Boeremag inmate Wilhelm Pretorius denied right to prison sex
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Pretoria - Convicted Boeremag member Wilhelm Pretorius’s application to have conjugal rights with his wife while serving his 25-year prison sentence for treason have been dismissed by the Gauteng High Court, Pretoria.
Pretorius is serving his jail time at the Zonderwater Correctional Centre outside Cullinan. He was convicted in 2014.
Judge Jody Kollapen found that the law did not expressly recognise the right to a conjugal visit. According to the judge, the Constitution could also not be interpreted to provide support for the existence of such a right, which was inconsistent with the notion of incarceration.
The judge said while both international human rights law as well as South Africa’s human rights framework and commitment provided for the right of prisoners to have contact with a spouse partner or next of kin, there appeared to be no express self-standing right of prisoners to conjugal visits.
“The matter of conjugal visits remains an important issue and has complex policy and legal implications. Ordinarily, many personal and intimate human relationships are characterised by a physical closeness and sexual intimacy is often, though not always, a vital part of those relationships.
“It is said that such intimacy and the physical connection between people often adds value and quality to such relationships. On the other hand, there are many personal and intimate relationships that exist and thrive without the need for any physical intimacy or sexual connection.”
According to Judge Kollapen, the right to contact or the right to marry or to found a family in the context of the penal system does not entail the right to conjugal visits.
“I find that the right to conjugal visits is not part of the rights that the Constitution guarantees to prisoners and that the current policy of the Department of Correctional Services that prohibits conjugal visits does not constitute a limitation of the right to contact. But even if it did, it is a limitation that is consistent with the limitation on the freedom that imprisonment necessarily entails.”
The issue came under the spotlight after Pretorius, for the first time, turned to court two years ago to demand his conjugal visits. The matter dragged its heels as the State was not at that stage ready to proceed with its arguments in opposition of the matter.
Pretorius earlier told the court how he and his wife struggled to become pregnant as he was behind bars. Following numerous applications, he received permission from the department and the court to donate sperm via artificial insemination in jail.
But Pretorius said as they wanted a larger family and neither he, at 41, and his wife, who is in her late thirties, were getting any younger, they needed intimate visits in jail.
He stated at length the “frustrations” and hurdles they had to overcome to enable the insemination process.
The couple, however, eventually conceived a baby boy who was born two years ago.
He and his wife got married three years ago. As he was in prison, the marriage was never consummated.
Pretorius said when they tied the knot, they agreed that they wanted to start a family as soon as possible.
In conclusion to his judgment on the conjugal rights issue, Judge Kollapen said: “This may not necessarily be the last word on the matter. The matter of conjugal visits however remains an important issue and has complex policy and legal implications.”
Pretorius also failed in his bid to use his cellphone in jail. He said that while there are public telephone facilities within the prison, these break down from time to time, resulting in difficulties in making telephonic contact with the outside world.
Correctional Services, on the other hand, said there were sufficient facilities available and when they do break down, the service providers are contacted and they are repaired.
In addition, it said the policy that prohibited the possession of cellphones was also related to the increased security risk posed by such devices.
The judge said the right to communicate was important in the rehabilitation of a prisoner, but in this regard they were allowed visits from family and friends outside prison.
The monitoring of cellphone usage by prisoners would in any event be a full-time duty further stretching the human resources at correctional facilities, he said.