This photo of Wilhelm Pretorius, dr. Lets Pretorius and Johan Pretorius were taken to the Pretoria High Court in 2013. Photo: Theana Breugem
- One of the infamous Boeremag members, found guilty of treason, has failed to secure conjugal visits with his wife in jail.
- Wilhelm Pretorius also asked the Gauteng High Court in Pretoria for the right to have a cell phone while in prison.
- The court found that there is no law or section in the Constitution that allows for conjugal visits, and that being incarcerated comes with the limitation of rights.
One of the Boeremag members, found guilty of treason, has failed to secure conjugal visits with his wife, and the use of a cellphone while incarcerated.
The Boeremag members shot to infamy after claiming responsibility for a series of bomb attacks, one of which killed a woman in 2002.
The group had also planned to assassinate former President Nelson Mandela, with their goal to destroy the country’s young democracy.
In 2013, the so-called leader of the Boeremag, Lets Pretorius, was sentenced to 20 years in prison while two of his sons, Johan Pretorius and Wilhelm Pretorius were sentenced to life in prison.
His third son, Kobus Pretorius, who was the “master bomb maker” was sentenced to 20 years, of which 10 were suspended.
After getting married in 2017 while serving his sentence in Zonderwater Correctional Facility in Tshwane, Wilhelm, 41, and his young wife expressed the desire to have children and applied for permission to have access to artificial insemination technology.
This request was initially denied by Correctional Services, who later reversed their decision and granted the couple permission to attempt artificial insemination to have a child.
According to Judge Jody Kollapen, Pretorius’ wife fell pregnant and subsequently gave birth to a child.
Pretorius then approached the Gauteng High Court in Pretoria seeking to have conjugal visits with his wife once a month for three hours.
He also asked the court that he be allowed to receive contact visits every weekend and on public holidays and that he be allowed to use a cellphone that can only take calls and receive sms messages.
In his judgment, Kollapen said that Pretorius based the relief sought on his right to establish and maintain healthy family relations.
“He relies on the right to marry and found a family located in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the right to bodily and psychological integrity and the right to have access to reproductive health services and the right to access health care services,” Kollapen said.
While aware that part of his detention entails the limitation of his Constitutional rights, Pretorius contended that the limitations imposed – other than the freedom of movement and those required to maintain law – are unconstitutional.
Arguing for access to a cellphone in prison, Pretorius argued that the Constitution allows for every prisoner to communicate with and be visited by their spouse, partner, or next of kin.
Kollapen found that South Africa’s laws do not expressly recognise a right to a conjugal visit, nor could the Constitution be interpreted to provide support for the existence of such a right which is inconsistent with the notion of incarceration.
“To that extent, the relief sought by the applicant must fail.” Kollapen said.
Kollapen added that the right to contact, the right to marry or to found a family in the context of the penal system does not entail the right to conjugal visits.
“… in the case of the applicant, those rights have been fully given effect to without the need for a concomitant right to a conjugal visit that the applicant contends exists.”
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“In conclusion, I find that the right to conjugal visits is not part of the rights that the Constitution guarantees to prisoners and that the current policy of the Department [of Correctional Services] guarantees to prisoners and that the current policy of the department that prohibits conjugal visits does not constitute a limitation of the right to contact, but even if it did it, is a limitation that is consistent with the limitation on the freedom that imprisonment necessarily entrails.
Kollapen did however, express that the matter of conjugal visits remains an important issue and has complex policy and legal implications.
On having a cellphone, Kollapen said there was sufficient opportunity for contact and that the demand for a phone could not be sustained both in terms of any entitlement, and in regard to the security risk posed by cellphones in the penal context.
Kollapen referenced a planned escape where a cellphone that was smuggled into prison was used to make the arrangements to facilitate the escape.
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