The human rights of prisoners are not privileges granted at the discretion of correctional officials. They are legal entitlements that survive conviction and sentence, rooted in the Constitution of the Republic of South Africa, 1996 and reinforced by international law. This comprehensive guide explains what those rights are, where they come from, and how they are enforced inside South African correctional centres.
South Africa’s approach is unusual in its textual clarity. Section 35(2)(e) of the Constitution expressly requires that detained people, including sentenced prisoners, be kept in conditions consistent with human dignity. The Correctional Services Act 111 of 1998 turns that constitutional standard into detailed duties on the Department of Correctional Services, from accommodation and nutrition to medical care and complaints.
This guide brings together the constitutional, statutory, and international sources, the oversight bodies that monitor prisons, and the practical remedies available when rights are violated. It is written as a web resource for prisoners, their families, and practitioners, not as a downloadable document.
The Constitutional Foundation
The starting point is the Constitution of the Republic of South Africa, 1996. The Bill of Rights applies to all law and binds the State, including the Department of Correctional Services. Prisoners do not lose their rights at the gate; only those rights necessarily limited by incarceration may be restricted, and only to a justifiable extent.
Section 35 sets out the rights of arrested, detained, and accused persons. Section 35(2) gives every detained person the right to be informed of the reason for detention, to choose and consult a legal practitioner, to be informed of that right promptly, to challenge the lawfulness of the detention before a court, and to conditions of detention that are consistent with human dignity, including at State expense, to adequate accommodation, nutrition, reading material, and medical treatment.
The rest of the Bill of Rights also applies. Section 9 guarantees equality and protects prisoners from unfair discrimination. Section 10 protects human dignity. Section 12 protects freedom and security of the person, including the right not to be tortured and not to be treated or punished in a cruel, inhuman, or degrading way. Section 34 guarantees access to courts. Together these provisions form a layered constitutional shield that the Constitutional Court has repeatedly enforced against the State.
The Correctional Services Act 111 of 1998
The Correctional Services Act 111 of 1998 is the principal statute governing the treatment of prisoners. It is expressly rights-based and gives practical content to section 35 of the Constitution.
Section 2 of the Act states that the Department must respect, protect, and promote the rights of prisoners as set out in the Bill of Rights. The Act then regulates, in detail, accommodation, nutrition, clothing, health care, the discipline and punishment of prisoners, visits and communication, labour, and the complaints and requests procedure.
Key statutory rights include the right to be held in a correctional centre closest to the prisoner’s family where practicable, the right to adequate medical treatment at State expense, the right to communicate with and be visited by family and a legal practitioner, and the right to make complaints and requests without fear of victimisation. Segregation, solitary confinement, and use of force are tightly regulated and may only be applied within strict statutory limits.
International Instruments That Bind South Africa
South African law does not operate in isolation. International instruments inform the interpretation of the Bill of Rights under section 39 of the Constitution and, where ratified, may impose direct obligations on the State.
- International Covenant on Civil and Political Rights (ICCPR). Article 10 provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The ICCPR is binding on South Africa as a ratified treaty.
- Convention against Torture (CAT). The Convention against Torture prohibits torture and cruel, inhuman, or degrading treatment absolutely. No exception, including a state of emergency, may justify torture. South Africa has given effect to CAT through the Prevention and Combating of Torture of Persons Act 13 of 2013, which criminalises acts of torture by public officials.
- Nelson Mandela Rules. The revised UN Standard Minimum Rules for the Treatment of Prisoners, adopted in 2015 and renamed the Nelson Mandela Rules, are the leading international standard on prisoner treatment. They cover discipline, solitary confinement, restraint, medical care, contact with the outside world, and inspection. Although not a treaty, they guide courts and oversight bodies worldwide.
- African Charter on Human and Peoples’ Rights. The African Charter obliges States to ensure the independence of the judiciary and protects every individual against torture and cruel, inhuman, or degrading punishment. The Robben Island Guidelines, adopted by the African Commission, give detailed African standards on the prohibition and prevention of torture in Africa.
Dignity and Humane Treatment in Practice
Section 35(2)(e) of the Constitution is the central guarantee. It does not merely prohibit cruelty; it affirmatively requires conditions of detention consistent with human dignity. The Constitutional Court has held that this includes the provision of adequate accommodation, adequate nutrition, reading material, and medical treatment.
In Lee v Minister of Correctional Services (2013), the Constitutional Court held that the Department could be held delinquently liable where a remand detainee contracted tuberculosis because of negligent conditions of detention. The claim was grounded in the constitutional rights to dignity, freedom, and security of the person. In S v Makwanyane (1995), the Court confirmed that even the worst offenders retain their human dignity, which the State may not offend through punishment.
Humane treatment also requires protection from violence by other prisoners and by officials. The Department has a positive duty to take reasonable steps to prevent assault and sexual violence inside correctional centres, and failure to do so can give rise to civil liability.
Healthcare Behind Bars
Section 35(2)(e) expressly includes the right to adequate medical treatment at State expense. The Correctional Services Act reinforces this in section 12, requiring the Department to provide, within available resources, adequate medical treatment. A prisoner who needs specialist care not available at the correctional centre must be transferred to a facility that can provide it.
The courts have been clear that withholding or delaying medical care is not a mere administrative failure. It is a violation of a constitutional right. Prisoners with chronic conditions, mental illness, and infectious diseases are particularly vulnerable, and the standard of care must meet the benchmarks set by the Nelson Mandela Rules, which require that healthcare in prisons be of the same standard as in the community.
Access to Lawyers, Family, and the Courts
Section 35(2)(b) and (c) of the Constitution protects the right of a detained person to choose and consult a legal practitioner, and to be informed of that right promptly. Section 34 protects access to the courts. The Correctional Services Act gives effect to these rights through provisions on legal visits, correspondence with legal practitioners, and access to telephones.
Contact with family is treated as a right, not a privilege. Section 21 of the Act regulates visits and communication with family and friends, and restrictions may only be imposed on grounds of security, and even then must be reasonable and procedurally fair. The Constitutional Court has recognised that family contact is integral to rehabilitation and to the dignity of the prisoner.
Oversight Bodies That Monitor Conditions
Rights on paper are only as strong as the institutions that enforce them. South Africa has several layers of independent oversight of correctional centres.
- Judicial Inspectorate for Correctional Services (JICS). Established under the Correctional Services Act, JICS inspects correctional centres, reports to Parliament, and oversees the Independent Correctional Centre Visitor (ICCV) system. Each centre has an ICCV who receives and resolves complaints from prisoners.
- South African Human Rights Commission (SAHRC). The SAHRC is a Chapter 9 institution mandated to promote, protect, and monitor human rights, including the rights of prisoners. It can investigate complaints, conduct hearings, and report on conditions of detention.
- Office of the Public Protector. The Public Protector has jurisdiction to investigate improper conduct by state organs, including the Department of Correctional Services, and to take remedial action.
- The courts. The High Court and Constitutional Court remain the ultimate forum. Structural orders, damages awards, and declarations of rights flow directly from the Constitution.
Remedies When Rights Are Violated
A prisoner whose rights have been violated has several avenues. The first step is usually the internal complaints mechanism through the ICCV. If the matter is not resolved, or if it is serious, it can be escalated to JICS, the SAHRC, the Public Protector, or a legal representative.
Where internal and administrative routes fail, the courts are available. The High Court can grant interdicts, structural orders directing the Department to remedy conditions, and damages. Civil claims for damages must comply with the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, which imposes strict notice periods, generally six months. Missing those deadlines can defeat an otherwise valid claim, so early legal advice is essential.
In appropriate cases, a prisoner may also approach the Constitutional Court directly in matters of constitutional importance. Criminal complaints may be laid with the South African Police Service where conduct amounts to an offence, including assault or torture under the Prevention and Combating of Torture of Persons Act 13 of 2013.
Common Misconceptions to Avoid
- Prisoners lose all rights on conviction. They do not. A sentence restricts liberty and freedom of movement; it does not suspend the Bill of Rights. Section 35 applies expressly to detained and sentenced people.
- Solitary confinement is always lawful. It is not. The Correctional Services Act and the Nelson Mandela Rules permit segregation only in narrow circumstances, for limited periods, and with medical and oversight safeguards.
- The State is immune from being sued. It is not. Where its negligence or conduct breaches a constitutional or statutory right, the State can be held liable in damages, as confirmed in Lee.
- Complaints will be ignored. They often are not. The ICCV and JICS systems resolve many complaints without litigation, and documented complaints strengthen any later court action.
- Family members cannot act. They can. With the prisoner’s authority, family members can instruct a lawyer, lodge complaints with the SAHRC, or approach the courts on the prisoner’s behalf.
Frequently Asked Questions
What are the human rights of prisoners in South Africa?
Prisoners in South Africa retain the rights in the Bill of Rights, including dignity, equality, freedom from torture, access to courts, and the specific rights in section 35 of the Constitution. Section 35(2)(e) requires conditions of detention consistent with human dignity, including adequate accommodation, nutrition, reading material, and medical treatment at State expense.
What is the Correctional Services Act 111 of 1998?
The Correctional Services Act 111 of 1998 is the principal statute governing the treatment of prisoners in South Africa. It gives effect to the constitutional rights in section 35 by regulating accommodation, nutrition, health care, discipline, visits and communication, labour, and the complaints and requests procedure. It also establishes the Judicial Inspectorate for Correctional Services.
Which international instruments protect the rights of prisoners?
Key international instruments include the International Covenant on Civil and Political Rights, the Convention against Torture, the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), and the African Charter on Human and Peoples’ Rights read with the Robben Island Guidelines.
How does a prisoner complain about treatment in South Africa?
A prisoner can lodge a complaint or request with the Independent Correctional Centre Visitor assigned to the centre. Unresolved or serious matters can be escalated to the Judicial Inspectorate for Correctional Services, the South African Human Rights Commission, the Public Protector, or, through a lawyer, to the High Court.
Can a prisoner sue the Department of Correctional Services?
Yes. Where the Department’s conduct or negligence violates a prisoner’s constitutional or statutory rights, the prisoner may bring a civil claim for damages. The Constitutional Court confirmed this in Lee v Minister of Correctional Services. Notice must be given under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, which imposes short deadlines.
Get help with a criminal law matter. If a detainee or sentenced prisoner you know has been denied medical care, safe conditions, family contact, or access to a lawyer, Otrebski Attorneys’ Criminal Law department in Sandton can advise on the complaints process and on court action. We are a 100% women-led firm, Level 4 B-BBEE, with Director Nastasja Otrebski at the helm, and we focus on principled, practical defence work across South Africa.
Disclaimer. This article is general information about the law, not legal advice for a particular matter. Prisoners’ rights cases turn on their own facts and on current departmental practice. For advice on a specific detention, consult a qualified attorney, the Judicial Inspectorate for Correctional Services, or the South African Human Rights Commission.