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[1] The applicant, a non-governmental organisation which plays an active role in prison related work in South Africa’s correctional centres, including research, engagements with correctional officials, inmates and the Judicial Inspectorate of Correctional Services (“JICS”/“the Inspectorate”), has brought an application challenging the constitutionality of Chapters IX and X of the Correctional Services Act 111of 1998 (“the Act”), which deal with the establishment of JICS, its structure and its functionality, and the Independent Correctional Centre Visitors (“ICCV”) respectively.  In its papers, the applicant characterises the attack on the respective Chapters of the Act as a “broad challenge”, where a declaratory order is sought that these two Chapters are, in their entirety, invalid.

[2] In the alternative, the applicant seeks an order declaring that sections 85 (2), 90 (1), 88A (1) (b), 88A (2), 88A (4), and 91 of the Act are inconsistent with the Constitution[1] and accordingly invalid.  This is described as a narrow challenge.

[3] During oral argument, the applicant’s counsel was constrained to abandon the attack on Chapter X in reply, as it became clear, after submissions made by the second and third respondents’ counsel, that no constitutional inconsistency could be identified from each of the sections contained in that Chapter upon their careful examination.  Accordingly, there seems to be no escaping the fact that an analysis of the text of each of the remaining impugned sections contained in Chapter IX, as against the infringed constitutional requirements, is required.  This effectively leads us to the narrow challenge, as there is no point in analysing the text in sections, even in that Chapter, that are not being challenged as unconstitutional.

[4] In summary, the applicant’s case is that the State is obliged, under section 7 (2) of the Constitution, to create a prison inspectorate with sufficient independence to enable it to function effectively.  It alleges that JICS, as the primary institution tasked with “monitoring and overseeing” South Africa’s correctional system, as presently constituted, lacks the necessary structural and operational independence.

[5] The initial challenge by the applicant also focused on the mandate of the JICS, as described in the Act, as being too limited, in that the Inspectorate lacked legal powers required for it to discharge its functions effectively and maintain its credibility.  Indeed, a good portion of the applicant’s founding affidavit is devoted to this allegation.  This attack, too, is no longer being pursued; rightly so, as this Court would impermissibly interfere with a scope chosen by the legislature, in which JICS has to operate as outlined in the section of the Act dealing with its object, if it were to do what the applicant had initially sought it to do in its broad challenge.  The issue now seems to be pointed to the question whether the impugned sections, appearing in Chapter IX, are inconsistent with the Constitution and therefore should be struck for their invalidity.