Is there a need to confirm a high court judgment which held that the judicial inspectorate of correctional service (JICS) did not have sufficient independence to perform its functions?

This is the question that was in the Constitutional Court judges’ minds on Tuesday when  they heard an application by Sonke Gender Justice.

Sonke wants the court to confirm orders made by the Western Cape high court in September last year that some sections of the Correctional Services Act were unconstitutional to the extent that they failed to ensure the necessary structural and operational independence of JICS.

JICS is a statutory body tasked with inspecting and monitoring prisons in SA to ensure they comply with human rights standards established in the act.

The high court held that section 88A(b) was unconstitutional.

The section states that the CEO of JICS is accountable to the national commissioner of the department of correctional services for all monies received by the inspectorate.

The court also declared unconstitutional a section which stated that any matters relating to the misconduct of the CEO of the inspectorate must be referred to the national commissioner by the inspecting judge.

Nazreen Bawa SC, for Sonke, told the court JICS should have sufficient independence, such as the one the court dealt with in cases involving the Independent Police Investigative Directorate and the Hawks.

These judgments ensured the bodies were sufficiently independent to perform their function.

However, Justice Chris Jafta asked Bawa whether she would say the Constitutional Court was independent.

Jafta said the Constitutional Court had a court manager, a registrar and researchers who were accountable to the department of justice.

Jafta asked whether the appointment of these staff members, who are public servants, meant the court was not independent.

Bawa said the situation was different because the department of correctional services had control of the finances of the inspectorate, whose job is to oversee the department. 

Jafta said what was important was the protection of the independence of the inspecting judge, not the support staff.

Justice Mbuyiseli Madlanga said JICS was headed by the independent judge, and that the CEO was under the “control and authority” of the inspecting judge and staff performed functions as directed by the inspecting judge.

Madlanga asked what lack of independence the organisation was complaining about. “Our jurisprudence never called for absolute independence. To me, this lack of independence seems to be too attenuated,” Madlanga said.

Bawa said the very department which was being overseen by the inspectorate should not be in charge of the inspectorate’s finances. She said if the inspectorate controlled its budget, this would protect the independence of the inspectorate.

Nick Ferreira, for the inspecting judge, said the inspecting judge for correctional services abided by the decision of the court.

“You cannot effectively oversee in circumstances where you need to go cap in hand to request funding from the department you are supposed to oversee,” Ferreira said.

The court reserved judgment.