The Constitutional Court has confirmed a high court order declaring certain sections of the Correctional Services Act were unconstitutional as they undermine the independence of the prisons oversight body.

The non-profit organisation Sonke Gender Justice had approached the apex court to ask it to confirm orders made by the Western Cape High Court in September last year that some sections of the act were unconstitutional to the extent that they failed to ensure the necessary structural and operational independence of the Judicial Inspectorate of Correctional Services (JICS).

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

The same 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.

Before the Constitutional Court, Sonke Gender Justice contended that all three sections undermined the independence of the inspectorate, rendering it subject to the control of the department of correctional services, which it is designed to oversee.

Majority judgment

In a majority judgment penned by justice Leona Theron, the ConCourt found that in enacting sections 88A(1)(b) and 91, parliament had failed to meet the objective benchmarks for institutional independence.

“In light of my finding that sections 88A(1)(b) and 91 fail to ensure an adequate level of independence of the judicial inspectorate, it follows that the state has not acted reasonably and effectively as required by section 7(2) of the constitution,” Theron ruled.

“These sections offend the constitutional obligation resting on the state to establish an independent correctional centre oversight mechanism. The declarations of constitutional invalidity in respect of sections 88A(1)(b) and 91 should accordingly be confirmed.”

Theron did not confirm the high court’s declaration of constitutional invalidity in respect of section 88A(4).

“This is because this section is reasonably capable of a constitutionally compliant interpretation. It bears repeating that the injunction to promote the spirit, purport and objects of the Bill of Rights when interpreting legislation is mandatory,” she said.

The court ordered the declaration of constitutional invalidity was suspended for 24 months to afford parliament an opportunity to correct the defects in the act.

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