Minister of Justice v Hofmeyr

• Jurisdiction: South Africa
• Judge: Hoexter JA, Smalberger JA, F H Grosskopf JA, Goldstone JA and Nicholas AJA
• Judgment Date: 26 March 1993
• Hearing Date: 15 February 1993
• Court: Appellate Division

Hoexter, JA.:

The appellant is the Minister of Justice. In the Cape of Good Hope Provincial Division the respondent instituted an action for damages in the sum of R100 000 against the appellant as the first defendant. Considering that the Minister of Law and Order had an interest in the E action the respondent joined him as the second defendant. When the matter proceeded to trial the second defendant was unrepresented and the action was resisted only by the appellant. In what follows reference will be made to the respondent as 'the plaintiff' and to the appellant as 'the defendant'. The plaintiff succeeded in his action against the defendant. F The trial Judge (King J) ordered the defendant to pay damages in the sum of R50 000, interest thereon, and costs. No costs were ordered against the Minister of Law and Order. With leave of the Court a quo the defendant appeals against the whole of the judgment of King J.

The judgment of the Court below has been reported sub nom Hofmeyr v G Minister of Justice and Another 1992 (3) SA 108 (C). In what follows recourse will be had to the judgment as reported when reference is made to the trial Court's findings of fact and law. In the judgment the evidence adduced at the trial is explored at some length. For present purposes a summary of the material facts of the matter will suffice.

At the beginning of the 1988 academic year the plaintiff, who was then a H man in his mid-thirties, was a final-year LLB student at the University of Cape Town. On 22 April 1988 he was arrested in terms of reg 3 of the Emergency Regulations (see Proc R96 of 11 June 1987) promulgated under the Public Safety Act 3 of 1953. For some days thereafter he was held in the police cells at Caledon Square. From 3 May to 6 October 1988 the plaintiff was detained at Pollsmoor Prison ('the prison'). The said regulations I expired on 10 June 1988, whereafter the plaintiff's detention was in terms of reg 3 of the Security Emergency Regulations (see Proc R97 of 10 June 1988). It is to the period of his detention at the prison, which lasted some five months, that the plaintiff's action relates.

The legality of his arrest and his detention thereafter is not in issue. What is in issue is the propriety or otherwise of the conditions in which J he

Hoexter JA

A was held at the prison. The plaintiff's case was that the manner in which he was treated involved an aggression upon his person and an unlawful infraction of his fundamental personality rights.

The plaintiff's chief complaint was that, save for two brief periods (being respectively from 12 to 20 July and 29 September to 6 October 1988) B he was unlawfully segregated from all other prisoners at the prison in circumstances amounting to effective solitary confinement. In addition thereto, the plaintiff complained that during his detention he had been subjected to unlawful treatment in a number of other ways ('the ancillary complaints'). The ancillary complaints were that the prison authorities (1) had failed to allow the plaintiff to exercise indoors when the weather C did not permit outdoor exercise; (2) had failed to allow plaintiff access to books and magazines (other than study material) from outside the prison; (3) had failed to allow the plaintiff to receive regular newspapers and foodstuffs from outside the prison; (4) had failed to allow D the plaintiff to write and receive more than two letters per week until 28 September, whereafter the plaintiff was allowed to write and receive four letters per week; (5) had failed to allow the plaintiff access to the centrally broadcast radio system, save for the last three weeks when he was hospitalised, or, alternatively, had failed to allow the plaintiff to have and use an FM radio; (6) had failed to allow the plaintiff reasonable access to a television set or to video screenings. E

Preparatory to a consideration of the plaintiff's aforementioned complaints in the Court below, the trial Judge affirmed as a general principle (at 115C-D) applicable to the case before him

'. . . that a person incarcerated in prison retains all such freedoms, rights and liberties as have not been lawfully taken away from him'. F

In regard to the position of prisoners in a gaol, the learned Judge then proceeded to quote (at 115D-J) what he described as 'two classic statements' taken from earlier decisions of this Court. Each of the two judicial utterances is well-known and oft-quoted in this branch of our law. They are, in my view, of such cardinal importance that it is useful G to repeat them in this judgment. To appreciate their proper significance it is necessary to see in what particular context each was made.

The first statement cited by King J comes from the decision in Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92 ('the Whittaker case'). The decision was unanimous but of the five Judges of Appeal who H sat, three (Lord de Villiers CJ, Innes J and Solomon J) each delivered a separate judgment. Whittaker was an awaiting-trial prisoner unable to raise the bail to which he had been admitted. During his detention he was segregated from other awaiting-trial prisoners and kept in solitary confinement. He maintained that in various ways he had been subjected to improper treatment. Morant's case was broadly similar. They instituted an I action for damages against the governor of the Johannesburg Prison and the Director of Prisons. The judgment in their favour by the trial Court was upheld by this Court. The ratio decidendi was that the object of the detention of an awaiting-trial prisoner is to secure his appearance at his trial; that there had been a differentiation between the treatment J accorded to the plaintiffs and that accorded to other awaiting-

Hoexter JA

A trial prisoners which was neither warranted by the prison regulations nor required by the necessities of prison discipline; and that the exceptional severity involved in such discrimination, particularly in the case of Whittaker, had been tantamount to a substantial punishment. The citation by King J is from portion of the judgment of Innes J. Hereunder I shall B slightly shorten the excerpt, and to the quotation thus abridged I shall refer as 'the Innes dictum'. The Innes dictum is couched in the following words (at 122-3):

'True, the plaintiffs' freedom had been greatly impaired by the legal process of imprisonment; but they were entitled to demand respect for what C remained. The fact that their liberty had been legally curtailed could afford no excuse for a further illegal encroachment upon it. Mr Esselen contended that the plaintiffs, once in prison, could claim only such rights as the Ordinance and the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been D placed. They could claim immunity from punishment in the shape of illegal treatment, or in the guise of infringement of their liberty not warranted by the regulations or necessitated for purposes of gaol discipline and administration.'

The second classic statement selected by King J comes from the dissenting judgment by Corbett JA in Goldberg and Others v Minister of E Prisons and Others 1979 (1) SA 14 (A) (to which reference will hereafter be made as 'the Goldberg case'). Goldberg and his fellow appellants were serving long sentences for contraventions of the General Law Amendment Act, 1964, the Suppression of Communism Act, 1950 and the Terrorism Act, 1967. They and other long-term prisoners similarly convicted were held in a special section of the prison set aside for white prisoners sentenced F under the security laws. From the Court of first instance they unsuccessfully sought a ruling that the Commissioner of Prisons ('the Commissioner') had wrongly exercised his discretion in denying them access to radio news and reading matter on current events. By a majority of four to one this Court rejected an appeal against the order of the Court below. G At the hearing of the appeal the relief claimed was restricted, in the main to

'(a)

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'.

H (At 22B.)

During the course of argument appellant's counsel conceded that a prisoner was not entitled as of right under the common law to receive books and periodicals of his choice, and that such right had to be sought in the Prisons Act and Prison Regulations (at 23H), specifically in the provisions of reg 109(4) (at 28H). The question for decision on appeal was I therefore a narrow one. The Court was not concerned with the wider question whether or not the Act and the regulations generally confer any rights upon prisoners which are enforceable by proceedings instituted in a court of law (at 27D). It was held (at 30E) that there were no indications in reg 109(4) that it was intended that prisoners would be entitled as a J matter of right to receive books and papers from outside sources.

Hoexter JA

A Notwithstanding the circumscribed nature of the issue Wessels ACJ, who delivered the majority judgment, embarked upon a fairly wide-ranging discussion of the 'rights' of prisoners. He held that the power of the Commissioner to determine the manner in which prisoners were to be treated necessarily included the power to make separate determinations in respect B of categories of prisoners or individual prisoners; and that provided the Commissioner's decision was not inconsistent with the Prisons Act 8 of 1959, the Prison Regulations, or a judicial order, a Court could not review his decision. The learned Acting Chief Justice decided that, as the...