Sonke Gender Justice NPC v President of the Republic of South Africa and Others

Sonke Gender Justice NPC challenged sections 85(2), 88A(1)(b), 88A(4), 90(1) and 91 of the Correctional Services Act 111 of 1998 in the High Court, arguing they fail to provide the Judicial Inspectorate for Correctional Services (JICS) with adequate independence to perform its oversight functions effectively. The JICS was established to monitor and report on the treatment of inmates and conditions in correctional centres. The High Court declared sections 88A(1)(b), 88A(4) and 91 constitutionally invalid on the basis that they undermined the financial, operational and perceived independence of the JICS. The High Court suspended the declaration for 24 months to allow Parliament to remedy the defect. The matter came before the Constitutional Court for confirmation of the order of constitutional invalidity.

• Whether section 7(2) of the Constitution, read with applicable international law and sections 10, 11, 12 and 35 of the Bill of Rights, imposes an obligation on the state to ensure that the Judicial Inspectorate has an adequate level of independence
• Whether sections 88A(1)(b), 88A(4) and 91 of the Correctional Services Act ensure an adequate level of independence to the Judicial Inspectorate
• The interpretation and application of section 7(2) of the Constitution in relation to the state's duty to respect, protect, promote and fulfil rights in the Bill of Rights
• The role of international law in interpreting the Bill of Rights in terms of section 39(1)(b) of the Constitution
• The standard of independence required for oversight bodies established to protect constitutional rights

The declaration by the High Court that sections 88A(1)(b) and 91 of the Correctional Services Act 111 of 1998 are constitutionally invalid to the extent that they fail to provide an adequate level of independence to the Judicial Inspectorate for Correctional Services was confirmed. The declaration of constitutional invalidity was suspended for 24 months to afford Parliament an opportunity to correct the defect. The second and third respondents were ordered to pay the costs of the applicant in the Constitutional Court, including the costs of two counsel. The High Court's declaration of invalidity in respect of section 88A(4) was not confirmed.

Section 7(2) of the Constitution, read with sections 10, 11, 12 and 35(2), imposes a positive obligation on the state to establish and maintain a correctional centre oversight mechanism that has adequate independence to perform its functions effectively. Establishing an oversight body without ensuring it has adequate independence to perform its oversight role effectively does not constitute a reasonable step to protect the rights of incarcerated persons as required by section 7(2). Independence is an inherent characteristic of a successful oversight entity and is crucial to ensuring effective oversight of correctional facilities. An oversight body must be sufficiently insulated from undue influence or capture by the departmental officials whose conduct it is charged with monitoring. It must maintain an arms-length relationship with the Department and gain the confidence and trust of inmates. Adequate independence requires structural independence, operational independence and perceived independence. Financial independence is a key component of structural independence and requires that an oversight body have access to funds reasonably required to perform its core functions, without the Executive having unfettered discretion over its funding. Sections 88A(1)(b) and 91 of the Correctional Services Act fail to provide the JICS with an adequate level of financial and operational independence by placing its budget under the control of the Department it is mandated to oversee, thereby giving the Department the final say on the JICS's funding. This arrangement is inappropriate for independent institutions and has the potential to impact negatively on the ability of the JICS to function effectively.

The Court noted that the historical context of correctional centres in South Africa, particularly under apartheid when prisons were sites of torture and human rights abuses, underscores the importance of effective independent oversight. The Court observed that while South Africa has made progress since the advent of constitutional democracy, correctional centres remain fertile breeding grounds for autocracy and human rights abuses. The Court emphasized that the rights of inmates, including rights to dignity, life, bodily security and conditions consistent with human dignity, are particularly vulnerable and require effective protection. The Court noted that international law, while not forming part of the Constitution, has interpretive significance in determining the state's obligations under section 7(2), particularly where international instruments have been ratified and approved by Parliament. The Court observed that the Optional Protocol to the Convention Against Torture, which South Africa ratified in 2019, provides valuable guidance on the standards of independence required for correctional facility oversight bodies. The Court noted that while there are various options for ensuring the independence of the JICS, including having funds appropriated directly by Parliament or ring-fenced, it is not necessary for the Court to prescribe the particular mechanism, as this is a matter for Parliament to determine. Jafta J in his dissent observed that the applicant's real aim was not to enforce the Optional Protocol directly but to transfer the level of independence enjoyed by bodies under that Protocol to the JICS. He noted that the Protocol envisages a body with a different mandate and structure from the JICS. Victor AJ in her partial dissent emphasized the importance of perceived independence and expressed concern that allowing the National Commissioner disciplinary control over the CEO creates the potential for dissonance and does not safeguard the long-term independence of the JICS.

This case is significant for clarifying the nature and extent of the state's obligations under section 7(2) of the Constitution to establish effective oversight mechanisms for protecting constitutional rights. The Court confirmed that section 7(2), interpreted in light of international law, may require the creation of independent bodies where necessary to protect rights in the Bill of Rights. The judgment emphasizes that independence is an inherent characteristic of effective oversight entities and that establishing such an entity without adequate independence does not constitute a reasonable measure to fulfil the state's constitutional obligations. The case is important for prisoners' rights, establishing that inmates retain their constitutional rights and that effective independent oversight of correctional facilities is constitutionally required. The judgment also provides guidance on the markers of institutional independence, including structural independence, operational independence and perceived independence. The case demonstrates the interpretive role of international law instruments in determining the content of constitutional obligations, while clarifying that international law does not form part of the Constitution itself but informs its interpretation. The judgment has implications for other oversight bodies and reinforces the importance of financial independence for entities tasked with monitoring state institutions.