PRESS STATEMENT | Constitutional Court confirms unconstitutionality of parts of SA prisons law

Date: 07/12/2020

On 4 December the Constitutional Court handed down judgment in the confirmation proceedings relating to Sonke Gender Justice / President and Others. The Western Cape High Court had, in September 2019, declared certain provisions of the Correctional Services Act 111 of 1998 to be unconstitutional for failing to establish sufficient structural independence for the Judicial Inspectorate of Correctional Services (JICS). Central to the applicant’s argument was that the Bill of Rights and international law envisioned and indeed required a prison oversight body that was resistant to any form of political or other interference. The legislation establishing such an institution must therefore provide such an oversight body with the necessary financial and administrative independence to carry out its functions effectively.

Both the High Court and the Constitutional Court found that the Correctional Services Act fall short of the required standard. It does so because it does not grant JICS the authority to control its own budget and provides that its CEO must account to the National Commissioner for the spending of such funds.

The Constitutional Court’s majority judgment, written by Justice Theron, grounds its findings within the context of the prisoners’ rights and the duties placed on the state by the Bill of Rights in this regard. It is a thorough, well-reasoned judgment that tracks the evolution of prisoners’ rights and the fundamental importance of liberty and dignity in determining the robust protection oversight bodies are to provide.

LHR’s participation in this matter was generously supported by the Claude Leon Foundation.

Link to judgment:

For more information:

Clare Ballard (attorney and Head of Penal Reform Programme at Lawyers for Human Rights –

Kayan Leung (Policy Development and Advocacy Manager, Sonke Gender Justice –; 078 302 7887)

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