20 June 2019

South Africa: Prisoner Denied Access to Laptop for Studies Takes Authorities to Court

Photo: Ashraf Hendricks/GroundUp
A prisoner is taking the authorities to court after his laptop was confiscated when he was moved to a new correctional facility (file photo).
analysis

Mbalenhle Nkosi, an inmate at Johannesburg Medium C Correctional Facility, has taken the head of the prison, the National Commissioner and the Minister of Correctional Services to court.

The prison has denied him access to his laptop, which he needs for distance learning. He has accused the authorities of "infringing on his right to further education" by restricting his study time to when the computer room is open.

Nkosi, who is representing himself in court, opened a case at the South Gauteng High Court. The case was supposed to be heard on 18 June but it was postponed to give Nkosi time to study the prison's court papers.

"The [prison] seeks to unfairly, irrationally, unjustifiably and unconstitutionally limit my basic right to education by limiting and unreasonably dictating the hours during which I am permitted to study," Nkosi said in court papers. "This, despite the fact that I am locked up in a single cell for prolonged periods without anything constructive to do in all of that time. This goes against the very fabric of rehabilitation, and is contra to me becoming a productive individual upon my reintegration into society."

Nkosi is a registered student at Oxbridge Academy - a private distance learning college based in Stellenbosch, Western Cape. He enrolled in a computer studies course in November 2017. He has two months left of his course before his registration expires.

Nkosi started serving his 20 year sentence in March 2011. When he started studying in 2017, he was permitted to use his personal laptop in his cell because there was no computer room facility at Johannesburg Medium B prison.

About a year later he was transferred to Johannesburg Medium C prison where his laptop was confiscated upon arrival. He said he had shown the head of education in the prison his registration letter and his proof of tuition payment but "she couldn't care less".

He then wrote an application to be allowed a laptop in his cell, stating that he was a registered student and his course required access to a laptop.

His application was denied by the prison management who said Oxbridge Academy confirmed that Nkosi only needed a computer to type his assignments which could be done in the computer room. They recommended that a state desktop in the computer room be allocated to Nkosi.

In email correspondence between Gauteng Regional Commissioner of Correctional Services Thakane Grace Molatedi, and Nkosi's fiancé, Sandy Sibanyoni, Molatedi said: "Due to security challenges of offenders utilising computers and laptops for other activities except for study purposes at most Correctional Centres, the offender cannot be allowed to have the computer in his cell but will be afforded an opportunity to use the computer room for study purposes."

Nkosi said his studies have already been compromised after eight months of fighting to use his laptop in his cell. He said he will also incur a financial cost for not completing his course in the stipulated time.

"I was forced to drop out and linger around like most of the inmates without studying or doing anything to develop myself," Nkosi told GroundUp. "You always hear from the society out there that inmates are quick to reoffend after being released from prison ... Is this type of behaviour by prison officials ... not part of the reason why inmates reoffend because they go out of prison without education or skill?"

Nkosi said he needs to complete this course so that he is technologically savvy when he is released. "Technology is constantly advancing so I need to keep up," he said. He wants to start a career in Information Technology and open his own internet café.

"My family paid for my course out of their own pocket so this means a lot to me. You must remember that I have kids on the outside so I need to do what it takes to have all the skills I need to support them when I am released," said Nkosi.

Correctional services explain their position

The Correctional Services department was unable to comment on Nkosi's case because it is currently before the High Court, but its national spokesperson, Singabakho Zwide, said inmates were granted access to laptops through application or by using the computer room facility.

He said the application would have to substantiate why it was necessary for them to use it in their cell and even then, they were not allowed to keep it overnight and it was monitored very closely.

This was because having laptops in cells was a security risk, according to Zwide. "Inmates can use laptops to create fraudulent documents even when they do not have access to the internet... They are able to smuggle memory cards and clone sim cards ... You'll be surprised at what happens in these facilities," he said.

"We don't just take laptops away as a form of punishment or because we feel like it ... We take them away when inmates have contravened the rules by going on websites they are not allowed to go on like social media ... Sometimes we find pornographic material so we have to confiscate them," Zwide told GroundUp.

When laptops were confiscated, Zwide said the inmates still had access to computer rooms. "There is a very convenient facility called the 'UNISA hub' where laptops are given to inmates in a computer room. Any registered student is allowed to use this facility and there are IT [Information Technology] specialists monitoring what inmates are doing on their computers and which sites they are visiting," he said.

But Zwide said he was aware that not all prisons had computer rooms. "So if an inmate wants to register for a degree or course, we encourage them to request for a transfer to Kgosi Mampuru II [prison] for example where they will have access to computers."

When asked about the restriction it places on the amount of study time for inmates, Zwide said: "We acknowledge that but we also can't ignore the security risks that come with it ... Some victims on the outside have been threatened by inmates so we have to monitor these things closely," he said. "We are even struggling to control contraband such as cell phones ... If they use laptops in their cells, they could use cell phones as hotspots to access the internet which poses a greater security risk."

He said some inmates contravened policies which forced the prison to confiscate their laptops. "Then they take us to court saying we are infringing on their right to education," said Zwide. "We always tell the courts that our intention is not to prevent further studying, in fact, we encourage inmates to study further because it is part of our rehabilitation programme."

The policy which prevents inmates from using laptops in their individual cells is applied inconsistently which raises concerns about the cogency of the security argument

A similar case was argued in Hennie and Others v Minister of Correctional Services and Others in the North Gauteng High Court in 2018. Judge Jody Kollapen said in his judgment that the policy which prevents inmates from using laptops in their individual cells is applied inconsistently which "... raises concerns about the cogency of the security argument advanced by the [correctional facility]".

He also noted that prisons without computer rooms, like the prison Nkosi was previously in, allowed inmates to have laptops in their cells.

Kollapen cited section 29 (1) of the Constitution which says everyone has the right to further education, which the state, through reasonable measures, must make progressively available and accessible. He also cited Section 35 (2) of the Constitution which states that every detained person, including a sentenced prisoner, has the right to reading material which Kollapen said included electronic reading material.

The judgment read: "The court takes into consideration that study methods and accessibility of study material has changed considerably ... Personal computers are certainly going to continue to play an increasingly important role as a means to access information which was in the past confined to textbooks."

"Therefore access to a personal computer by students has become a necessity and not a privilege," read the judgment.

He ordered that the inmates must have access to their laptops in their single cells without access to a modem as long as they are a registered student. He said the laptops would be made available for inspection at any time.

A refusal to allow inmates access to their laptops would risk compromising their ability to study and infringe on their right to further education, said Kollapen in his judgment.

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