On 13 December 2016, Sonke Gender Justice and Lawyers for Human Rights filed an application in the Western Cape High Court, citing the government and the Judicial Inspectorate for Correctional Services (“JICS”) as respondents. The purpose of the case is to facilitate greater oversight over South African prisons in order to help safeguard inmates’ rights and safety. After several process delays and postponements, the case has been set down for 6 June 2019.
Given that prisons are “closed” institutions that largely operate outside the public eye, independent prison oversight is vital to the protection of inmates’ human rights. Not only does regular monitoring and reporting help prevent abuses inside prisons, it also serves to raise public awareness of detention-related issues and prompt government accountability. The issue of an oversight body’s independence is particularly pertinent in these areas.
JICS is the primary national body tasked with overseeing South Africa’s correctional system. JICS’ mandate includes inspecting, monitoring and reporting on the treatment of inmates and the conditions of prisons. JICS’ existence as a functional, independent, and accessible body is therefore fundamental to the protection and promotion of inmates’ rights.
Unfortunately, JICS is currently crippled by various practical and political challenges – chief among these being a lack of independence and ill-defined functions and powers – which largely stem from the failings of its empowering legislation, the Correctional Services Act 111 of 1998. The current laws do not adequately foster and protect the independence that is so necessary within the prison context, and through this court case we hope to change and clarify these.
According to Constitutional interpretation, the State has a positive duty to create a sufficiently independent and effective prison inspectorate. Therefore, Sonke is seeking an order declaring that the current legislative provisions regulating JICS – Chapters 9 and 10 of the Correctional Services – are unconstitutional to the extent that they do not guarantee JICS’ independence and capacity.
“This litigation is a measure of last resort that follows years of unsuccessful engagement with the Department of Correctional Services by civil society organisations,” says Zia Wasserman, National Prisons Coordinator for Sonke Gender Justice. “We believe that the court case is a positive step in remedying the legislative deficiencies plaguing JICS’ efficacy, in order to ultimately protect the rights of detained persons in South Africa.”