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OPINION | Are South African laws failing to keep up with technology?

Denying prisoners access to personal computers in their cells unconstitutional

In his argument against granting inmates' access to computers, correctional services minister Ronald Lamola says syndicates could use the gadgets for criminal activities.
In his argument against granting inmates' access to computers, correctional services minister Ronald Lamola says syndicates could use the gadgets for criminal activities.
Image: ELIZABETH SEJAKE

For all the talk by the government about the fourth industrial revolution (4IR) and the opportunities it brings with, South African laws seem to be outdated and failing to keep up with new technology. In the most recent development on November 8, the Supreme Court of Appeal delivered a crushing indictment on the government’s adaptability to technology when it ruled that barring prisoners from using personal computers in their cells is unconstitutional.

In the groundbreaking judgment, the court ruled that any inmate who is registered to study with a recognised institution of higher learning, and needs a computer to support their studies, will be entitled to use one without a modem in their prison cells. The court found that the current policy which prevents inmates who are registered students from having access to their personal computers was infringing on their rights to further their education.

For starters, the matter was brought before the appeal court by the minister of justice and correctional services, the national commissioner of correctional services and the head of Central Prison Johannesburg. They had appealed against a ruling by the Johannesburg high court that the no-computer in prison cells policy was both unconstitutional and constituted unfair discrimination. The Johannesburg high court had earlier ruled in favour of the complainant, Mbalenhle Sydney Ntuli, who was serving a 20-year sentence for robbery.

It must be said, the move by the minister, the national commissioner and the head of Central Prison Johannesburg was an unnecessary exercise. One would have expected them to know that Section 29 of the Constitution preserves everyone’s right to education. That means the government must ensure access to higher education for all, including prisoners.

But not so to the minister and his two counterparts; if their court challenge is anything to go by. By having insisted with the denial of access to personal computers to the extent of pursuing the matter in the courts, it appears they exist in a parallel universe, divorced from the realities of our times.

In modern times, a personal computer is essential for studying at a university or any reputable institution of higher learning, whether through in-person or online.

In November 2021, while addressing the Black Lawyers Association general annual meeting, minister Ronald Lamola rightly said: “The fourth industrial revolution is here. It is a digital revolution, disrupting daily business and life in virtually every industry, on a global scale”. He concluded by saying: “We cannot succeed to restore trust and transform our institutions, criminal justice system and justice system without adapting to the changes required by the times we live in.”

In the same year, 2021, the minister was quoted as singling out “the Constitution as a catalyst for providing equal access to quality further education”. Speaking at a student dialogue at the University of SA’s Cape Town campus in May, the minister said the government “will enable us as a country to move forward and ensure the country lives to its expectations in terms of the Constitution’s objectives”. How then does one explain the fact that the Constitution allows inmates to have access to education, but the law doesn’t?

In their argument against granting inmates an access to personal computers, the minister of correctional services and the commissioner cited the more predictable reasons. They said allowing prisoners to keep laptops in their cells would create a security threat as syndicates could use the gadgets for criminal activities. This was recently evidenced by the Thabo Bester case, where he was able to run his alleged criminal business empire from inside his prison cell. While this is understandable, one can argue that such a risk is a challenge on the government to use practical measures to counter such crimes from happening.

The decision to appeal the high court’s ruling is regressive and counterproductive. It is only in the best interest of the department and other government departments to realise that the invention of new technology is inevitable, and these technologies are necessary to improve lives. The SCA’s ruling should be a lesson that our laws need to be updated to keep up with the latest technological advancements.

Khangale is a senior lecturer, department of chemical engineering technology, University of Johannesburg. He writes in his personal capacity.

Mathaba is a senior lecturer, department of chemical engineering technology, University of Johannesburg. He writes in his personal capacity.

Mashifana is an associate professor and head of department, department of chemical engineering technology, University of Johannesburg. She writes in her personal capacity.

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