- The views of the South African government on this subject were fully expressed in a publication of the Department of Foreign Affairs entitled South Africa and the Rule of Law (1968). For a comprehensive analysis of the limitations of the concept of the rule of law as it is often deployed in South Africa and for proposals for its replacement by a broader ideal of human rights, see John Dugard Human Rights and the South African Legal Order (1978) 37–49.
- Cf Department of Foreign Affairs Prison Administration in South Africa (1969); Report of the Department of Justice of the Republic of South Africa for the Period 1 July 1984 to 30 June 1985 at 1.
- W T Haesler ‘Südafrikanischer Strafvollzug’ (1986) 35 Zeitschrift für Strafvollzug und Straffälligenhilfe 14 in which he calculated that 440 persons per 100 000 of population were imprisoned in South Africa in 1984. On 30 June 1985, ie before a state of emergency was declared for the first time, there were 108 392 persons in South African prisons. This figure excludes those detained in the ‘independent’ states of Transkei, Bophuthatswana, Venda and Ciskei (Report of the Department of Justice of the Republic of South Africa for the Period 1 July 1984 to 30 June 1985).
- The distinction which has emerged between ‘extraordinary’ or ‘drastic’ procedure and ‘ordinary’ procedure within the same system is considered by John Dugard South African Criminal Law and Procedure IV: Introduction to Criminal Procedure (1977).
- S W Potts ‘Custodial Detention and Regime Maintenance in the Republic of South Africa’ (1985) 11 New England Journal of Civil and Criminal Confinement 301–52.
- In 1980 the Prisons Service came under the control of the Minister of Justice while police and security functions were consolidated under the Minister of Law and Order.
- In the case of persons held for interrogation under s29(1) of the Internal Security Act 74 of 1982 ‘directions’ issued by the Minister of Law and Order are supposed to provide guidelines on interrogation procedures. Several notorious cases of deaths in captivity, including those of Steve Biko and Neil Aggett, have involved detentions in terms of s 29 or its predecessors: for the legal position, see H Rudolph Security, Terrorism and Torture 3–60; for empirical information see D Foster and D Sandler A Study of Detention and Torture in South Africa: Preliminary Report (1985) published by the Institute of Criminology, University of Cape Town.
- Section 34(3) of the Republic of South Africa Constitution Act 110 of 1983 provides that, with the exception of a limited power to determine whether parliamentary legislative formalities were observed, “… no court of law shall be competent to inquire into or pronounce upon the validity of an Act of Parliament’.
- Lawrence Baxter Administrative Law (1984).
- Baxter op cit note 9 at 482 notes that even where criteria might be described differently an inquiry into ‘reasonableness’ is still at the heart of the matter.
- 1912 AD 92.
- At 104.
- At 105.
- At 122.
- At 122–3.
- Whittaker v Governor of Johannesburg Gaol 1911 TPD 798 at 815.
- 1912 AD 92 at 126.
- In South Africa and the Rule of Law note 1.
- Halsbury's Laws of England XXXVII 4 ed (1982) para 1245.
- Cf D Garland Punishment and Welfare (1985).
- Act 13 of 1911.
- The Prisons Act 8 of 1959, referred to hereafter as the Prisons Act.
- See text at note 60.
- Cf J P Roux ‘The Rehabilitation Role of the South African Prison Service’ in JR Midgley et al(eds) Crime and Punishment in South Africa (1975) 253–61. The influence of the Standard Minimum Rules is also emphasized in Prison Administration in South Africa note 2.
- Such prisoners may be sentenced to solitary confinement, corporal punishment and other punishments but only after a further disciplinary procedure, during which they must be formally charged, tried and convicted, has been followed: The Law of South Africa (ed WA Joubert) XXI Prisons by D Van Zyl Smit (1984) paras 215–20.
- Section 2(2)(a) of the Prisons Act.
- Section 2(2)(b) of the Prisons Act.
- 1964 (2) SA 551(A).
- Section 17 of the General Law Amendment Act 37 of 1963.
- Ibid.
- Detainees were denied access to all visitors including legal advisers: s 17(2); Rossouw v Sachs note 28 at 552.
- The most famous dictum in this regard is that of Innes CJ in Dadoo v Krugersdorp Municipality 1920 AD 530 at 552: ‘It is a wholesome rule of our law which requires a strict construction to be placed upon statutory provisions which interfere with elementary rights.’ (This dictum was quoted in full in Rossouw v Sachs at 561.)
- At 564, per Ogilvie Thompson JA with whom Steyn CJ and Beyers, Botha and Wessels JJ A concurred.
- In particular by A S Mathews and R C Albino ‘The Permanence of the Temporary’ (1966) 83 SALJ 16. See also AS Mathews Law Order and Liberty in South Africa (1971); John Dugard Human Rights and the South African Legal Order (1978); H Rudolph Security, Terrorism and Torture (1984).
- L C Steyn ‘Regsbank en Regsfakulteit’ (1967) 30 THRHR 107.
- See Mathews, Dugard and Rudolph op cit note 34.
- Hassim v Officer Commanding. Prison Command, Robben Island; Venkatrathnam v Officer Commanding, Prison Command, Robben island 1973 (4)SA 462(C).
- Arbon v Anderson [1943] 1 All ER 154 at 156. See also Becker v Home Office [1972] 2 All ER 676 (CA) at 682. This interpretation of the English prison rules has been confirmed more recently in Williams v Home Office (No 2) [1982] All ER 564 (CA). See G Zellick ‘Prison Rules and the Courts’ 1981 Crim LR 602 and ‘Prison Rules and the Courts: A Postscript’ 1982 Crim LR 575.
- Hassim and Venkatrathnam note 37 at 473. The correct reference is to the Terrorism Act 83 of 1967.
- Prison reg 109(1) then read: ‘A prisoner shall, with due regard to the period of his sentence and personal aptitude, at all times be encouraged to pursue an appropriate course of study in his free time.’
- Section 2(2)(b) of the Prisons Act.
- Hassim and Venkatrathnam note 37 at 477.
- At 476.
- Goldberg v Minister of Prisons 1979 (1)SA 14(A).
- At 36.
- At 31.
- At 34.
- C F Forsyth In Danger for their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950–80 (1985) 109.
- Goldberg v Minister of Prisons note 44 at 38.
- Ibid.
- See in particular H G Rudolph ‘”Man's Inhumanity to Man Makes Countless Thousands Mourn!” Do Prisoners Have Rights?‘(1979) 96 SALJ 640; ‘The Appellate Division and Prisoners' Rights in South Africa: Goldberg v Minister of Prisons’ (1979) 3 SACC 52 (notes by D van Wyk, B van Niekerk, RG Nairn and J Taitz); and the note by F M Theart in 1979 TSAR 161.
- Goldberg v Minister of Prisons note 44 at 39–40. For the dictum from Whittaker see the text at note 15.
- Section 22 of the Prisons Act 8 of 1959.
- Section 22(2)(b) in its current form, introduced into the principal Act by s4 of the Prisons Amendment Act 58 of 1978.
- See the text at note 40.
- Cf reg 109(6), which was introduced in 1973 and provides: ‘Permission to study or the utilization of any library in terms of this regulation is subject to the discretion of the Commissioner [of Prisons] and the provisions of the said regulation may in no way be so construed as implying that such permission and/or utilization of any library allows any prisoner a right that he can legally claim.’
- See the analysis of this policy by J H Van Rooyen ‘Aspekte van Reg en Geregtigheid met betrekking tot Gevangenes’ (1981) 44 THRHR 1.
- 1983 (1)SA 938(A) at 957 and 959–60.
- E Mureinik ‘Fundamental Rights and Delegated Legislation’ (1985) 1 SAJHR 111.
- The origins of officially sanctioned racial discrimination in prisons at the Cape can be traced back to the provision of cheap black convict labour for the diamond mines: see D van Zyl Smit ‘Public Policy and the Punishment of Crime in South Africa’ (1984) 21–22 Crime and Social Justice 146.
- Section 23(1)(b).
- J Dugard Human Rights and the South African Legal Order note 1 at 63–4; The Law of South Africa note 25 XXI Race by DH Van Wyk (1984) para 434.
- Simonlanga v Masinga 1976 (2)SA 732(W) at 740–1.
- The phrase is borrowed from Goldberg v Minister of Prisons note 44. For the context see the text at note 73.
- This phrase is usually ascribed to the English prison reformer Alexander Paterson.
- C Kelk Recht voor Gedetineerden (1978); A C Geurts De Rechtpositie van de Gevangene (1962).
- H Schoch in G Kaiser, H-J Kerner and H Schoch Strafvollzug. Ein Lehrbuch(1982)95–7; H Müller-Dietz Sirafvollzugsrecht (1978) 65–70.
- Kelk op cit note 66 at 22 summarizes the various arguments put forward on this topic. In West Germany a cautious indication from the Federal Supreme Court (the Bundesverfassungsgericht (BVerfGE 64, 261 ff von 28.6.1983)) that the gravity of the original offence might be considered when furloughs from prison are considered, has been strongly condemned; H Müller-Dietz ‘Schuldschwere und Urlaub aus der Haft’ 1984 Juristische Rundschau 353–61.
- Section 2(2)(b) of the Prisons Act.
- Section 77 of the Prisons Act.
- For a summary of this debate, which has generated a large literature, see G Richardson ‘Time to Take Prisoners’ Rights Seriously’ (1984) 11 Journal of Law and Society 1–32 and the sources there cited.
- In Germany this view has been most forcefully expressed by J Feest in E Brand et al (eds) Alternativkommentar zum Strafvollzugsgesetz (1982) 1–32.
- Goldberg v Minister of Prisons note 44 at 28.
- Prison reg 103(1) places a duty on the head of a prison to see every prisoner daily and to investigate complaints and to dispose of them as far as possible.
- Prison reg 103(3).
- Goldberg v Minister of Prisons note 44 at 27.
- Prison reg 99(1)(o). A similar rule in England has been heavily criticized: see S H Bailey, DJ Harris and BL Jones Civil Liberties, Cases and Materials (1985) 551–3 and the references there cited.
- Section 25 of the Prisons Act.
- Report of the Department of Justice of the Republic of South Africa for the period 1 July 1984-30 June 1985 at 15.
- Prison reg 104(2). In terms of this regulation Supreme Court judges have access to all prisons in South Africa while magistrates are limited to prisons within their area of jurisdiction.
- B van Niekerk ‘Judicial Visits to Prisons: the End of a Myth’ (1981) 98 SALJ 416; G Marcus ‘Prisons: A Judicial Obligation’ (1984) 3 Lawyers for Human Rights Bulletin 67. The most recent report of the Department of Justice (note 75 at 15) indicates that during the statistical year 1984-5 the total number of prison visits by judges (96) was approximately equal to the number of judges. As interested judges presumably visited more than one prison in the year, it may safely be assumed many judges did not visit prisons at all. There have been reports that judges have increased the frequency of their prison visits during the current emergency. Details are not available.
- Prison reg 104(2)(a). It is conceivable, although not specifically provided, that judges may communicate their findings more widely. Magistrates ‘shall’ report to the Commissioner of Prisons: prison reg 104(2)(b).
- The government has, however, published some of their (favourable) reports: Prison Administration in South Africa (Department of Foreign Affairs 1969) 23–5.
- Section 3 of the Prisons Act.
- Goldberg v Minister of Prisons note 44 at 27–8.
- NC Steytler ‘Prison Conditions’ (1980) 4 SACC 226.
- Section 44(1)(f) makes it an offence to publish ‘false information’ about prisons or prisoners. If someone were to publish information which was held to be false the onus would be on him to show that he had taken ‘reasonable steps’ to verify the information in order to escape liability. In S v S A Associated Newspapers Ltd 1970 (1) S A 469 (W) the requirements of corroboration to be met before ‘reasonable steps’ could be shown to have been taken, were set so high that, for more than a decade after this decision, very little other than officially sanctioned information about prisons appeared in the South African press. See also A S Mathews The Darker Reaches of Government (1978) 149–51.
- See below.
- Mrs Helen Suzman MP has been mentioned by a number of ex-prisoners in this regard.
- M Maguire ‘Prisoners Grievances: The Role of the Board of Visitors’ in M Maguire, G Vagg and R Morgan (eds) Accountability and Prisons (1985) 141–86.
- J J MacManus Visiting Committees in Scottish Penal Establishments (Scottish Office Central Research Unit Papers, 1986).
- Müler-Dietz Strafvollzugsrecht note 676 at 314–7.
- J P Balkema Klachtrecht voor Gevangenen (1979).
- A useful overview of the various systems and the shortcomings is J Vagg Grievance and Disciplinary Processes: A Review of the Situation in England and Wales, France and West Germany (1986). See also Accountability and Prisons note 90, in particular chapter 12: G A Nijboer and G J Ploeg ‘Grievance Procedures in the Netherlands’.
- The report of the Department of Justice for the period 1 July 1984 - 30 June 1985 notes (at 15) a ‘gradual increase in the number of prisoners with specific sentences of two years' imprisonment or more’. On 30 June 1985 58 percent of all 108 392 prisoners in South Africa were serving terms of two years or more.
- See in particular C Van Onselen ‘The Regiment of the Hills — Umkosi Wesintaba’ Studies of the Social and Economic History of the Witwatersrand 1886–1914 (1982).
- N Haysom Towards an Understanding of Prison Gangs (1981).
- Report of the Committee of Inquiry into the Events at the Barberton Maximum Security Prison (Town) on 20 and 30 September 1983 and Related Matters (released 16 May 1984).
- J M Lötter and W J Schurink Gevangenisbendes: ‘n Ondersoek met Spesiale Verwysing na Nommerbendes onder Kleurlinggevangenes (1986).
- B Breytenbach Confessions of an Albino Terrorist (1984).
- The terms of the government's concession are specified in Kelsey William Stuart The Newspaperman's Guide to the Law 4 ed (1986) 150. The new edition concludes: ‘[I]t can be seen that the era of an absolute bar on reporting on prisons and prisoners is over. The South African Prisons Service has made it clear that the criterion is not actual verification but affording of an opportunity to the South African Prisons Service to comment, and the publishing of such comments with equal prominence.’
- Cape Times 27 March 1986.
- 1982 (2) 547(C).
- At 551.
- Mokoena v Commissioner of Prisons 1985 (1)SA 368(W) discussed by D van Zyl Smit ‘The Legislative Entitlements of Security Detainees and Prisoners' Rights’ (1985) 1 SAJHR 160ff.
- Katofa v Administrator-General, South West Africa 1985 (4) SA 211 (SWA).
- Mkhize v Minister of Law and Order 1985 (4)SA 147 (N); Hurley v Minister of Law and Order 1985 (4) SA 709(D) and Minister of Law and Order v Hurley 1986 (3) SA 586(A); S v Ramgobin (1985)(4)SA 130(N); Momoniat v Minister of Law and Order 1986 (2)SA 264(W); Nkwinti v Commissioner of Police 1986 (2) SA 421(E); but contrast Omar v Minister of Law and Order 1986 (3) SA 306(C).
- In terms of s2(1) of the Public Safety Act 3 of 1953 the State President may proclaim a state of emergency. Such a proclamation was issued on 21 July 1985 and remained in force until 7 March 1986. On 12 June 1986 a state of emergency was again proclaimed. As on the first occasion it was accompanied by the proclamation of regulations. These latter regulations, referred to below as the emergency regulations, appeared in Proc R109 GG 10280 of 12 June 1986 Reg Gaz 3964.
- Emergency reg 2.
- Emergency reg 5.
- Emergency reg 3.
- Emergency reg 1(ii).
- Emergency reg 1(v).
- The power to make rules is contained in emergency reg 3(9). The relevant rules were issued by the Minister of Justice in GN 1196 GG 10281 of 12 June 1986. In terms of these rules, emergency detainees, unlike awaiting-trial prisoners, may, inter alia, not receive food, drink or smoking requirements. They require special permission to write letters, to study, or to see their legal adviser. Their access to reading material is severely restricted. Although they face the full rigours of the prison disciplinary system and, on conviction of disciplinary offences, may be sentenced to corporal punishment or to solitary confinement, when they appear before a disciplinary hearing they are not entitled to legal representation unless the Minister of Law and Order or the Commissioner of Police gives permission herefor.
- See the rules relating to visits, access to legal counsel, letters and study facilities described in note 114.
- Emergency reg 3(10); rule 3.
- Weekly Mail 26 September 1986.
- However the ‘Human Rights Index’ in (1985) 1 SAJHR 301–2 records that some of the regulations then in force were amended to pre-empt a court action. There are also signs that the courts will attempt to interpret regulations so as to give emergency detainees freer access to lawyers. See MAWU v State President 1986 (4) SA 358(D) but compare Omar v Minister of Law and Order 1986 (3) SA 306(C).
- For a critical discussion of the weakness of current international standards, see S Casale ‘A Practical Design for Standards’ in Accountability and Prisons note 90 at 97–105.
- Cf Richardson ‘Time to take Prisoners' Rights Seriously’ note 71.
- Thus legislation was introduced in 1986 to increase the range of crimes for which corporal punishment may be imposed. For the background to the new legislation see D van Zyl Smit & L Offen ‘Corporal Punishment — Joining Issue’ (1984) 9 SACC 69.
South African Journal on Human Rights
Volume 3, 1987 - Issue 2