On 4 May 2011 Judge Deon van Zyl, the South African Inspecting Judge for Correctional Services, took the stand in the high profile case of Shrien Diwani. The case, being heard in Belmarsh, United Kingdom, sought to determine whether Diwani should be extradited to face charges in a South African court of having arranged to have his wife Anni killed while on honeymoon in Cape Town. At issue was the question of whether Diwani’s safety would be in danger if detained in a South African prison, and thus whether he should be extradited to South Africa to face charges.

The legal issue at stake is the general principle in international law of non- refoulement. In short, this means that a state may not hand over, by any means, a person to another state if there are substantial grounds to believe that the person may be at risk of torture or any other form of ill treatment. Because the prohibition of torture is absolute, no concessions can be made and it cannot be balanced with other interests (such as seriousness of the charges faced).

Diwani’s defence therefore sought to argue that he would be ill treated if he were to be held in a South African prison. If conditions in South African prisons were in line with acceptable standards of humane detention, there would have been very little grounds for Diwani’s lawyers to raise this as an issue in opposing the application for his extradition. However, South African prison conditions emerged as a key weapon in Diwani’s defence teams arsenal to challenge his extradition.

As part of his testimony, undertakings were made by Judge van Zyl that the Inspectorate would ensure that Diwani’s physical and mental well-being would be closely monitored while in prison, that he would have a private cell with hot water and receive adequate medical attention. Such an undertaking immediately raises the spectre of special treatment for some prisoners by the Inspectorate and the Department of Correctional Services. In the wake of the cases of ANC politician Tony Yengeni and former adviser to President Jacob Zuma Shabir Shaik, where both appeared to have received special treatment because of their high level political connections, this is a sensitive and important issue.

It is tempting to dismiss the claims made by Diwani’s legal defence that conditions in South African prisons are inhumane and dangerous. Particularly since it was abundantly clear during the soccer World Cup that the British gutter press, and thus ordinary Britons, seem to believe that South Africa is an uncivilised backwater. So, supporting the view that South African prisons are inhumane and dangerous would appear to be grossly unpatriotic because such a view, by implication, would allow Diwani to escape prosecution in South Africa. To regard all South African prisons to be homogenous would also be incorrect and successive Inspecting Judges have in their annual reports stated that conditions vary enormously between different prisons – with some providing a higher level of care and security than others. Judge van Zyl is a person who has better knowledge than most people of the varying conditions in South African prisons and therefore it may seem obvious that he should have been called as a witness in this case. However, it is worth contemplating whether the Inspecting Judge should have participated in this case and the possible implications of having done so.

The first critical issue emanating from the Judge’s participation in this case as expert witness for the South African state is whether the act of testifying will affect the integrity, impartiality and independence of his office. It is not unheard of that judges testify in court, but it is also not a common occurrence as there is an important risk associated with it. As in all trials, the presiding judge pronounces on the quality of the evidence and the testimony of witnesses. There is therefore the risk that a judge testifying in court may in the end be regarded as a poor, unreliable or uninformed witness. If the court, in the present case of Diwani, finds that it regards the evidence presented by the defence’s experts as more reliable and plausible, this may indeed have serious implications for the integrity, impartiality and independence of the Judicial Inspectorate.

Even if his evidence is held to be credible, a second question arises from his testimony. In the light of the judge’s testimony that Diwani could expect to be detained in the best possible conditions that evades most South African detainees, will prisoners continue to regard the Judicial Inspectorate as an impartial protector of their interests and, as capable of exercising oversight over the Department of Correctional Services?

The Diwani case has already attracted significant media attention in both England and South Africa. Does Diwani qualify for a presumably higher standard of care by both the Inspectorate and the Department of Correctional Services than any other prisoner because he is a ‘celebrity’ or because it is important to counter the negative perceptions Britons might have of South Africa?

The Inspectorate’s vision is to “ensure that all inmates are detained under humane conditions, treated with human dignity and prepared for a dignified reintegration into the community”. Special treatment for some individuals because of their political associations or celebrity status may raise questions in the minds of ‘ordinary’ prisoners about the seriousness with which their complaints will be taken.

So while in agreeing to testify as expert witness for the National Prosecuting Authority Judge Van Zyl was executing his patriotic duty to assist in ensuring that the perpetrators of crime in South Africa, regardless of their nationality, are prosecuted, it carried a risk to perceptions of the independence and impartiality of the Inspectorate.

If the Belmarsh Court accepts the Judge’s evidence above that of the defence’s expert witnesses, the potentially embarrassing reprimand by a peer from the bench is avoided. However, the ‘special treatment’ promised to Diwani may damage the integrity and impartiality of the Judicial Inspectorate, raising questions about whether the office of the Inspectorate is a protector of all prisoners’ rights and or just some.

Written by Chandre Gould, Senior researcher, Crime and Justice Programme, ISS Pretoria

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Lukas Muntingh, Project Coordinator of the Civil Society Prison Reform Initiative, Community Law Centre, University of the Western Cape