Correctional Services Amendment Bill: Prison Overcrowding, HIV Testing, Investigation Of Corruption

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
3 April 2001
CORRECTIONAL SERVICES AMENDMENT BILL: PRISON OVERCROWDING, HIV TESTING, INVESTIGATION OF CORRUPTION

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SUMMARY
The Head of the Judicial Inspectorate made a passionate plea to the committee to incorporate an amendment in the Bill to empower Correctional Services to release more awaiting trial prisoners. The judge informed the committee that the situation on the ground was desperate and he implored the Committee to clothe Correctional Services with what he called "extra-ordinary powers" to off-load the teeming number of awaiting trial prisoners.

The Judicial Inspectorate unit noted that it could not investigate corruption in Correctional Services in view of the Constitutional Court ruling on the Heath Special Investigating Unit.

Correctional Services informed the Committee that a requirement for compulsory HIV testing for prisoners is not only impractical but such a move will not pass the constitutionality test.

MINUTES
Judicial Inspectorate on the Bill:
Overcrowding in prisons
Judge J.J. Fagan thanked the Chair for accommodating his unit in this important discussion. He said that the opportunity was an excellent one as it gave him the avenue to put across some of the difficulties he has had to deal with in his work. He appealed to the Committee "to put right a terrible mistake in the current legislation. He pointed out that last year the Cabinet approved the release of more than 8,000 awaiting trial prisoners. The debilitating over-crowding in the prisons did justify these drastic measures.

The judge continued that as a result of these "extra-ordinary measures" the problem of over-crowding had abated. He lamented that the reprieve appears to have been temporary since over-crowding had started to pick up at an alarming rate. He listed the breakdown in the court process as the main cause of this unfortunate scenario. He pointed out that once prisoners arrived at the prison facility under a court order, the Commissioner of Correctional Services had no choice but to take them in.

In reply to a question by Ms Seaton (IFP), the judge said that due to logistical problems, prisoners could not be detained far away from the trial court. He also pointed out that it is the government policy to keep prisoners close to their families.

Ms Seaton (IFP) concurred with the judge. She said the problem of over-crowding lay squarely with the Justice Department and the SAPS. Correctional Services, she pointed out, had nothing to do with it. She proposed that a law be introduced to set a time frame within which suspects are processed for trial. This way, she observed, Correctional Services will have no alternative but to release suspects who have not been processed within the mandatory time frame.

Mr. Bloem (ANC) pointed out that the problem of over-crowding was not only ugly but that it was a perennial drain on the budgetary allocation for Correctional Services.

Judge Fagan agreed that this category of prisoners was a massive drain on the Correctional Services resources. He pointed out that the cost of keeping awaiting trial prisoners amounted to R 5.7 million pa. The cost of building a prison facility was R250 000 per inmate. The judge underscored the fact that prison conditions were basically inhuman - a situation exacerbated by the skyrocketing numbers of awaiting trial prisoners.

Mr. Swart (ACDP) inquired from the judge why courts set impossible bail terms for accused persons. The judge acknowledged the fact that some of his colleagues were not helpful in this regard. He noted that some courts deliberately set prohibitive bail terms for mostly poor accused persons. He urged that education be intensified to sensitise courts to the burning problem of over-crowding in prisons.

The judge noted that South Africa was rated seventh in the world for its prison population figures. The first being Russia followed by the USA. He observed further that the crisis of over-crowding will remain and called for innovative ways to scale it down. His office was targeting to reduce the number of awaiting trial prisoners to below 20, 000. He hastened to add, however, that this was a huge task that called for a legislative mechanism to address it.

The plight of awaiting trial prisoners had serious constitutional implications. It surprised him, that nobody had yet raised this issue with the Constitutional Court. He said awaiting trial prisoners were held for an average of 138 days, which amounted to detention without trial.

Mr. Oosthuizen (ANC) wondered why prisons should boil to breaking point when, on the other hand, there were unused army camps all over the provinces. He suggested that these idle army facilities be harnessed to decongest the prisons. Further, prisoners serving short sentences should be put in direct rehabilitative programs instead of being kept in prison.

The Chair intervened at this juncture to draw member's attention to the fact that this issue had exercised the wits of the committee on various occasions. He said that the Committee had for the last seven years grappled with several suggestions put to it on how to address the problem. Some of the suggestions such as electronic monitoring of awaiting trial prisoners was being studied. Other suggestions were already at an advanced level of implementation.

While the suggested proposals were being studied the Chair thought it prudent to cut short further debate on the issue. He asked members to raise questions on the report tabled by Judge Fagan.

Mr. Bloem (ANC) remonstrated that most Committee members had received the Judicial Inspectorate Report at the meeting and that they have not had time to study its contents.

Investigation of corruption in Correctional Services
Ms Seaton (IFP) said was convinced that the Judicial Inspectorate unit was the right organ to deal with investigation of corruption in Correctional Services.

Judge Fagan was quick to point out that his unit could not investigate corruption in Correctional Services in view of the Constitutional Court ruling on the Heath Unit. The judge pointed out, however, that as an inspecting judge, his duty was to make a report to the police and the special unit within the Correctional Services whenever he has a whiff of corruption.

Correctional Services on the Bill:
HIV testing in prisons
Moving to the touchy issue of HIV testing in prisons, Adv Meade, Correctional Services legal advisor, pointed out that their hands were tight by a court ruling on the matter. He gave an example of when the Department wanted to test an inmate for clearance to work in the kitchen. The department was taken to court and the court ruled that the inmate still had the right to privacy and this right was not extinguished by his detention in prison.

Adv Paxton told the Committee that HIV testing must lead to segregation of prisoners. This situation gives rise to a multiplicity of both legal and practical complications. He cautioned that any attempt at testing prisoners for HIV would not stand up in the Constitutional Court. He pointed out that the resultant emotional and psychological trauma that would be occasioned to the isolated prisoners would be too much to bear. He said further that the window period between infection and testing positive is such that the process of HIV sampling must be ongoing and rigorous. This kind of commitment had serious cost implications.

Judge Fagan supported the view taken by the Correctional Services department. The Bill of Rights forbade the infringement of individual freedoms. The freedom of association and the right to privacy was at stake here. The judge repeated Advocate Paxton's concerns about the cost factor. He said that with a turnover of over 23,000 awaiting trial prisoners every month, one could not imagine the astronomical figure in terms of budgeting for this item. One needs to seriously think through these measures before promulgating the relevant law, he advised.

Mr. Swart (ACDP) requested a copy of the court ruling referred to by Advocate Meade. He said it might help the committee out of this conundrum.

Mr. Jordan (ANC) differed from the view that prisoners, once incarcerated, retained the same rights as other citizens. He said that if that were the case, then there would be no logic in maintaining the detention system. He referred to Judicial Inspectorate Report, which clearly paints a grim picture of prisoners succumbing to the Aids pandemic. He insisted that the main concern of the committee is to protect those prisoners who were not infected. It would not be fair to expose this group to the danger of infection where this could be avoided. He pointed out that where legislation stood in the way for such measures to take effect, Parliament had the authority to amend such laws.

Mr. Swart (ACDP) invited those who were vocal on the cost of HIV testing to imagine instead the cost of treatment. Prevention is far better than cure. He noted that the Law Commission approves compulsory testing for accused persons in rape cases. He saw no reason why this same measure should be inapplicable to prisoners. This measure seeks to protect and maintain the health of prisoners. He saw no reason why it should not be implemented.

The Chair noted that there was no agreement on the issue of testing prisoners for HIV. Deliberations on the issue would proceed at a later date. The Chair then adjourned the meeting at this point due to time constraints.