When a court sentences a person to imprisonment in South Africa, it does not strip that person of every right. What it does is lawfully limit certain rights that are necessarily inconsistent with a sentence of incarceration. Understanding which rights are reduced by a sentence, and which remain fully protected, is the key to working out whether treatment inside a correctional centre is lawful.
The starting point is section 35(2) of the Constitution of the Republic of South Africa, 1996, read with the Correctional Services Act 111 of 1998. Together they set out the rights detained and sentenced people keep, and the narrow grounds on which correctional authorities may restrict them. Any further limitation must be reasonable and justifiable under the general limitations clause in section 36.
This article focuses on the limitation analysis: which rights imprisonment necessarily restricts, which rights can never be taken away, and how the courts decide whether a particular rule inside a correctional centre goes too far.
The Right That Is Always Limited: Freedom of Movement
The most obvious right lost during incarceration is freedom of movement, protected by section 21 of the Constitution. A sentenced prisoner faces correctional facility restrictions that prevent them from leaving the correctional centre, choosing where to live, traveling, or moving freely within the community. Movement inside the centre, cell allocation, and daily routines are controlled by the Department of Correctional Services under the Correctional Services Act and its Regulations.
This restriction is a key aspect of incarceration. It is the lawful object of the punishment itself, so it does not require separate justification each time a prisoner is told where to be. What the law does require is that the restriction be applied lawfully, humanely, and consistently with the other rights that remain in force.
Freedom and Security of the Person, to the Extent of Lawful Detention
Section 12 of the Constitution protects freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, and the right not to be treated or punished in a cruel, inhuman, or degrading way. The first part is necessarily limited by a lawful sentence: the detention itself is permitted because a court has ordered it.
The second part is never limited. The prohibition on cruel, inhuman, or degrading treatment is absolute. Lawful detention does not authorise assault, torture, or humiliation by officials. The Prevention and Combating of Torture of Persons Act 13 of 2013 creates the offence of torture and makes clear that no circumstance, including a state of emergency or an order from a superior, can justify it.
Privacy Inside a Correctional Centre
The right to privacy under section 14 of the Constitution is significantly reduced by imprisonment, but it is not extinguished. Cells, lockers, and personal belongings may be searched. Body searches may be conducted, and correspondence, telephone calls, and visits may be monitored or recorded. Section 35(2)(d) of the Constitution expressly allows detained people to have communications intercepted subject to a law or a court order.
What the law forbids is arbitrary or degrading intrusion. Searches must be conducted for a legitimate security purpose, in line with the Correctional Services Regulations, and in a manner that respects the remaining dignity of the prisoner. A blanket policy of intrusive body searches without any individualised suspicion may be challenged as going further than section 36 allows.
Freedom of Association, Religion, and Expression
Freedom of association (section 18), freedom of religion (section 15), and freedom of expression (section 16) are all limited in practice by the realities of secure custody. Prisoners cannot choose their cellmates, attend any gathering they wish, or publish and receive material without restriction. Visits must be approved, and contact with certain people may be refused on security grounds.
These rights are not abolished. Prisoners may practise their religion, receive religious counsel, access approved reading material, and correspond with family and legal representatives. Restriction is permitted only where it serves safety, security, or rehabilitation, and only to the extent reasonably required. Religious or political discrimination as a basis for harsher conditions is unlawful.
- Movement. Restricted by the sentence itself; no separate justification required.
- Privacy. Reduced for security purposes, but searches and monitoring must be lawful and not degrading.
- Association. Limited to what secure custody requires; family, legal, and religious contact must still be allowed.
- Property and economic activity. Personal possessions are limited to approved items; external employment and business activity are generally not possible.
The Right to Vote Is Not Lost
One right that is often assumed to be lost but is not, is the right to vote. In Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO), the Constitutional Court confirmed that sentenced prisoners retain the right to vote under section 19 of the Constitution. The Electoral Act must make reasonable provision for them to exercise that right, and the Electoral Commission now operates a special voting regime for inmates.
The Court treated the limitation of the vote as a question for section 36 analysis: a blanket removal of the vote from all sentenced prisoners was not a reasonable and justifiable limitation. The position for prisoners differs from the position for some people deprived of the vote by reason of being outside the country, but inside a correctional centre the franchise continues.
Rights That Cannot Be Taken Away
Section 35(2)(e) of the Constitution gives every detained person, including every sentenced prisoner, the right to conditions of detention consistent with human dignity, including at minimum adequate accommodation, nutrition, reading material, and medical treatment at state expense. The rights that follow from human dignity cannot be limited by a sentence.
- The right to inherent dignity (section 10).
- The right not to be tortured or treated in a cruel, inhuman, or degrading way (section 12).
- The right to adequate healthcare, equivalent to that available in the community.
- The right of access to courts and to legal representation (section 34 and section 35(2)(f)).
- The right to practise religion and to receive pastoral care.
- The right to challenge the lawfulness of detention.
These protections are reinforced by the Correctional Services Act, by the Prevention and Combating of Torture of Persons Act, and by oversight bodies such as the Judicial Inspectorate for Correctional Services. A prisoner who is denied medical care, assaulted by an official, or blocked from contacting a lawyer has not lost a right through incarceration. That right has been violated, and the courts are open to remedy it.
The Section 36 Limitations Test
Where correctional authorities go beyond what the sentence itself authorises, the question is whether the further restriction is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. Section 36 of the Constitution sets out the test.
- The nature of the right being limited.
- The importance of the purpose of the limitation.
- The nature and extent of the limitation.
- The relation between the limitation and its purpose.
- Less restrictive means of achieving the purpose.
In practice this means that a rule which serves a genuine security purpose, is proportionate, and is the least restrictive way of achieving that purpose will usually survive. A rule that is arbitrary, discriminatory, or more restrictive than necessary will not. The Constitutional Court has applied this test to prison conditions in cases such as Minister of Safety and Security v McCart and has repeatedly held that the State bears the burden of justifying any limitation.
Frequently Asked Questions
What rights do prisoners lose while incarcerated in South Africa?
Prisoners lawfully lose freedom of movement and have their freedom and security of the person limited to the extent of the detention. Privacy, freedom of association, freedom of expression, and the ability to hold personal property or run a business are also significantly restricted. All other constitutional rights, including dignity, healthcare, and access to courts, are retained.
Do prisoners in South Africa lose the right to vote?
No. In the NICRO case the Constitutional Court confirmed that sentenced prisoners keep the right to vote under section 19 of the Constitution. The Electoral Commission must make reasonable provision for prisoners to register and cast their ballots from inside a correctional centre.
Can a prisoner be searched or have their calls monitored?
Yes, but only lawfully. Section 35(2)(d) of the Constitution allows the communications of detained people to be intercepted subject to a law or court order. Searches and monitoring must serve a legitimate security purpose and must be conducted in a manner consistent with the prisoner’s remaining dignity. Arbitrary or degrading searches can be challenged in court.
Can a prisoner be tortured or assaulted by correctional officials?
No. The prohibition on torture and on cruel, inhuman, or degrading treatment is absolute. It is protected by section 12 of the Constitution and enforced by the Prevention and Combating of Torture of Persons Act 13 of 2013. No sentence, security concern, or order from a superior can justify torture.
What is the section 36 limitations test?
Section 36 of the Constitution allows a right to be limited only where the limitation is reasonable and justifiable in an open and democratic society. Courts consider the nature of the right, the importance of the limitation’s purpose, the nature and extent of the limitation, the relationship between the two, and whether less restrictive means are available. The State carries the burden of justification.
Does a prisoner keep the right to healthcare and legal representation?
Yes. Section 35(2)(e) of the Constitution requires medical treatment at state expense, and the principle of equivalence of care means the standard must match what is available in the community. Section 35(2)(f) and section 34 protect the right of access to courts and to legal representation, which cannot be blocked by correctional authorities.
Get help with a criminal law matter. If a prisoner’s rights have been unlawfully limited, or if you need advice on sentence, correctional discipline, parole, or a constitutional complaint, the Criminal Law department at Otrebski Attorneys can assist. Our women-led, Level 4 B-BBEE practice works from a single Sandton office, and Director Nastasja Otrebski leads the team handling criminal defence and prisoners’ rights matters for clients across South Africa.
Disclaimer. This article is general information about the rights that imprisonment lawfully limits under the South African Constitution and the Correctional Services Act 111 of 1998, not legal advice for a specific case. Correctional and sentencing outcomes turn on the facts and on current court practice. For advice on a particular detention, consult a qualified attorney or Legal Aid South Africa.