WOODS & ORS v MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS & ORS 1994 (2) ZLR 195 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 20 — freedom of expression and freedom from interference with correspondence — restrictions on right of maximum security prisoners to send and receive letters more than once in every four weeks — whether violates freedom of expression guarantee — whether restrictions reasonably justifiable in a democratic society

Headnote

The applicants were three convicted prisoners who were classed as maximum security risk prisoners. The prison regulation relating to this class of prisoners, s 141 (1)(a) of the Prison Regulations 1956, severely restricted their right to send and receive letters. Prisoners were only allowed to write and receive one letter every four weeks. The applicants applied to the Supreme Court for an order that this prison regulation was ultra vires the Constitution because it violated the freedom of expression guarantee (which includes freedom from interference with correspondence) in s 20 of the Constitution.

The respondents argued that this restriction on such prisoners' correspondence was a necessary restriction in order to preserve security, order and discipline. They argued that because all prisoners' mail had to be inspected, prison staff would be overstretched if more correspondence were to be allowed. They pointed out that the regulations also gave the prison authorities the discretion to allow further correspondence on compassionate grounds and in the best interests of prisoners and their families.

Held, that the right to freedom of expression is among the most precious of all the protected freedoms, lying at the very foundation of a democratic society.

Held, further, that when a person is imprisoned he retains all his basic rights, save those withdrawn by law or those inconsistent with legitimate penological considerations. Restrictions upon a prisoner's personal correspondence cannot be justified solely as a feature inherent or implicit in the condition of penal incarceration and the legal status of the prisoner.

Held, further, that the Constitution permits restrictions to be imposed upon freedom of expression in the interests of public safety or public order to the extent that is reasonably justifiable in a democratic society.

Held, further, that the only legal yardstick to decide whether a law is reasonably justifiable in a democratic society is to examine whether the law arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual.

Held, further, that although the courts will accord the prison authorities a substantial measure of deference in the adoption and execution of policies and practices needed to preserve security, order and discipline, this restriction on prisoners' correspondence was far wider and deeper than was necessary or essential to protect the interests of security, order and discipline, in that it allowed scarcely any meaningful contact between prisoners and their family members, relatives and friends. The restriction thus went beyond what was reasonably justifiable in a democratic society in that it arbitrarily or excessively curtailed prisoners' rights.

Held, therefore, that s 141(1)(a) of the Prison Regulations is ultra vires the Constitution and is invalid.