Published Date: April 23, 2020

The spread of the novel COVID-19 in South Africa has prompted the government to intensify its efforts in assisting the most vulnerable people in our country including the provision of recent financial reliefs. When talking about “poor living conditions” during this COVID-19 period, the prime focus has dominantly been about the squatter camps, hostels and other informal settlements. The reason for this is obvious enough considering that the virus is most likely to have devastating effects in such areas.

Surprisingly, for a country whose constitution protects “everyone”, not much has been said about the rights, measures and systems implemented to protect prisoners from the spread of the virus. This is certainly a cause for concern given the living conditions, in addition to other challenges, which make prisoners top the list of the most vulnerable members of public. It is only now that the number of infections in prisons are on the rise that the prisons are getting some attention.

The statistics to date show that the infections continue to be on the rise in our prisons: in the Eastern Cape, there are 87 reported cases (workers and inmates); Western Cape, 20 officials and 1 prisoner; Sun City has recorded 1 case too.

In total, as reported on 21 April 2020, there are 114 reported cases in prisons, across. It then becomes necessary to look into the prisoners’ rights and legal course they might have in case they are infected as a result of the inadequacy of measures implemented by the government, etc.

Rights and recourse for prisoners

The Constitution of the Republic of South Africa, 1996, is our supreme law in the country and it specifically stipulates that all the rights and the protection thereof applies to “everyone” and thus include prisoners.

Section 7 of the Constitution states that the Bill of Rights enshrines the rights of “all people in our country and affirms the democratic values of human dignity, equality and freedom”. It goes on to state that the State “must respect, protect, promote and fulfil the rights in the Bill of Rights”. Based on this, the prisoners enjoy the rights as provided in our Bill of Rights and, in addition, the State has an indispensable duty to ensure realization of these rights.

Section 9 provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms.

Other relevant rights such as:

  • right to inherent human dignity (Section 10);
  • right to life (Section 11);
  • right to freedom and security of the person which includes, amongst others, not to be treated in a cruel, inhuman and degrading way (Section 12);
  • right to an environment that is not harmful to their health or well-being (Section 24);
  • right to have access to health care services (Section 27), etc.

Additionally, Section 35 is specifically dedicated to the arrested, detained and accused persons. Section 35, further to other protection provided, stipulates that every detained person, including a prisoner, has a right to conditions that are consistent with human dignity, including and at the State expense, provision of adequate accommodation, nutrition, medical treatment, etc.

Similar to everyone in the country, prisoners have a right to enforce their rights in case of breach and be afforded similar protection by our courts. In S v Makwanyane & Another, the Constitutional Court acknowledged the fact that the prisoner’s dignity is inevitably compromised but it emphasized that the person does not lose his/her rights on entering prison. It specifically mentioned that the person retains all his/her rights, subject to limitation (like everyone’s rights).

In a famous case of Lee v Minister for Correctional Service, Mr Lee successfully sued the government for damages after he contracted TB during his 5-year imprisonment. The constitutional court found the government liable because, amongst other reasons, the living conditions were unsuitable, and they allowed easy and quick transmission of the disease.

From the above and other sources of law, it is apparent that the prisoners enjoy the legal rights in a similar way to everyone, albeit with obvious inevitable limitations. This then allow prisoners to institute legal action where their rights are being violated. The living conditions in our prisons have always been a subject of major criticism; the immune system of most inmates are certainly not as resistant to viruses such as coronavirus; the confined, unhygienic and overcrowded environment makes it “healthy” for the virus to spread at a rapid speed.

With the infections continuously increasing, the government and, particularly the Minister of Justice and Correctional Service, is at peril of legal claims being brought forward against him, at his official capacity. Considering the easy and quick transmission of the virus specifically in an environment such as prison, the said claims will most likely come in big numbers (due to mass infections) – which may greatly inconvenience the aforesaid minister in various ways. Despite the fact that the success of each claim will be bound upon its facts and circumstances, it will most likely be an “impossible mission” for the government to disprove negligence in such matters – for the very same fact of the inhumane living conditions in our prisons.

It will be vital for the government to speed up processes to ensure safety of the inmates against the COVID-19 failing which it may be sued for negligently causing the inmates to be infected. Equally important is to ensure that treatment and quarantine/isolation facilities for those already infected are up to standard. Although some measures and restrictions have been made (e.g. no visitors allowed), further effective measures need to be implemented as soon as possible.

We have already seen protests by prisoners in Baviaanspoort Correctional Centre as prisoners complained of inadequacy of measures implemented to curb spread of COVID-19. The other concern is an ongoing looting and breaking of lockdown regulations which will add further problems for the prisons as they will be even more crowded. This requires strategic plans including revisiting of administration books to re-evaluate whether certain qualifying inmates can be released, etc.

Although the rights are subject to limitation, it will not be easy for the government to escape liability when dealing with such claims. Notwithstanding the fact that prisoners should, in principle, be able to litigate like everyone else, the possible stumbling block is that as a prisoner when instituting a claim against the Minister of Justice and Correctional Services, you are essentially asking an official who may be a perpetrator and who is employed by the same entity as the perpetrator to assist you.

Other challenges are logistical issues and the disinclination of most legal practitioners to assist. The human rights lawyers have, however, been key in assisting prisoners. Given the risks of attracting legal claims, the government will need to act swiftly to avoid a possible “flood of claims” against the relevant Minister.