In a unanimous ruling, the constitutional court has declared that barring prisoners from using PCs in their cells for studying is unconstitutional.

The court ordered that the constitutional invalidity be suspended for a year and directed the national commissioner of correctional services to promulgate a revised policy.

Pending that, the court said that any inmate registered as a student with a recognised tertiary or further education institution and who reasonably needs a computer to support their studies, would be entitled to use their PC in their cell, but without the use of an internet modem.

Such inmates would be required to make the computer available for inspection at any time. In the event of a breach of rules and after considering representations from the inmate, the head of a correctional centre may direct that the inmate may not use their computer in their cell.

Wednesday’s order is to a large degree the same as a ruling handed down by the supreme court of appeal, which, in November 2023, also found that the blanket ban was unconstitutional.

That order was taken on appeal by the minister of justice & correctional services and the national commissioner of correctional services.

Justice Steven Majiedt, who penned the constitutional court ruling, said the issue in the matter was the right to further education. He said the blanket ban emanated from a departmental policy approved in February 2007.

Factual matrix

The initial challenge to it was launched in the high court by Mbalenhle Sydney Ntuli, represented by Lawyers for Human Rights, who was serving a 20-year sentence for robbery. Ntuli had complained that he was struggling to complete his data processing course because he could not work from his cell where he spent most of his time.

While conceding that prisoners had a right to further education under section 29 of the South Africa’s Bill of Rights, the minister and commissioner argued that allowing prisoners to keep laptops in their cells would create a security threat.

Justice Majiedt said it was common cause that Ntuli had since passed and graduated. “Almost the entire factual matrix is undisputed,” he said.

After Ntuli had been transferred to Medium C from Medium B, his laptop was taken away and he was told to use the computers in the computer room. However, the computer room was only open during certain hours, only occasionally at weekends and never on public holidays. It was exceptionally noisy.

Ntuli said he was being deprived of sufficient time to study.

The minister and the commissioner, in opposition to the application, expressed concern that inmates might smuggle modems into their cells or use illegal cellphones to create hotspots.

“The high court took the view that the applicants had not provided any evidence that, where computers have been allowed in cells, even with a modem, there had been any security breach,” Majiedt said. “It further held that the respondent had the right to study as much as he pleased, within the legitimate limitations that prison life inevitably presents.”

In the first appeal, the SCA held that the policy infringed the right to further education.

In the constitutional court, the minister and the commissioner argued that Ntuli was not being divested of his right to further education, but that the right was merely being regulated in a reasonable manner.

Ntuli had only been allowed to use his computer in his cell in Medium B because there was no computer room at that time. Their security concerns were justifiable and the court should not “second guess” the authorities on this issue.

Ntuli’s lawyers, however, argued that the policy is antiquated, that a PC was critical to success in his field of study, that electronic versions of books cost less than hard copies and that downloading study materials from the website was much faster than the conventional postal service.

Not disputed

The judicial inspectorate for correctional services, which was admitted as amicus curiae (friend of the court), submitted that in terms of international law, South Africa was obliged to adopt and implement education policies that meet the needs of incarcerated persons to be part of an equal, fair and just society.

The policy should not unreasonably infringe the rights to education by prohibiting the use of necessary tools.

Justice Majiedt said: “Incarceration does not take away or limit fundamental rights like education, dignity and access to reading material.”

He said the virtues of education had rightly not been disputed. “We are concerned here with a limitation of the right of a person pursuing further education to have access to electronic study material. It matters not that the person is an inmate, because he enjoys all the rights accorded to non-inmates, save as they are reasonably limited in consequence of his incarceration,” he said.

“The duty of the state is to remove barriers to education and actively allow access to necessary resources to realise the right to education.”

The blanket ban limited that right, he said.

Regarding the justification for the limitation – that the right to further education does not mean having a PC at all times in a cell – Majiedt said: “The simple answer to this is that access to the computer room is wholly inadequate and in effect boils down to an unjustifiable limitation.”

Regarding fears of security breaches, he said this “attempted justification does not get out of the starting gate”, because the minister and commissioner had not produced evidence to back up their claims.

“There is simply a glaring dearth of evidence to substantiate these security concerns. That is not what is expected of those responsible for the policy,” he said, which applied to “all and sundry” without any regard whatsoever to personal circumstances and study needs.

He said the minister and the commissioner had complained that the SCA had “ventured into the exclusive policy terrain of the executive”.

“This argument is ill-conceived. Courts have a constitutional duty, as a check and balance on executive power, to determine the constitutional validity of any law or conduct. They (the minister and the commissioner) do not have unfettered power to implement policies which undermine the constitution.”

Justice Majiedt said the case was only concerned with the rights of prisoners to PCs for educational purposes.

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