Read judgment

Reading this judgment, your initial response might be amazement that so fundamental an issue hasn’t been taken up before. Even more surprising is the fact that the high court, which heard this case before it went to the supreme court, found there was nothing wrong with referring to awaiting-trial prisoners as ‘offenders’.

The prisoners who brought the appeal against the high court’s decision are both being held at the Windhoek Correctional Facility (WCF). They complained that certain provisions of the Correctional Services Act and the resulting practices of prison officials and police amounted to inhuman and degrading treatment.

While their first objection was to being defined as ‘offenders’ even before any conviction, they had other problems. For example, they pointed to the way that awaiting-trial prisoners were transported between their prison cells and court: their hands were cuffed behind their backs as they travelled in a moving vehicle with no safety features like seatbelts. This meant they were thrown around in the van and had no way to steady themselves.

Flagrant disregard

The high court had upheld some of their complaints and rejected others, but though the government wanted to appeal the high court findings upholding the complaints, its appeal efforts lapsed because the time-table laid down in the rules of court wasn’t observed.

This was the first issue to be resolved: would the supreme court condone the government’s lateness? No, said the judges, the non-compliances in this matter were ‘a flagrant disregard’ of the rules and the reasons given were ‘inexcusable’.

These reasons – pressure of work in the government’s attorney’s office – were ‘not a satisfactory explanation for the inordinate delay’, said the judges, and preparations for the appeal could easily have been ‘outsourced’ to someone in private practice.


‘We have in the past cautioned that dereliction of duty by a party’s legal representative will be visited upon a litigant in circumstances where non-compliance with the rules has been glaring, flagrant and inexplicable. With its incomparable resources, the government has to lead by example when it comes to litigation in the courts.’

In this matter, the decision not to condone the state’s lateness meant there were fewer issues to be decided on appeal, with the cross-appeal by one of the inmates, Kevan Townsend, the only matter still before court.

Solitary confinement

Both the two prisoners were awaiting trial, once since June 2016 and the other since January 2011.

They complained that the definition of ‘offender’ in the law included people, like them, who had not been convicted and were awaiting trial. This definition, which ‘implies proven wrongdoing’, set the tone for how awaiting trial inmates were treated, they said: their security classification, their enjoyment of ‘privileges’, whether they were ‘kept in mechanical restraints’ and whether visits were restricted. They also complained that provisions allowing solitary confinement by the prison authorities did not allow independent review.

A former senior prison officer, who testified for the correctional services authorities, said contact visits for awaiting-trial inmates were not expressly prohibited by the regulations. The ‘general practice’ of not allowing such visits was ‘adopted’ from the police who hadn’t allowed contact visits of suspects detained at the police holding cells. Now that awaiting trial inmates were no longer detained in police holding cells, but were kept in the custody of the correctional service, the police rule had simply been taken over.

Consular visits

The witness said that awaiting trial prisoners were sometimes allowed contact visits: Townsend had been allowed a contact visit by his girlfriend and on other occasions he received consular visits from the American embassy. When visits were denied, it was for legitimate reasons and these reasons were given to Townsend.

Allowing ‘regular and unrestricted’ contact visits was a consequence of being in custody, and they were denied for a variety of reasons including the risk of interference with witnesses and the possible ‘exchange of prohibited articles’.

He said Townsend was put in a single cell after a gang fight that he joined against another inmate, and this treatment was justified and lawful given the circumstances.

Not far-fetched

In its analysis, the court said the law undeniably equated an unconvicted awaiting trial inmate to a convicted person. To define awaiting trial prisoners as ‘offenders’ when they had not been convicted of any crime, was to ‘strike at the heart of the constitutionally guaranteed presumption of innocence’. They had, in effect, already been ‘adjudged guilty’.

It wasn’t ‘far-fetched’ to say that this definitional confusion could actually influence the behaviour and perceptions of prison staff. A definition that was sensitive to a person’s legal status was ‘more likely to influence the [behaviour] of correctional service officials than one that is not.’

On the question of discrimination resulting from not treating inmates in accordance with the presumption of innocence, Townsend’s counsel hadn’t dealt with the specific findings of the high court which had held that a proper case was not made out to give any relief on this issue. And nowhere in the heads of argument had counsel identified the ‘adverse differential treatment’ of Townsend that he claimed was ‘constitutionally offensive’.

Courts couldn’t make orders ‘in the abstract’ and the conduct complained of as a constitutional violation had to be clearly identified. As this hadn’t been done, the high court’s decision to dismiss this particular claim couldn’t be faulted.


Blanket refusal

What about contact visits? The case for unrestricted contact visits was weaker for awaiting-trial inmates than for those already convicted. Given the real danger of possible interference with witnesses and tampering with evidence, ‘public interest cannot be subordinated to the equally important presumption of innocence.’

The prison authorities had to decide the question on a case-by-case basis, the court concluded. And adopting the police policy wholesale, without considering individual cases, was a violation of the law which specified that the officer in charge of a prison could ‘permit any offender’ to receive visitors. A blanket refusal of contact visits was thus unconstitutional.

On solitary confinement, the court held that if there was an immediate danger, an inmate could be confined, but once that danger had passed an inmate should be allowed an opportunity to make representations as to why the solitary confinement should not be extended. Thus, the law that allows solitary detention for as long as 90 days without any independent review or hearing representations from the inmate was also unconstitutional.

Transported in handcuffs

Dealing with the problem of prisoners being transported, handcuffed behind the back, in vehicles without safety features, the judges said this too, was inconsistent with the constitution.

Taken together, the court’s findings on the definition of an offender, the way that inmates may be transported, the blanket ban on contact visits rather than considering each individual case and the need to respect an inmate’s right to be heard on extending solitary confinement could, together, make a significant difference for awaiting trial prisoners.