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Woods and Others v. Minister of Justice, Legal and Parlementary Affairs and Others

Publisher Zimbabwe: Supreme Court
Publication Date 12 September 1994
Citation / Document Symbol SC 124/94
Reference 1995 (1) SA 703 (ZS)
Cite as Woods and Others v. Minister of Justice, Legal and Parlementary Affairs and Others, SC 124/94, Zimbabwe: Supreme Court, 12 September 1994, available at: http://www.refworld.org/docid/3ae6b6cf20.html [accessed 18 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

WOODS AND OTHERS v MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS AND OTHERS 1995 (1) SA 703 (ZS)
ZIMBABWE SUPREME COURT
GUBBAY CJ, McNALLY JA, KORSAH JA, EBRAHIM JA and MUCHECHETERE JA JA
1994 July 28; September 12
Case No SC 124/94

Flynote

Constitutional law - Human rights - Fundamental rights in terms of chap III of Constitution of Zimbabwe - Right to freedom of expression in terms of s 20(1) of Constitution - Limitation on such right in terms of s 20(2)(a) of Constitution Determination of what is reasonable and justifiable in a democratic society - No legal yardstick therefor other than that reasonableness of provision under attack to be adjudged on whether it arbitrarily or excessively invades enjoyment of guaranteed right according to standards of a society having proper respect for rights and freedoms of individual.

Constitutional law - Human rights - Fundamental rights in terms of chap III of Constitution of Zimbabwe - Right to freedom of expression in terms of s 20(1) of Constitution - Provisions of s 141(1)(a) of Prison Regulations 1956 (Z) permitting class D prisoners, as of right, to write and receive only one letter every four weeks - Prisoner not by reason of his crime losing all basic rights - He retains all rights of free citizen save those expressly or impliedly withdrawn by law or those inconsistent with legitimate penological objectives - Restrictions on prisoner's personal correspondence under s 141(1) (a) of regulations not justifiable solely as a feature inherent or implicit in condition of penal incarceration and legal status of prisoner - Validity of restrictions dependent upon whether they fall within ambit of s 20(2) (a) of Constitution - Provisions of s 141 (1) (a) of regulations unnecessarily broad and lacking quality of reasonableness - Reasons for set out - Section 141(1)(a) of regulations accordingly declared ultra vires s 20 of Constitution.

Headnote

Section 20(1) of the Constitution of Zimbabwe guarantees a person's freedom of expression, which embodies freedom from interference with correspondence, but s 20(2)(a) permits the enactment of a law, or anything done under the authority thereof, which derogates from the right to freedom of expression in the interests of public safety or public order, to an extent which is reasonably justifiable in a democratic society. What is reasonably justifiable in a democratic society is an elusive concept. It is one that defies precise definition by the Courts. There is no legal yardstick, save that the quality of reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has proper respect for the rights and freedoms of the individual. (At 706D/E-F, read with 704G/H and 706B-B/C.)

The view no longer holds firm in the jurisdiction of Zimbabwe, and in many others, that by reason of his crime a prisoner sheds all basic rights at the prison gate. Rather he retains all the rights of a free citizen save those withdrawn from him by law, expressly or by implication, or those inconsistent with the legitimate penological objectives of the corrections system. It follows from this tenet that the restrictions placed on a prisoner's correspondence by s 141(1)(a) of the Prison Regulations 1956 (Z) - which permits class D maximum security prisoners, as of right, to write and receive only one letter every four weeks - cannot be justified solely as a feature inherent or implicit in the condition of penal incarceration and the legal status of the prisoner. It is an abridgement that hinders the prisoner in the enjoyment of his freedom of expression. As such its validity is really dependent upon whether it falls within the ambit of s 20(2)(a) of the Constitution. (At 705G-706B.)

The sweep of s 141(1)(a) of the Prison Regulations 1956 (Z) is unnecessarily broad. It lacks the quality of reasonableness. It arbitrarily or excessively invades the enjoyment by the prisoner and his 'free world' correspondent of their constitutionally guaranteed right of freedom of expression. It makes it scarcely possible for meaningful contact to be maintained between a prisoner and his immediate family, let alone between relatives, close friends and professional advisers. After all, the right to correspond is not a luxury. Nor is it a privilege to be afforded at the discretion of the prison authorities. It fulfils a fundamental and primary need. To suppress it to the extent prescribed by s 141(1)(a) is, in the words of Marshall J in Procunier v Martinez 416 US 369 (1974) at 427, 'to reject the basic human desire for recognition and affront the individual's worth and dignity'. (At 707F/G-H/1.)

The Court accordingly granted the applicants' application for an order declaring that s 141(1)(a) of the Prison Regulations 1956 (Z) was ultra vires s 20 of the Constitution of Zimbabwe and invalid. (At 708A-A/B.)

Case Information

Application directly to the Supreme Court in terms of s 20 of the Constitution of Zimbabwe for an order declaring s 141(1)(a) of the Prison Regulations 1956 (Z) to be ultra vires the Constitution and invalid. The facts appear from the judgment of Gubbay CJ.

J S Sayce for the applicants.

A V M Chikumira (with him B Q P Simelane) for the respondents.

Cur adv vult.

Postea (September 12).

JUDGMENT

Gubbay CJ: The three applicants are class D maximum security risk prisoners. They are serving sentences of life imprisonment at Chikurubi Maximum Security Prison. As class D prisoners they come under s 141 (1)(a) of the Prison Regulations 1956 ('the regulations'). Save for a single outgoing and incoming letter on admission to prison, that regulation only permits them, as of right, to write and receive one letter every four weeks. It is this limitation upon the enjoyment of their freedom of expression - which embodies freedom from interference with correspondence - as guaranteed by s 20(1) of the Declaration of Rights in the Constitution of Zimbabwe, *[1]1that

(2)Nothing contained in or done under the authority of any law shall be held to be in contravention of ss (1) to the extent that the law in question makes provision -

(a)in the interests of defence, public safety, public order, the economic interests of the State, public morality or public health;...

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.' - Eds. has prompted the three prisoners to apply jointly to this Court for relief They are the first to challenge the constitutionality of s 141(1)(a) and to seek an order that it be declared ultra vires.

The prison authorities (who speak as well for the Minister of Justice, Legal and Parliamentary Affairs) dispute the validity of the prisoners' contention. They raise a number of justifications for the restrictions imposed by s 141(1)(a) of the regulations: First, that the fundamental right of freedo m of expression must be considered in the context of a prison environment, with the consequent and imperative need to maintain internal order and discipline, to secure the penal institutions against unauthorised access or escape and to rehabilitate the inmates placed in custody. Second, that the procedures which precede the actual dispatch of a prisoner's letter, and those involved in the receipt of a letter addressed to him, are time-consuming and labour intensive. To allow a prisoner the entitlement to write and receive letters in excess of one every four weeks would overstretch the capacity of prison personnel to effectively censor all outgoing and incoming mail for subversive content or physical contraband. Third, that the Director of Prisons, in his discretion and as a privilege, is empowered under s 141(4) of the regulations, to permit the prisoner to write and receive more than one letter every four weeks on compassionate grounds. And, an officer-in-charge, pursuant to s 141(5) of the regulations, may also permit the prisoner to write and receive additional letters, if of the opinion that the best interests of the prisoner, or his family, are likely to be promoted thereby.

In In re Munhumeso and Others (SC 221/93, not yet reported)/*/ at 6 this Court characterised the right to freedom of expression as among the most precious of all the protected freedoms, lying at the very foundation of a democratic society; and one always to be jealously guarded by the Courts. Nor is the pre-eminent importance of this fundamental fight little diminished if exercised through the postal service. For as the redoubtable Mr. Justice Holmes observed, over 70 years ago, in Milwaukee Social Democratic Publishing Co v Burleson 255 US 407 (1921) at 437:

'... (T)he use of the mails is almost as much a part of free speech as the fight to use our tongues.'

The view no longer holds firm in this jurisdiction, and in many others, that by reason of his crime a prisoner sheds all basic rights at the prison gate. Rather he retains all the rights of a free citizen save those withdrawn from him by law, expressly or by implication, or those inconsistent with the legitimate penological objectives of the corrections system. See Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and Others 1992 (2) SA 56 (ZS) at 61B-62E (1991 (1) ZLR 105 (SC) at 109G-111G) and Turner v Safley 482 US 78 (1987) at 84-5.

It follows from this tenet that the restrictions placed on a prisoner's personal correspondence by s 141(1)(a) of the regulations cannot be justified solely as a feature inherent or implicit in the condition of penal incarceration and the legal status of the prisoner. See Golder v United Kingdom (1975) 1 EHRR 524 at 53 9 para 44; Silver and Others v United Kingdom (1983) 5 EHRR 347 at 371 para 84; Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2nd ed at 393. It is an abridgement that hinders the prisoner in the enjoyment of his freedom of expression. As such its validity is really dependent upon whether it falls within the ambit of s 20(2)(a) of the Constitution.

The relevant wording of s 20(2)(a) permits the enactment of a law, or anything done under the authority thereof, which derogates from the right to freedom of expression in the interest of public safety or public order, to an extent which is reasonably justifiable in a democratic society.

Notwithstanding the contrary argument addressed on behalf of the prisoners, I am prepared to assume in favour of the prison authorities that s 141(1)(a) of the regulations is an enactment that makes provision in the interests of public safety or public order relative to prison administration. Thus, what these prisoners have to show, as challengers of the constitutionality of s 141(1)(a), is that it is a provision not reasonably justifiable in a democratic society on the grounds of public safety or public order. If they succeed in doing so then, as the responsible Minister was represented at the hearing of these proceedings, it will be unnecessary to issue a rule nisi in terms of s 24(5) of the Constitution. A final order may be made.

What is reasonably justifiable in a democratic society is an elusive concept. It is one that defies precise definition by the Courts. There is no legal yardstick, save that the quality of reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual. See In re Munhumeso and Others (supra at 14); and generally, Commissioner of Taxes v C W (Pvt) Ltd 1990 (2) SA 245 (ZH and ZS) at 265B-266D (in ZS) (1989 (3) ZLR 361 (SC) at 390F-372C). It is to this end that I now turn:

The restriction on the number of letters a prisoner as of right may write and receive cannot be considered in isolation. Assessment of its rationality must be made in the light of s 141 (1) of the regulations. This permits censorship of every letter from and to a prisoner. Such supervision by prison personnel is aimed at the preservation of order and discipline inside the prison, the prevention of smuggling of illicit matter, the maintenance of security against escape or unauthorised entry, and the need to ensure that criminal activity is not facilitated. This imperative substantial interest, so it seems to me, is effectively served and secured by the scrutiny of all correspondence before dispatch by and delivery to the prisoner.

However, implementation of the procedure may, in turn, warrant a limit being set on the number of letters a prisoner may send or receive. See Parrish v Johnson 800 F 2d 600 (6th Cir, 1986) at 603 In fine-604; Jacobs The European Convention on Human Rights at 141 re art 8. The permissibility of such a limitation is also recognised in the United Nations Standard Minimum Rules for the Treatment of Prisoners, rule 37 of which provides that prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals both by correspondence and by receiving visitors. But a reasonable and fair quota, as opposed to an irrational and arbitrary one, will not place an intolerable burden on those delegated to perform the task. It will not pose a threat to prison order and security.

Viewed in this setting, there are two features which, taken cumulatively, clearly establish, to my mind, that s 141 (1)(a) is a provision not reasonably justifiable in a democratic society in the interests of public safety or public order:

First, the restrictions impinge on the protection from interference with correspondence of the non-prisoner, whether that person be the author or intended recipient of a particular letter. The interests of both the prisoner and his 'free world' correspondent are inextricably meshed. A wife, for instance, who is limited in the receipt of letters from her prisoner husband suffers an abridgement of her fundamental right in communicating with him as plain as that which results from the withholding by the prison authorities of more than one letter every four weeks from her to him. She has a legitimate demand to enter the prison environment through the written word. See Procunier v Martinez 416 US 369 (1974) at 409; Thornburgh v Abbott 490 US 401 (1989) at 407; Battle v Anderson 376 F Supp 402 (1974) at 425. In short, prison walls cannot be utilised to prevent, or excessively curtail, free citizens from exercising their own constitutional rights by reaching out to those inside.

Second, it must not be overlooked that a severe limitation upon the ability to send and receive letters isolates the prisoner from contact with those nearest and dearest from family, friends and clergy - who seek to sustain relationships with him. These ties are vital to the success of the prisoner's later return to society. As so eloquently expressed by Kaufman J in Sostre v McGinnis 442 F 2d 178 (2nd Cir, 1971) at 199:

'Letter writing keeps an inmate in contact with the outside world, helps to hold in check some of the morbidity and hopelessness produced by prison life and isolation, stimulates his more natural and human impulses, and otherwise may make contributions to better mental attitudes and reformation.'

The sweep of s 141(1)(a) is unnecessarily broad. It lacks the quality of reasonableness. It arbitrarily or excessively invades the enjoyment by the prisoner and his 'free world' correspondent of their constitutionally guaranteed right of freedom of expression. It makes it scarcely possible for meaningful contact to be maintained between a prisoner and his immediate family, let alone between relatives, close friends and professional advisers. After all, the right to correspond is not a luxury. Nor is it a privilege to be afforded at the discretion of the prison authorities. It fulfils a fundamental and primary need. To suppress it to the extent prescribed by s 141 (1)(a) is, in the words of Mr. Justice Marshall in Procunier v Martinez (supra at 427), 'to reject the basic human desire for recognition and affront the individual's worth and dignity'.

This Court readily acknowledges that a substantial measure of deference is due to prison administration in the adoption and execution of policies and practices needed to preserve security, order and discipline. See Conjwayo v Minister of Justice, Legal and Parliamentary Affairs (supra at 60G-H (SA) and 109C-D (ZLR) respectively). But the rule of deference loses much of its impact and credibility where, as in this case, Courts are faced with a prison regulation the terms of which are far wider or deeper than is necessary or essential to protect such interests.

In the result:

1. It is hereby declared that s 141(1)(a) of the Prison Regulations 1956, is ultra vires s 20 of the Constitution of Zimbabwe and, accordingly, invalid.

2. The costs of the application are to be borne by the Minister of Justice, Legal and Parliamentary Affairs.

McNally JA, Korsah JA, Ebrahim JA and Muchechetere JA concurred.

Applicants' Legal Practitioners: Honey & Blanckenberg. Respondents' Legal Practitioners: Civil Division of the Attorney-General's Office.



[1]

* Section 20(1) and 2(a) of the Constitution of Zimbabwe provides as follows: '20(1) Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

* Reported at 1995 (1) SA 551 (ZS) - Eds.

 

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