SACHS J
[18]
It is a well-established principle of our common law, predating the era of
constitutionalism, that prisoners are entitled to all their personal rights and personal
dignity not temporarily taken away by law, or necessarily inconsistent with the
circumstances in which they have been placed.19
Of course, the inroads which
incarceration necessarily makes upon prisoners' personal rights and liberties are very
considerable.
They no longer have freedom of movement and have no choice
regarding the place of their imprisonment. Their contact with the outside world is
limited and regulated. They must submit to the discipline of prison life and to the
rules and regulations which prescribe how they must conduct themselves and how
they are to be treated while in prison. Nevertheless, there is a substantial residue of
basic rights which they may not be denied; and if they are denied them, then they are
entitled to legal redress. In Minister of Justice v Hofmeyr,20 Hoexter JA emphasised
the need to
“. . . negate the parsimonious and misconceived notion that upon his admission to
gaol a prisoner is stripped, as it were, of all his personal rights; and that thereafter,
and for so long as his detention lasts, he is able to assert only those rights for which
specific provision may be found in the legislation relating to prisons, whether in the
19
See Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 139J - 140B citing with approval the
dissenting judgment of Corbett JA in Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14
(A) at 39 C - E. See too Woods v Minister of Justice, Legal and Parliamentary Affairs 1995 (1) SA 703 (ZSC)
per Gubbay CJ at 705H:
“The view no longer holds firm in this [Zimbabwean] jurisdiction, and in many
others, that by reason of his crime a prisoner sheds all basic rights at the prison gates.
Rather he retains all the rights of a free citizen save those withdrawn from him by
law, expressly or by implication, or those inconsistent with the legitimate penological
objectives of the corrections system.”
20
Above n19.
24
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