The Department of Justice and Constitutional Development has asked the Cape High Court to dismiss with costs an application forcing the government to spell out what it intends doing about prison overcrowding.
Alternatively, the application should to be postponed for three months to allow the president, the ministers of correctional services, finance, justice and constitutional development, public works, and safety and security, the National Directorate of Public Prosecutions and ”appropriate” respondents representing the judiciary and magistracy to join the matter.
In papers lodged at court, Menzi Simelane, the Director General of Justice and Constitutional Development, said all the departments mentioned have a direct legal interest in proceedings.
He said there is a ”fundamental non-joinder” that permeates the application and requires it to be dismissed in the exercise of the court’s discretion to refuse declaratory and interdictory relief.
”A related, but distinct, series of problems concerns the lack of specificity of and proper substantiation for the allegations made in the founding papers and the (at best for the applicants) tenuous links between many of the issues raised and prison overcrowding, which is the foundation of the applicants’ case as a whole,” said Simelane.
He was responding to an application for a ”detailed supervisory order” brought by a prisoner — who the court has ruled may be identified only as WJ — and an NGO, the Prison Care and Support Network, which operates under the auspices of the Catholic Church.
They want the court to rule that prison overcrowding is unlawful and a violation of the constitutional right to dignity and the right not to be treated or punished in a cruel, inhuman or degrading way.
In an affidavit before the court, WJ, a former property developer, described how he was suffocated with a wet towel while being raped and beaten by a prison gang.
However, Lionel Adams, the acting head of the Goodwood correctional centre — the prison where the alleged assault of WJ took place in August 2004 — said WJ never registered any complaint of assault.
”Had he complained, it would have been duly recorded, investigated and the proper and necessary steps would have been taken,” said Adams in an affidavit in support of Simelane.
Adams questioned the veracity of WJ’s affidavit in which he details his injuries, and suggested that WJ inflicted the anal injuries on himself in a ”desperate bid” to get out of a communal cell and into a single cell.
In the communal cell, Adams said WJ slept on the side of the 28s prison gang, and said it is generally accepted that when a gang allows a person to sleep with it, that person is associated with the gang.
Adams said in the circumstances, WJ’s version of events did not only seem ”highly suspect, but also very improbable, especially having regard to the fact that the directorate of public prosecutions has declined to prosecute in this regard”.
WJ is currently serving a six-year term at Helderstroom maximum-security prison for cheque fraud and escaping from custody.
The matter is on the Cape High Court role for April 19. — Sapa