In a unanimous judgment penned by Majiedt J (with Madlanga ADCJ, Kollapen J, Mhlantla J, Rogers J, Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J concurring) the Court held that the blanket prohibition on personal computers in inmates’ cells infringes the right to education, because inmates cannot access reading material for their studies and complete educational tasks when they are in their cells. The Court held that the right to further education enshrined under section 29(1)(b) of the Constitution plainly encompasses access to textbooks and other tools necessary for fulfilling the right, including electronic tools. The Court found that to be effective, education must include adequate learning resources. This is true both inside and outside prison. Learning resources include textbooks, writing materials and, given the rapid evolution in the digital age, the availability of technological tools like computers for e-learning.

The Court held that a prisoner enjoys the rights the Constitution extends to all persons and those specifically given to every sentenced prisoner (section 35(2)), unless these rights are limited by a law of general application in terms of section 36. The Court held that the applicants failed to adduce the evidence necessary to justify the limitation of inmates’ right to further education.

For the reasons stated above, the Court confirmed the order of constitutional invalidity made by the Supreme Court of Appeal. Prior to giving its order, the Court underscored that this case is concerned only with the rights of prisoners to personal computers for educational purposes. Nothing in the judgment should be regarded as expressing any view on the justifiability of restrictions on the use of personal computers in cells for any other purposes.

The Court made the following order:

1. The order of constitutional invalidity made by the Supreme Court of Appeal is confirmed.

2. The Policy Procedure Directorate Formal Education, as approved by the second applicant and dated 8 February 2007, is unconstitutional and invalid to the extent that it prohibits the use of personal computers in cells for purposes of further education in circumstances where such use is reasonably required for such further education, and is set aside.

3. The order of constitutional invalidity is suspended for 12 months from the date of this order.

4. The second applicant is directed, within 12 months from the date of this order, to prepare and promulgate a revised policy consistent with the principles laid down in this judgment (revised policy).

5. The second applicant is directed, within one week after promulgating the revised policy, to disseminate that policy to the head of every correctional centre, and, where one is employed, to the head of education at each centre.

6. Notice of the revised policy must be posted on notice boards in all prisons where prisoners customarily receive information, and such notice must set out where prisoners may obtain copies of the revised policy.

7. Pending the revision of the policy:

(a) Any inmate in a correctional centre registered as a student with a recognised tertiary or further educational institution and who reasonably needs a computer to support their studies, and any student who has registered for a course of study that reasonably requires a computer as a compulsory part of the course, is entitled to use their personal computer without the use of a modem in their cell.

(b) Any registered student who keeps a personal computer in their cell in accordance with paragraph 7(a) above must make it available for inspection at any given time by the head of the correctional centre or any representative of the second applicant.

(c) In the event of a breach of the rules relating to the use by an inmate of their computer in their cell, the head of the correctional services centre may, after considering any representations the inmate may make, direct that the inmate may not use their computer in their cell.

8. The first and second applicants are ordered to pay, jointly and severally, the costs of this application, the costs in the Supreme Court of Appeal and the High Court, including in all instances the costs of two counsel, where so employed.