In a groundbreaking judgment for studying prisoners, the Supreme Court of Appeal ruled that prisoners can use their personal laptop ‒ minus a modem ‒ in their cells to study.
The SCA ordered that within 12 months from the date of the order, the Department of Correctional Services must, after consultation with the Judicial Inspectorate for Correctional Services, prepare and promulgate a revised policy for correctional centres permitting the use of personal computers in cells for study purposes.
In its reasoning, the court held that the provision of the policy that prohibits the use of personal computers in cells infringes the rights of prisoners to further education.
The court also ordered that, pending the revision of the education policy, inmate Mbalenhle Ntuli, who earlier turned to court with the assistance of Lawyers for Human Rights, as well as other prisoners, are entitled to use their personal computers in their cell, without an internet connection, for as long as they remain registered with a recognised tertiary or further education institution in South Africa.
Ntuli is serving a 20-year sentence for robbery and has enrolled at an academy to do a data processing course.
In September 2019, the high court handed down judgment in favour of the inmate. The court found that the department’s policy (of not allowing computers in cells) unfairly discriminated against prisoners and that it was an unjustifiable limitation of the right to further education of incarcerated persons, and therefore, inconsistent with the Constitution.
Minister of Justice and Correctional Services Ronald Lamola and his department, however, took the matter on appeal.They raised security concerns and said inmates had a designated study room where they could use their computers
On the other hand, it was argued on behalf of the inmate that the study room was noisy and open for limited hours.
“The Supreme Court of Appeal correctly recognised that further education is fundamental to upskilling incarcerated persons and setting them up for a successful life following their release. This is a vindication of our client’s rights who at the end of the day only wants to further his education and increase his capabilities,” said Nabeelah Mia of LHR’s Penal Reform Programme.
The Leeuwkop Prison in Johannesburg, where Ntuli is incarcerated, argued that it had been experiencing issues with inmates smuggling in cellphones which can be used as hot spots for laptops if permitted in cells.
Judge David Unterhalter, who wrote the concurring judgment, commented that Ntuli’s case was that his right to further education should permit him to make use of the many hours when he is confined in his cell to study.
“That Mr Ntuli may have been able to pass his course with limited access to a computer is a credit to him, but it does not serve to justify why he should not be permitted to benefit from the access he seeks to study further and, it would seem, better.”
Judge Unterhalter further said maintenance of security in prisons was a matter of great importance and that unsupervised access by prisoners to cellphones undoubtedly posed a security risk.
“The particular risk identified and relied upon by the appellants is that a personal computer, even without a modem, may be paired with a cellphone to secure access to the internet and email.”
“Even if this is so, it does not provide any objective assessment of the incremental risk posed by allowing prisoners to study with the use of a personal computer in their cells. Prisoners who have smuggled cellphones into prison already have unauthorised access to the outside world,” the judge said.
He added that whatever security risk that posed was already in place.
“So the question is: how much additional risk comes about because of the access that certain prisoners would enjoy to personal computers in their cells?”
The judge said that question was not addressed in the papers before the court.
“Absent some factual basis to suppose that some significant additional risk arises, there is nothing but speculation to weigh in the balance against the blanket prohibition that infringes Mr Ntuli’s constitutional right to further education.”
“The blanket prohibition in the policy upon the use by prisoners of personal computers in their cells cannot stand. It is invalid and must be set aside,” he said.
The SCA did, however, order that if any inmate breached the rules relating to the use of their computer in their cell, the head of the Correctional Services centre may, after considering any representations the prisoner may make, direct that the prisoner may no longer use the device in the cell.