SA Crime Quarterly no 37 • September 2011 19

The article concludes that in light of the purposeand importance of rehabilitation in thecorrectional system, as well as for furthering otherrights, a right to rehabilitation for prisoners doesexist in South Africa, and can be enforceable in acourt of law.

THE MEANING OF A ‘RIGHT’

A right can be defined as something that is due toa person by just claim, legal guarantee or moralprinciple; a power, privilege, or immunity securedto a person by law; or as a recognised andprotected interest, the violation of which is wrong.1

Rights can also be explained as correlative toduties. Thus, where there is no duty, there can beno right.2 However, the converse is not true, asduties may exist without corresponding rights.3

When judging whether someone has anenforceable entitlement, the important question iswhere such entitlement originates. DeniseMeyersen defines legal rights as ‘those rightsenforceable through the courts, which are grantedto us by statute, common law and constitutionalprovisions’.4

A PRISONER’SRIGHT?

Jameelah Omar*

Jameelah.omar@gmail.com

This article examines the rights of South African prisoners to rehabilitation in light of the entitlement torehabilitation contained in the Correctional Services Act 111 of 1998 and the White Paper onCorrections, and thus enshrined in statute. The author contends that prison conditions play a significantrole in the failure of the South African government to implement successful rehabilitative programmes.The article considers the potential recourse available to South African prisoners to judicially enforce theSouth African government’s obligation with regard to effective rehabilitation programmes.

The legal case forrehabilitation

* Jameelah Omar has an LLM in Criminal Justice from the University of Cape Town.

This article will argue that while there is no clear,identified right to rehabilitation for a prisonercontained in either the Bill of Rights or statute,the right does exist in some form and can beenforced by individual prisoners in a court.

In order to make this argument it is necessary toinvestigate what the meaning and nature of a‘right’ is and what consequences accrue thereto.Thereafter, the article will seek to show that inlight of the purpose of imprisonment in SouthAfrica and the language used in the relevantlegislation, there is a duty on the state to providerehabilitation to prisoners, and hence, prisonershave a right to force the state to comply with sucha duty.

The article will also argue that rehabilitationought to be recognised as a right in order to givefull and proper effect to other fundamental rightsenshrined in the Constitution of South Africa,such as the right to freedom and security of theperson and the right not to be treated or punishedin a cruel, inhuman or degrading way.

A vital characteristic of a right is therefore that itcan be enforced through the courts. This is inkeeping with the maxim ubi ius ubi remedium –where there is a right, there is a remedy. Thismaxim implies the existence of an authority withthe power to grant a remedy if that rule isinfringed.5

Considering the above discussion, it appearstherefore that we can extract the essentialcharacteristics of the nature of a right. It is anentitlement with a corresponding duty that finds itsauthority in a source of law and can be judiciallyenforced.

REHABILITATION6 IN A SOUTHAFRICAN CONTEXT

A primary purpose of the correctional system inSouth Africa, as articulated by the CorrectionalServices Act, is to promote ‘the socialresponsibility and human development of allprisoners and persons subject to communitycorrections’.7 Further, the purpose ofimprisonment itself declared by the Act is toenable the prisoner to lead a socially responsibleand crime-free life in the future.8

However, while the Correctional Services Actclaims that rehabilitation is one of its primaryaims, it makes no attempt to define the concept. Ithas been astutely pointed out that the concept ofrehabilitation is easier to describe than to define.9

For this reason this article focuses on thedescription provided by the Department ofCorrectional Services itself. In the 2005 WhitePaper on Corrections in South Africa,10

rehabilitation is described as the result of aprocess that combines the correction of offendingbehaviour with human development and thepromotion of social responsibility and values.11

Further, it states that rehabilitation should notonly be viewed as a crime prevention strategy butas a holistic phenomenon12 achieved throughinterventions to change attitudes, behaviour andsocial circumstances.13 Indeed, the missionstatement of the department involves placingrehabilitation at the centre of all departmentalactivities.14

While the term ‘rehabilitation’ is used in SouthAfrica and many other jurisdictions, Germanyprefers the term ‘resocialisation,’ whichacknowledges that the aim of rehabilitation is notto cure the offender, but to endeavour to restorean offender’s relationship with society so as toprevent future crimes being committed.15 Thefocus is therefore on the reintegration of theoffender into society as a socially responsiblecitizen. Given the explanation of rehabilitationand the kinds of programmes identified by theWhite Paper, which focuses on education and theacquiring of skills,16 it appears as though SouthAfrica’s conception of rehabilitation is similar tothat of the German resocialisation ideal.17

In a South African context, the socio-economiccircumstances of offenders entering the prisonsystem cannot be ignored, as some prisoners willnot necessarily have had access to opportunitiesfor skills development (whether social oreducational).18 Hoffman proposes that divergentsocio-political sentiments, originating from a pre-1994 context, underlie the high crime andrecidivist rates in South Africa.19 One of the aimsof rehabilitation is to reintegrate a prisoner backinto society, with the hope that crime will beavoided in the future. But the kind of society intowhich a prisoner will be ‘reintegrated’ is often theenvironment from which crime takes life.20

Rehabilitative programmes thus ought to equipoffenders with hard skills, life skills andopportunities that they might never have beenable to access on their own. Offenders ought to beable to return to their families and communities,not merely with new resolve to avoid crime, butalso with the necessary tools and expertise tobegin afresh.

The White Paper describes rehabilitation as thetrue essence of deterrence, as it is rehabilitationand not punishment that breaks the cycle ofcrime.21 Thus, as deterrence and rehabilitation areboth stated aims of imprisonment, byrehabilitating offenders, the department wouldgive effect to both these ideals. Indeed, it has alsobeen argued that rehabilitation is the onlyjustification of criminal sanctioning that obligates

20 Institute for Security Studies

SA Crime Quarterly no 37 • September 2011 21

the state to care for an offender’s long-termwelfare.22

It can be argued that very few rehabilitativeprogrammes can be shown to reduce re-offending. It is also acknowledged that onlylimited information about rehabilitation and itssuccesses exists, particularly in an Africancontext.23 The White Paper itself acknowledgesthat there are no reliable data in South Africa onrecidivism.24 Until there are constructive andproperly resourced programmes that are availableto all prisoners, we cannot know the true valuethat rehabilitation can play in our prisons.

The article will now turn to whether prisoners areendowed with the right to be rehabilitated and todemand that the state discharge the duty torehabilitate.

REHABILITATION AS A FREE-STANDING RIGHT

It is evident that rehabilitation is viewed as one ofthe principal aims and functions of thecorrectional system in South Africa, and as one ofthe aims of imprisonment. The right torehabilitation is consistent with the drive towardsthe full restoration of the civil and political rightsof citizenship after release.25 In this regard, theDepartment of Correctional Services (DCS) hasthe responsibility to ensure that offenders gainmarket-related skills,26 so as to enable offenders totake their place in society, to be gainfullyemployed and become economically successfulcitizens.

The literal meaning of the words used in theWhite Paper appears to entrench rehabilitativeaims as an obligation of the Department ofCorrectional Services.27 In the language of rights,such obligation creates a duty on the state toprovide for rehabilitation of prisoners in its care.The department must make a systematic effort toensure the rehabilitation of offenders,28 and toprovide programmes for offenders to addressoffending behaviour and to promote socialresponsibility, lifestyle choices and ensure thefuture employability of the offender.29

It is the view of this author that the significanceand importance placed on rehabilitation as anideal would be undone if it were not consideredthat prisoners have a right to be rehabilitated. Notonly would individual prisoners be left withoutrecourse to rehabilitation if they had noopportunity to participate in an alreadyestablished programme at their particulardetention centre,30 but one of the mostappropriate ways of holding the state accountableto its obligation to rehabilitate offenders in itscare, that is, by way of enforcement of a right,would not be possible.

The remaining question then, is whether thisright is enforceable and justiciable in a court oflaw.

There are numerous rights that are considerednon-justiciable across many jurisdictions, mostparticularly socio-economic rights. However,uniquely in South Africa, the ConstitutionalCourt has held on more than one occasion thatsocio-economic rights are justiciable and hasbeen willing to fashion creative remedies to forcethe state to comply with its obligation to provideadequate housing and health care.31 There istherefore no reason why a court in South Africashould be unwilling to allow a prisoner to claimthat his or her right to rehabilitative programmesis not being upheld, and to grant an appropriateremedy, forcing the Department of CorrectionalServices to comply with its obligation.32

Germany has recognised prisoners’ rights toresocialisation,33 which provides courts with asubstantive basis upon which to explore thenature of the prison regime and the power toforce the state to implement policies withinprisons.34 If, as argued in this article, there is arecognised right to rehabilitation in South Africa,then individual prisoners ought to be able to havethis right enforced in court, as it is the mostappropriate and successful means by whichprisoners can demand that the right is upheld.

This article therefore argues that the essentialcharacteristics of a right are fulfilled: there is aduty on the state to rehabilitate all prisoners,

which gives rise to an entitlement to berehabilitated; this duty is enshrined in legislationand is the cornerstone of the CorrectionalServices framework; and the state can be heldaccountable to this duty in a court of law. Thus, itis argued that in South Africa prisoners enjoy arecognisable, free-standing, enforceable right torehabilitation.

THE RIGHT TO REHABILITATION ASA NECESSITY FOR OTHER RIGHTS

Whether the right to rehabilitation exists can alsobe argued for via the line of reasoning that it isnecessary to recognise a right to rehabilitation inorder to give full and proper effect to otherentrenched, constitutional rights. There arevarious rights that are relevant in such aninquiry.35 This article considers the rights tofreedom and security of the person as providedfor in section 12 of the South AfricanConstitution, and the right to human conditionsof detention provided for in section 35 of theConstitution.

The right to freedom and securityof the person

Under section 12(1)(e) of the Constitution, allcitizens have the right not to be treated orpunished in a cruel, inhuman or degrading way.36

Since incarceration involves state control overprisoners in its care, and rehabilitation relates tothe conditions under which an offender isincarcerated rather than the actual sentence of aterm of imprisonment, the discussion of a right torehabilitation arises in the realm of the manner ofthe ‘treatment’.

The right to dignity is at the heart of the right notto be treated or punished in a cruel inhuman ordegrading way.37 Human dignity is a foundationalvalue of the South African Constitution, and theright to dignity is also entrenched in section 10 asa recognised, free-standing right in the Bill ofRights.38 Section 12(1)(e) recognises that certainforms of treatment can diminish the dignity orhumanity of the person subjected to suchtreatment.39

In S v Dodo,40 the Constitutional Court held that indeciding whether treatment or punishment is cruel,inhuman or degrading, the impairment of humandignity must be involved in such determination.41

However, each of the terms cruel, inhuman ordegrading means something very different, andonly one of them need be fulfilled for section12(1)(e) to be infringed. The concept that is bestsuited for the purposes of this discussion isdegrading treatment.42 Treatment is considereddegrading if it causes ‘feelings of fear, anguish andinferiority capable of humiliating and debasing [thevictims] and possibly breaking their physical ormoral resistance’.43 A finding of degradation couldturn on the manner and method of punishment, orits physical and mental effects.44

A sentence of imprisonment necessarily involvesvarious infringements of a prisoner’s dignity andfreedom. The reality of prison life by nature entailsconstrained freedom of movement, communalsame-sex living, strict time-frames, reduced abilityto work and socialise and restricted opportunitiesto exercise, to mention a few. In a South Africancontext, prison life also involves fear of gangviolence and overcrowded cells.45 A term ofimprisonment without the opportunity for aprisoner to access rehabilitative programmes islikely to be a demoralising and dehumanisingexperience, which may result in treatment that isdegrading.

The failure to give effect to the duty on the state torehabilitate prisoners denies a prisoner the right tofreedom from degrading treatment and thereforealso the right to dignity.46 It is, therefore, necessaryto recognise a right to rehabilitation in order forsection 12(1)(e) to be given full and proper effect.

The right to humane conditions ofdetention

In terms of section 35(2)(e) of the Constitution,every detained person is granted the constitutionalright to conditions of detention that are consistentwith human dignity.47

Courts have rejected the argument by the state thatit owed no higher duty to provide medical care to

22 Institute for Security Studies

SA Crime Quarterly no 37 • September 2011 23

prisoners than that available at state expense tothe general public.48 The Constitutional Court inVan Biljon49 held that section 35(2)(e) providedmore extensive positive rights for detainees thanfor the general population.50 This is due to thehigher duty of care that the state owes to personsin its custody because of the uniquely closerelationship that prisoners share with the state,51

and, unlike free citizens, prisoners have no accessto other resources to gain access to medicaltreatment.52

In the case of Rossouw v Sachs,53 the AppellateDivision held that since the purpose of detentionin that particular case was interrogation, byallowing the detainee reading material he wouldbe less inclined to cooperate, as the tedium ofimprisonment would be lessened. However, it hasbeen argued that the reasons for detention shouldnot be used to create discomfort on the part ofdetainees.54 The argument is even stronger in thecontext at hand, since a major rationale forimprisonment is to rehabilitate prisoners. Readingand writing materials are important means ofsecuring the successful rehabilitation of offenders.Thus, in acknowledging the recognition of a rightto rehabilitation, prisoners would have access toreading and writing materials, which would gosome way towards ensuring humane conditions ofdetention.55

In the case of Strydom v Minister of CorrectionalServices,56 the High Court (Witwatersrand LocalDivision), in deliberating whether the right toaccess to electricity was required in order for theconditions of detention to be humane andconsistent with human dignity, held that thedenial of access to electricity could materiallyaffect prisoners’ prospects of rehabilitation andresult in prisoners being ‘treated and punished ina cruel or degrading manner’.57

This argument leads into the murky area ofgeneral conditions of imprisonment that are notconsistent with human dignity,58 and notconducive to rehabilitation. It has been shownthat overcrowding and hygiene conditions inSouth African prisons are far below theinternational standards, and prisons are under-

staffed and lack the capacity of officials such associal workers and educational specialists, who caneffectively implement rehabilitative programmes.59

Rehabilitation cannot take place in such a contextwithout first providing prisoners with conditionsthat are consistent with human dignity.60 Thisargument recognises the link between the right tohumane conditions of imprisonment, which is aconstitutionally enshrined right, and rehabilita-tion, which, it is argued, is elevated to a rightstatus. Thus the right to rehabilitation cannot bedenied because general conditions of detentionleave much to be desired. In fact, a right torehabilitation ought to be recognised because it isa means of creating and ensuring the conditions ofdetention that can be called ‘humane’. Thecorollary is also true: that in order forrehabilitative programmes to be effectedsuccessfully, prisons need to provide an enablingenvironment for rehabilitative interventions.61

The right to conditions consistent with humandignity must therefore be interpreted generously inlight of the special duty of care owed by the stateto prisoners. Furthermore, as argued earlier in thisarticle, the state has created the particular duty onitself to provide rehabilitative programmes forprisoners in its custody. By recognising a right torehabilitation, many other conditions of detentionwill be catered for, such as access to reading andwriting materials, access to education and access toelectricity. It could also be argued that when courtshave emphasised the importance of these benefitsin light of their role in rehabilitation, the right torehabilitation is implicitly recognised as essentialto ensure humane conditions of detention.

It is likely that the main criticism that would belevelled at recognising rehabilitation as a right isrelated, but not restricted, to a separation ofpowers issue. The primary critic would in allprobability be the state, and the core issue raisedwould be that the state does not have the resourcesor the capacity to be able to treat rehabilitation as aright that can be enforced by individual prisoners.

In the case of B v Minister of CorrectionalServices,62 the Constitutional Court held thatalthough the resources of the state were important

24 Institute for Security Studies

to consider, the state could not use a defence ofnon-affordability to deny the applicant’s assertionof the ‘right to adequate medical treatment’ oncethe content of that right had been established.63

Similarly, I would argue, it is up to the state toraise a lack of resource argument before a court,but the possibility of a lack of resources in aparticular case cannot outweigh the necessity ofaffording prisoners the general opportunity todemand that the state discharge its self-appointedduty to rehabilitate.

CONCLUSION

This article has shown that access to rehabilita-tion, through educational and skills developmentprogrammes, is necessary to improve a prisoner’schances of a successful future out of prison. It isclear that rehabilitation is acknowledged as a vitalaim for the correctional system and a statedobligation on the state. The Correctional ServicesAct and the White Paper place a heavy duty onthe Department of Correctional Services, becausethey regard rehabilitation as a right of prisonersand not as a luxury dependent on resources.64 Anunenforceable duty is no real duty at all. Withoutrecognising that prisoners must be given theopportunity to hold the state accountable to itsduty, prisoners are not afforded right of recourse.65

It has been said that imprisonment without theopportunity of rehabilitation is inhumane andretrograde.66 Prisoners should thus not be deniedthe right to demand rehabilitation.

To comment on this article visithttp://www.issafrica.org/sacq.php

NOTES

1. Bryan A Garner et al., Black’s Law Dictionary, 9th ed., USA: West Publishing Co., Thomson Business, 2004,1436.

2. John Chipman Gray, The Nature and Sources of the Law, 2nd ed., Columbia University Press, 1921, 8.

3. Ibid.4. Denise Meyersen, Essential Jurisprudence, New York:

Routledge, Cavendish, 2006, 117.5. Iain Currie and Johan de Waal, The Bill of Rights

Handbook, 5th ed., Juta & Co Ltd, 2005, 23.6. Amanda Dissel, Rehabilitation and reintegration in

African prisons, http://www.hsrcpress.ac.za (accessed15 August 2011), 156. Rehabilitation is a term broadly

accepted to refer to a planned intervention that aimsto bring about change in the offender’s attitude,personality and cognitive processes. Sandy Hoffman,Rehabilitation of Prisoners in a Transforming SouthAfrica, Consolidating Transformation Conference 7-8February 2005, http://www.csvr.org.za/wits/confpaps/hoffman.htm (accessed 15 August 2011), 7. A broaddescription of the kind of interventions envisionedinclude social relations, education and vocationalskills and employment. Effective rehabilitation is alifelong process that relies on individual commitmentand socio-political and institutional recognition andsupport.

7. Section 2(c) of the Correctional Services Act 111 of 1998.

8. Section 36 of the Correctional Services Act 111 of 1998.

9. JD Mujuzi, The Prospect of Rehabilitation as a “Substantial and Compelling” Circumstance toAvoiding Life Imprisonment in South Africa: aComment on S v Nkomo, South African Journal ofCriminal Justice 21(1) (2008), 12.

10. Department of Correctional Services White Paper on Corrections in South Africa, 2005.

11. Ibid., paragraph 4.2.1. 12. Ibid, paragraph 4.2.2. 13. Ibid., paragraph 4.2.3. 14. Ibid., paragraph 4.3.2. 15. Liora Lazarus, Contrasting Prisoners’ Rights: A

Comparative Examination of England and Germany,Oxford University Press, 2004, 61.

16. White Paper on Corrections in South Africa 2005, paragraph 4.4.8.

17. Lazarus, Contrasting Prisoners’ Rights, 193. The German ‘constitutional resocialisation principle’determines the nature and purpose of the prisonsystem and permissible limitations on a prisoner’snegative rights.

18. Sandy Hoffman, Rehabilitation of Prisoners in a Transforming South Africa, 5. It is inconceivable thatcenturies of alienation expressed through the politico-legal devaluation of human life would be confined topolitical struggle without an impact on socialviolence.

19. Hoffman, Rehabilitation of Prisoners, 1.20. Lukas Muntingh, Offender rehabilitation and

reintegration: taking the White Paper on Correctionsforward, Civil Society Prison Reform InitiativeResearch Paper No. 10, 2005, 26. It is essential tounderstand the type of community from which aprisoner is imprisoned and what the impact of theirreturn might be, both on the prisoner and thecommunity.

21. White Paper on Corrections in South Africa, 2005, paragraph 4.4.2.

22. Francis T Cullen and Karen E Gilbert, Reaffirming Rehabilitation, Anderson Publishing Co., 1982, 247.

23. Dissel, Rehabilitation and re-integration in African prisons, 155.

24. Muntingh, Offender rehabilitation and reintegration, 28.

25. Edgardo Rotman, Do Criminal Offenders have a right to Rehabilitation? Journal of Criminal Law andCriminology 77(4), 1986, 1027.

SA Crime Quarterly no 37 • September 2011 25

26. White Paper on Corrections in South Africa 2005, paragraph 4.4.8.

27. Section 2(c) of the Correctional Services Act 111 of 1998.

28. White Paper on Corrections in South Africa 2005, paragraph 4.2.5.

29. Ibid., paragraph 4.4.6.30. This paper does not assume that every prisoner who

undergoes rehabilitative programmes will berehabilitated. The decision not to re-offend lies solelywith each individual prisoner. However, that fact doesnot detract from the entitlement of prisoners to at leasthave access to programmes geared towards rehabili-tation.

31. The Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC);and Minister of Health v Treatment Action Campaign2002 (5) SA 721 (CC).

32. I would argue further that the nature of a socio-economic right is somewhat different to the right torehabilitation that I am proposing. The main criticismlevelled at the justiciability of socio-economic rights isthat it is an infringement of the Separation of Powersdoctrine for a court to dictate to the state how itsbudget ought to be spent. In South Africa, it isaccepted that there is no clear separation of powers,rather, the doctrine is aimed at providing a frameworkof checks and balances between the different branchesof state. Further, since the duty on the state torehabilitate is already contained in legislation and issaid to be the cornerstone of the Correctional Service,it is clear that rehabilitation ought already to have abudgetary allocation by the department. Furthermore,in both the Grootboom and TAC case, the court did notallow the argument by the state that socio-economicrights ought not to be adjudicated upon by courtsbecause of the impact it would have on policy andbudget issues. The courts held that there are numerousother contexts which also have an impact on policyand budget but which are generally consideredjusticiable. Forcing the state to act in accordance withan obligation it has set out for itself in legislation andpolicy, is not an infringement of separation of powers,but is the safeguard that checks whether the duty isbeing properly discharged. If a court were to adjudicateon an issue pertaining to the right to rehabilitation, itwould not bring into question a separation of powersproblem, because the court will not be creating policy,only interpreting policy that has already been createdby the executive. Adjudication in this regard does notexceed the role of the judiciary.

33. Lazarus, Contrasting Prisoners’ Rights, 193. Prisoners are said to hold an economic and social right to havestate resources aimed at the realisation of theirresocialisation.

34. Ibid.35. The right to dignity (section 10); the right to freedom

and security of the person (section 12); the right toeducation (section 29); the right to humane conditionsof detention (section 35).

36. S Woolman, T Roux, J Klaaren, A Stein, M Chaskal-son & M. Bishop (eds), Constitutional Law of SouthAfrica, 2nd ed., Juta & Co Ltd, 2009, Chapter 51, 64-65. While punishment refers to the form of treatment

by an authority because of the transgression of somerule, treatment refers to the conditions associated withthe implementation of a sentence. There must be someactive state process involving an exercise of statecontrol over the individual to constitute ‘treatment’.

37. S v Makwanyane 1995 (3) SA 391 (CC) paragraph 111.38. Currie and de Waal, The Bill of Rights Handbook, 275.

This double entrenchment of dignity in theConstitution means that human dignity is not only anenforceable and justiciable right in South Africa, but italso informs the interpretation of other fundamentalrights.

39. Woolman et al, Constitutional Law of South Africa, Chapter 51, 67.

40. S v Dodo 2001 (3) SA 382 (CC).41. Ibid., paragraph 35.42. Woolman et al, Constitutional Law of South Africa,

Chapter 51, 68. Cruel treatment refers to intentionalconduct on the part of the perpetrator with disregardfor the suffering of the victim. Inhuman treatmentrefers to treatment of others as if they were nothuman.

43. Ireland v The United Kingdom (1978) 2 EHRR 25 at paragraph 167.

44. Woolman et al, Constitutional Law of South Africa, Chapter 51, 69.

45. Department of Correctional Services Annual Report for the 2009/2010 Financial Year, 93-95.

46. Woolman et al, Constitutional Law of South Africa, Chapter 51, 67. It is a violation of a specific right thatindicates a violation of dignity, and not the other wayaround.

47. Section 35(2)(e) of the Constitution of the Republic of South Africa, 1996.

48. B v Minister of Correctional Services 1997 (6) BCLR 789 (C); and Van Biljon & Others v Minister ofCorrectional Services and Others 1997 (4) SA 441 (C).

49. Van Biljon & Others v Minister of Correctional Services and Others 1997 (4) SA 441 (C).

50. B v Minister of Correctional Services 1997 (6) BCLR 789 (C), para 65.

51. Ibid., paragraph 53.52. Ibid., paragraph 53 and Van Biljon & Others v Minister

of Correctional Services and Others 1997 (4) SA 441(C), paragraph 65.

53. Rossouw v Sachs 1964 (2) SA 551 (A).54. Woolman et al, Constitutional Law of South

Africa, Chapter 40, 50.55. There is an overlap between this argument put forth

for the right to humane conditions of detention andthe right to education. Under section 29 of theConstitution, the state is obliged to provide basiceducation, and to provide access to further educationwhere reasonably practicable. Many of therehabilitative programmes outlined by the White Paperenvisage educational programmes aimed at skills gain,further education and life skills. If these rehabilitativeaims are not given proper effect, and are notconsidered a recognised and enforceable right, thenthe full and proper effect of section 29 will not befulfilled.

56. Strydom v Minister of Correctional Services 1999 (3) BCLR 342 (W).

57. Ibid., paragraph 141H-142A.

26 Institute for Security Studies

58. This is a controversial area because it involves issues of state resources and its failure to create humaneconditions of incarceration.

59. C Cilliers and J Smit, Offender Rehabilitation in the South African Correctional System: Myth or Reality?Acta Criminologica (20), 2007, 84.

60. Ibid., 86. 61. N Fine, Transforming Institutional Thinking:

Through the Walls, Community Law Centre (UWC)Bellville, 1996, 6.

62. B v Minister of Correctional Services 1997 (6) BCLR 789 (C).

63. Ibid., paragraph 49. 64. Muntingh, Offender rehabilitation and reintegration,

5.65. Besides relying on internal prison mechanisms, the

media and civil society are to hold the stateaccountable.

66. Lazarus, Contrasting Prisoners’ Rights, 61.