Court name
Supreme Court of Zimbabwe
Case number
SC 137 of 2002
Civil Application 178 of 2001

Woods v Commissioner of Prisons and Another (78/01) (SC 137 of 2002, Civil Application 178 of 2001) [2003] ZWSC 74 (16 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 74



















REPORTABLE
(35)


Judgment
No. SC 137/02


Civil
Application No. 178/01








KEVIN
JOHN WOODS v





(1) THE
COMMISSIONER OF PRISONS


(2) THE
MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA  JA, CHEDA JA, ZIYAMBI JA &
MALABA  JA


HARARE,
JUNE 27, 2002 & NOVEMBER 17, 2003








J
Wood
,
for the applicant





A
Dururu
,
for the respondents





MALABA
JA:





INTRODUCTION





This
is an application in terms of s 24(1) of the Constitution of
Zimbabwe (“the Constitution”) for redress, on the allegation
that
there have been violations of ss 15(1) and 12(1) of the Declaration
of Rights by the respondents in relation to the applicant.






The applicant (“Woods”) is
fifty years old. He is a D-class prisoner serving a sentence of
imprisonment for life at Chikurubi
Prison, which is a maximum
security State prison. Mr Woods had originally been sentenced
to death for murder by the High Court
on 18 November 1988.
That sentence was commuted to a life sentence by this Court on
10 December 1993, following a declaration
that the death penalty
had become an inhuman and degrading punishment because of the delay
in its execution. From the date when
the death sentence was passed
he has been in custody for close to fifteen years.





At
the time of commission of the crime of murder Woods was a Zimbabwean
citizen, having been born in this country, but was granted
South African citizenship by descent in 1994. The first
respondent (“the Commissioner”) has the administrative command,
superintendence, control and direction of prisons and of the Prison
Service in Zimbabwe. The second respondent (“the Minister”)
is
responsible for the administration of the legislation governing the
operation of prisons and the Prison Service. He has the
power to
give the Commissioner general directions of policy.





THE
RELEVANT STATUTORY PROVISIONS









The powers
the respondents exercise in the discharge of their duties in
connection with the administration of prisons are contained
in the
provisions of the Prisons Act [
Chapter 7:11]
(“the Act”) and the Prisons (General) Regulations, Statutory
Instrument 1 of 1996 (“the Regulations”). Under the Act the
Commissioner exercises his powers through officers in charge of
prisons whom he appoints. All matters in connection with a
particular
prison would therefore fall under the direct supervision
and control of its officer-in-charge. The officer-in-charge of
Chikurubi
Maximum Security Prison would be answerable to the
Commissioner for the treatment to which Woods was subjected.





Section 64
of the Act provides that every person confined in a prison shall be
in the lawful custody of the officer-in-charge
and, subject to the
Act, shall remain in such lawful custody and be subject to prison
discipline during the whole period of his imprisonment.






The Minister
is empowered by s 36(1) of the Act to appoint as a medical
officer of a prison any medical practitioner who is
registered as
such in accordance with the Medical, Dental and Allied Professions
Act [
Chapter 27:08].
A medical officer has the general care of the health of the
prisoners.






Under s 32
of the Regulations a medical officer
must
examine all prisoners who complain of illness; treat all sick
prisoners; notify the officer-in-charge of all cases of serious
illness;
and make such written recommendations to the
officer-in-charge regarding the treatment, isolation or care of sick
prisoners as he
thinks fit. An officer-in-charge is bound by
s 18(1) of the Regulations to comply, whenever it is
practicable, with the lawful
and reasonable recommendations of a
medical officer of the prison.





At
the end of every four years’ imprisonment of a prisoner serving a
life sentence the Commissioner is required under s 121(1)
of the
Act to forward a report on the prisoner to the Minister, who may
submit it to the President of Zimbabwe (“the President”).
The
Commissioner must submit a report on a prisoner serving a life
sentence at any time if asked to do so by the Minister or when
instructed to do so by the President.





If
a medical officer is of the opinion that the life of a prisoner is
likely to be endangered by his further confinement in prison,
or a
sick prisoner is unlikely to survive his sentence, or the mental
health of a prisoner appears likely to become impaired by his
further
incarceration in prison, he must, under s 34 of the Regulations,
submit a written report to the officer-in-charge of
the prison,
giving his opinion and the reasons for his opinion. The
officer-in-charge is bound to immediately forward the written
report
to the Commissioner for onward transmission to the Minister, who may
submit it to the President.





THE
FACTS





The
facts or circumstances upon which Woods seeks redress from this Court
are set out in the founding affidavit and documents annexed
thereto.
They are to this effect. On a date undisclosed, but in July 1993,
Woods woke up in severe pain which lasted for thirty
minutes in the
chest, left arm and neck. He felt faint and breathless. The
following day Woods saw Dr Ahmed, who was the
medical officer
for Chikurubi Maximum Security Prison. Doctor Ahmed was of the
opinion that the symptoms Woods complained
of having experienced were
suggestive of coronary angina (severe pain caused by a disease in the
arteries supplying blood to the
tissues of the heart). The doctor
gave Woods valium to calm his nerves and angiseed to place under his
tongue in the event of another
attack.





There
were subsequent visits by Woods to Dr Ahmed, the details of
which are not disclosed in the papers. It is important
to note that
there is no suggestion that Woods was feeling pain on the first visit
to Dr Ahmed or on any of the subsequent visits
to the medical
officer.





In
April 1994 Woods was allowed to consult medical doctors operating
from centres outside prison. He saw Dr Ian Ternouth,
a
heart specialist and cardiologist based at Parirenyatwa Hospital.





On
11 September 1996 Dr Ternouth put Woods on an
electrocardiogram (“ECG”) test to ascertain whether he had a
coronary
artery disease. The object of the test was to check,
amongst other things, abnormal rhythms and ischaemia (a condition
resulting
from reduction or interruption of the supply of blood and
oxygen) which would ordinarily show in a person suffering from a
coronary
artery disease.





Doctor Ternouth
described the procedure conducted and the results thereof in the
supporting affidavit deposed to on 26 July
1998 as follows:






“5.1 On
the 11
th
of September 1996 I conducted an ECG test on Mr Woods. He had
a resting and effort test done. He completed forty-five steps
in
the master’s staircase. He developed some chest pains at
twenty-seven steps.






5.2 His
resting ECG was normal, but there were minor changes i.e. some minor
ST depression on a couple of leads. There were
‘T’ wave
changes in one of the leads.





5.3 My
conclusions were that these wave changes were not definitely abnormal
but they were not definitely normal either.





5.4 Based
on the results of my examination and the symptoms that Mr Woods
complained of, I concluded that Mr Woods could
be having angina.





5.5 Coronary
angina is a life threatening heart ailment which in some instances is
stressed or environmentally related, but more often
than not
hereditary, in that it has the same risk factors, some of which are
generic, like cholesterol.”






What
is clear from Dr Ternouth’s affidavit is the fact that there
was no diagnosis of a coronary artery disease.





On
21 February 1997 Dr Ternouth had Woods undergo another
diagnostic test called “stress dobutamine tetrafosmine”.
The
procedure and its results are again explained in Dr Ternouth’s
supporting affidavit:






“6.2 Dobutamine is a drug that
increases heart and pulse rate. Stress dobutamine is a two-stage
procedure that has approximately
93% specificity and 90% sensitivity
for detecting coronary artery perfusion. The test was conducted
according to a standard dobutamine
protocol.





6.3 During
the procedure the patient experienced no chest pain. The ECG showed
him to develop sinus tarcycardia, i.e. a very fast
rate of 150 beats
per minute. This was the target level. The resting and effort ECG
during the entire procedure was normal.





6.4 The
drugs caused a major cardiac load – cardiac work load is a product
of the pulse rate and blood pressure and we had increased
the
patient’s cardiac output by about four times.”






The
above-mentioned diagnostic test revealed more information as to
whether Woods was having a coronary artery disease. The results
were that Woods did not produce the electrocardiographic changes
usually seen in patients suffering from coronary angina. He did
not
experience any chest pains during the entire procedure despite the
high stress levels.





Doctor Ternouth
had, on 14 February 1997, arranged for Woods to have perfusion
scan images of his heart taken. On 18 February
1997
Dr N D Jonker, a diagnostic radiologist based at the
Diagnostic Imaging Centre in Harare examined the perfusion
scan
images. He noted a minor area of dead tissue in the inferior wall
of the left ventricle. That was an irreversible defect.
He also
noted evidence of an occurrence of mild stress induced ischaemia
within the septum (layer of tissue dividing the two chambers)
of the
left ventricle. Doctor Jonker, however, observed that there
were no signs of an area of threatened myocardium (i.e.
damage or
injury to the muscular substance of the heart).





The
same perfusion scan images were examined by Dr Basson of the
Pretoria Academic Hospital/Cardiology Department in South Africa.
He confirmed the results of Dr Jonker’s analysis.
Dr Basson concluded that there was no short term effect on the
proper functioning of Woods’ heart. In other words, his heart was
functioning normally. There was no evidence of him having
coronary
angina. Doctor Basson indicated, however, that in the long
term a disability could develop in Woods’ heart which
could
progressively lead to increased need for medical care.





The
results of the diagnostic tests to which Woods had been subjected
caused Dr Ternouth to write to his (Woods’) legal practitioner
on 15 April 1997 saying:






“… if
I had a patient who was not incarcerated and who complained of the
same symptoms that Mr Woods complained of, then I would
refer
that patient for a
coronary
angiogram
.
The probability of the patient having a coronary heart disease is
low but is not zero. Obviously in Mr Woods’ case the
possibility of secondary gain cannot be excluded. His symptoms,
however, are very classical of coronary angina. He does not have
the electrocardiographic changes that we usually see in angina but
the ECG has a 20% false negative rate and it is possible that
Mr Woods falls in this group. Certainly if Mr Woods was a
free man and came to me complaining of the symptoms then I
would
recommend that he have a coronary angiogram.”





What
Dr Ternouth was in effect saying was that all that remained were
the symptoms Woods had complained of because the diagnostic
tests
conducted on him had not revealed evidence of coronary angina. A
coronary angiogram would be an additional diagnostic tool,
the use of
which was at the discretion of those in whose custody Woods remained.
Had there been conclusive evidence that Woods
was suffering from a
coronary artery disease, the object of putting him on an angiogram
would be the discovery of the exact cause
thereof, such as blockages
in the arteries.





On
28 May 1997 Dr Ternouth wrote another letter, in which he
made reference to the results of the interpretation of the
perfusion
scan images. He again emphasised that the diagnostic test conducted
on Woods so far had not detected coronary angina.
He said:





“These
scans show evidence of probable previous myocardial infarction.
They do not show areas of threatened myocardium. Mr Woods,
however, has symptoms that strongly suggest that he has coronary
artery disease. His electrocardiograms with stress and his
perfusion
scans with stress do not show supporting evidence for
coronary artery disease but these tests are not perfect tests. If
Mr Woods
was not incarcerated and presented to me as a patient
with symptoms of anginal type of chest pains which is what he
complains about
then I would have no hesitation in referring him for
a coronary angiogram to determine whether he had coronary artery
disease or
not.





As
you are well aware Mr Woods is incarcerated and barring
political settlement may be incarcerated for some time. The
possibility
exists that the symptoms he is complaining of may not be
totally genuine, there is a possibility that he is complaining of his
symptoms
in order to get referral outside this country.”





According
to Dr Ternouth’s expert opinion, the probability of Woods
developing a coronary artery disease was quite low. He
put the
chance of that happening at 5% to 10%. He affirmed the existence of
the possibility that Woods had simulated symptoms of
coronary angina
for purposes of secondary gain to be transferred to South Africa.
Doctor Ternouth could not have had
that opinion if the medical
evidence indicated that Woods had a coronary artery disease.





Doctor Ternouth
then went to New Zealand on sabbatical leave. Mr Woods
was seen by Dr Muzamhino on 2 May,
25 July and
21 December 2000. He was treated for a peptic ulcer. On
18 December 2000 he saw Dr A Freemantle
at a private
surgery in Harare. He complained of having experienced dizziness, a
headache, blurred vision and numbness in the left
hand some seven
months before the day he visited Dr Freemantle.





Doctor Freemantle
was of the opinion that what Woods was complaining of were symptoms
of a “transient ischaemic attack”
(a mini-stroke), that is to
say, a temporary reduction or interruption of the supply of blood and
oxygen to the brain due to a blocked
or narrowed artery. To
ascertain whether that condition had actually occurred Dr Freemantle
recommended that Woods be subjected
to three diagnostic tests.
These were –






(a) A Colour Doppler Test – to
assess the condition of the neck or carotid arteries for any
impediment to the smooth flow of blood
to the brain;







(b) An A.C.T. Brain Scan – for
the detection of any residual brain damage; and







(c) An Echocardiogram – for the
assessment through sound waves of the condition of the heart muscles
and blood tests for any small
clots.





The
first two tests were later done. No abnormalities were detected in
the carotid arteries and the brain. The echocardiogram
had not been
performed at the time the application was heard. An
electrocardiogram was instead conducted. It did not reveal any
abnormalities in Woods’ cardiac functions. It was not said in the
papers whether the echocardiogram would probably have produced
different results.






Be that as it may, Woods was seen
by Dr Masenda, the medical officer for Chikurubi Maximum
Security Prison, on 31 January
2001. As indicated earlier on,
it was the duty of Dr Masenda, as the medical officer, to
establish by examination of Woods
whether he was seriously ill.
Doctor Masenda arranged for Woods to have an ECG test. This
was done. He had a blood sample
taken from Woods. It was tested
for haemoglobin concentration and serum cholesterol levels.
Mr Woods’ blood pressure was
measured. Doctor Masenda
had the Colour Doppler and A.C.T. brain scan tests recommended by
Dr Freemantle done. All
these diagnostic tests and
measurements revealed no malfunction in Woods’ heart.





The
opinion formed by Dr Masenda in his capacity as the medical
officer of Chikurubi Maximum Security Prison was that Woods was
not
seriously ill at all. He concluded from all the medical evidence,
including the interpretation of the perfusion scan images,
that Woods
was not suffering from a coronary artery disease. There was,
therefore, no need to put him on an angiogram. Doctor Masenda
associated himself with Dr Ternouth’s statement in the letter
of 28 May 1997, that the symptoms Woods had complained
of may
have been simulated for secondary gain.





As
the medical officer on whom the Act and Regulations placed the
general health of prisoners, and with whose lawful and reasonable
recommendations the respondents were to comply, Dr Masenda’s
opinion on Woods’ condition of health was bound to be accorded
considerable weight by the respondents in deciding whether or not to
accede to his request for a transfer to South Africa on
medical
grounds.





The
written request was submitted to the respondents on 24 October
2000. Mr Woods claimed that he needed to have a coronary
angiogram in South Africa. The specialised diagnostic test is
not available in Zimbabwe. The respondents turned the request
down
on the ground that as a prisoner Woods had no right as such to be
transferred to another country on medical grounds and that
there was
no evidence that he suffered from a life-threatening disease.





On
two occasions in 1997 and 1998 Woods had unsuccessfully petitioned
the President for the exercise of the prerogative of mercy and
an
order that he be released from prison.





THE
APPLICATION





Dissatisfied
with the decision of the respondents and the unsuccessful petition
for the exercise of the President’s prerogative
of mercy, Woods
lodged this application. He charged that his constitutional rights
were violated. The refusal by the respondents
to transfer him to
South Africa where he wanted to have a coronary angiogram was
said to have violated his right not to be subjected
to inhuman or
degrading treatment. The decision not to exercise the prerogative
of mercy in his favour was said to have destroyed
in him all hope for
the restitution of freedom in his lifetime. The loss of hope of
ever regaining his liberty allegedly turned
the life sentence Woods
was serving into an inhuman and degrading punishment in contravention
of s 15(1) of the Constitution.
There was also an allegation
to the effect that the refusal by the respondents to transfer Woods
to South Africa to have a
coronary angiogram violated his right
to life entrenched for him under s 12(1) of the Constitution.





THE
RELIEF SOUGHT





In
the event of a finding that the refusal by the respondents to
transfer him to South Africa constituted a violation of s 15(1)
of the Constitution, Woods prayed that an order directing the
respondents to transfer him to an “appropriate prison authority”
in that country be granted. In the event of a finding that the life
sentence had become an inhuman and degrading punishment in
contravention of s 15(1), or that the refusal to transfer him to
South Africa amounted to an infringement of his right
to life,
Woods prayed that an order that he be released from custody be given.





THE
CONSTITUTIONAL PROVISIONS





Section
15(1) provides that:





“No
person shall be subjected to torture or to inhuman or degrading
punishment or other such treatment.”





Section 12(1)
provides that:





“No
person shall be deprived of his life intentionally save in execution
of the sentence of a court in respect of a criminal offence
of which
he has been convicted.”





Section
31I, which contained the President’s prerogative of mercy, provides
that:


“(1) The
President may, subject to such lawful condition as he may think fit
to impose –





(a) grant
a pardon to any person concerned in or convicted of a criminal
offence against any law; or






(b) grant
a respite, either indefinite or for a specific period, from the
execution of any sentence for such an offence; or





(c) substitute
a less severe punishment for that imposed by any sentence for such an
offence; or





(d) suspend
for a specified period or remit the whole or part of any sentence for
such an offence.”





THE
ANALYSIS






All the
circumstances stated above have to be considered in determining the
constitutional questions raised by this application.
The contention
that the refusal by the respondents to transfer Woods to South Africa
to have a coronary angiogram constitutes
inhuman and degrading
treatment takes account of the fundamental principle of the law to
the effect that prisoners as human beings
are entitled to all basic
human rights enshrined in the Constitution except those withdrawn
from them by law expressly or by implication
–
Woods
v Minister of Justice and Anor

1994 (2) ZLR 195 (S) at 198C;
Blanchard
& Ors v Minister of Justice

1999 (2) ZLR 24 at 29F.






In punishing
a person by incarcerating him or her, the State renders him or her
unable to care for himself or herself, at the same
time preventing
others from assisting him. In
Estelle
v Gamble

429 US 97, the Supreme Court of the United States of America
held that “an inmate must rely on prison authorities to treat
his
medical needs”. It was, however, held in
Gamble’s
case
supra
that it was “deliberate indifference” on the part of prison
administration to “serious medical needs” or “serious illness”
of a prisoner constituting “unnecessary and wanton infliction of
pain” which amounted to “cruel and unusual punishment” under
the Eighth Amendment of the American Constitution. The court made
it clear that not every claim by a prisoner that he had not received
adequate medical treatment or medical diagnosis stated a violation of
the Eight Amendment.






In Conjwayo
v Minister of Justice & Anor

1991 (1) ZLR 105 (S) GUBBAY  CJ at pp 112H-113A said:





“Section 15(1)
is a provision that embodies broad and idealistic notions of dignity,
humanity and decency. It guarantees
that punishment or
institutionalised treatment of offenders be exercised within the
ambit of civilised standards. Punishment or
treatment incompatible
with the evolving standards of decency that mark the progress of a
maturing society, or which involve the
infliction of unnecessary
suffering, is repulsive.”






Section 15(1)
clearly prohibits certain forms of ill-treatment.
Conjwayo’s
case
supra
makes it clear that it is not all forms of maltreatment which are
prohibited by s 15(1).






Article 3
of the European Convention provides that “no-one shall be subjected
to torture or to inhuman or degrading treatment
or punishment”.
It contains notions similar to those used in s 15(1) of our
Constitution. In
Ireland
v UK

2 EHRR 25, the European Court of Human Rights considered the meaning
of Article 3. The majority held that Article 3 prohibited
ill-treatment which had to attain a minimum level of severity, that
is to say, it had to cause intense physical and mental suffering.

JUDGE FITZMAURICE in a dissenting judgment said the
ill-treatment had to be recognisably “barbarous”, “savage”,
“brutal”
or “cruel”, “which is the least that is necessary
if the notion of the inhuman is to be attained”. The learned
judge said
at p 134:





“For
my part, I consider that the concept of ‘inhuman’ treatment
should be confined to the kind of treatment that (taking some
account
of the circumstances) no member of the human species ought to inflict
on another, or could so inflict without doing grave
violence to the
human, as opposed to the animal, element in his or her make up.
This I believe is the sense in which the notion
of ‘inhuman’
treatment was intended to be understood in Article 3 – as
something amounting to an atrocity, or at least
a barbarity. Hence
it should not be employed as a mere figure of speech to denote what
is bad treatment, ill-treatment, maltreatment,
rather than properly
speaking inhuman treatment.”






On the
meaning of “degrading treatment” the court in the
Ireland
case
supra
accepted that the relevant notions were those of “humiliation”
and “debasement”. The majority held that that “humiliation”
and “debasement” had to be other than the general or usual
element of humiliation associated with imprisonment after a criminal
conviction. In other words, Woods should not have been “humiliated”
simply by the decision which went against his wishes.
That would be
a typical consequence of any negative decision. Section 15(1)
of our Constitution clearly implies that there
should be a
distinction between the “degrading treatment” it prohibits and
general or usual treatment. JUDGE FITZMAURICE
at pp 134-135
of the
Ireland
case
supra
said “degrading treatment” was:





“… intended
to denote something seriously humiliating, lowering as to human
dignity, or disparaging, like having one’s head shaved,
being
tarred and feathered, smeared with filth, pelted with muck, paraded
naked in front of strangers.”





Accepting
that the refusal to transfer Woods to South Africa where he
wanted to undergo an angiogram test is “treatment”,
can it be
said it constitutes “inhuman” treatment or “degrading”
treatment? A refusal by prison authorities of a request
by a
prisoner does not in itself constitute a form of inhuman or degrading
treatment. Taking into consideration all the circumstances
of this
case, it cannot even be said that the decision of the respondents was
an ill-treatment of Woods. Even if it was an ill-treatment,
I am
satisfied that he failed to show facts on which a finding that the
decision constituted “inhuman” treatment or “degrading”
treatment could be made.





In
the first place, he had to show that he had a serious medical need
for the diagnosis he wanted to be subjected to in South Africa
or that he was seriously ill. He had to show by objective evidence
that, with full knowledge that he was afflicted with a disease,
the
respondents refused him access to a diagnosis which would have led to
the treatment of the disease. An inference would then
have been
made from such facts that the object of the decision was unnecessary
and wanton infliction of pain on him.





In
this case, the medical evidence placed before the respondents was to
the effect that Woods was not suffering from a life-threatening
disease. Medical examinations had established that he did not
suffer from a coronary artery disease. The medical opinion of
Dr Masenda
who, as the medical officer of Chikurubi Maximum
Security Prison, had the care of the health of prisoners and
monitored the state
of health of Woods, was that he did not need to
undergo a coronary angiogram test. The respondents had the medical
opinions of
Dr Ternouth and Dr Masenda to the effect that
Woods could have simulated the symptoms of a coronary artery disease
to gain
transfer to South Africa. They were entitled as laymen
to place considerable weight on the opinions of medical experts.
Their decision was in accordance with medical evidence and there is
no indication at all that they refused Woods’ request for a
transfer to South Africa because they derived pleasure in seeing
him in pain. The nature of the medical evidence considered
by the
respondents did not provide them with knowledge of Woods having a
serious medical need to be treated.





At
the end of the day, all the respondents did was to refuse to allow
Woods to undergo an additional diagnostic test on the ground
that it
was not necessary. That, in my view, cannot found a case for a
contravention of s 15(1) of the Constitution.






In Gamble’s
case
supra
a prisoner had been injured when a bale of cotton fell on him while
he was unloading a truck. He thereafter had complained of a
back
injury. He was seen by a number of prison medical doctors and
treated with pain relievers and muscle relaxants. The prisoner
(Gamble) later instituted an action in which he complained that the
Prison Service had failed or refused to have him undertake adequate
diagnosis of his back injury. The prisoner alleged that the failure
by the Prison Service amounted to “cruel and unusual punishment”
in contravention of the Eighth Amendment. MR JUSTICE MARSHALL,
delivering the opinion of the majority, said at p 107:





“The
doctors diagnosed his injury as a lower back strain and treated it
with bed rest, muscle relaxants, and pain relievers.
Respondent
contends that more should have been done by way of diagnosis, and
treatment, and suggests a number of options that were
not pursued.





The
Court of Appeals agreed, stating:





‘Certainly
an X-ray of (Gamble’s) lower back might have been in order and
other tests conducted that would have led to appropriate
diagnosis
and treatment for the daily pain and suffering he was experiencing.’





But
the question whether an X-ray – or additional diagnostic techniques
or forms of treatment – is indicated is a classical example
of a
matter for medical judgment. A medical decision not to order an
X-ray, or like measures, does not represent cruel and unusual
punishment.”





In
this case, the decision of the respondents not to transfer Woods to
South Africa to have a coronary angiogram was based
upon the
medical judgment of Dr Masenda to the effect that the additional
diagnostic test was not necessary. In my view, that
decision cannot
be said to constitute “inhuman” treatment or “degrading”
treatment.





IMPRISONMENT
FOR LIFE





Mr Woods
contended that the failure to exercise the President’s prerogative
of mercy in his favour on the two occasions when
he petitioned for
its exercise turned the life sentence he is serving into an “inhuman
punishment”. The submission was that
the rejection of his
petitions destroyed all hope in him of ever regaining freedom before
the end of his natural life.






The argument
in support of the submission was based on an
obiter
dictum

by MAHOMED CJ in
S
v Tcoeib

1996 (7) BCLR 996. In that case the Supreme Court of Namibia had to
decide whether a sentence of imprisonment for life for murder
was a
”cruel, inhuman or degrading treatment or punishment” in
contravention of Article 8(2)(b) of the Constitution of Namibia.
Speaking for all the members of the court, MAHOMED CJ held
that a sentence of imprisonment for life, which was a discretionary
sentence in Namibia, did not
per
se

violate the relevant constitutional prohibition against cruel,
inhuman or degrading punishment. Having decided what on the facts
was necessary to determine, MAHOMED CJ went on at 1004H-1005B to
say:





“… there
is no escape from the conclusion that an order deliberately
incarcerating a citizen for the rest of his or her natural life
severely impacts upon much of what is central to the enjoyment of
life itself in any civilised community and can therefore only be
upheld if it is demonstrably justified. In my view, it cannot be
justified if it effectively amounts to a sentence which locks
the
gates of the prison irreversibly for the offender without any
prospect whatever of any lawful escape from that condition for
the
rest of his or her natural life and regardless of any circumstances
which might subsequently arise. Such circumstances might
include
sociological and psychological re-evaluation of the character of the
offender which might destroy the previous fear that
his or her
release after a few years might endanger the safety of others or
evidence which might otherwise show that the offender
has reached
such an advanced age or become so infirm and sick or so repentant
about his or her past, that continuous incarceration
of the offender
at State expense constitutes a cruelty which can no longer be
defended in the public interest. To insist, therefore,
that
regardless of the circumstances an offender should always spend the
rest of his natural life in incarceration is to express
despair about
his future and to legitimately induce within the mind and the soul of
the offender also a feeling of such despair and
helplessness.”





It
appears to me that the hope of release from prison is inherent in the
statutory mechanisms which incorporate the President’s
prerogative
of mercy. The prerogative of mercy is exercisable at any time
depending upon the circumstances which may include the
prisoner’s
age and state of his health.





A
prerogative of mercy is an exercise of the President’s personal
discretion. It can be exercised without the involvement of
the
prisoner. In this case, the prerogative of mercy has not been
exercised in favour of Woods and there is no telling whether
and when
it might be exercised. It was unreasonable for Woods to entertain
the belief that the President’s prerogative of mercy
would never be
exercised in his favour during his life in prison when its exercise
has no time limit. Mr Woods clearly laboured
under a
misconception of the essence of a prerogative of mercy.






In Reckley
v Minister of Public Safety & Immigration and Ors (No. 2)

[1996] 1 LRC 401, a decision of the Privy Council, LORD GOFF OF
CHEVELEY cited with approval another decision of the same court
in
de Freitas
v Benny

[1996] AC 239. After stating that at common law the prerogative of
mercy has always been a matter which lies solely in the discretion
of
the sovereign, LORD DIPLOCK said in the
de Freitas
case
supra:





“Mercy
is not the subject of legal rights. It begins where legal rights
end. A convicted person has no legal right even to have
his case
considered by the Home Secretary in connection with the exercise of
the prerogative of mercy.”





By
its very nature the President’s prerogative of mercy can still be
exercised in favour of Woods at any time in future. It
cannot be
said that he has been effectively abandoned in prison as a “thing”
without any residual dignity and without any hope
of restitution of
freedom in his lifetime.






The contention advanced on the
sentence of imprisonment for life having become an inhuman and
degrading punishment because the President’s
prerogative of mercy
has not been exercised must fail.






I do not
consider it necessary to decide, as called upon to do by Mr 
Dururu,
for the respondents, whether s 15(6) of the Constitution is
applicable to the facts of this case since I have taken the view
that
there has been no contravention of s 15(1) of the Constitution.





THE
RIGHT TO LIFE





The
submission was that the refusal by the respondents to transfer Woods
to South Africa to have a coronary angiogram was tantamount
to
condemning him to a “lingering death”. The argument was
premised upon the presumption of the fact that Woods had been shown
to be suffering from a life-threatening disease such as coronary
angina and that the respondents had knowledge that he suffered from
such a disease. The presumption has no basis on the facts.






Even if it had a factual basis,
the argument would not establish a violation of s 12(1) of the
Constitution, which is clearly
not applicable to the facts of this
case. Section 12(1) of the Constitution prohibits deliberate
acts of violence directed
at the person of another with the intention
of killing him or her. The right protected (in a person) by s 12(1)
of the Constitution
is the right not to be intentionally killed
except in the instances specified therein. It cannot, by any stretch
of the imagination,
be said that when the respondents refused to
transfer Woods to South Africa where he wanted to have a
coronary angiogram they
intended to bring about his death. The
evidence clearly shows that at the time the respondents made the
decision they did not know
that Woods was suffering from a
life-threatening disease. The medical evidence placed before them
was that he was not suffering
from a life-threatening disease.





CONCLUSION





The
application is accordingly dismissed with no order as to costs.














CHIDYAUSIKU
CJ: I agree.














SANDURA  JA:
I agree.














CHEDA
JA: I agree.














ZIYAMBI
JA: I agree.















Coghlan,
Welsh & Guest
,
applicant's legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondents' legal practitioners