Minister of Justice v Hofmeyr

• Jurisdiction: South Africa
• Citation: 1993 (3) SA 131 (A)

Minister of Justice v Hofmeyr
1993 (3) SA 131 (A)

1993 (3) SA p131

Citation	1993 (3) SA 131 (A)
Court	Appellate Division
Judge	Hoexter JA, Smalberger JA, F H Grosskopf JA, Goldstone JA and Nicholas AJA
Heard	February 15, 1993
Judgment	March 26, 1993

Flynote : Sleutelwoorde F

Prison — Conditions of detention in — Principle that prisoner retains G all personal rights save those abridged or proscribed by law — Extent and content of prisoner's rights to be determined by reference not only to relevant legislation but also by reference to his inviolable common-law rights — Although extent to which prisoner's personal rights curtailed dependent upon reason for his detention and legislation applicable to him, principle as matter of logic and of legal principle applicable to every H prisoner irrespective of reason for his detention — In identifying prisoner's basic rights, test based upon distinction between 'comforts' and 'necessities' of little value as line of demarcation between concepts blurred and acutely dependent upon particular circumstances of case — Detention of prisoner in conditions amounting to effective solitary I confinement constituting an infraction of his basic rights, involving an aggression upon his right to bodily integrity, and in particular a trespass upon and violation of his right to mental and intellectual well-being.

Prison — Detention in prison in terms of Emergency Regulations made in terms of Public Safety Act 3 of 1953 — Conditions of detention — J Legality of — Detainee held for several months in conditions

1993 (3) SA p132

A amounting to effective solitary confinement — Such constituting an aggression upon detainee's right to bodily integrity, involving in particular a trespass upon and violation of his right to mental and intellectual well-being — Minister of Justice relying on defence of statutory justification, in particular reg 3 of Prison Emergency B Regulations made in terms of Act 3 of 1953 as promulgated in Proc R98 of 10 June 1988, which provides that 'as far as . . . practicable in the opinion of the head of a prison . . . detainees shall be segregated from sentenced and other categories of unsentenced prisoners' — Commanding officer of prison however abdicating his discretion in this regard and C leaving decision as to whether detainee should be held in isolation to security police — Commanding officer in addition having adopted unfounded stance that reg 3 has punitive purpose, whereas in reality enacted primarily in interests of detainees themselves — Commanding officer having acted unlawfully — Defence of statutory justification not D established.

Delict — Unlawful detention — Onus of proof — Courts having adopted rule that such infractions prima facie illegal — Once unlawful detention admitted or proved, onus accordingly on defendant to allege and prove existence of grounds of justification.

E Delict — Injuria — Unlawful detention — Animus injuriandi — Although dolus an element of iniuria, in cases of injuriae involving constraints on personal liberty, wrongdoer's legal liability can exist in absence of appreciation of wrongful nature of his act — This principle a satisfactory one established in long line of judicial precedents and should not be upset for not being in accordance with principles of F Roman-Dutch law.

Headnote : Kopnota

Although the extent to which imprisonment will make necessary inroads upon a particular prisoner's personal rights will depend upon the reason for his detention and the legislation applicable to him, the principle that a person incarcerated in prison retains all his personal rights save those G abridged or proscribed by law should as a matter of logic and legal principle apply to every prisoner in a gaol, irrespective of the reason for his detention. Accordingly, the extent and content of any prisoner's rights are to be determined by reference not only to relevant legislation but also by reference to his inviolable common-law rights. In seeking to identify a prisoner's basic rights, the test based upon the distinction between 'comforts' and 'necessities' is of little value because the line between the concepts is a blurred one, acutely dependent upon the particular circumstances of the case: an ordinary amenity of life, the H enjoyment of which may in one situation afford no more than comfort or diversion, may in a different situation represent the direst necessity. The detention of a prisoner in conditions amounting to effective solitary confinement constitutes an infraction of his basic rights: it involves an aggression upon his right to bodily integrity, and in particular a trespass upon and a violation of his right to mental and intellectual well-being.

I The dicta in Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92 at 122-3 and Goldberg v Minister of Prisons and Others 1979 (1) SA 14 (A) at 39C-E and 41F-H followed.

In actions for damages for wrongful arrest or imprisonment the Courts have adopted the rule that such infractions are prima facie illegal: once the arrest or imprisonment has been admitted or proved it is for the defendant to allege and prove the existence of grounds in justification.

Although it is clear that without dolus an action for injuria would lie J neither in Roman nor

1993 (3) SA p133

A in Roman-Dutch law, in a limited class of injuriae, in which are included cases involving false imprisonment, the current of precedent has flowed strongly in a different direction: with this class of delicts dolus remains an ingredient of the cause of action but in attenuated form, in the sense that it is no longer necessary for the plaintiff to establish that the wrongdoer was conscious of the wrongful nature of his act. The delictual principles that govern liability for the infliction of unlawful bodily restraint, touching as they do the liberty of the subject, are of vital importance. The Court should accordingly not attempt to reverse this B development - though not in accordance with Roman-Dutch principles, it embodies a correct statement of our modern law and has practical consequences which are both sensible and just.

The dictum in Smit v Meyerton Outfitters 1971 (1) SA 137 (T) at 139C-D approved and applied.

The plaintiff was arrested in terms of reg 3 of the Emergency Regulations made in terms of the Public Safety Act 3 of 1953 as promulgated in Proc R C 96 of 11 June 1987, and thereafter detained in prison until 6 October 1988. The above-mentioned reg 3 expired on 10 June 1988 and plaintiff's further detention was pursuant to reg 3 of the Security Emergency Regulations of 10 June 1988. After his release plaintiff instituted an action in a Provincial Division for damages to the amount of R100 000, contending that he had been treated in a manner which involved an aggression upon his person and an unlawful infraction of his personality D rights. The Court a quo awarded R50 000 damages. The defendant appealed against the whole of the judgment.

The plaintiff's chief complaint was that, save for two brief periods of about eight days each, he had been unlawfully separated from all other prisoners in circumstances amounting to solitary confinement. In addition, he said, he had been subjected to unlawful treatment in a number of other ways: the prison authorities had failed to allow him (1) to exercise indoors when the weather did not permit outdoor exercise; (2) access to E books and magazines from outside the prison; (3) to receive regular newspapers and foodstuffs from outside the prison; (4) to write and receive more than two letters per week; (5) access to the centrally broadcast radio system (save for certain periods), or to have and use an FM radio; and (6) reasonable access to a television set or to video screenings. In regard to the plaintiff's main complaint (effective solitary confinement), the defendant relied on the defence of statutory justification, in particular on the provisions of Prison Emergency F Regulation 3 promulgated in terms of the Public Safety Act in Proc R98 of 10 June 1988 ('reg 3'), Security Emergency Regulation 3(8) and reg 132(2) of the Prison Regulations. The first mentioned regulation provides: 'as far as . . . practicable in the opinion of the head of a prison . . . detainees shall be segregated from sentenced and other categories of unsentenced prisoners'. It was contended for the plaintiff that the prison authorities, and particularly the head of the prison, major G, had abdicated their discretion in favour of the security branch of the South G African Police, which had been allowed to dictate the conditions of plaintiff's detention, so that the discretionary powers conferred upon major G as head of the prison had in substance been exercised by the security branch; that prison officials had failed to apply their minds to the matter in that they had adopted rigid policy considerations which they had blindly followed, particularly with regard to what segregation meant in the context and whether segregation was practicable or not in plaintiff's case. The Court, having held that the conditions under which H the plaintiff had been detained amounted to an infraction of his basic rights, went on to the question of whether the defendant had established the defence of statutory justification.

Held, that the finding of the Court a quo that the security police had made the decisions as to whether or not the plaintiff was to be held in segregation and that major G had failed to apply his mind to the matters which, in terms of reg 3, he was legally obliged to apply his mind to, was I correct.

Held, further, that major G had in fact had no real inkling of the nature of the discretion entrusted to him, erroneously believing that the segregation provided for in reg 3 had a punitive purpose, for which belief there was no grounds, the...