Kruger v Minister of Correctional Services and Others (7117/02) [2005] ZAGPHC 24; 2006 (5) SA 21 (T) (2 March 2005)

a

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 2/3/05 REPORTABLE

Case no.

7117/2002

., '-, ;'.- .....

__

_ ,./

In the matter between:

CASPER JACOBS KRUGER

Plaintiff

and

THE MINISTER OF CORRECTIONAL SERVICES

THE COMMISSIONER OF CORRECTIONAL SERVICES THE HEAD OF THE MAXIMUM PRISON, PRETORIA THE HEAD OF THE C-MAX SECTION, PRETORIA

1st Defendant 2nd Defendant 3rd Defendant 4th Defendant

JUDGMENT

LEGODI J

INTRODUCTION

1. The plaintiff claims payment for the sum of R500 000-00 from the defendants either jointly or severally for general damages as a result of non-compliance and consequent infringement of his constitutional rights by the defendants based on their omission to afford the plaintiff to state his side of the case when taking the decision to allegedly deprive him of his rights and privileges which he enjoyed as a prisoner before the transfer.

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The plaintiff's damages is alleged to have been caused by the decision taken by the defendants in terms whereof the plaintiff was transferred to the C-Max Section of the prison, which allegedly resulted in the plaintiff being deprived of his privileges.

The plaintiff's damages are further alleged to have been caused by the alleged conduct of the defendants subjecting the plaintiff to conditions of detention that were inconsistent with human dignity, mental torture and trauma as well as being treated and or punished in a cruel, inhuman and or degrading manner.

The essence of the plaintiff's cause of action is that his right to administrative action which is supposed to be lawful, reasonable and procedurally fair has been infringed.

The plaintiff is basing his cause of action on the decision of the High Court of Appeal setting aside the decision of the defendants in terms of which the plaintiff was transferred to C-Max prison from Pretoria Central Maximum Prison. The decision was set aside by the Supreme Court of Appeal for non-compliance with the audi alterem partem rule.

BACKGROUND

During August 1992 the plaintiff was sentenced three times to death on charges of murder and sixty five (65) years on charges of armed robbery with aggravating circumstance.

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The sixty five (65) years sentence was on appeal reduced to twenty two years. As the time the decision to transfer the plaintiff was set aside by the Supreme Court of Appeal the three death sentences were not yet converted due to the abolition of the death sentence.

For most part of his detention before his transfer the plaintiff was detained and served his sentence at Pretoria Central Maximum Prison.

During or about February 1996 the plaintiff escaped from custody at Garden City Clinic, Johannesburg. Subsequent to this escape the plaintiff was then transferred to Pretoria Central Maximum Prison.

On the 26th May 1997 at Local Prison in Pretoria the plaintiff again escaped from prison and again recaptured. Subsequent to this escape the plaintiff was placed in solitary confinement from the 26th May 1997 up to the 26th June 1997.

After the 26th June 1997 the plaintiff was degraded to category D in terms of which most of the privileges which he enjoyed before the 26th May 1997 as a category A prisoner were curtailed.

On the 13th November 1997 the plaintiff was again awarded category A grading. According to category A the plaintiff enjoyed amongst others the following privileges:

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12.1 48 visits per year with contact visits where facilities were available, a number of visitors allowed depending on the availability of facilities, 40 minutes of duration of each visit. Children under the age of 16 years not counted as visitors and permission to be visited by children under the age of 16 years allowed when necessary facility available.

12.2 Unrestricted number of letters received and written.

12.3 Purchase of confectionary or sweets during contact visits from the prison tuck shop.

12.4 Telephones made instead of visits allowed during weekends and public holidays and during working hours. Twelve additional making of calls allowed per year. Each call to take about ten minutes at a public phone boot and using telephone card.

12.5 R100-00 cash allowed for the purchase of specific items in prison.

12.6 Private music instrument allowed and to be played during normal hours. Private radio and TV set also allowed.

On the 3rd September 1997 at or near Pretoria Magistrate court the plaintiff is alleged to have attempted to escape from custody when the plaintiff was on trial on a charge of escaping from custody on the 26th May 1997.

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On the 27th November 1997 the plaintiff was transferred to the C Max section of the Pretoria Maximum Prison as the plaintiff was regarded to be an escape risk.

14.1 On his transfer to C-Max the plaintiff forfeited most of the privileges which he had enjoyed as a category A prisoner.

14.2 The plaintiff was first placed in phase 1 of the C-Max prison and Rules for inmates in phase 1 was handed over and acknowledged by the plaintiff on the 27th November 1997 in terms of which amongst others the plaintiff was only entitled to:

14.2.1 Receive 3 non-contact visits per month for 20 minutes.

14.2.2 Receive 10 minutes visit within the first six weeks being orientation period after admission to C-Max.

14.2.3 Phone spouse or partner and next of kin. Need to phone to be registered with the section head in advance and only 10 minutes allowed within the first six weeks orientation period after admission to C-Max.

14.2.4 Communicate with other inmates while exercising in the exercise pen or area.

14.2.5 Register any complaint or request twice daily to a member in charge of Section and hand mail and any application to him and feedback to be furnished within 2 days after receipt of such a complaint or request.

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14.2.6 One hour exercise a day if weather and security permit.

14.2.7 Subscribe to newspapers and a magazine and to study through correspondence course.

14.2.8 Receive additional privileges if he or she adheres to the rules so supplied.

The plaintiff challenged this transfer in this Division. His challenge was dismissed. The plaintiff appealed to the Supreme Court of Appeal. The appeal was upheld and the transfer was reviewed and set aside on the 16th March 2001.

Subsequent to the decision of the appeal court the plaintiff was removed from C-Max prison to Leeukop prison and the plaintiff is presently still in Leeukop prison.

It was after the decision of Supreme Court of Appeal that the plaintiff instituted the present proceedings against the defendants.

ISSUES RAISED

In my view and also partly as agreed and indicated by both counsels the following issues were raised at the beginning of the trial, during the trial and in the counsels' written heads of argument which heads I requested at the conclusion of the trial:

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18.1 whether or not the defendants were entitled to transfer the plaintiff to C-Max prison.

18.2 whether or not such entitlement was vitiated by the non­compliance with the audi alterem partem principle.

18.3 whether or not the plaintiff whilst at C-Max was subjected to conditions of detention that were in consistent with human

dignity.

18.4 Whether or not the defendants subjected the plaintiff whilst at C­ Max to mental torture and trauma.

18.5 Whether or not whilst at C-Max the plaintiff was treated, and or punished in a cruel and or degrading manner.

18.6 Whether or not the plaintiff suffered damages due to his detention at C-Max and if so whether or not such damages could be attributable to the defendants' conduct.

LEGISLATION AND LEGAL PRINCIPLES

Section 22 of the Correctional Services Act 8 of 1959 (The Act)

reads as follows:

"22. Security, measures, privileges and indulgences

1. The commissioner shall determine-

(a) the security measures applicable at prisons, and may determine

different security measures at prisons, and may determine different security measures in respect of different prisons;

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(b) the groups into which prisoners are to be classified.

2. The commissioner may-

(a) grant such privileges and indulgences as he may determine to any prisoners,

(b) withdraw or amend any privilege or indulgence granted in terms of para (a) to any prisoner if it is in the interest of the administration of prisons. '

Section 94 of the Act authorises the Minister to make regulations not inconsistent with the Act, which regulates the management and administration of prisons in generalised or specific manner.

Section 93(2) of the Act provides that the commissioner may delegate any of the powers vested in him by this Act to any correctional official or other person employed in the department.

Section 10 of the Constitution Act 108 of 1996 (Constitution Act) provides that everyone has inherent dignity and the right to have their dignity respected and protected.

In terms of Section 12(1)(d) and (e) of the Constitution Act everyone has the right to freedom and security of the person which includes the right not to be tortured in any way and not to be treated or punished in a cruel, inhuman or degrading way.

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In terms of Section 33(1) of the Constitution Act everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

Traditionally, courts in many jurisdictions have adopted broad hands off attitude towards matters of prison administration. This stems from healthy sense of realisation that prison administrators are responsible for securing their institutions against escape or unauthorised entry, for the preservation of internal order and discipline, and for rehabilitating, as far as is humanly possible the inmates placed in their custody. The proper discharge of these duties is often beset with obstacles. It requires expertise, comprehensive planning and a commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Courts recognise that they are ill-equipped to deal with such problems. But a policy of judicial restraint cannot encompass any failure to take cognisance of a valid claim that a prison regulation or practice that offends a fundamental constitutional protection. Fortunately the view no longer obtains that in consequence of his crime, a prisoner forfeits not only his liberty, but all his personal rights, except those which the law in its humanity grants him. For while prison officials must be accorded latitude and understanding in the administration of prison affairs, and prisoners are necessarily subject to appropriate rules and regulations, it remains the continuing responsibility of courts to enforce constitutional rights of all persons, prisoners included (see Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and others 1992 2 SA 56 (25) at

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60G-61A). The legislation as set out clearly authorises the Commissioner to act and make such regulations as may be necessary in the administration of prisons.

It seems that fundamentally a convicted and sentenced prisoner retains all the basic rights of liberty of an ordinary citizen except those taken away from him by law, expressly or by implication or those necessarily inconsistent with the circumstances in which he or she as a prisoner is placed (see Goldberg and others V Minister of Prisons and others 1979 1 SA 14 (A) at 39 C-D).

Whatever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice our courts' writs or orders will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law. In Chaskalson Kentridge et al Constitutional Law of South Africa the Learned authors indicated that a key requirement of the principle of legality is that even those rights of prisoners which are restricted as necessary consequence or incarceration may only be limited if this is done by legislation, either expressly or by necessary implication. The law regulating prison in South Africa must therefore be scrutinised to see whether they provide the necessary authority for the restriction of prisoners' rights. The restrictions must in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which deny them protection of the law.

In Whittaker v Roos and Bateman, Morant v Roos and Bateman 1912 AD 92 at 122-3 the following were said:

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"True, the plaintiffs' freedom had been greatly impaired by the legal process of imprisonment, but they were entitled to demand respect for what remained. The fact that their liberty had been legally curtailed could afford no exercise for a further illegal encroachment upon it. .. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed".

Punishment or treatment incompatible with the evolving standards of decency that mark the progress of a maturing society which involves the infliction of unnecessary suffering, is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilisation advances (see Conjwayo supra at 63E).

At a time in our history when crime is rampant and prisons overflowing, the public might feel particularly unsympathetic towards prisoners and even against those who are yet to be tried on criminal charges, thereby undervaluing the judicial process. We cannot dispense with the essential values that make us a civilised society. We are bound to the values entrenched in our constitution. It is accepted that prison is a black place and that prisoners are not entitled to imprisonment with all the comforts that they enjoyed before their incarceration (See Minister of Correctional Services v Kwakwa and Another 2002 4 SA 455 at 470 B-C).

DISCUSSIONS AND SUBMISSIONS

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I now turn to deal with the issues I believe have been raised by this case and submissions made by Counsels on behalf of the parties.

WHETHER OR NOT THE DEFENDANTS WERE ENTITLED TO TRANSFER THE PLAINTIFF TO C-MAX

It was the defendants' case at the trial that the plaintiff was so transferred as the plaintiff was regarded to be an escape risk taking into account the fact that he escaped from prison during February 1996 and on 26 May 1997. It was also alleged on behalf of the defendants that on or about the 3rd September 1997 the plaintiff attempted to escape from custody after he had been at court in Pretoria.

32.1 The defendants in regard to this issue heavily relied on the evidence of Mr Venter. Mr Venter is the person who took the decision to transfer the plaintiff to C-Max prison. He was at the time an official of the defendants tasked amongst others to identify those prisoners that had to be transferred to C-Max.

32.2 This issue, put differently is whether or not the actions of the defendants in transferring the plaintiff to C-Max without giving him a hearing can be said to have been unlawful.

32.3 Mr Joubert on behalf of the plaintiff argued that the defendants' unlawful actions or omissions, are founded in the infringement of the plaintiff's constitutional rights and more specifically the right

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to administrative action as envisaged in Section 33 of the constitution.

32.4 It was common cause in this case that the defendants when transferring the plaintiff to C-Max did not give the plaintiff a hearing. The plaintiff in relying on this omission by the defendants referred to the Supreme Court of Appeal decision which reviewed and set aside the decision taken by the defendants to transfer the plaintiff to C-Max without giving him a hearing.

32.5 The plaintiff's particulars of claim and submissions made by counsel on behalf of the plaintiff suggest that the decision by the Supreme Court of appeal setting aside the plaintiff's transfer to C-Max for non-compliance with the audi alterem partem rule should be seen as a basis for finding unlawfulness in the defendants' actions and or omissions. This submission should immediately raise an issue whether or not failure to act fairly or to follow a particular procedure should in itself affect the lawfulness of a decision so taken.

32.6 The defendants whilst accepting that they failed to comply with the audi alterem partem rule, they however pleaded justification i.e. they contend that the decision to transfer the plaintiff was not only lawful, but reasonable taking into account the fact that the plaintiff was regarded as an escape risk in the light of his escapes from custody during February 1996 and May 1997 coupled with allegation that on or about the 13th September

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1997 at Pretoria magistrate court the plaintiff attempted to escape from lawful custody.

32.7 C-Max was created to be maximum security prison for long serving sentence prisoners and for dangerous prisoners who might pose a security threat within prison. Those prisoners who were regarded as an escape risk will qualify to be kept at C-Max.

32.8 Section 33 of the Constitution relates to an administrative action which action has to comply with the following:

32.8.1 32.8.2 32.8.3

It has to be lawful,

It has to be reasonable and

It has to be procedurally fair.

32.9 The plaintiff admitted or conceded that as a result of his two escapes from prison, the defendants were entitled to regard him as an escape risk. He however stated also as argued by his counsel that the defendants were not entitled to transfer him without complying with procedurally fair requirement as envisaged by Section 33(1) of the Constitution Act. The plaintiff seemed to have accepted that the administrative action to transfer him to C-Max might have been lawful and reasonable, but that it was procedurally not fair for failure to give him a hearing before the decision was taken.

32.10 Mr Venter in his evidence indicated that even if he had

given the plaintiff a hearing before the actual transfer, his decision to effect the transfer would not have changed in

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the light of the overwhelming evidence against the plaintiff that he was an escape risk and that he was posing a threat to himself, to the prison population where he was held and to the community at large. In my view the sentiments so expressed by Mr Venter cannot be faulted as also in a way conceded by the plaintiff that he could be regarded as an escape risk. The plaintiff did not deny the fact that he escaped twice from custody. His reasons for the escape were two fold:

32.10.1 That he wanted to prove his innocence by collecting more evidence outside and this he wanted to do after his

conviction.

32.10.2

That he was scared he might be hanged after there was an indication that death penalty might be reintroduced.

32.11 The duty to act fairly is concerned only with the manner in which the decisions are taken. It does not relate to whether the decision itself is fair or not (see Nortjie en 'n Ander v Minister van Korrektieve Dienste en Ander 2001 3 SA 472 (SCA) at 479 I-J). This is the Supreme Court of appeal in which the plaintiff was one of the two appellants. The decision to transfer the plaintiff to C-Max was set aside in this case. Clearly the Supreme Court of appeals did not decide on whether or not the decision so taken by the defendants to transfer the plaintiff was lawful, and reasonable. The court of appeal dealt with the procedural aspect, i.e. the manner in which the decision to

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transfer the plaintiff was taken, being transfer to C-Max without giving the plaintiff a hearing.

32.12 As regard the lawfulness or unlawfulness of the decision to transfer the plaintiff to C-Max Mr Joubert on behalf of the plaintiff seemed to have relied heavily on the decision of the appeal court. As indicated above the Appeal Court did not decide on the lawfulness of the decision so taken by the defendants. On the facts of this case I cannot find that the decision taken by the defendants to C-Max was unlawful or unreasonable and the fact that the decision taken was procedurally unfair, in my view did not affect the lawfulness, and reasonableness of the decision itself.

32.12 Mr Joubert also attacked the lawfulness of the defendants to the transfer the plaintiff on the basis that after the plaintiff had escaped on the 26th May 1997, the plaintiff was punished, firstly kept in a solitary conferment for a month secondly degraded to category D which had far much less privileges than a prisoner in category A and lastly that on the 13th November 1997 the plaintiff was re-upgraded to category A. Mr Joubert submitted that this upgrading was concession by the defendants that the plaintiff constituted no risk nor could he be regarded as an escape risk. It was common cause during trial that the plaintiff was upgraded to category A on the 13th November 1997. This upgrading was according to Mr Venter irrelevant for the purpose of deciding whether or not the plaintiff had escape potential. The fact that the plaintiff became an A category prisoner again did not mean that his high category status which only related to

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the privileges and did not mean that the plaintiff can no longer be considered as a security risk.

32.13 Mr Venter only became aware that the plaintiff was a category A prisoner after he had taken a decision to have him transferred to C Max. C-Max was said to be more suitable, for it had better facilities such as metal detectors and X-ray machines, which were not available in other prisons. The decision so taken in re upgrading the plaintiff was taken without considering the security risk posed by the plaintiff. It was a policy decision giving the plaintiff more privileges without considering the length of sentence, escape potential or risk, and the crime.

32.14 In my view therefore the fact that the plaintiff was re-upgraded to category A when the decision to transfer the plaintiff to C-Max was taken did not in itself preclude the defendants from taking the decision to transfer the plaintiff to C-Max on the ground of security risk.

32.16 Lastly on this issue Mr Joubert seemed to have relied on the fact that after the Appeal Court decision, the defendants did nothing. The plaintiff was taken out of the C Max to Leeukop Prison and since March 2001 the plaintiff has been at C-Max. The plaintiff sees this as concession by the defendants that they were not justified in transferring the plaintiff to C-Max. I am not convinced that the fact that the defendants took no steps to follow the procedure and to have the plaintiff be re-admitted at C-Max could be the basis to find that the defendants' actions in initially transferring the plaintiff to C-Max were unlawful.

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32.17 In my view therefore the defendants were entitled to transfer the plaintiff to C-Max and such transfer could not be rendered unlawful and unreasonable by virtue of non-compliance with the audi alterem partem rule. Whilst the actions of the defendants were not procedurally fair, the grounds upon which the decision was taken were in my view lawful and reasonable.

32.18 The second issue raised by this case is closely related to the first issue, the second issue being whether or not the defendants' entitlement to transfer the plaintiff to C-Max was vitiated by failure to give the plaintiff a hearing. This issue has already been discussed with the first issue. I will therefore proceed to deal with the third issue raised by this case.

WHETHER OR NOT THE PLAINTIFF WHILST AT C-MAX WAS SUBJECTED TO CONDITIONS OF DETENTION THAT WAS INCONSISTENT WITH HUMAN DIGNITY?

This issue will be dealt together with the fourth and fifth issues raised earlier in this judgment under paragraphs 13.4 and 13.5.

33.1 The Constitution requires every person to have inherent dignity and the right to have his or her dignity respected and protected (see Section 10).

33.2 It is also important to mention that the plaintiff like any other prisoner would be entitled to have his human dignity be respected. It remains the continuing responsibility of our courts

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to enforce constitutional rights of all persons, prisoners included (see Conjwayo supra). A convicted and sentenced prisoner retains all the basic rights of liberty of an ordinary citizen except those taken away from him by law or those necessarily inconsistent with the circumstances in which he or she as a prisoner is placed. The plaintiff's freedom might have been greatly impaired by legal process of imprisonment, but he was entitled to demand respect for what remained. The fact that his liberty had been legally curtailed could not afford any excuse for a further illegal encroachment upon it. He was entitled to all his personal rights and personal dignity, not temporarily taken away by law.

33.3 The plaintiff in trying to show that his fundamental rights to human dignity have been infringed relied on the following:

33.3.1 The alleged noise and effect of the radio.

33.3.1 The alleged refusal to engage him in any conversation

at any time with other inmates.

33.3.2 Locking up of the plaintiff in solitary confinement for 23

hours.

33.3.3 The alleged infringement of his rights of privacy and

dignity.

As regard the alleged noise and effect of the radio, the plaintiff indicated that the radio noise which was played for many hours

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was such that one could not hear a person talking next to each other. He complained on various occasions about the noise and effect thereof also as indicated in his letter of complaint dated the 29th January 1995. According to the plaintiff the noise tortured him mentally and that there were other cases which were launched in this Division by other detainees or prisoners in C-Max in terms whereof they complained about the unreasonable noise caused by the radio played.

34.1 To these allegations by the plaintiff Mr Venter on behalf of the defendants disputed the fact that the noise made by the radio was unreasonable or was such that it could amount to mental torture. He indicated on a number of occasions when he was in prison he could hear no intolerant noise by the radio. It was suggested that because he was not there all the time, it could well have been that the other prison officials played the radio low because they knew that he was there or would have been there. To this Mr Venter indicated that his visits to C-Max were unannounced and therefore they could not have known when to expect him.

34.2 The plaintiff also placed reliance on the other case where complaints were launched in this division regarding the noise of the radio and to this I was referred to:

Pretorius and others v Minister of Correctional Services and

others 2004 2 SA 658 (T).

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De Wet Kritzinger and others V Minister of Correctional Services and others a reported case number 15747/04 by Swart J on the 12th November 2004.

34.2.1 All the applicants in the two cases were inmates of C-Max

prison. They all complained about the noise level caused by the radio.

34.2.2 A distinction could however be found in these cases. In the matter of Pretoruis and others for example the applicants were un-sentenced prisoners although this will make no much difference except to say that the treatment and privileges will differ with those of sentenced prisoners. In this case the level of radio noise was found to be in the region of 64 to 66 dB (A) with announcements peaking at 75/77 dBA and these noise levels were stated to be typical for large offices, stores and in respect of announcements for school intercom systems. Bertelsman J on page 661 paragraph 21 found that it was clear that this noise levels were not inconsiderable. In the present case however no

noise level was given and no concession was made by the defendants that the noise might have been unreasonable as was the case in Pretorius case supra. In fact the evidence on behalf of the defendants in the instant case was that one could clearly communicate with the one person next to other and the noise was not regarded as being unreasonable.

34.2.3 In the case of De Wet Kritzinger and Others referred to earlier in this judgment there was again a dispute regarding the

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noise level of the radio. The matter was not finalised and no order was given on the merits of the case. The court however made an order to have the disputed issues over the noise level be investigated. Swart J ordered that a qualified noise engineer be appointed to investigate and report on the radio noise level.

34.2.4 Whilst these two cases could have been intended to show similar facts which had to be considered by this court, I am not satisfied that the radio noise level has been proved on the balance of probability in the present case to have been unreasonable so as to have caused the alleged condition of the plaintiff and subsequent damages if any.

Regarding the alleged refusal to engage in any conversation at any time with other inmates, the plaintiff alleged that once in cell, he had no means or way of communicating with his inmates. The evidence tendered on behalf of the defendants was that whilst the structures of the single cells are such that it would not be possible for one inmate in one single cell to communicate with any inmate, it was however possible to communicate with an inmate in a next door cell. On the available evidence tendered one cannot make a finding of fact regarding the plaintiff's allegations that he was refused any communication with any other inmates. It also emerged during evidence by both parties that during the one hour exercise time it was possible for the plaintiff to engage in a conversation with prisoners next to him. At a stage the plaintiff worked at a prison library, and he delivered books and or newspapers to other

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prisoners and during this time the plaintiff could engage himself in some conversation with other people and prisoners. I am therefore not satisfied that the plaintiff was refused to communicate with other people or inmates and or that the restrictions placed on such conversation can be said to have been so unreasonable that it rendered the conduct or actions of the defendants unreasonable and unlawful.

The plaintiff also indicated that the conduct of the defendants in placing the plaintiff in a solitary conferment for 23 hours a day infringed unreasonably and drastically on his constitutional rights not to be treated or punished in cruel, inhuman or degrading manner. I need to pose and emphasis that whilst the Commissioner of Correctional Services is entitled to determine the security measures applicable at different prisons and may grant such privileges and indulgences as he may determine to any prisoners, the plaintiff as a prisoner was entitled to all his personal rights and personal dignity not temporarily taken away by law or necessarily inconsistent with the circumstances in which he had been placed.

The keeping of the plaintiff in solitary conferment for 23 hours per day in my view did not accord with the principle of decency and may have infringed the plaintiff's fundamental rights to be treated like any other citizen except those rights taken by law expressly or by implication or those necessarily inconsistent with the circumstances in which the plaintiff as a prisoner was held. Whether or not the plaintiff suffered any damages as a result of

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the defendants' actions in this regard is another issue still to be decided later in this judgment.

The plaintiff also testified that his rights of privacy and dignity have been infringed. To this the plaintiff indicated that he was exposed to a situation where his right to privacy was infringed. He indicated that he was being watched at all times by security guards who walked above his cell along a cat walk. That he was watched whilst taking a shower or in the toilet.

The plaintiff was regarded as an escape risk. He twice escaped from custody. There were allegations of the third escape. The issue therefore is whether or not the prison officials were entitled to keep watch from the catwalk above the cells either whilst taking a shower or at any time. The plaintiff was not in a position to say the officials deliberately picked up at him any given moment whilst in the toilet or taking a shower nor could he say every time when he took a shower or in the toilet the officials would then walk above his cells. There was a mechanism in terms of which any complaint could be registered. Nothing emerged during evidence that such a complaint on the infringement or rights to privacy was lodged. I am therefore not satisfied that the plaintiff has succeeded in showing infringement of his rights of privacy and dignity nor that the actions of the defendants in this regard were unlawful or unreasonable.

WHETHER OR NOT THE PLAINTIFF SUFFURED DAMAGES DUE TO HIS DETENTION AT C-MAX AND IF SO WHETHER OR NOT SUCH DAMAGES COULD BE ATTRIBUTABLE TO THE DEFENDANTS' CONDUCT

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The last issue to be decided in this case also as raised and agreed upon by the parties, was whether or not the actions of the defendants could be said to have been the cause of the plaintiff alleged mental trauma, emotional stress, torture and consequent damages suffered by the plaintiff, if any, or to put it differently whether or not there was any casual link between the defendants' alleged unlawful actions and alleged mental trauma emotional stress, torture and consequent damages if any.

The essence of counsel's submissions on behalf of the defendants in this regard was in short that there was no casual link taking into account the following:

41.1 That the plaintiff when admitted at C-Max prison was already having mental trauma, emotional stress or torture as expressed in the letter dated the 23rd March 1997 from the plaintiff to his girlfriend.

,

41.2 That plaintiff embarked on hunger strike that had an effect on his well being.

41.3 That the refusal to participate in rehabilitation programmes available at C-Max prison aggravated any mental, psychological and or physical condition the plaintiff had before admitted to C­Max.

The plaintiff heavily relied on the evidence of Dr Van Onselen clinical psychologist called on behalf of the plaintiff who saw and

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interviewed the plaintiff at Leeukop prison. This was after the decision to transfer or keep the plaintiff at C-Max was set aside by the Supreme Court of appeal during March 2001. He also thereafter visited C-Max and inspected the conditions at C-Max. His description of C-Max prison was that it was a horrible place and a nightmare, which could never have been a place for human beings.

The remarks by Dr Van Onselen cannot be without criticism.

Firstly as it is said prison is a dark place. It is not meant to

bring comfort to those who have been removed from the society because of their criminal activities. It is meant to protect the society and safely keep those who pose a danger to the society with the hope that one day they will come out of that prison life having learned from their bitter mistakes and criminal activities. Secondly Dr Van Onselen did not go out to make a complete comparison of the conditions in other prisons through out the country. One must remember that C-Max was established with a purpose of placing dangerous prisoners in it for security reasons. For example a single cell where the plaintiff was held at C-Max is said to be bigger or larger than the present single cell where the plaintiff is presently being held at Leeukop prison. C-Max although with stricter rules, is said to be having better facilities in terms of rehabilitation and security measures, some of which will be dealt later in this judgment.

Dr Van Onselen in coming to his conclusion that the plaintiff was mentally and psychologically tortured and traumatised by his placement in C-Max relied heavily on his interview with the

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plaintiff without having regard to his past. The plaintiff's past was described by Dr Bergh as the key to any reliable opinion on the plaintiff's alleged condition caused by his placement in C ­Max. The plaintiff was convicted of serious charges and was sentenced to death three times. He did not accept his guilt, he twice escaped from jail, allegedly because of the fear of possibility of the return of death sentence and because he wanted to prove his innocence. All of these should be vital in determining the condition of the plaintiff at the time he was admitted at C-Max. Dr Van Onselen conceded that this information would have been important but he did not pursue the search for it because that was not his instructions or brief.

Now coming back to the issues relied upon by the defendants as the basis to suggest that there is no casual link between the plaintiff's alleged damages and the actions of the defendant, the defendants relied firstly on the plaintiff's letter dated the 23rd March 1997. On the first page of the letter the time is indicated as ±21h16 and on the last but one page the time is indicated as 6h45 and dated 24th March 1997. This letter appears to have been written immediately after Ms Brookes had visited the plaintiff in prison. Ms Brookes was a girlfriend to the plaintiff and the letter was addressed to her. The letter consists of thirteen pages.

EXTRACTS FROM THE LETTER

"You know a man who is locked up in prison and through that very incarceration, has suffered terribly, has been damaged, physically and

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mentally ... (you said you know this). Then you went further and said that I am intelligent, thoughtful, very sensitive, capable of loving deeply, cares about my friends and is loyal and faithful to those I love ... sexual and sexy as well as other things ... (see paginated page 77 second paragraph) .

... I ended my relationship with Trudy,- the relationship with my family were on a downhill course anyway ... I didn't have my daughter ... well, no one really to consider and really care about ... what kind of a person would I have turned into if I never met you? I don't think I would've cared or gave a fuck about anyone ... You came into my life honey and the things you mentioned (the good qualities) surfaced, where, have I not met you, I would've been a 'cold' someone, one who would've put the good qualities in my 'black bag', never to take out again and become the person I was 'portrayed', the dangerous, walking time bomb person ... " a quality" that's needed inside a place like, this among people, like some of them around me ... Maybe I would've became a gang leader inside, never wanting to be free ... a bitter, full of hate person ... (see paginated pages 77 last paragraph and 78 first paragraph thereof).

My 'other side' ... yes, at times I do not' wish to' control my reactions, (It certainly was this way on the outside) but, I can control it at times ... Ne? My reaction is to lash out, though in here, it is mostly verbally - there were a couple of times it were physically.

Baby, I've often told you that to drink and use that as an excuse to vent my anger is an excuse - even under the influence I can be quite normal,- but I do agree with you, alcohol greatly enhance a tendency

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to lash out - in a lot of men, (well women too I thing!). This tendency to lash out makes me actively dangerous? Yes, it does honey, - couple this tendency with my experiences' (especially in the army) the training I've had, the boxing career, the 'heart' to taken on people three times my size, - my 'love' to be a major role player in a fistfight ... yes, ... you are right, (see paginated page 79 second paragraph of the letter).

What papers described the person in court ... I am capable of violence honey, of killing someone, (you know) but the way I was described in court by P.V.D.M ... the judge--- someone who cold heartedly gave orders to kill those people (yes, I could give orders like that too) but baby ... the entire point is that I were that person, giving orders when I wasn't even present when the murders were committed by PVDM they believed him, because of my past history, they believed I was present when I was not. The things I did criminally wrong-giving a false statement, giving a car to someone to sell, - I wasn't even charged for. (I so wish you had spoken earlier (when, or before you arrived) about wanting to read the transcript honey --- I would be too happy to have you read them --- hmm ---I should've thought about it too. Ne? To sum this up --- I am inside for 3 murders - which the court found I didn't commit, - robbery, possession of firearm, and ammo, and escape, -(which I'm very guilty of) the court found I gave the order, and for that my life is taken away, -and, the cherry on the cake, - I wasn't even present when these crimes were committed! (except for escaping). I found guilty and sentenced for something I am capable of, but didn't commit, - do you see? (see paginated pages 79 and 80).

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Liefie --, ek is seker rig is wakker, you've quite the earlier bird. I didn't sleep very well may be it's because I slept yesterday afternoon. Earlier when I wake, I wrote another request and soon as they open I'll send it down to this people-. I can just hope there wont' be a problem, - I'm nervous about this, - maybe it's because of today-. I don't really know (see paginated page 82 last paragraph and page 83 first paragraph).

The plaintiff's cause of action is based on the events starting from the 27th November 1997 when the plaintiff was placed at C­ Max. The extracts referred to are from a letter dated the 23rd and 24th March 1997 when the plaintiff was still at Maximum prison. Hardly two months after the letter of the 23rd March 1997 the plaintiff escaped from custody on the 26th May 1997. The letter by the plaintiff although the bulk of it expresses the plaintiff's love and affection for Ms Brookes, the extracts referred to above displays a very worried and unstable person. He appears to be a broken man who refuses to accept the finding of the court on the three murder charges. He expresses his emotions and desire to lash out at some times. He accepts and acknowledges the fact that prison or incarceration in itself turns a man into terrible suffering, mental and physical torture. Indeed as explained by Dr Van Der Bergh incarceration of a person will in one way or the other psychologically and mentally affect a person and in my view the plaintiff could not have been an exception to this.

But what appears to have aggravated the condition of the plaintiff was his fear of prison. It did not appear like the plaintiff

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before placed into C Max ever settled in prison and accepted prison life. This is displayed by his two escapes from prison, his denial of his guilt despite pronouncement by the court, his love for Ms Brookes coupled with his inability to be with Ms Brookes due to his incarceration, his fear of being hanged and his protestation by going on a hunger strike which had started long before the placement into C-Max. It was submitted on behalf of the defendants that his hunger strike, must have had an effect on his physical, mental and psychological being. This was also confirmed by the two experts Drs Van Onselen and Van Der Bergh that hunger strike would have had an effect on the well being of the plaintiff.

It was argued on behalf of the plaintiff also as testified by Dr Van Onselen on behalf of the plaintiff that the conditions at C-Max caused the plaintiff to have sleepless nights. However it appears from the letter and extracts referred to in this judgment that the plaintiff confesses to have had no sleep at least on a particular night being the 23rd and 24th March 1997. He attributes this to having slept during the day. This might be so, however when reading the entire letter of the 23rd March 1997, it becomes apparent that plaintiff was a shattered person as on the 23rd March 1997.

I am therefore not satisfied that the plaintiff's condition at C-Max was as a result of the conduct of the defendants

Lastly even if I was to find that the action of the defendants in transferring the plaintiff to C-Max was unlawful and that the conditions

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at C Max and the manner in which the plaintiff was treated constituted violation of his constitutional rights and that as a result thereof the plaintiff should be entitled to damages, such consideration for damages should be considered in the light of peculiar factors to this case. Dr Van Der Bergh alluded to the fact that prison life will always have an effect on an individual. For this reason prisons are expected to have facilities suitable to deal with individual cases. This will include the involvement of social workers, psychologists, doctors and or psychiatrists. It was indicated that C Max in comparison with other prisons was better equipped with these facilities and or expertise. Each prisoner whose needs are required in a particular field would be referred to and treated. To these facilities the plaintiff refused to be involved. He refused to be seen by any of these people in their respective fields. His attitude was that all these people were not trustworthy and that, they would gossip about him or divulge information concerning him. If the plaintiff had agreed to submit himself for treatment, his damages if any would have been mitigated. Or to put it differently his alleged conditions caused by placement into C Max would have been attended to. The risk taken by the plaintiff in refusing treatment can only have caused the condition to continue and therefore in my view the defendants cannot be blamed for this.

CONCLUSION

I therefore conclude by dismissing the plaintiff's action with costs.

M F LEGODI

JUDGE OF THE HIGH COURT

ADV. H P JOUBERT Counsel for the Plaintiff

, '

High Court Chambers, PRETORIA

ADV. E I MOOSA

Counsel for the defendants

High Court Chambers, PRETORIA

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