Inmates’ right to adequate nutrition in South Africa : is the enforcement of this right constitutional?

• Author: Thembinkosi Maseko
• DOI: 10.10520/EJC-c6c044f5c
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a10
• Pages: 178-188

178

JOURNAL

INMATES’ RIGHT TO ADEQUATE NUTRITION

IN SOUTH AFRICA: IS THE ENFORCEMENT OF

THIS RIGHT CONSTITUTIONAL?

Thembinkosi W Maseko*

ABSTRACT

The South African Constitution entrenches, among other socio-economic rights, inmates’

right to adequate nutrition. Measures aimed at enforcing this right include the Regulations

and the court enforcement of inmates’ right to traditional food in the case of Huang v the

Head of Grootvlei Prison. While these measures are steps in the right direction, they do not

fully comply with constitutional imperatives. The Regulation’s restriction of access to cultural

or religious food to pregnant or lactating remand detainees is contrary to section 9 (3) of

the Constitution which prohibits unfair discrimination by the state. This is the case because,

technically, this regulation has the effect of excluding even those pregnant or lactating

inmates who had access to either a cultural or a religious food as remand detainees. Further,

the court’s failure to determine whether the inmates’ claim to their traditional food was based

on a sincere cultural belief, which could be objectively supported in the case of Huang v the

Head of Grootvlei Prison, is unconstitutional.

1. INTRODUCTION

The South African Constitution is renowned throughout the world for its excellence

partly because it incorporates socio-economic rights,1 among which is prison inmates’

right to adequate nutrition. This right obliges the state to ensure that inmates’ physical

welfare is well taken care of through, among other things, the provision of adequate

1 The South African Constitution, 1996, hereinafter referred to as the Constitution.

* LLB LLM LLD. Senior Law Lecturer, Unisa. This article is an extract from my LLD thesis and part of

it was presented in the Constitutional Rights, Judicial Independence and the Transition to Democracy:

Twenty Years of South African Constitutionalism Conference hosted by the New York Law School in

the United States of America, 13 – 16 November 2014. I am grateful to my LLD supervisor, Professor

Mangu.

https://doi.org/10.25159/2219-6412/2654

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 178–188