Goldberg and Others v Minister of Prisons and Others

• Jurisdiction: South Africa
• Judge: Wessels ACJ, Trollip JA, Corbett JA, Hofmeyr JA and Joubert JA
• Judgment Date: 26 September 1978
• Hearing Date: 15 May 1978
• Court: Appellate Division

Wessels ACJ:

Appellants are prisoners held in a special section of the Pretoria prison set aside for the detention of White prisoners convicted under various security laws, and they have no contact with any other category of prisoners. They were all convicted of contraventions of the H Géneral Law Amendment Act 1964, the Suppression of Communism Act 1950 and the Terrorism Act 1967. The particular contraventions relating to each appellant are not detailed in the record. Appellants were sentenced to periods of imprisonment ranging from six years (in the case of eighth appellant) to imprisonment for life (in the case of first appellant).

The first respondent (the Minister) is responsible for the direction and control of second respondent (the Commissioner), who is, in terms of s 3 of the Prisons Act 8 of 1959 (the Act), in charge of the Prisons Department established by s 2 (1) thereof. The Commissioner is a commissioned

Wessels ACJ

officer appointed by the State President in terms of s 4 (1) of the Act. In terms of reg 4 (1) of the prison regulations made by the State President in terms of s 94 of the Act (which were promulgated by Government Notice R2080 dated 31 December 1965) the Commissioner is A responsible to the Minister for the effective performance of the functions of the Prisons Department as described in s 2 of the Act, the maintenance of discipline, efficient administration and the proper use and care of State property belonging to his Department. Third respondent (the Commanding Officer) is responsible to the Commissioner for the B maintenance of efficient administration, discipline and proper use and care of State property at the Pretoria prison. The regulations have been amended from time to time. Where necessary, counsel referred this Court to the relevant amendments. In passing I might mention that the Act was C recently amended by the Prisons Amendment Act 58 of 1978. None of its provisions, however, appears to affect the issues which arise for determination in this appeal.

Appellants instituted motion proceedings in the Transvaal Provincial Division against respondents in which they claimed various declaratory orders, all of which were in substance aimed at securing for them a right D of access to news of current events in the Republic and abroad. In their affirmations filed in support of the notice of motion, appellants stated inter alia that:

(a)

they were not permitted radios nor were they able to listen to radio news services;

(b)

they were not permitted to receive newspapers;

(c)

E they were not permitted to receive news magazines;

(d)

periodicals which they were permitted to receive were censored by the excision of all matter relating to news of current events;

(e)

letters which they were allowed to receive could only deal with domestic matters, and not with any other items of news; and

(f)

F their visitors could only speak of domestic matters, and were not permitted to refer to or discuss any news other than that of a domestic nature.

It is stated in first appellant's founding affirmation that:

"the conduct complained of constitutes cruel, inhuman and unnecessarily harsh punishment and double deprivation adding excessively to the loss of liberty inherent in imprisonment, and is tantamount to psychological mistreatment of the applicants, producing as it does an effect of G alienation and disorientation in regard to the world outside of prison."

In regard to the exercise of the power of censorship, it is stated that:

"such censorship is of such an arbitrary and grossly unreasonable, petty and irrational nature that those responsible therefor could not have H applied their minds in good faith to the exercise of their powers".

In conclusion, it is stated in first appellant's affirmation that the matters complained of have been raised with successive Ministers of Justice, Commissioners of Prisons and Commanding Officers without, however, securing any relief.

The substance of the case which appellants sought to establish in the Court of first instance was, firstly, that, in denying them any form of access to news of current events, the Commissioner acted unlawfully and in breach of rights to which they are entitled in terms of the Act

Wessels ACJ

and the prison regulations. Alternatively, in so far as the grant of a right to have access to news is a matter within the Commissioner's discretion, the exercise of that discretion by him adversely to appellants was vitiated by mala fides.

A It is unnecessary to set out in detail the relief originally claimed in the notice of motion. At the hearing of the appeal before this Court, appellants' counsel intimated that the relief claimed was restricted to an order in the following terms, namely,

(a)

B a declaration that appellants are entitled to receive books and periodicals of their choice, subject to any rules and conditions which may be prescribed under reg 109 (4) of the Prison Regulations; and

(b)

a declaration that respondents are not entitled to apply a general policy depriving appellants of all access to news.

C The respondents' defence is set out in an affidavit deposed to by Brigadier G N du Plessis, who was duly authorised by them to make the affidavit. The grounds of the opposition to the grant of relief claimed by the appellants may be summarised as follows:

1. A distinction is to be drawn between those facilities to which a D prisoner is entitled as a matter of right, on the one hand, and privileges which may be granted him, on the other hand.

2. Whilst not claiming the list to be exhaustive, it is alleged that a prisoner's rights embrace the provision of (a) proper housing and clothing, (b) adequate food and medical care and (c) protection against assault.

3. The relief claimed by appellants relates not to rights but to E privileges, the grant of which is wholly within the discretion of the Commissioner.

4. The Court has no power to make any order relating to the future grant of privileges to the appellants, which is a matter within the Commissioner's discretion.

5. The appellants lack locus standi to bring the application.

F 6. It is stated that the background, trials and other information relating to the appellants have been carefully studied and that the "Prison Authorities" are of the opinion that, notwithstanding their imprisonment, appellants are all capable of acts which could constitute breaches of prison and national security discipline and are, furthermore, persons who would readily attempt to escape.

G 7. In regard to the censorship of letters and conversations between appellants and visitors, it is stated that the practice, as applied in prisons generally, and more particularly in the case of appellants, "is one adapted to the requirements of security and to the known or suspected propensities of a prisoner".

H 8. As to the censorship of permitted magazines, it is stated that this is done with particular reference to particular prisoners "depending on their potential as security risks" and with due regard to the following considerations:

"(i)

avoiding sexually stimulating matter;

(ii)

avoiding inflammatory and seditious matter;

(iii)

avoiding matter which advocates or propogates unlawful ideology; and

(iv)

avoiding matter which could advance or assist any breach of security."

9. It is, further, stated that prisoners, including appellants, are permitted and encouraged to study for bachelor degrees through the University of

Wessels ACJ

South Africa, and are normally permitted to receive the prescribed works in connection with their studies. The pursuit of these studies provides intellectual stimulus for prisoners should they choose to take advantage of the privilege to study. Apart from that, appellants may receive and A read a wide variety of books which do not violate the aforementioned principles.

10. It is denied that the conduct complained of is unlawful, unauthorised or contrary to the provisions of the Act.

11. It is furthermore stated that:

"the treatment of the applicants has been prescribed by the second B respondent in terms of the powers he has under the Act and more particularly s 77 thereof. The magazines, and the censorship thereof, which the applicants receive, are those prescribed by the second respondent".

12. It is denied that the conduct complained of "constitutes cruel, inhuman and unnecessarily harsh punishment" or that it is "tantamount to C psychological mistreatment of the applicants" as is alleged in first appellant's affirmation. In this connection reference is made to the affidavit of Dr H H Brandt, who stated:

"Ek besoek die afdeling van Pretoriagevangenis waarin die genoemde Denis Theodore Goldberg en ander aangehou word op gereelde grondslag. Volgens my waarneming toon geeneen van die persone psigiese afwykings nie."

D That was not denied by the appellants in their answering affidavits; in effect, they admitted that they were not suffering from any psychological deviations and were not mentally ill. Their complaint was that, by being deprived of news and reading matter, they were being subjected to psychological stress and anxiety.

CURLEWIS J, who heard the matter, dismissed the application with costs. E He held, firstly, that appellants had not established that they were entitled as a matter of right to have access to news in the manner claimed by them. Secondly, in so far as it was within the Commissioner's discretion to grant an indulgence or privilege to appellants to have access to news, the exercise of that discretion adversely to appellants F was not shown to have been improper. Moreover, the Commissioner's discretion was of an administrative nature, and the exercise thereof was not subject to review by a court of law. By consent of all the parties, appellants noted an appeal direct to...