NGO Sonke Gender Justice (SGJ) want sections of the Correctional Services Act struck out to guarantee the independence of the watchdog body that monitors human rights and conditions inside South Africa's prisons.
In an application to the Western Cape High Court on Thursday, SGJ's advocate Nazreen Bawa SC contended that parts of the Correctional Services Act relating to the Judicial Inspectorate for Correctional Services (JICS) are unconstitutional.
"The complaint is that the Act does not provide for sufficient independence which is required by the inspectorate," said Bawa.
She submitted that the three characteristics of independence are: financial; operational; and to be perceived to be independent.
She explained that the JICS falls under the Department of Correctional Services (DCS) and this might impede JICS' ability to do its job independently.
It relies on the department to allocate its budget and this affects its general day-to-day work, ranging from appointing employees to maintaining its website.
"They are in an incessant battle with the department for resources and infrastructure," said Bawa.
It was not clear whether the problems were due to inefficiency or deliberate, she added.
She said in terms of the Correctional Services Act, the Inspecting Judge of JICS selects a CEO but because the national commissioner of DCS makes the actual appointment, there is a risk of it being left without a CEO if the commissioner does not like the candidate.
Current Inspecting Judge Johann Van der Westhuizen, a retired Constitutional Court Judge, was in court in the public gallery to hear the application.
Bawa said letting the commissioner have the final say on who the JICS' CEO is, could leave the perception that the CEO is beholden to the national commissioner, and if the CEO is not the commissioner's choice, the position could stay vacant for a long time.
In addition, the Independent Correctional Centre Visitors (ICCVs) which monitors what happens inside the prisons' wall and respond to complaints from inmates are paid by the department.
This could create a situation where an ICCV would not want to "rock the boat" over a complaint for fear of losing their own security.
Sonke want the parts of the Act dealing with JICS to be removed from the Act. If not all the sections are removed, at the least, the section regarding budgetary control be removed.
Bawa said it is important for JICS to be seen as independent and free of influence from the DCS, just as the Independent Police Investigate Directorate and its former head Robert McMcBride fought for their independence to investigate the police.
"Being independent does not mean being unaccountable," she said.
Advocate Marumo Moerane, on behalf of the Minister of Justice and Correctional Services, and the national commissioner, disagreed.
He made a lengthy submission to support his clients' view that the Act makes it clear that the JICS is independent.
In addition, the budget for JICS had not only been increased but it was also now "ring-fenced" by Treasury.
"It is already under the control of an Inspecting Judge. It is not under the control of DCS. There can be no doubt that the judge being a judge, is an independent person and he controls JICS," said Moerane.
JICS's advocate Karrisha Pillay said it is concerned about budgetary and operational issues relating to its independence.
In March there was engagement with the parties, and a business case for JICS had been made.
Judge Nolwazi Boqwana wanted to know how she should proceed given the news that there may be an agreement over a business case.
Bawa said a business case would not have any statutory heft.
"The complaint is that the Act does not provide for sufficient independence which is required by the inspectorate, and a business case cannot cure this deficiency."
"The ultimate objective is not to offend the human rights of inmates."
Judgment was reserved.