Covid-19: Lockdown makes access to justice for prisoners even more difficult

First published by GroundUp

Lawyers for Human Rights (LHR) has accused a prison official in Kgosi Mampuru correctional facility of “actively obstructing” one of its clients from accessing legal representation during the Covid-19 lockdown.

LHR is representing five current and former inmates at Leeuwkop Maximum Correctional Centre who are suing the Minister of Justice and the Department of Correctional Services (DCS), alleging assault and torture by prison officials. Four of the five plaintiffs are currently in various prisons in Gauteng.

The trial, which began in October last year, was set to continue in the South Gauteng High Court on 11 May, but Judge Ellem Jacob Francis postponed it to 25 January 2021 because of the Covid-19 pandemic.

Visits to prisons have been prohibited since lockdown, including person to person consultations with lawyers. Directions issued by DCS under the Disaster Management Act, state that lawyers and inmates may communicate telephonically through the Head of Correctional Centre in urgent matters and “where circumstances and resources permit”. Heads of Correctional Centres must designate areas within their facilities to allow inmates to consult with their lawyers.

In LHR’s court papers, it said both parties in the case agreed that the trial could not continue under the lockdown regulations as both sides have faced “severe prejudice in preparations due to the lockdown and health risks”.

“Importantly, the defendant [Minister of Justice and Correctional Services Ronald Lamola] has prohibited any public access to prisons and restricted transfers. This means that the plaintiffs currently have no in person access to their lawyers, have not had such access for weeks, have not been transferred to Leeuwkop for trial and cannot attend court.”

LHR said it received correspondence from the Office of the State Attorney on 10 May which confirms that the plaintiffs’ representatives will not have access to the plaintiffs to consult with them for the foreseeable future.

“We have managed only to have very limited telephonic contact with the plaintiffs to take instructions on specific issues,” LHR said in its papers.

LHR also accused a prison official of obstructing the right to legal representation of one of the plaintiffs by refusing to facilitate the signing of a FICA document needed for litigation.

In a letter of complaint sent to Head of Prison Charles Sebothoma on 10 May, Clare Ballard of LHR said the prison official wanted to know what the form was about and what the litigation related to before he assisted her with getting the document signed.

She said she expressed reservations about his insistence to know the details, but she did subsequently provide him with the names of the parties to the litigation and the nature of the case.

“He advised that he would refuse to assist with anything that would facilitate inmates suing the Department. I expressed shock at this and asked him to provide me with his name and rank, information which, by law, I am entitled to. He refused to give me his name and said, repeatedly, that I was ‘out of order’,” said Ballard.

She said she told the official that the plaintiff was entitled to legal representation and that he was obstructing that right by refusing to assist, particularly since the lockdown prevents legal representatives from visiting clients in prison.

After the complaint was laid, the document was quickly signed and sent back to her, Ballard told GroundUp.

Singabakho Nxumalo, spokesperson for DCS, said the department would have to investigate cases where there were difficulties for lawyers to consult with inmates because inmates had a right to legal representation and to consult with their lawyers.

“Although lockdown has imposed certain restrictions, there are certain measures in place aimed to assist all parties in case there has to be a consultation,” Nxumalo told GroundUp.

He said it was important to highlight that lawyers are allowed to consult with inmates during lockdown. “They (lawyers) have to contact the facility and make an appointment. Inmates can also be transferred to other centres should there be evidence of victimization,” he said.

“Torture and assault is a criminal offence and not allowed in our correctional centres,” Nxumalo told GroundUp.

In the court papers, LHR said there was an “imbalance of power” between the parties in the case because the Minister and DCS were in a position to control when and if the plaintiffs have access to their lawyers and proceed back to trial.

“This is profoundly problematic given that the defendant is alleged to have tortured the plaintiffs while in their very custody,” wrote LHR.

“It is also not fair that the plaintiffs who remain in custody cannot obtain finality in circumstances where they continue to be subject daily to the control of the people they are suing for torture,” said LHR.

Although it was reasonable to give the Minister and DCS time to deal with Covid-19, LHR said an unmanaged and indefinite delay in the trial could ultimately result in impunity for torture in prisons. DM