The Rights of the Incarcerated

By Jolane van der Walt-Nieuwoudt (LLB) (LLM)

While it is true that the rights of incarcerated individuals may be limited, such as their right to freedom, freedom of association, freedom of movement, and freedom of trade and occupation, prisoners still retain many statutory and human rights.

The rights of all South African citizens, including those of prisoners, are set out and protected by the Constitution of South Africa. 

Under the Bill of Rights in the Constitution, no person may be detained arbitrarily (for no reason) or “without just cause” (a good reason). In addition, all prisoners have the right to: 

• Equality;
• Dignity;
• adequate accommodation;
• not be tortured;
• not be punished in a cruel, inhuman or degrading manner;
• adequate nutrition;
• adequate medical treatment.

The Correctional Services Act furthermore establishes the rights of prisoners and sets the rules that the Department of Correctional Services (DCS) must follow in running the prisons under its control. One of the DCS’s primary responsibilities is to provide a clean and tidy prison environment, including providing cleaning utensils and ensuring that each prisoner keeps their person, clothing, bedding, and cell clean and tidy.

The DCS also has a responsibility to provide adequate health care services to all prisoners, so that prisoners can lead a healthy life. This includes the right to medical treatment and the ability to ask to be treated by their own doctor at their own cost. A prisoner cannot be forced to have a medical examination, test or treatment administered, unless his/her medical condition is creating a threat to the health of others. 

Every prisoner is entitled to a minimum of one hour of exercise per day, which should be done in the open air, weather-conditions permitting. Prisoners also have the right to visits totaling not less than one hour per month, as well as access to places of worship and reading material of a religious nature. Reading material may be borrowed from a prison library or may be sent to the prisoners from outside. This may come from friends or relatives and may also be a subscription to a magazine or newspaper.

Prisoners in South Africa also have the right to access legal representation and to communicate with the outside world. This includes sending and receiving mail. However, the Department of Correctional Services may impose certain restrictions on these rights for security or operational reasons.

The Department of Correctional Services has implemented a number of reforms aimed at improving the conditions of incarceration in South Africa. These include reducing the number of inmates in overcrowded facilities, improving healthcare services, and increasing staff training and development. Ultimately, the goal is to create a correctional system that is focused on rehabilitation and reintegration, rather than punishment and retribution.

It is important to note that the State and the DCS have an obligation to adhere to these rights, principles, and legislation, as their failure to comply and any violations of prisoner’s rights can lead to complaints being lodged against them by organizations such as the Human Rights Watch, Human Rights Commission, Lawyers for Human Rights, and South African Prisoners Organization for Human Rights.

In summary, it is the responsibility of the DCS to ensure that the rights of prisoners are respected and protected. The state must care for prisoners in a manner that does not violate or compromise their constitutional rights. Imprisonment should only limit a person’s freedom and may not add other punishments in a direct or indirect manner. When a court sentences a person to imprisonment, they retain all rights, except those that have to be limited so that the prison sentence can be implemented.