On 3 March 2020, the confirmation proceedings in the case of Sonke Gender Justice v President and Others will be heard in the Constitutional Court. The hearing follows the Western Cape High Court decision of Boqwana J of 5 September 2019, wherein certain sections of the Correctional Services Act 11 of 1998 were declared unconstitutional. It is now incumbent upon the Constitutional Court to determine whether this order of unconstitutionality is to be confirmed or denied.
The impugned provisions relate to the establishment of the Judicial Inspectorate for Correctional Services (JICS) and were challenged for their failure to afford JICS sufficient independence. Of primary concern is the fact that the legislation requires that JICS draw its budget from the Department of Correctional Services (DCS) – the very institution it is required to oversee – and is accountable to DCS for all monies received.
Sonke Gender Justice and Lawyers for Human Rights, who instituted proceedings in this matter on 13 December 2016, welcomed the High Court’s order of unconstitutionality, as it recognised that these provisions compromise JICS’ existence as a functional, independent, and accessible oversight body fundamental to the protection and promotion of detainees’ rights.
We hope that the Constitutional Court will confirm the order, enabling the legislation to be amended to allow JICS to be more financially and operationally independent, which in turn will have a positive impact on the safety and wellbeing of incarcerated persons in South Africa.
We acknowledge the generous funding granted to the applicant by Legal Aid South Africa in both the High Court and Constitutional litigation.