Boeremag prisoner fails in bid to have monthly conjugal visits with his wife

05 March 2021 - 07:30 By Ernest Mabuza
The high court in Pretoria has denied a prisoner the right to have monthly three-hour trysts with his wife.
The high court in Pretoria has denied a prisoner the right to have monthly three-hour trysts with his wife.
Image: 123RF/ rclassenlayouts

Boeremag member Dr Wilhelm Pretorius has failed in his court bid to get monthly three-hour conjugal visits with his wife.

Pretorius, 41, is being held at the Zonderwater correctional facility in Tshwane, where he has been imprisoned since July 2014. He was part of a group of people who stood trial in the high court in Pretoria and was convicted of high treason and other related crimes. He was sentenced to 25 years’ imprisonment in 2013.

Pretorius became engaged to his current wife in February 2017, and he married her in July that year. Before getting married, Pretorius and his then fiancé expressed the desire to have children.

They engaged with the correctional services department with a view to securing the necessary permission to have access to the technology of artificial insemination to enable them to attempt to have a child. The request was initially refused in January 2018, but the decision was reversed two months later.

Pretorius' wife fell pregnant and a child was born.

In the present application before the high court in Pretoria, Pretorius asked for an order that his wife be allowed to visit him in prison for private marriage visits. He asked that the visits be allowed once month, for three hours per visit.

Pretorius also asked that he be allowed to use a cellphone.

Judge Jody Kollapen dismissed Pretorius's application.

“I find that our law does not expressly recognise a right to a conjugal visit, nor can the constitution be interpreted to provide support for the existence of such a right which is inconsistent with the notion of incarceration,” Kollapen said.

He said while both international human rights law as well as SA’s own human rights framework and commitment provides for the right of prisoners to have contact with a spouse, partner or next of kin, there appeared to be no express self-standing right of prisoners to conjugal visits.

Kollapen said prisoners may marry upon the consent of the commissioner of correctional services being sought and granted.

“In addition, those who desire to start a family may seek permission to have access to the artificial insemination technology,” he said.

Kollapen said it could not be said that the right to marry or the right to found a family has been limited in any way.

“On the contrary, the evidence compellingly displays that those rights have been honoured and the fact that the applicant is today a married man and a father is in part due to the enabling policy and legislative framework that made it possible for him to attain such a status while being a prisoner.

“In saying this I do not do so to suggest that the applicant owes some debt of gratitude to the department — he does not — but rather to simply point out that the enabling legal framework gives effect in the most substantial manner to the right to marry and the right to found a family,” the judge said.