In accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), the South African Human Rights Commission (SAHRC/the Commission) was formally designated as the South African NPM on 4 December 2024, with the mandate to monitor places of deprivation of liberty within territory of South Africa. The OPCAT is an international treaty that requires states to establish a system of regular, independent visits to places where persons may be deprived of their liberty. These places include amongst others, police stations, correctional centres, secure care centres and psychiatric institutions. The independent visits serve as an important safeguard against abuses and prevent torture and ill-treatment in places that by their very nature fall outside public scrutiny.

Mokoena, assigned male at birth, identified as female from early childhood and has lived as a woman for most of her life. While initially allowed to express her gender, she was later restricted from wearing feminine clothing and makeup, misgendered by officials, and denied prescribed gender-affirming hormone therapy. The DCS refused to provide the treatment, claiming it was cosmetic and not covered under “primary health care” obligations. As a result, Mokoena filed a complaint under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), seeking:

1. An order to compel the Department of Correctional Services (DCS) to provide gender-affirming hormone treatment at state expense.
2. Permission to wear clothing, cosmetics, and accessories expressing her gender identity.
3. Recognition of her gender (use of “she/her” pronouns).
4. Accommodation in a single cell or with other transgender inmates.
5. Assistance with legal gender and name changes.

 The court had to decide whether the DCS’s treatment of Mokoena constituted unfair discrimination and harassment under PEPUDA and whether the State’s obligation to provide “adequate medical treatment” includes gender-affirming hormone therapy for transgender inmates.

In this landmark decision, the Court affirmed that the Department of Correctional Services bears a constitutional and statutory duty to respect and protect the dignity, identity, and health of persons deprived of liberty, including those who are transgender. The Court’s findings, recognising gender-affirming healthcare as part of the right to adequate medical treatment under section 35(2)(e) of the Constitution, represent a significant step toward realising equality and freedom from cruel, inhuman or degrading treatment in custodial settings.

The NPM commends Ms Mokoena’s courage in asserting her rights, and notes the Court’s clear directives to:

1. Ensure that her accommodation and treatment within correctional facilities affirm her gender identity;
2. Provide prescribed gender-affirming hormone therapy and related medical care at State expense; and
3. End discriminatory practices, including misgendering and denial of access to gender-affirming toiletries or clothing.

 In addition to the Constitution, the judgment aligns with South Africa’s obligations inter alia under the OPCAT, the African Charter on Human and Peoples’ Rights, the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), and the Yogyakarta Principles. These instruments collectively require that persons deprived of liberty be treated with humanity and respect for their inherent dignity.

 As part of its preventive mandate, the NPM will:

1. Constructively engage the DCS on the implementation of the Court’s order;
2. Continue to monitor conditions of detention to ensure that policies and practices reflect inclusivity, non-discrimination, and respect for gender diversity; and
3. Monitor and report on progress in integrating gender-sensitive and rights-based standards within custodial environments.

The NPM underscores that human dignity is indivisible. Protecting the dignity of one person deprived of liberty strengthens the protection of all.

Ends

Issued by the National Preventive Mechanism - South African Human Rights Commission