Wardle v Minister of Justice and Correctional Services and Others (3561/2017) [2018] ZAECPEHC 16 (3 May 2018)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

Case No: 3561/2017

In the matter between:

BRENDA WARDLE

Applicant

And

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES

First Respondent

NATIONAL COMMISSIONER: CORRECTIONAL SERVICES Second Respondent

AREA COMMISSIONER: PORT ELIZABETH: DCS

Third Respondent

HEAD: CORRECTIONAL SERVICES CENTRE

Fourth Respondent

REGIONAL MAGISTRATE J.J CLAASEN

Fifth Respondent

REGIONAL MAGISTRATE L. LINDOOR

Sixth Respondent

ADVOCATE VAN ZYL

Seventh Respondent

Coram:

Chetty J

Heard:

26 April 2018

Delivered: 3 May 2018

JUDGMENT

Chetty J:

[1] The applicant, an adult female, incarcerated at the Port Elizabeth Correctional centre for females awaiting trial, stands arraigned in the Commercial Crimes Court on charges of fraud. Those proceedings stand adjourned pending the determination of this application. The relief which she seeks is widely framed but at the hearing before me was confined to the question whether she be afforded the privilege of using her laptop and modem in her cell in order to prepare for her trial. The matter is opposed. The deponent to the answering affidavit, Mr Mzwandile Ciki (Ciki), ostensibly acting on behalf of the first respondent, admitted that on 21 September 2017, he had granted the applicant approval to use a laptop and internet modem to enable her to prepare her defence and to register for online studies.

[2] It appears that he thereafter had misgivings about the extent of the approval granted and, on the advice of his superior, and what he referred to as “prescripts”, directed that the applicant’s entitlement to the internet modem was limited to its use only under his supervision and in a designated area. During the hearing I enquired from Mr Nobatana, who appeared for the respondent at short notice whether, in light of the fact that the applicant’s criminal trial had been held in abeyance pending the resolution of these proceedings, whether she could not be afforded the use of both the laptop and modem to enable the trial to resume without further delay. I allowed the matter to stand down to enable him to obtain instructions and, on resumption of the hearing, Mr Nobatana indicated that he held instructions merely to record that the applicant would be permitted to use her laptop in her cell but not

the internet modem. In her limited address, Ms Wardle remained steadfast that she could only adequately prepare her defence if she had access to the modem throughout the day and night in her cell.

[3] The respondent’s acquiescence in permitting the applicant the use of her laptop in her cell is an indulgence not accorded to other inmates and granted, no doubt, as a salutary gesture. The modem can be accessed and used throughout the course of the day and there is no plausible explanation tendered by the applicant why such use will impact deleteriously upon her trial preparation. Ciki has adverted to the Correctional Services policy directives relating to internet access and has raised legitimate concerns about its untrammelled use. An inmate’s usage of a laptop and modem within the confines of a prison falls within the competence of the Department of Correctional Services and I am unpersauded that the restrictions imposed by Ciki are unreasonable. As the Constitutional Court emphasized in Bato Star[1]

“[48] In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the proper role of the executive within the Constitution. In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a court should pay due respect to the route selected by the decision-maker. This does not mean however that where the decision is one which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a court may not review that decision. A court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker.”

[4] In my judgment, the applicant has failed to make out a case that the respondents’ decision not to permit her the use of the internet modem in her cell is unreasonable and she must accordingly be non-suited. In the result the following order will issue: -

The application is dismissed.

________________________

D. CHETTY

JUDGE OF THE HIGH COURT

Obo the Applicant:

In Person

Obo the 1st to 4th Respondents: Adv Nobatana

Instructed by

State Attorneys

29 Western Road, Central, Port Elizabeth

Tel: (041) 585 7921

Ref: 21/2018/J

[1] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Toursim [2004] ZACC 15; 2004 (4) SA 490 (CC)