ZACC 26
Hearing Date: 03 March 2020
Judgement Date: 04 December 2020
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Friday, 4 December 2020 at 09h30, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Western Cape Division, Cape Town (High Court). The High Court declared sections 88A(1)(b), 88A(4) and 91 of the Correctional Services Act 111 of 1998 (Correctional Services Act) unconstitutional and invalid. The question before the Constitutional Court was whether the order of constitutional invalidity should be confirmed.
Central to this matter was the level of independence afforded to the Judicial Inspectorate of Correctional Services (Judicial Inspectorate), an investigative body established in terms of the Correctional Services Act and tasked with monitoring and reporting on the treatment of inmates and the conditions in correctional centres in South Africa. The Judicial Inspectorate is under the control of the Inspecting Judge, who is responsible for, inter alia, the identification of a suitable Chief Executive Officer (CEO) for the Judicial Inspectorate. The CEO is responsible for the administrative, financial and clerical functions of the Judicial Inspectorate and the appointment of its staff. The Inspecting Judge arranges inspections of, and reports on, correctional centres, receives notifications of incidents relating to the well-being of inmates (including inmate deaths, the use of force against inmates and the imposition of solitary confinement), conducts investigations and enquiries and prepares reports for Parliament.
The applicant in this matter is Sonke Gender Justice, a non-profit company that plays an active role in policy research, advocacy relating to the care and safety of inmates detained in custody in correctional centres or remand detention facilities and the strengthening of mechanisms designed to provide oversight of correctional services since 2007. The first to sixth respondents were the President of the Republic of South Africa, the Minister of Justice and Correctional Services (Minister of Justice), the National Commissioner of Correctional Services (National Commissioner), the Inspecting Judge for Correctional Services (Inspecting Judge), the Minister of Finance and the Minister of Public Service and Administration.
Sonke instituted proceedings in the High Court. It challenged sections 85(2), 90(1), 88A(1)(b), 88A(4) and 91 of the Correctional Services Act, on the basis that these sections failed to provide the Judicial Inspectorate with the independence it requires to operate effectively. Sonke submitted that section 7(2) of the Constitution, read with the applicable international law, required the State to create an adequately independent Judicial Inspectorate. The High Court upheld Sonke’s challenge to sections 88A(1)(b), 88A(4) and 91. The High Court found that these sections threatened the Judicial Inspectorate’s independence, which was vital to the Judicial Inspectorate’s delivery of its mandate, and that the creation of an inspectorate without the necessary independence to discharge its mandate would not constitute a “reasonable step”, as required under section 7(2) of the Constitution.
In the Constitutional Court, Sonke contended that the High Court’s order should be confirmed in respect of all three of the impugned sections. It submitted that they undermine the independence of the Judicial Inspectorate, rendering it subject to the control of the Department of Correctional Services (Department), which it is designed to oversee. Section 88A(1)(b) of the Correctional Services Act provides that the CEO is accountable to the National Commissioner for all monies received by the Judicial Inspectorate. Section 91 provides that the Department is responsible for all the expenses of the Judicial Inspectorate. Section 88A(4) of the Act obliges the Inspecting Judge to refer any matters relating to misconduct or incapacity on the part of the CEO to the National Commissioner. Sonke submitted that sections 88A(1)(b) and 91 compromise the Judicial Inspectorate’s financial and operational independence. It argued, further, that section 88A(4) renders the CEO vulnerable to political interference and that the mechanism it creates.
The first judgment, penned by Theron J (Khampepe J, Madlanga J, Majiedt J, Mathopo AJ and Mhlantla J concurring) upheld the order of constitutional invalidity in respect of sections 88A(1)(b) and 91. It held that section 7(2) of the Constitution required the State to take reasonable steps to protect the rights of incarcerated persons and that the State had elected to do so by establishing the Judicial Inspectorate. In ascertaining whether or not the establishment of a Judicial Inspectorate without adequate independence constituted a “reasonable step” the first judgment considered the nature of the implicated rights: in particular, the rights to life, dignity, freedom and security of person and to be detained in conditions consistent with human dignity. The first judgment concluded that independence was an inherent characteristic of an oversight entity and that the Judicial Inspectorate should be structurally and operationally independent, and perceived as such, in order to execute its mandate. This requirement flowed directly from the State’s constitutional obligation to act reasonably and effectively in protecting the rights of incarcerated persons. The first judgment affirmed that this finding was supported by international law.
The first judgment held that sections 88A(1)(b) and 91 did not ensure sufficient structural and operational independence to the Judicial Inspectorate, nor did they bolster the public perception of its independence. Their effect was, rather, that the very Department the Judicial Inspectorate was required to oversee exercised control over the Judicial Inspectorate’s budget. This control was held to impact negatively on the ability of the Judicial Inspectorate to function effectively. Such an arrangement was, the first judgment held, inimical to the independence of the Judicial Inspectorate.
The first judgment declined to confirm the order of constitutional invalidity in relation to section 88A(4). It did so on the basis that the impugned section could be interpreted in a constitutionally compliant manner, having regard to the ordinary, grammatical meaning of the words, the context of the impugned provision and the injunction of section 39(2) of the Constitution, which requires that legislation be interpreted in a manner that “promotes the spirit, purport and objects of the Bill of Rights”. The first judgment held that, on a proper interpretation of section 88A(4), decisions regarding misconduct or incapacity of the CEO are squarely under the control of the Inspecting Judge. The National Commissioner exercises no disciplinary or other power over the CEO, but merely fulfils the final administrative step, which gives effect to the decision by the Inspecting Judge.
The second judgment penned by Jafta J (Tshiqi J concurring) did not agree with the conclusion proposed in the first judgment and the reasons supporting it. In particular, the second judgment did not agree that the impugned provisions are inconsistent with section 7(2) of the Constitution and as a result, invalid. The second judgment differed from the first judgment’s reliance on international law as a ground for the conclusion that the impugned provisions are inconsistent with the Constitution. It held that the obligation to establish an entity envisaged in the Protocol may be enforced in our domestic courts as part of our legislation, following its domestication by Parliament. What may not be done is to invoke it as an integral part of the Constitution against which the validity of legislation is tested.
The second judgment held further that the appropriate test flowing from section 7(2) read with the rights in the Bill of Rights would be whether Sonke had established special circumstances which warrant the state to take preventative operational measures to protect the rights of inmates over and above the steps and measures already taken under the Correctional Services Act. The second judgment held that Sonke failed to meet this test.
The second judgment held that the impugned provisions must be tested against the standard of reasonableness. It held that section 88A(1) is not unreasonable insofar as it requires the CEO to account to the National Commissioner for public monies received by the Inspectorate. In relation to section 91, the second judgment held that the nature of the obligation concerned with here does not require independence in relation to budget preparation and that this section, which places the Inspectorate’s budget in the hands of the Department is not unreasonable as it does not empower the Department to frustrate the Inspectorate’s mandate by defunding it.
The second judgment held that the reasonableness of section 88A(4) must be evaluated with reference to the purpose of protecting the prisoners’ rights entrenched by the Bill of Rights. The second judgment held that this section merely requires that disciplinary issues against the CEO be referred to the National Commissioner by the Inspecting Judge. Furthermore, this process has little impact on the Inspectorate’s autonomy to perform its functions and therefore, the section is not unreasonable. Accordingly, the second judgment would have reversed the declaration of invalidity made by the High Court.
The third judgment penned by Victor AJ agreed with the main judgment’s confirmation of constitutional invalidity in respect of sections 88A(1)(b) and 91 of the Act. However, the third judgment would have confirmed the declaration of invalidity in respect of section 88A(4) of the Act. The third judgment reasoned that, once Parliament had made the choice to provide that the Judicial Inspectorate is headed by a Judge, then it must have attributes of independence not dissimilar to judicial independence.
The third judgment differed from the interpretation of the impugned section advanced by the first judgment. Rather, it held that the section was not reasonably capable of the latter interpretation and that this interpretation unduly strained the language of the provision. On its reading of the provision, the CEO was beholden to the National Commissioner and this undermined the independence of the Judicial Inspectorate. It held further that in determining whether a provision provides for adequate independence one must have regard to what a reasonably informed member of the public (including, in this case, an inmate) would think of the provision. It held that, from this standpoint, the provision would undoubtedly be regarded as a constraint on the Judicial Inspectorate’s independence. In sum, the third judgment held that the provision created a symbolic and substantive perception that the CEO was ultimately responsible to the National Commissioner for their conduct instead of being responsible to the Inspecting Judge. In the result, the third judgment would have concluded that the impugned provision failed to provide for adequate independence and was consequently unconstitutional and invalid to this end.
The Full judgment here