Sonke Gender Justice NPC v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judgment Date: 05 September 2019
• Citation: 2019 (2) SACR 537 (WCC)

Sonke Gender Justice NPC v President of the Republic of South Africa and Others
2019 (2) SACR 537 (WCC)

2019 (2) SACR p537

Citation	2019 (2) SACR 537 (WCC)
Case No	24227/16
Court	Western Cape Division, Cape Town
Judge	Boqwana J
Heard	September 5, 2019
Judgment	September 5, 2019
Counsel	N Bawa SC (with D Simonsz) for the applicant, instructed by Lawyers for Human Rights.; Adv Choudree (with Adv Mdladla) for the first respondent.; MTK Moerane SC (with ED Ndebele) for the second and third respondents.; K Pillay SC for the fourth respondent.

Flynote : Sleutelwoorde

Correctional services — Oversight of — Judicial Inspectorate — Whether Inspectorate as presently constituted complying with requirements of s 7(2) of Constitution — Provisions relating to position of chief executive officer being subject to National Commissioner, and Department being C responsible for all expenditure, inconsistent with Constitution and invalid to extent that failed to provide adequate level of independence to Judicial Inspectorate — Correctional Services Act 111 of 1998, ss 88A(1)(a), 88A(4) and 91.

Headnote : Kopnota

By the time of oral argument in this matter the relief sought by the applicant was D narrowed down to an attack on the provisions of ch IX of the Correctional Services Act 111 of 1998 (the Act). It argued that the Judicial Inspectorate for Correctional Services (JICS), as the primary institution tasked with monitoring and overseeing South Africa's correctional system, lacked the necessary structural and operational independence as constituted at present. It contended that, because of its current structure, it was beholden, or susceptible to being beholden, E to the Department of Correctional Services. In support hereof it cited that the Department was responsible for all expenses of the JICS in terms of s 91 of the Act. This meant, it contended, that it infringed s 7(2) of the Constitution, which obliged the state to create a prison inspectorate that was sufficiently independent to enable it to function effectively, in line with the Constitution and its international obligations. F

Held, that the Constitution did not expressly state that an independent Inspectorate had to be established, neither did it specify what characteristics such a body would encompass. It differed from ch 9 institutions, and even from the Independent Police Investigative Directorate, in this respect. (See [24].)

Held, further, that the most relevant of the international agreements relied upon G by the applicant, namely the Optional Protocol to the Convention against Torture (OPCAT), which was scheduled to come into operation in South Africa in July 2019, envisaged the establishment of a national preventative mechanism, and whether JICS could be viewed as such in South Africa was an arguable point, as the mandate under OPCAT appeared to be far wider than that of JICS. (See [35] and [36].) H

Held, further, in terms of s 88A(1)(a) of the Act the Inspecting Judge had to identify a suitably qualified and experienced person as a chief executive officer (the CEO) responsible for all administrative, financial and clerical functions of the Judicial Inspectorate, and that person was accountable to the National Commissioner. Furthermore, s 88A(4) required any matters relating to misconduct or incapacity of the CEO to be referred by the I Inspecting Judge to said National Commissioner. Section 91 also provided that the Department was responsible for all expenses of the Inspectorate. These provisions were inconsistent with the Constitution and invalid to the extent that they failed to provide an adequate level of independence to the JICS. (See [46], [48], [54] and [79].) The court granted an order to this effect. J

2019 (2) SACR p538

Cases cited

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) A 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; B [2014] ZACC 16): referred to

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): applied

Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC) (2015 (1) BCLR 1; [2014] ZACC 32): referred to

McBride v Minister of Police and Others (Helen Suzman Foundation as Amicus Curiae) C 2016 (2) SACR 585 (CC) (2016 (11) BCLR 1398; [2016] ZACC 30): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

Women's Legal Centre Trust v President of the Republic of South Africa and Others D 2018 (6) SA 598 (WCC): referred to.

Legislation cited

Statutes

The Constitution, s 7(2): see Juta's Statutes of South Africa 2018/19 vol 1 at 1-22

The Correctional Services Act 111 of 1998, ss 88A(1)(a), 88A(4) and 91: E see Juta's Statutes of South Africa 2018/19 vol 1 at 3-98 – 3-99.

Case Information

N Bawa SC (with D Simonsz) for the applicant, instructed by Lawyers for Human Rights.

Adv Choudree (with Adv Mdladla) for the first respondent.

MTK Moerane SC F (with ED Ndebele) for the second and third respondents.

K Pillay SC for the fourth respondent.

An application for an order declaring various provisions of ch IX of the G Correctional Services Act 111 of 1998 unconstitutional.

Order

1.

The application is upheld to the extent indicated in this judgment.

2.

It is declared that ss 88A(1)(b), 88A(4) and 91 of the Correctional Services Act 111 of 1998 are inconsistent with the Constitution and H invalid to the extent that they fail to provide an adequate level of independence to the Judicial Inspectorate for Correctional Services.

3.

In terms of s 172(1)(b) of the Constitution, the declaration of invalidity in para 2 is suspended for a period of 24 months from the date of this judgment, in order to afford Parliament the opportunity I to remedy the defect.

4.

The orders in paras 2 and 3 above are referred, in terms of s 15(1)(a) of the Superior Courts Act 10 of 2013, to the Constitutional Court for confirmation.

5.

The second and third respondents are ordered to pay the costs of J the applicant, including costs of two counsel.

2019 (2) SACR p539

Judgment

Boqwana J: A

Introduction

[1] The applicant, a non-governmental organisation which plays an active role in prison-related work in South Africa's correctional centres, including research, engagements with correctional officials, inmates and B the Judicial Inspectorate for Correctional Services (JICS/the Inspectorate), has brought an application challenging the constitutionality of chs IX and X of the Correctional Services Act 111 of 1998 (the Act), which deal with the establishment of JICS, its structure and its functionality, and the Independent Correctional Centre Visitors (the ICCV), C respectively. In its papers the applicant characterises the attack on the respective chapters of the Act as a 'broad challenge', where a declaratory order is sought that these two chapters are, in their entirety, invalid.

[2] In the alternative, the applicant seeks an order declaring that ss 85(2), 90(1), 88A(1)(b), 88(2), 88A(4) and 91 of the Act are D inconsistent with the Constitution [1] and accordingly invalid. This is described as a narrow challenge.

[3] During oral argument, the applicant's counsel was constrained to abandon the attack on ch X in reply, as it became clear, after submissions made by the second and third respondents' counsel, that no E constitutional inconsistency could be identified from each of the sections contained in that chapter upon their careful examination. Accordingly, there seems to be no escaping the fact that an analysis of the text of each of the remaining impugned sections contained in ch IX, as against the infringed constitutional requirements, is required. This effectively leads F us to the narrow challenge, as there is no point in analysing the text in sections, even in that chapter, that are not being challenged as unconstitutional.

[4] In summary, the applicant's case is that the state is obliged, under G s 7(2) of the Constitution, to create a prison inspectorate with sufficient independence to enable it to function effectively. It alleges that JICS, as the primary institution tasked with 'monitoring and overseeing' South Africa's correctional system, as presently constituted, lacks the necessary structural and operational independence. H

[5] The initial challenge by the applicant also focused on the mandate of the JICS, as described in the Act, as being too limited, in that the Inspectorate lacked legal powers required for it to discharge its functions effectively and maintain its credibility. Indeed, a good portion of the applicant's founding affidavit is devoted to this allegation. This attack, I too, is no longer being pursued; rightly so, as this court would impermissibly interfere with a scope chosen by the legislature, in which JICS has to operate as outlined in the section of the Act dealing with its object, if

2019 (2) SACR p540

Boqwana J

it A were to do what the applicant had initially sought it to do in its broad challenge. The issue now seems to be pointed to the question whether the impugned sections, appearing in ch IX, are inconsistent with the Constitution and therefore should be struck for their invalidity.

[6] B The application had been opposed by the Minister of Justice and Correctional Services (the Minister) and the National Commissioner of Correctional Services (the National Commissioner), who are second and third respondents, respectively, throughout. Surprisingly, very little had come from the President by way of comprehensive opposing papers...