Prisoner computer ban struck down

Correctional Services has 12 months to revise the current policy

By Tania Broughton

8 November 2023

Banning prisoners from using computers in their cells for their studies is unconstitutional, appeal court rules. Graphic: Lisa Nelson

The Supreme Court of Appeal has ruled that barring prisoners from using personal computers in their cells is unconstitutional and contrary to their right to further education. The court also ordered the Minister of Justice and Correctional Services and the Commissioner for Correctional Services to revise the policy within 12 months. This must be done in consultation with the Judicial Inspectorate for Correctional Services.

In the meantime, the court ruled, any prisoner who is a registered student at a recognised tertiary institution and needs a computer to support their studies, will be entitled to use one without a modem in their cells.

However, the prisoner must make the computer available for inspection at any time and any breach of the rules by any individual prisoner may result in the computer being withdrawn.

The matter was brought before the appeal court by the Minister of Justice and Correctional Services, the National Commissioner of Correctional Services and the Head of Central Prison Johannesburg, against a ruling by the Johannesburg High Court that the no-computer in cells policy was both unconstitutional and constituted unfair discrimination.

The case was launched on behalf of Mbalenhle Sydney Ntuli 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.

In the unanimous SCA ruling on Wednesday, Acting Judge David Unterhalter said the parties agreed that prisoners should be permitted to further their education. That, he said, was good in itself. “It promoted self-development and used time fruitfully.”

The dispute was how it should be done, and whether the state may prevent Ntuli, and others, from using their personal computers in their cells.

Judge Unterhalter said the outright prohibition of the policy was an infringement of Ntuli’s right to further his education. “Mr Ntuli’s is a particularly clear case of infringement because access to a computer is so intrinsic to computer studies. There may be other courses of study where this is less so.

“But I observe that ever more educational materials are available in electronic form, and such materials are most conveniently and economically accessed on a computer,” the judge said.

“Course work is now routinely composed and submitted electronically. I have found that the right to further education includes the right effectively to pursue that education. If a prisoner has a personal computer, it is a tool of indispensable value in the pursuit of many courses of further education,” the judge said.

He said this did not mean that the state was under any obligation to provide prisoners with computers or that every course required the use of a computer in a cell.

He said the minister’s justification for the policy - to maintain security in prisons - was a matter of great importance and necessary for the welfare of prisoners, officials and the public at large. “The particular risk identified and relied upon by the appellants is that a personal computer, even without a modem, may be paired with a cell phone to secure access to the internet and email.”

“Prisoners who have smuggled cell phones into prison already have unauthorised access to the outside world. Whatever security risk that poses is already in place. So the question is: how much additional risk comes about because of the access that certain prisoners would enjoy to personal computers in their cells? That is unanswered in the papers,” he said.

Judge Unterhalter said the high court was correct in recognising the constitutional infringement, but as it had not been sitting as a designated equality court, it should not have pronounced on the issue of discrimination.

The judge said that the Judicial Inspectorate for Correctional Services, admitted as an amicus curiae (friend of the court) and given its interest in this case, should be consulted in drafting the revised policy.

During the 12 months, prisoners such as Ntuli, should not continue to be deprived of their rights. “The interim remedy is fashioned to recognise the right of prisoners to make use of their personal computers in their cells, where the course of study for which they have registered requires the use of a computer to support their studies or where a computer is a compulsory part of the course.

“That access is, however, made subject to the following: the use of the personal computer must take place without the use of a modem; the prisoner must remain a registered student; the use of a personal computer is subject to inspection; and the withdrawal of use rights from a prisoner may take place upon breach of the rules of use. The publication of these orders within the prison system is also ordered.”

The SCA dismissed the appeal and ordered that the minister and commissioner pay the costs.