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n Tydskrif vir die Suid-Afrikaanse Reg - Persoonlikheidsregtelike beskerming van staatsgevangenes
Protection of the personality rights of state prisoners
The point of departure for the protection of the personality rights of prisoners in our law is that, apart from the fact that their right to liberty has been restricted by their imprisonment, prisoners have all other personality rights at their disposal - the so-called residuum principle - and is entitled to the protection thereof except where a right has been taken away from them by law, expressly or by implication, or where the right in question is necessarily inconsistent with the circumstances in which they have been placed.
Personality rights of prisoners that already enjoy recognition and protection are the rights to bodily freedom, physical-psychological integrity and privacy, as well as the fundamental right to human dignity. It is generally accepted that the prison authorities may not infringe these rights by positive conduct or an omission where there was a legal duty to act. With regard to the physical-mental integrity, it is recognised that warders have a legal duty, based on common law, statutory and constitutional imperatives, to see to the welfare of inmates. There is no reason why other rights of personality (such as the rights to dignity, reputation and identity) should not also be protected.
Infringement of protected personality rights is in the absence of a ground of justification (such as official or statutory authority and volenti non fit iniuria) wrongful. There are on the one hand strong indications in case law that liability for the wrongful infringement of a prisoner's rights of personality to physical liberty, physical-psychological integrity and privacy is strict. On the other hand there are various decisions which set at least negligence as a requirement for liability for the infringement of their physical integrity, and in one case even of their bodily freedom. However, the latter approach is questionable for the following policy considerations.
As a result of the extremely unequal relation between the prison authorities and prisoners, the inmates are largely at the mercy of their goalers or as it was put in one decision, "it is no holiday to be in prison in South Africa". Consequently prisoners are among the most vulnerable in our society to the failure of the state to protect their rights. Justice and fairness therefore demand that the state should be strictly liable and that prisoners should not be burdened with the sometimes very difficult onus of proving negligence on the side of the prison authorities.
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