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The rights of prisoners must be protected, even if we dislike them

Ricardo Teixeira — Mon, 22 Sep 2025 07:17:34 +0000

South Africa is a violent country with a violent history. But in 1994 we reached an accord that holds the country together, based on our common humanity. It is the Constitution, especially its Bill of Rights.

The Constitution is the foundation of this country’s law. It is one of the finest legal documents ever written and we are justly proud of it.

The Bill of Rights applies to every person in the country, saint and sinner. That includes Thabo Bester.

Bester is a murderer, rapist, fraud and con-artist. But his rights and the rights of other people like him in South African prisons are protected by the Constitution, as they must be.

Section 35 of the Constitution says that every prisoner has the right to “conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment”.

Bester and several hundred other prisoners are being kept alone in small cells 23 hours a day, with only an hour to exercise.

The United Nations Office on Drugs and Crime published minimum rules for keeping prisoners. These are known as the Mandela Rules. They define solitary confinement as “the confinement of prisoners for 22 hours or more a day without meaningful human contact”. It may only be imposed in exceptional circumstances. Keeping someone in these conditions for 15 consecutive days is considered torture.

The Jali Commission in 2005 found that solitary confinement “is a product of our past and should not be resorted to as a norm by prison officials in the new democratic order”. The Commission found that “it is commonly accepted that solitary confinement is one of the worst forms of torture that can be imposed on another human being”. The Commission also found no scientific evidence to justify keeping people in these conditions.

Without meaningful human contact, and often without a way to keep the time, prisoners lose track of the days of the week. Their mental and physical health deteriorates. An inspection by the Judicial Inspectorate of Correctional Services of Ebongweni prison in 2021, found all the prisoners in isolation were on antidepressants. (See also The Impacts of Solitary Confinement.)

One does not have to have sympathy for Bester. Some of his many victims no doubt wish him the worst, understandably so. But the Constitution is unequivocal: everyone must be treated with dignity and not to be tortured. Upholding the Constitution, even for people we dislike, is the way to achieve a less violent, more humane society.

The prisoners being kept in these conditions are for the most part extremely dangerous. The state has to keep them in prison to protect everyone else’s rights. But prisoners’ rights should not be restricted more than necessary.

We degrade our society if we allow the state to torture people. Once we start accepting that human rights are for some but not for others, we start a descent into inhumanity.

The law in a constitutional democracy, the best type of state yet invented, is there to protect all of us from unrestrained state vengeance. It applies to you and me. And it even applies to awful people like Thabo Bester.

This article was reposted with permission from GroundUp. The original article can be found here.

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Medical parole system is failing dying prisoners

Guy Martin — Tue, 02 Sep 2025 08:34:59 +0000

Prisoners with terminal illnesses or severe incapacitation due to injury or disease may be released early under South African law. But the process is not evenly implemented, leaving some prisoners, who had hoped to spend their last days with their loved ones, to die in prison.

GroundUp spoke to a prisoner, John (not his real name), who is terminally ill with cancer. He struggles to walk and his eyesight is deteriorating. He says he often has to rely on other inmates to help him with basic tasks.

John is serving a life sentence and has applied for medical parole in a bid to spend his final days with his wife and family. Since applying last year, he says the process has cost him over R140,000 in fees for private doctor assessments, a lawyer, and other expenses.

Louis Snyman, associate attorney at Beyers Incorporated, told us that private attorney fees for the process can run between R20,000 and R30,000. If the prisoner needs to go to the doctor, then transport and security must also be covered, and can run to R50,000.

John says he remains hopeful, though he knows that his chances are slim.

“It’s unbearable to know that my husband is in pain and I am not there to hold him, comfort him, and to take care of him in the way that I promised,” his wife told GroundUp.

Flaws in the system

In the 2024/25 financial year there were 80 medical parole applications, according to Department of Correctional Services (DCS) spokesperson Singabakho Nxumalo. Of these, 27 were rejected, 38 were accepted and 15 applicants died before their applications were finalised. In the preceding three years, there were 214 applications with 91 rejected and a total of 15 deaths.

The Correctional Services Regulations set out six pages of information needed for a medical parole application. The information required should include: doctors’ reports on the prisoner’s health, reports from correctional officers, details of the inmates crimes, and information about what support is available for the prisoner if they are released on medical parole.

The 21 medical conditions considered include infectious diseases such as severe cerebral malaria, non-infectious conditions such as certain stage four cancers, dementia, and cardiac disease with multiple organ failure. Conditions not on the list may be considered with adequate motivation.

Nxumalo says allocating a medical parole application to a Medical Parole Advisory Board is supposed to happen within one day. After the assessments, the board takes this into its monthly meeting and is supposed to inform the correctional centre within three days.

“Medical parole is supposed to be a very straightforward process,” says Snyman.

But in practice, Snyman has found that while some prisons made this process efficient and clear, others caused months of frustration to no avail.

“There’s no uniformity,” he said.

He suspects results depend on trivialities, like whether the inmate is well-liked by wardens or whether a particular staff member is on duty when the application is made.

The first medical parole application he made on behalf of a prisoner was in 2022. The prisoner was confined to either his wheelchair or his bed. Doctors estimated he had about six months to live.

“Modderbee [prison] was quite an experience for me, because everything that the law states was, in my opinion, not followed.”

When Snyman did get a response, it was a PDF with the medical parole outcomes of sixteen cases, not his alone.

“Not one medical parole application was accepted. There was no correspondence. There was no feedback. There was nothing.”

He remembers having to break the news to the family.

He says at the core of medical parole is the belief that South Africans, no matter their crimes, have the right to dignity and healthcare. “They deserve that level of dignity, not to die in a four-by-four steel cell with 20 other people,” said Snyman.

Ministerial review

A review of the overall parole system was announced by the responsible minister back in 2015, in response to “endless litigations due to inefficiencies which led to delays”, according to a recent departmental report on its progress.

The review was recommended for tabling to Cabinet in 2023, but according to the report, the department is “currently engaging internally with the executive authority prior to finalisation”.

The proposed solution is a three-tier system of parole boards, though it is not yet clear how this would affect medical parole.

According to the report, the department is also in the process of changing financial and organisational structures to improve staffing. Five positions on the medical advisory parole board were advertised in several provinces in March 2025. At least one member per province must be in place for the functioning of the board.

Poor outcomes

An official at the prison oversight body, the Judicial Inspectorate for Correctional Services (JICS), speaking anonymously, told GroundUp the prison “environment significantly contributes to deteriorating health among inmates, particularly those who enter the system with terminal or chronic illnesses, which tend to worsen during incarceration”.

“For those with legitimate needs, being denied parole can lead to frustration, hopelessness, and behavioural issues within the facility, which also affects staff morale and operations.”

The official said that in recent months, new requirements, not yet public, including a formal risk assessment for inmates, have been added, further slowing down the process.

Dr Chesné Albertus, senior lecturer at the Department of Criminal Justice and Procedure at the University of the Western Cape, said one of the flaws in the current law is that it largely relies on the written recommendations of a correctional medical practitioner, rather than a more thorough independent confirmation.

“Room for error and unfair outcomes are possible as a result.”

She said the exact powers and functions of the Medical Parole Advisory Board also need clarification.

Albertus believes that the reason for the low number of successful applications may be in part because of the shortage of medical professionals in the correctional system.

Secondly, medical practitioners on the medical parole advisory board may be overly cautious, especially because prisoners whose health happens to improve do not need to return to prison.

She said prisons in South Africa rarely do a good job of offering palliative care to dying inmates.

Written by Elna Schütz for GroundUp and republished with permission. The original article can be found here.

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Transgender prisoners challenge prison authorities

Guy Martin — Thu, 07 Aug 2025 13:19:41 +0000

Lawyers for Human Rights is representing a prisoner with the initials NM, a transgender woman serving a long-term sentence in Johannesburg Correctional Centre, who has taken the Department of Correctional Services to court.

For over five years, NM has been requesting gender-affirming healthcare, such as hormone treatment, recommended by Department of Correctional Services (DCS) psychiatrists. She has now approached the Gauteng High Court and the Equality Court to get an order directing the prison authorities to provide this as primary health care.

Her situation is similar to that of Jade September, a transgender woman imprisoned in the male section of Pollsmoor, who won her 2019 case in the Equality Court against the Minister of Correctional Services and others.

The Equality Court ruled that not allowing September to express her gender identity was unfair discrimination.

Standard operating procedures

The judge gave correctional services several options for reasonably accommodating September within two months and ordered DCS to introduce transgender sensitivity training for all employees within a year.

This included putting standard operating procedures (SOPs) in place for LGBT+ prisoners.

The SOP outlines how prisoners should be admitted, including an assessment of the safety risk they may face, which needs to be completed in the first six hours.

The SOP explains how searches and body cavity searches are to be conducted respectfully on LGBT+ prisoners. It also states that transgender men and transgender women should be detained or transported only with other transgender men or transgender women respectively.

The document also describes how LGBT+ prisoners should be communicated with. For instance, staff are strongly encouraged not to assume someone’s gender identity and to respect it once clear.

Alleged problems with implementation

Sanja Bornman, an independent gender law and policy specialist who represented September at the time of the case for LHR, says that the way prisoners were treated improved significantly after the court order. But the effects were not far-reaching or long-term.

“Over time, it became clear that officials held the mistaken belief that the order only applied to Ms September, and not all transgender inmates,” Bornman says. “Even the improved treatment of Ms September was not fully sustained.”

Bornman notes that legal interventions on behalf of transgender prisoners were needed several times after the judgment. For instance, LHR had to write to the correctional service facility repeatedly to remind officials to uphold the order and to extend accommodations to all transgender prisoners.

Belinda Qaqamba Makinana, legal and health programmes manager at Gender Dynamix, which acted as a friend of the court in the September case, says that the harassment frequently comes from DCS staff not other prisoners.

“We know that besides these two cases, there are many other transgender women in various prisons in South Africa who still face violence,” says Makinana.

Gender Dynamix was involved in the process of developing the SOP. Makinana said the SOP is often not implemented as it should be.

“I think definitely there needs to be more sensitisation work within prisons to be a safer space, and South Africa must perhaps take a bolder step in terms of the ways in which they want to accommodate transgender people.”

DCS spokesperson Singabakho Nxumalo confirmed that it is a disciplinary offence for a prison official to discriminate against a prisoner on the basis of their gender or sexuality, or to display disrespect.

“DCS continues to sensitise its officials around protecting and securing human rights of lesbian, gay, bisexual, transgender and intersex inmates,” he said.

A report last year by the Commission for Gender Equality states that while SOP around LGBTQIA+ prisoners is in place and was developed with care, its implementation remains concerning.

Written by Elna Schütz for GroundUp and republished with permission. The original article can be found here.

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Prisoners can use computers to study in their cells, says Constitutional Court

Guy Martin — Fri, 09 May 2025 06:23:45 +0000

In a unanimous ruling, the Constitutional Court has declared that barring prisoners from using personal computers 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 personal 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 30 April’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 and 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.

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 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 cell phones 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,” Justice 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 personal computer 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.

The Judicial Inspectorate for Correctional Services, which was admitted as an 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 personal computer at all times in a cell – Justice 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 personal computers for educational purposes.

“Nothing in this judgment should be regarded as expressing a view on the justifiability of restrictions on the use of personal computers in cells for any other purpose.”

Written by Tania Broughton for GroundUp and republished with permission. The original article can be found here.

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A hundred thousand plus prisoners preparing for release

Guy Martin — Tue, 05 Nov 2024 08:26:25 +0000

Over half of South Africa’s roughly 160 000 plus prisoner population are in programmes to aid their return to civilian life.

The programmes, Parliamentary questioner Janho Engelbrecht, a Democratic Alliance (DA) National Assembly (NA) public representative heard, range from life skills through to spiritual care and workplace skills.

Numbers-wise, as at 1 September Gauteng has the highest number of prisoners – 22 188 – in programmes, Correctional Services Minister Pieter Groenewald told his questioner.

Three provinces – Limpopo, Mpumalanga and North West – account for 18 236 of the 100 979 prisoners nationally in programmes. Other provincial numbers are KwaZulu-Natal (17 444), Free State and Northern Cape (14 794), Western Cape (14 184) and Eastern Cape (14 133).

The Department of Correctional Services (DCS) employs 75 psychologists to “render services” that will allow released prisoners to leads “socially responsible and crime-free lives”. In similar vein DCS has at its disposal 602 social workers doing the same on a different level.

All told, psychologists, social and spiritual care workers lead 18 DCS programmes aimed at returning well-adjusted people to society once released.

DCS runs 13 non-therapeutic correctional programmes to create awareness and provide information on life skills.

Groenewald’s department has partnered with the Department of Higher Education and Training (DHET), the Quality Council for Trades and Occupation (QCTO), sector education and training authorities (SETAs) as well as external private sector training providers to ensure offender access to what are termed “market related development programmes” to further assist with rehabilitation.

In-house DCS educators have completed Department of Basic Education (DBE) training in examination administration, management and monitoring.

In another parliamentary reply, Groenewald elaborated further on educational opportunities for prisoners. The DCS offers pre-release programmes to offenders serving 24 months or more. Prisoners working in workshops, bakeries and farms acquire skills to contribute to their social functioning, while prisoners wishing to further their studies can leave with Grade 12 or similar qualifications.

Vocational training opportunities available within certain DCS facilities include construction, food and cooking, agriculture, textile, beauty, computer, auto mechanical, and business related programmes.

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Ten per cent of released prisoners re-offend

Guy Martin — Thu, 17 Oct 2024 07:43:03 +0000

Just on 10% of the close to 176 000 prisoners released in South Africa over the past five years re-offended, the Minister of Correctional Services has revealed.

Janho Engelbrecht, representing the Democratic Alliance (DA) in the National Assembly, was given the numbers by Correctional Services Minister, Pieter Groenewald, the lone Freedom Front Plus (FF+) representative in President Cyril Ramaphosa’s government of national unity (GNU) seventh administration Cabinet.

Annually, in the last five years the single largest number of prisoners let out of jail was in 2019/20 when 43 304 sentenced offenders were released. That year also had the largest number of re-offenders – 7 832. On the other end of the stick the full year with the least released offenders – 28 000 – was 2021/22 with it recording the second lowest re-offender number – 1 617.

The lowest re-offender number “award” belongs to 2020/21 with 1 426 in a year when previous Correctional Services Minister Ronald Lamola, who also had the Justice Ministry in his portfolio, authorised the release of 30 195 prisoners.

This year figures for the April-August period show 11 891 prisoners released and 866 of them nabbed as re-offenders.

All told, in the timeframe requested by Engelbrecht, 175 975 prisoners were allowed out of jail with 17 035 of them either back behind bars or awaiting/undergoing trial after re-offending.

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Correctional Services addresses parole application backlog

Guy Martin — Tue, 15 Oct 2024 19:48:31 +0000

Minister of Correctional Services, Dr Pieter Groenewald, has concluded the backlog of parole applications for inmates who are serving life sentences.

This is according to the Department of Correctional Services (DCS).

“The Minister of Correctional Services, Dr Pieter Groenewald, committed to completing the backlog…by 15 October and has successfully processed these applications well ahead of the deadline.

“All profiles, including the inherited backlog of 495 cases and 104 new cases, a total of 599, have been concluded by the Minister as of 3 October 2024,” the department said.

The department explained that the Minister “approved 23 parole applications and has granted one case of day parole”.

“Three individuals serving life sentences have been granted parole and are subject to deportation, two of whom are citizens of Mozambique and one of whom is a citizen of Zimbabwe.

“The Minister made the undertaking to the Portfolio Committee on Correctional Services to give feedback on the 15th of October. However, the Chairperson indicated that it will form part of the agenda for the next meeting,” the department said.

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Action Society calls for immediate parole reform to keep violent criminals out of communities

Guy Martin — Wed, 02 Oct 2024 09:32:13 +0000

Civil rights organisation Action Society has raised concerns about ‘fatal flaws’ in the parole system, warning that large percentages of parolees go unmonitored and continue to commit serious, violent crimes.

During a recent briefing by the Department of Correctional Services, one of the members of the committee brought up the fact that up to 40% of parolees go on to reoffend and commit serious crimes. These crimes include rape, murder, assault and robbery. “With shocking crime stats still fresh in our minds, it is harrowing to realise how many of these crimes would have been avoided if dangerous parolees had been kept off the street,” said Action Society spokesperson, Juanita du Preez.

“To make matters worse, last year SAPS revealed that they do not keep records of parolees nor are they aware of their whereabouts. These shocking facts were revealed in a two-page response in August last year on a request for access to information that Action Society sent to the South African Police Service (SAPS) on 18 January 2023,” the civil rights organisation said.

“In August last year, President Ramaphosa granted a special remission, resulting in the release of approximately 14 651 offenders, both conditionally and unconditionally, and the freeing of an estimated 20 855 probationers and parolees. This decision, taken in the absence of a robust and accountable criminal justice system, underscores the need for comprehensive reforms in our approach to law enforcement and criminal justice. In the meantime, strengthening community engagement and empowering provinces to manage their own policing can provide immediate relief and a path forward to a more secure and just South Africa,” Action Society said.

“We believe that the overhaul of the parole system is one of the key points that should receive immediate attention in the fight against crime. Dangerous offenders cannot even be considered for parole. The current parole system doesn’t lead to rehabilitation, it leads to reoffenders and this cannot be allowed. The parole system is being abused to cheat justice. There needs to be reform and change to keep the people of South Africa safe and we hope that this committee will take these matters seriously and come up with effective solutions,” said du Preez.

Another concern raised was medical parole acting as a type of ‘get out of jail free card.’ According to some members, inmates who are released on medical parole after being declared ‘terminally ill’, oftentimes completely slip out of the system and are found years later to be back in society and completely healthy. Former president Jacob Zuma is an obvious example, Action Society pointed out.

The Committee all agreed that parolees that reoffend is one of their biggest challenges. They also said that they will involve the Minister of Justice and promised that any new legislation or changes to legislation will be done in the next 24 months so that they do not fall behind.

“We urge the committee not to delay for 24 months, but to prioritise the parole issue for the next 12 months,” Action Society concluded.

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