Ongoing battle over prison laptops heads to Concourt

THE issue of studying prisoners using laptops in their prison cells is still ongoing with the Department of Justice and Correctional Services heading to the Constitutional Court to get the last word on the matter.

The apex court must still decide on whether it will entertain the matter in which the department wants to appeal a Supreme Court of Appeal decision in favour of the use of laptops without modems for studying prisoners.

But, with the appeal pending, it suspended the SCA order giving the right to studying prisoners to use their laptops.

This prompted two prisoners – Clinton Kramer and Anton Meyer

– to turn to the Gauteng High Court, Johannesburg, in January to enforce the SCA's judgment while the Constitutional challenge was pending.

They argued that in suspending the SCA judgment, the educational rights of prisoners were trampled on. They said these were exceptional circumstances which warranted the court enforcing the currently suspended judgment.

Acting Judge Alex Pullinger in January ruled in their favour and allowed the use of laptops in the meantime.

But in fighting back, the department again approached the high court in Johannesburg to appeal Judge Pullinger's judgment.

In ruling in favour of the department, three judges ruled that the high court did not have jurisdiction to hear an application to enforce compliance with an order of the SCA.

This means that the use of laptops is yet again on ice, pending the final ruling on the matter by the Constitutional Court. It is not yet known when or if the matter will be heard.

In 2018, prisoner Sidney Ntuli instituted proceedings in the Johannesburg high court against correctional services, challenging the provisions of its policy prohibiting the use of personal computers in prison cells.

Ntuli wished to further his studies and required a personal computer but was not allowed to use one. He argued that the prohibition was unconstitutional and unfairly discriminated against him in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, and infringed his constitutional right to further education.

In September 2019, the court handed down judgment in favour of Ntuli.

The court found that the policy unfairly discriminated against him, and was an unjustifiable limitation of the right to further education of incarcerated persons and therefore inconsistent with the Constitution.

The state parties appealed this judgment in the SCA, which in November ordered that within 12 months the department must, after consultation with the Judicial Inspectorate for Correctional Services, prepare and promulgate a revised policy for correctional centres to allow the use of personal computers in cells for study purposes.

In its reasoning, the court held that the policy that prohibited the use of personal computers in cells infringed the rights of prisoners to further education, where such prisoners required the use of a personal laptop to pursue their studies.

The court also ordered that, pending the revision of the policy, Ntuli and any registered student in a correctional centre be entitled to use their personal computer in their cell, without an internet connection, for as long as they remained a registered student with a recognised tertiary or further education institution in South Africa.

It is against this judgment that the department now intends to appeal.