THE IMPACT OF THE COMING INTO OPERATION OF THE CORRECTIONAL SERVICES ACT III OF 1998 (AS AMENDED)

When the Union of South Africa came into being on 31 May 1910, prison legislation for the unified country was required. The result was the Prisons and Reformatories Act 13 of 1911. It was amended from time to time until its replacement by the Prisons Act 8 of 1959. That Act was also amended time and again, iner alia by being renamed the Correctional Services Act in 1991.

2. The Correctional Services Act III of 1998

2.1 The Correctional Services Act III of 1998 was assented to on 19 November 1998. Its object was "changing the law governing the correctional system and giving effect to the Bill of Rights in the Constitution, 1996, and in particular its provisions with regard to prisoners". It came into operation piecemeal.

2.2 On 19 February 1999, sections 1, 83-95, 97, 103-130, 134-136 and 138 were put into operation. Sections 83 and 84 established the National Council for Correctional Services. Sections 85 to 94 established the Judicial Inspectorate. Sections 103-112 dealt with Joint Venture Prisons. Sections

113 to 129 dealt with Offences. On 1 July 1999 section 5 and on 5 February 2000 section 3 came into operation. In 2001 the Act was amended.

On 31 July 2004 sections 2, 4, 6-49, 96-102 and 131-133 came into operation. They set out in detail the manner in which prisoners should be held and treated, for example Admission (s6), Accommodation (s7), Nutrition (s8), Hygiene (s9), Clothing and bedding (s10), Exercise (s11), Health Care (s12), Contact with community (s13), Religion, belief and opinion (s14), Access to legal advice (s17), Reading material (s18), Children (s19), Mothers of young children (s20), Labour of sentenced prisoners (s40). Further detail is contained in Regulations promulgated also on 31 July 2004.

The coming into operation of these sections is excellent. There are now clear guidelines on how prisoners should be treated.

2.4 Statutory Notification

Four of the sections brought into operation on 31 July 2004 impacted directly on the Judicial Inspectorate i.e. s15 (deaths), s25 (solitary confinement), s30 (segregation) and s31 (mechanical restraints). Deaths, penalties of solitary confinement, segregation and the use of mechanical restraints other than handcuffs and leg-irons must be reported to the Inspecting Judge.

3. Release Provisions of the Act

On 1 October 2004 the remaining sections of the Act, i.e. sections 50-82 came into operation. They deal with Community Corrections (ss50-72) and Release from Prison and Placement under Correctional Supervision and on Day Parole and Parole (ss73-82).

The implementation of those sections is welcomed by the Judicial Inspectorate, save for certain of the release provisions.

3.1 S73(6)(a) requires a prisoner to serve half of the sentence before being considered for parole. The 1959 Act allowed for credits earned by the prisoner to reduce such period (s65(4)(a)) in practice down to one third of the sentence in terms of Departmental Orders.

As an incentive to rehabilitation and good behaviour, the Judicial Inspectorate is in favour of credits being retained (besides its impact on reducing overcrowding).

3.2 S73(6)(b)(v) requires a prisoner sentenced in terms of the minimum sentence legislation (ss51 or 52 of the Criminal Law Amendment Act 105 of 1997) to serve at least four fifths of the sentence before being considered for parole (and not half as all other prisoners).

The Judicial Inspectorate urges that this provision be deleted. There is no justification for prisoners convicted of those offences which already carry minimum sentences to be penalised again by being deprived of access to the Correctional Supervision and Parole Boards. (The wide range of offences includes categories of arms and ammunition, assault, exchange control, corruption, extortion, fraud, forgery, theft, drugs, robbery, rape and murder offences). The impact on overcrowding is self-evident.

Consideration for parole does not mean release. The Correctional Supervision and Parole Boards retain the discretion to decide whether an offender has been rehabilitated and may be placed under correctional supervision or day parole or granted parole.

3.3 S73(6)(b)(iv) requires those sentenced to life imprisonment to serve at least 25 years before placement on parole. The position used to be that it was left to the parole boards to report to the National Council for Correctional Services who would consider such report, and having regard to the interests of the community, make a recommendation to the Minister of Correctional Services (s65(5) of the 1959 Act). Generally prisoners serving life sentences were considered for parole only after serving 20 years.

The Judicial Inspectorate recommends that the 25 year requirement be deleted and that the period be left to the National Council for Correctional Services to determine as before. Rehabilitation does not require 25 years. It depends on many factors and the Correctional Supervision and Parole Boards and the National Council for Correctional Services are eminently suited to determine when and whether an offender should be placed on parole.

3.4 S78(1) empowers "the court" to grant parole to prisoners sentenced to life imprisonment (after they have served 25 years). The National Council for Correctional Services used to consider applications for parole by such prisoners (s65(5) of the 1959 Act).

The Judicial Inspectorate favours the National Council as the body to consider whether parole should be granted to those sentenced to life imprisonment.

The Judge who pronounced the sentence, if he is still alive 25 or 20 years after doing so, will remember little of the case. He or she is in any event not trained or experienced in deciding when parole should be granted. On the other hand, the National Council has been performing this task very well and has the necessary expertise. (The National Council consists of two judges, a regional magistrate, a director of public prosecutions, two members of DCS, a member of SAPS, a member of the Department of Welfare, two persons with special knowledge of the correctional system and four or more representatives of the public).

3.5 S79 provides for placement under correctional supervision or on parole of a prisoner "in the final phase of any terminal disease or condition" to die a consolatory and dignified death. S69 of the 1959 Act contained a similar provision for a prisoner:

"(a) who suffers from a dangerous, infectious or contagious disease; or

(b) whose placement on parole is expedient on the grounds of his physical condition or, in the case of a woman, her advanced pregnancy".

The Judicial Inspectorate regards the new wording as too restrictive and urges reconsideration.

4. Not retrospective

Section 136 provides that the release of prisoners already serving sentences shall not be affected by the Act and would be dealt with in terms of the Correctional Services Act 8 of 1959 and the policy and guidelines formerly applied (i.e. V2 minus credits down to a). Prisoners already serving life sentences are to be considered for parole after 20 years

5. Subject to the reservations expressed above about certain of the release provisions, the Judicial Inspectorate welcomes the implementation of the whole of the Act.