although the freedom of detainees had been impaired by the legal process of imprisonment "they were entitled to what remained" The learned Judge elaborated by stating that " They were entitled to all their personal rights and personal dignity not temporarily taken away by law or necessarily inconsistent with the circumstances in which they had been placed"

It was not surprising that the above mentioned approach was confirmed by the majority judgment of Corbett JA in Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14 (A) at 39 C where it was stated that: It seems to me that fundamentally a convicted and sentenced prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away from him by law expressly or by implication…. He must submit to the discipline of prison life and the rules and regulation which prescribe how he must conduct himself and how he is to be treated in prison* Nevertheless, there is a substantial residuum of basic rights which he cannot be denied and if he is denied them, then he is entitled, in my view to legal redress.

The aforesaid dicta of Innes J and Corbett JA were approved and elaborated upon by Hoexter J A in Minister of Justice v Hofmeyer 1993(3} SA 131 (A) at 141 C It is stated that : The dictum of Innes serves to negate the parsimonious and misconceived notion that upon his admission to gaol a prisoner is stripped as it were of all his personal rights and thereafter for so long as his detention lasts. The Innes dictum is a salutary reminder that in truth the prisoner retains all his personal rights save

those abridged or proscribed by law.

The above is indicative of the rights that the prisoner retains and may affirm despite his incarceration. Now I wish to turn to the law which limit and curtail the rights of prisoners.

In terms of the common law which has developed the statutory and common law position has transformed our legal convictions on sodomy to the extent that it is no longer a common law or statutory crime. This position has been affirmed by the Constitutional Court judgment in National Coalition for Gay and Lesbian Equality v Minister ofJustice1999(1) SA6 (CO.

Restrictions on sexual orientation no longer exists and whether any limitation exists in a law of general application to this extent is to my mind unknown. If one looks for support to a limitation in the Correctional Services Act III of 1998 then I submit that this does not exist for obvious reasons. If one then turns to Regulation 99 (f), a proper interpretation of this provision does not provide for an express limitation of same sex intercourse amongst prisoners. Whether by implication one can read a limitation into same sex relations herein will be covered under application.

APPLICATION

At the outset I wish to point out that sexual activity in a prison is a reality. Sexual activity in a prison makes it a high risk mechanism for HIV transmission because of the high levels of anal intercourse. rape and sexually transmitted infections. The extent of sexual activity in prisons is difficult to determine because studies generally depend on self reporting which is inevitably distorted by embarrassment and fear of reprisal. Generally sex is prohibited in most prison systems causing inmates to deny their involvement in sexual activity. Nevertheless, it is widely accepted that sex in prison usually takes place in circumstances of violence where both perpetrators and victims are hesitant to make admissions. Given the fact that a prison is an unnatural environment the form of sex is usually homosexual in nature. This alone carries a negative social stigma and has prevented authorities from developing a proper understanding of the phenomenon in prisons.

Against a background of severe overcrowding which is running at an average level of 165 % (CSPRI 2004: 1) prisoners are being held under conditions in contravention of Section 35(2) (e) of the Constitution. Overcrowding creates opportunities for prisoners to sleep in close proximity of each other and also alongside each other where physical contact is inevitable. This is an undesirable situation, furthermore, a lack of sufficient productive activity coupled with lengthy lock-up periods are conducive to sexual activity and other undesirable conduct such as rape and indecent assaults. Coupled with this there is no doubt that sexual activity is rife and cannot be effectively controlled at all times by warders. Therefore, given this scenario it is probable that a high level of homosexual activity would be prevalent at Zonderwater Maximum.

This is evidenced by the fact that Mnisi and Dimo went to the extent to building an Umkhuku for their sexual activity. The question which now arises is whether given the circumstances the sexual activity must be seen as permissible or something that must be prohibited in terms of Section 35 of the Constitution read with Section 10 of the Constitution. My submission is that being held in circumstances where one is sexually deprived is not degrading in itself but leads to frustration, maladjustment and predisposes humans to behavioural/emotional Problems. To deny that this happens would be akin to denying that prisoners are human beings. Such conditions are undesirable because it has a severe impact on one's dignity and one cannot turn a blind eye to it. In fact to ignore this would be highly irresponsible.

Therefore, although sexual intercourse is discouraged between inmates it is evident that it does take place regularly and cannot be eradicated because of its inherent nature as well as the existence of undesirable problems such as overcrowding and lack of industry on the part of inmates. Accordingly, if sexual activity cannot be policed effectively and if there is a need to control/regulate it then proper steps must be taken towards a progressive realization of a controlled sexual climate. Ad hoc, haphazard and impractical steps which are out of tune with the realities of the needs and circumstances of prisoners should be avoided. This simply means that prohibiting homosexual sex in prison is a gross violation of a prisoner's dignity because given his circumstances it would lead to depravity, emotional problems and predispose him to unacceptable behavioural problems.

In terms of Section 9 (3) of the Constitution the state may not unfairly discriminate directly or indirectly against anyone on the basis of sexual orientation. In terms of Regulation 99 [fl, [s] and [r] I would submit that there seems to be no collision between the said regulations and section 9 (3) in that no reference is made to sexual orientation.

What is evident however, is that these regulations are framed broadly and this is problematic because people would take advantage of their vague nature to place unreasonable restrictions on prisoners. Therefore, when interpreting and implementing such provisions a narrow and restrictive approach must be adopted. Viewed in this context the meaning to be attached to Regulation 99 (f) would be as follows: it should be used to prevent prisoners from conduct classified as lewd acts, acts constituting common law crimes of crimen injuria, voyeurism, sadism, indecent assault. Viewed against the background of the common law position which has developed in the National Coalition for Gay and Lesbian Equality, to attempt a curtailment of homosexuality on the strength of regulation 99 [f] would be overbroad. In effect therefore Regulation 99 [f] cannot be used to prevent let alone punish homosexual conduct.

Likewise if one attempts to utilize regulation 99 (r] which promotes good order and discipline it suffers the same fate of regulation 99[f] because:

1 Good order and discipline implies that the prisoner must be obedient and cooperative. This is a far cry from an authorisation to limit his sexual conduct unreasonably.

2. In the instant case Dimo and Mnisi have not acted in a manner which is disruptive or contrary to what is expected to maintain. Furthermore, their conduct has not compromised the governance of the prison.

Finally in respect of regulation 99 [s] it would appear that the reliance by the Department on this provision is premised on the presumption that one or both of the inmates are HIV +. Firstly there is no basis for such a presumption because no facts support the presumption of a HIV + status and secondly the doctrine of volenti non fit iniuria absolves both Dimo and Mnisi from any liability for injury that may take place between

them.

Accordingly, it would be simplistic to state that in terms of regulation 99 [f], [s] and [r] homosexuality is prohibited in prisons. Such a restriction would be offensive to the common law and Section 18 of the Constitution which entrenches the right to association. Furthermore, no departmental policy or regulation has been enumerated which expressly prohibits homosexual liaisons. Therefore, no right thinking person would impose a restriction on sexual liaisons on the basis of these provisions alone because it would amount to an indirect discrimination on the basis of sexual orientation by virtue of a vertical application of the equality clause see Section 9 (3) of The Constitution. On this basis one would be hesitant to outlaw the conduct of Dimo and Mnisi. Furthermore in terms of section 9 (4) of The Constitution horizontal discrimination is also prohibited.

Therefore, exclusion of Mnisi from Aquanon Recreation Club on his sexual orientation would be prohibited. This being the reason for the recommendation that Mnisi ‘s membership in Aquanon be reinstated.

In respect of Section 14 of the Constitution which relates to the right to privacy one is reminded that the common law has developed the position that no rights save the right to liberty is normally limited by incarceration. In this regard I submit that the Department of Correctional Services is correct in alleging that there is a competing right of prisoners to freedom and security as espoused in Section 12 of the Constitution balanced against the right to privacy. Therefore, the right of a warder or other inmate to invade the privacy of an inmate in circumstances to the extent of ensuring the freedom and security of fellow inmates which are reasonable would be permissible. In this case it would be justifiable for a warder or another to "peep" into an umkhukhu in order to ascertain whether any dangerous or unlawful act is being propagated therein. However, publication of an intimate's conduct within the confines of a prison cell by Zondo and others would prima facie constitute a contravention of Section 14 of The Constitution. This did take place but it is best ignored and no action need be considered against Zondo and others.

In respect of the doctrine of ultra vires. It is true that where an organ of state is guilty of being ultra vires in both a narrow or a wide sense it may be grounds for review. It is ordinary logic to assume that the allegation refers to the Judicial Inspectorate being ultra vires in the narrow sense. This means that the Judicial Inspectorate is guilty of substantive abuse of its power and has made procedural infractions of the law. This allegation is unfounded because the Judicial Inspectorate deals with complaints in terms of Section 90 (2) of The Correctional Services Act III of 1998 by way of recommendations. The empowering provisions allow for the Judicial Inspectorate to consider and make recommendations and this is what has happened. Now because one is not comfortable with a decision made in terms of Section 90 (2) one cannot allege that the Judicial Inspectorate is acting ultra vires and expect such an allegation to be sustained by an empty statement. Instead where one alleges ultra vires one is then not only obliged to show the existence of ultra vires but must show why the decision should be altered because of the existence of ultra vires.

Clearly no grounds for an allegation of ultra vires exists because the Judicial Inspectorate has considered a complaint and made recommendations therein as per empowering legislation. [Such conduct is the accepted core business of the Judicial Inspectorate unless there exists another version of the Correctional Services Act III of 1998 as amended.] This cannot by any stretch of the imagination be construed as being ultra vires. What is evident is that there exists a conflation on the duties and functions of the Judicial Inspectorate and this should be clarified instead of using the confusion as a basis to make an allegation of ultra vires.

Finally it is clear that the Department of Correctional Services does issue condoms to inmates in Prison. In a telephonic enquiry with one Mr Shinga [Head of Health -Western Cape] he advised undersigned that in terms of a policy directive condoms are routinely distributed to inmates. Such conduct on the part of the Department amounts to express consent to sexual intercourse amongst inmates and goes against any designs to prohibit sexual intercourse between inmates.

Lastly I turn to the submissions by one D Gounden which are as follows.

She submits that the Criminal Procedure Act and its amendments does not provide for the prosecution of sodomy as an offence.

She submits further that the CPA does provide for the prosecution of rape and indecent assault

She submits further that the Inspecting Judge has opined on the basis of the Criminal Procedure Act

In the least it is mystifying that such submissions are made. The CPA speaks on procedural law whilst the issues under review are matters governed by substantive law. In particular the matter under review fells under the common law and Section 20 of The Sexual Offences Act 23 of 1957.

To my knowledge the CPA speaks on competent verdicts with reference to rape and murder but not on the content and context of the aforementioned common law crimes. It is with the greatest respect that I apologise for any deficiency of knowledge on my part to one V Gounden and look forward to be enlightened by same on aspects of the CPA as raised in the above mentioned submissions in her internal communication dated 16 March 2004

Lastly it is a matter of concern that in this instance the delegated official of the Department namely the Head of Prison was afforded an opportunity to respond to the complaint lodged by the prisoner but on 23 September 2003 his response was simply to refer the complainant to the findings of the disciplinary hearing. This was an opportunity for the Head of Prison to put his case forward by way of explaining the grounds for the decision to punish Dime and Mnisi and bringing to light any information which could have assisted the Judicial Inspectorate in making their decision / recommendation. In other words the surrounding circumstances and in particular conditions at Zonderwater maximum could have been highlighted. The Head of Prison chose to keep silent and he suffered the consequences of having decision made against him. Instead he could have seized the opportunity to lobby his position and a decision in his favour could have been possible in terms of the doctrine nullum crimen sine poena to recommend punitive sanctions on Mnisi and Dimo. This omission on the part of the Department is a recurrent problem and the reason for adverse findings. It is once again a reason for an adverse recommendation for the Department of Correctional Services and true to form instead of getting its house in order the Department of Correctional Services cries foul and does not give a proper basis for its allegations neither does it furnish the Judicial Inspectorate with the requisite information to influence a change in the decision which it states aggravates " a serious concern particularly in the prison environment" The Department for the first time raises their concern in this regard sometime in April 2004 and this in eclectic manner. In the interests of justice, good governance and the community the Department of Correctional Services should realize that it is obliged to place more facts and information in its call for an amendment to the decision. It is entitled to such a request However, under the circumstances the present request for a review would be fetal but for efficacy and in the interests of good governance the Judicial Inspectorate takes the initiative to reconsider its decision and hence the review.

RECOMMENDA TIONS

There is no evidence to support the allegation that the decision made on 18 November 2003 labours under any misdirection of fact or law. There is also no basis for the allegation that the Judicial Inspectorate has abused its powers by acting beyond the scope of its empowering provisions.

Furthermore, the allegation that not all relevant facts were considered is possibly true because the Judicial Inspectorate did not conduct a hearing, enquiry or high level investigation prior to making its decision and this could render the decision liable for substitution or to be set aside or reconsideration as has been done. Finally the allegation that the decision is so unreasonable that no reasonable person would have made it is untenable. Instead the decision is reasonable and intra vires. Also bearing in mind that m a review even where a decision is incorrect the review authority would be slow to interfere with such a decision. Accordingly the following recommendation[s] is made.

1. The possibility that not all relevant facts may have been considered by the Judicial Inspectorate and where such facts have not been placed before the Judicial Inspectorate the recommendations cannot be set aside. Therefore, the ruling made on 18 November 2003 is suspended with immediate effect and the Department of Correctional Services has the discretion to follow, amend or deal with the decision and recommendations made on 18 November 2003 in a manner it considers appropriate in the circumstances.

2. The Department is at liberty to test the veracity of its position by way of an independent hearing. This would entail arbitration where the department would lead evidence in defence of its position and the Judicial Inspectorate in defence of the offenders Dimo and Mnisi. Any award would be final and binding on all parties. This is subject to further discussion with the Judicial Inspectorate.

3. There is need for dialogue between the Department of Correctional Services and Judicial so as to reach consensus on the function, duties and powers of the Judicial Inspectorate of Prisons.

ADV K ANIRUDHRA