Mandela v Minister of Prisons

JurisdictionSouth Africa
JudgeJansen JA, Muller JA, Joubert JA, Trollip AJA and Galgut AJA
Judgment Date01 December 1982
Citation1983 (1) SA 938 (A)
Hearing Date18 September 1981
CourtAppellate Division

Jansen JA:

This appeal concerns the rights of a convicted prisoner, during his incarceration, in respect of documents in G his possession and it also raises the question whether, whilst so incarcerated, he is entitled during an interview with his legal adviser to hand him written instructions relevant to the purpose of the legal interview that is taking place.

These matters were raised by the appellant, a convicted prisoner serving a sentence of imprisonment in the Robben H Island Prison, in an application to the Cape Provincial Division for certain, mainly declaratory, relief. The contentions by the appellant in this regard were, however, rejected and the application refused (per WATERMEYER JP and Grosskopf J). The judgment, fully setting out the facts, is reported at 1981 (1) SA 531 (C).

It will be convenient to deal with the question of written instructions first. This turns on the interpretation and validity of reg 123 (2) (f) of the Prison Service Regulations, promulgated under Government

Jansen JA

Notice R2080 of 31 December 1965, as amended from time to time. Regulation 123 (2) (f) is a new provision introduced by Government Notice R350 of 18 February 1980, and it reads as follows:

"no prisoner may, during a visit, hand any writing, document or any other article to his legal representative, interpreter or A shorthand writer without the approval of the Commissioner".

The appellant contends that the words "any writing" and "document" do not include written instructions to the legal representative, and that, if they do, the regulation is ultra vires; the respondent says that the words include such instructions and also that the regulation is valid. That there B is a real dispute between the parties in regard to this, is common cause. The respondent, however, raises the objection that the matter is merely academic and should therefore not now be resolved. However, the Court a quo dealt with the matter. It obviously did not consider it was academic. I agree that it is desirable that the dispute should now be resolved. For there is C little doubt that it concerns the existing rights, if any, of the appellant vis-à-vis the prison authorities in respect of probable future consultation with his legal adviser.

The right of access to one's legal adviser, as a corollary of the right of access to the courts, is a basic or fundamental common law right. (R v Slabbert and Another 1956 (4) SA 18 (T) D at 21G; Brink and Others v Commissioner of Police 1960 (3) SA 65 (T) at 67C - E; cf S Selikowitz 1965/1966 Acta Juridica at 51 et seq.) This right has also been statutorily recognised in varying degree. (In respect of an accused: s 73 of Act 51 of 1977; an unconvicted prisoner awaiting trial: s 82 of Act 8 of 1959 and Prison Service reg 132 (9); a convicted prisoner: E Prison Service reg 123, particularly as originally promulgated by Government Notice R2080 of 31 December 1965.) On principle a basic right must survive incarceration except in so far as it is attenuated by legislation, either expressly or by necessary implication, and the necessary consequences of incarceration (cf Hassim and Another v Officer Commanding, Prison Command, F Robben Island, and Another; Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island, and Another 1973 (3) SA 462 (C) at 472H - 473B). The majority judgment in Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14 (A) does not militate against this view: the access to certain publications and sources of news of current events G there considered was not seen as a basic right (at 31B).

The precise parameters of the basic common law right in question need not be defined for present purposes, but it may be mentioned that an important element is that of being able to consult with the legal adviser privately and confidentially. H This seems to flow from the decision in the case of S v Mushimba en Andere 1977 (2) SA 829 (A). In S v Alexander and Others (1) 1965 (2) SA 796 (A) at 808C - D it is stated that:

"It is manifestly desirable that the least possible inroad be made upon the principle that communications between client and legal adviser are confidential"

(per OGILVIE THOMPSON JA). This aspect is not to be confused with the professional privilege which protects inter alia certain communications

Jansen JA

between legal adviser and client from discosure in evidence or by way of discovery.

Mr Dison, on behalf of the appellant, has urged the application of the following dictum by INNES CJ (in Dadoo Ltd and Others v A Krugersdorp Municipal Council 1920 AD 530 at 552) to the interpretation of reg 123 (2) (f):

"It is a wholesome rule of our law which requires a strict construction to be placed upon statutory provisions which interfere with elementary rights. And it should be applied not only in interpreting a doubtful phrase, but in ascertaining the intent of the law as a whole."

B However, if reg 123 (2) (f) is read in its context there seems little doubt that the legislator intended to use the words "any writing" or "document" in a general and wide sense, so as to include all writings and documents, even those constituting instructions to a legal adviser. That the legislator was not unmindful of instructions to a legal adviser in enacting reg 123 seems obvious from a perusal of the C regulation as a whole:

"Visit to and interview with a prisoner by his legal representative.

Basis

(1)

Subject to the permission of the Commissioner and subject to any conditions as determined by him, any prisoner who is D a party to civil proceedings or intends to institute such proceedings, or is an accused in a criminal action, may consult his legal representative in connection with such proceedings or action.

Conditions

(2)

The Commissioner may, for the purposes of this regulation, generally or in a specific instance determine that -

(a)

the legal representative at the request of the head of E a prison, or in his absence, of the member in charge of the prison, shall lodge proof of his identity and status;

(b)

a visit to or interview with a prisoner may take place only during normal office hours except in exceptionally meritorious cases where prior permission shall be obtained from the head of the prison;

(c)

the interview be restricted to the civil proceedings F or the criminal action to which the prisoner is a party;

(d)

if an interpreter or a shorthand writer is used the person involved must be approved by the Commissioner;

(e)

the interview shall take place in sight of a member or temporary warder;

(f)

no prisoner may, during a visit, hand any writing, document or any other article to his legal G representative, interpreter or shorthand writer without the approval of the Commissioner;

(g)

no sound recording apparatus or aid for the recording or reproduction of sound will be allowed; and

(h)

the interview be subject to such conditions as may be considered necessary by the Commissioner for the general control and management of a prison and the maintenance of good order and discipline therein.

H Refusal of further visits

(3) (a)

If a legal representative in any way abuses the privilege of visiting or interviewing a prisoner, or contravenes a condition referred to in subreg (2), or neglects to comply therewith, or is convicted...

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72 practice notes
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...individual to legal advice and legal D representation'. See S v Mabaso and Another 1990 (3) SA 185 (A); Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D; S v Wessels 1966 (4) SA 89 (C) at 91D-92H; R v Slabbert 1956 (4) SA 18 (T) at 21G; Brink v Commissioner of Police 1960 (3) SA 65......
  • Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill
    • South Africa
    • Invalid date
    ...the nature of the right to access to a legal adviser by a person held in custody, see per Jansen JA in Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D. See also Raymond v Honey I [1982] 1 All ER at 760j ; Nestor and Others v Minister of Police 1984 (4) SA 230 (SWA) at 248I - 249I;......
  • Nkwentsha v Minister of Law and Order and Another
    • South Africa
    • Invalid date
    ...like the right of access to one's legal representative, is a basic or fundamental common law right. Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D - G; Omar and E Others v Minister of Law and Order and Others 1986 (3) SA 306 (C) at 316J. The clearest language in the enabling stat......
  • Cabinet for the Territory of South West Africa v Chikane and Another
    • South Africa
    • Invalid date
    ...754 (A); Whittaker v Roos and B Bateman 1912 AD 92; Goldberg v Minister of Prisons 1979 (1) SA 14 (A); Mandela v Minister of Prisons 1983 (1) SA 938 (A); Nester and Others v Minister of Police and Others 1984 (4) SA 230 (SWA); Katofa v Administrator-General for South West Africa 1985 (4) SA......
  • Request a trial to view additional results
68 cases
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...individual to legal advice and legal D representation'. See S v Mabaso and Another 1990 (3) SA 185 (A); Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D; S v Wessels 1966 (4) SA 89 (C) at 91D-92H; R v Slabbert 1956 (4) SA 18 (T) at 21G; Brink v Commissioner of Police 1960 (3) SA 65......
  • Omar and Others v Minister of Law and Order and Others; Fani and Others v Minister of Law and Order and Others; State President and Others v Bill
    • South Africa
    • Invalid date
    ...the nature of the right to access to a legal adviser by a person held in custody, see per Jansen JA in Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D. See also Raymond v Honey I [1982] 1 All ER at 760j ; Nestor and Others v Minister of Police 1984 (4) SA 230 (SWA) at 248I - 249I;......
  • Nkwentsha v Minister of Law and Order and Another
    • South Africa
    • Invalid date
    ...like the right of access to one's legal representative, is a basic or fundamental common law right. Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D - G; Omar and E Others v Minister of Law and Order and Others 1986 (3) SA 306 (C) at 316J. The clearest language in the enabling stat......
  • Cabinet for the Territory of South West Africa v Chikane and Another
    • South Africa
    • Invalid date
    ...754 (A); Whittaker v Roos and B Bateman 1912 AD 92; Goldberg v Minister of Prisons 1979 (1) SA 14 (A); Mandela v Minister of Prisons 1983 (1) SA 938 (A); Nester and Others v Minister of Police and Others 1984 (4) SA 230 (SWA); Katofa v Administrator-General for South West Africa 1985 (4) SA......
  • Request a trial to view additional results
4 books & journal articles
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...16Mana v S [2009] 1 All SA 143 (SCA) ..................................................... 275Mandela v Minister of Prisons 1983 1 SA 938 (A) ............................... 40Martine v S [1998] JOL 268 (W) ............................................................ 17Masiya v DPP 2007 2 S......
  • Not too 'Great Expectations': Considering the right to health care in prisons and its constitutional implementation
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...v Minis-ter of Prisons 1979 (1) SA 14 (A) at 39C-F; Minister of Justice v Hofmeyr 1993 (3) SA 131(A).5Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957E-F.6Constitution of the Republic of South Africa, 1996. Hereafter ‘the Constitution.’40 SACJ *(2009) 1© Juta and Company (Pty) Preli......
  • The legacy of Barend van Niekerk: A challenge to the on-going abuse of prisoners' rights
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...even if exercised wrongly, did not afford prisoners the right to seek relief in the courts. In Mandela v Minister of Prisons 1983 (1) SA 938 (A) sought to limit the damage that Goldberg had done by restricting it to the facts of that case and confirmed the principle enunciated in Whittaker ......
  • Criminal justice and the truth in Zimbabwe: A necessary introspection
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...a few examples from four countries need be given here, namely Minter v Priest [1930] AC 558 (England); Mandela v Minister of Prisons 1983 (1) SA 938 (A); S v Safatsa 1988 (1) SA 868 (A) (South Africa); Boyce v Ocean Accident & Guarantee Corporation Ltd 1965 RLR 668 (Zimbabwe); Baker v Campb......

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