Report of the Portfolio Committee on Correctional Services on Solutions
and Recommendations to Prison Overcrowding, dated 15 November 2004:
The
Portfolio Committee having considered and adopted the above report, reports as
follows:
A. Introduction
The
problem of overcrowding within the South African prison system has been
identified as a key challenge, which negatively affects the ability of the
Department of Correctional Service (DCS) to rehabilitate offenders.
B. Objectives
The
first objective of this report is to describe the nature, the main causes and
the consequences of overcrowding. The second objective is to highlight some of
the current initiatives to address the problem of overcrowding in prisons. The
third objective is to identify specific recommendations by the Portfolio
Committee on Correctional Services to alleviate prison overcrowding.
C. The Nature of
the Problem
As
of June 2004 there were 187 065 offenders in South African prisons. The 233
active prisons only have the capacity to accommodate 113 551 offenders.
Of
the total prisoner population, 132 315 were sentenced offenders and the
remainder (54 750) were unsentenced offenders awaiting trial in the various
prisons around the country.
Within
the sentenced prisoner population there were 1 926 young offenders under the
age of 18 years. Within the unsentenced prisoner population there were 2 232
unsentenced offenders under the age of 18 years.
Overcrowding
varies from region to region and between prisons. Only 28 prisons out of the 233 active prisons
hold the numbers they were designed for, and the vast majority have many more
prisoners than they are able to cope with.
The worst prison in terms of overcrowding is Thohoyandou Female, with a
capacity for 134 prisoners, but which holds 517 prisoners and is thus at 386%
occupation[1].
The 10 most overcrowded prisons as at
|
Prison |
Built to accommodate |
Actual number of prisoners |
% Overcrowded |
|
Lusikisiki |
148 |
422 |
285% |
|
Modimolle |
341 |
988 |
290% |
|
|
85 |
250 |
294% |
|
Middledrift |
411 |
1 325 |
322% |
|
|
1 300 |
4 256 |
327% |
|
|
42 |
142 |
338% |
|
|
24 |
82 |
342% |
|
|
580 |
2 108 |
363% |
|
|
671 |
2 480 |
370% |
|
|
134 |
517 |
386% |
Office
of the Inspecting Judge Annual Report 2003/04
According
to a recent report by the Inspecting Judge, the number of awaiting trial
detainees is dropping steadily[2]. In contrast, however, the number of sentenced
prisoners is increasing.
D.
The
problem of overcrowding in prisons is due to a number of complex factors, which
include:
(a) Detection
and conviction: One of the reasons given for the increase in sentenced
prisoners is the increased crime combating initiatives of the South African
Police Service (SAPS). Since 1994, the Department of Safety and Security has
put in place numerous measures to improve crime investigations. These include:
the establishment of a detective training academy and a focus on improving the
investigative skills of detectives; the consolidation of specialised crime
units in order to ensure a coordinated approach to the investigation of crimes
and the increased use of technology (such as the automated fingerprint
identification system- AFIS) to assist in investigations. The SAPS has benchmarked detection rates
(their ability to solve cases) for the first time in 2003/04. The target for 2004/05 is 31%. Detection rates
fluctuate according to the different categories of crimes. In addition, conviction rates for serious
crimes has improved over the last few years.
In the High Courts, the conviction rate improved from 85% in 2002/03 to
87% in 2003/04, which is much improved from the 77% in 2000/01 and 2001/02[3]. The
conviction rate in all the Lower Courts (Regional and District) has also
improved from 77% in 1999 to 85% in 2004[4].
(b) Awaiting
trial detainees and bail: One of the reasons for the large number of
awaiting trial detainees is that they cannot afford to pay the bail amounts set
by the court. Sometimes these amounts
are quite small (e.g. R500 or less), but are not affordable to many of the
awaiting trial population who therefore, in effect, remain in custody because
they are poor.
(c) Minimum
sentences: The Criminal Law Amendment Act No. 105 of 1997 prescribes
minimum sentences for certain serious offences. This Act was originally
intended as an interim measure to be reconsidered after the expiry of 2
years. It was extended after this 2-year
period and thus remains in effect. The
Act establishes minimum sentences for a number of offences, including
categories of theft, drug dealing, assault, rape and murder. It obliges a magistrate and judge to impose
not less than the prescribed minimum sentence unless substantial and compelling
circumstances justify a lesser sentence. The effects of this legislation is
marked by the data furnished to the National Council on Correctional Services
which showed that the population of prisoners serving 10-15 years increased by
204% since 1995 and the population of prisoners serving 20 years to life
increased by 325.90%.
(d) Changes
to the parole and credit system: The ‘old’ Correctional Services Act
(Correctional Services Act, No. 8 of 1958) provided that a prisoner could be
placed on parole after serving half of the sentence less any credits earned by
the prisoner. The general rule was that
prisoners could be released after serving 1/3 of their sentences. In addition, life prisoners could be
considered for parole after serving 10 years.
This policy was later amended to 20 years.[5]
The parole board would make a recommendation to the National Advisory Council
who would then make a recommendation to the Minister of Correctional Service.
Chapter VII of the new Act (Correctional
Services Act, No. 111 of 1998) deals with release from prison and placement on
parole. These sections came into
operation on 1 October 2004. The new Act increases the minimum period of
imprisonment to be served before parole to half of the sentence. In addition, a life prisoner will have to
serve 25 years or completion of 2\3 of the sentence, whichever is shorter.
Thus, no prisoner serving a sentence of life imprisonment will be eligible for
parole until a substantial portion of the sentence is completed. Prisoners sentenced in terms of the minimum
sentencing legislation will only be eligible for parole after completing 4/5 or
25 years of their sentence. The effects
of this Act will be to increase the length of time that sentenced prisoners
will spend in prisons.
(e) Recidivism
(repeat offending) and its causes: There
are no official statistics regarding the recidivism rate in
·
Lack
of employment opportunities after release from prisons.
·
Lack
of skills which could be used to gain employment or self-employment
opportunities.
·
Negative
perceptions and attitudes of the community which reduces social re-integration.
E. The
Consequences of the Problem
Overcrowding
has important consequences both for the larger community, the prisoners and
correctional staff. These include:
(a) Human
rights issues: Section 35(2)(e) of
the Bill of Rights encapsulated in the Constitution of the Republic of South
Africa, Act No108 of 1996, states that prisoners have the right ‘to conditions
of detention that are consistent with human dignity, including at least
exercise and the provision, at state expense, of adequate accommodation,
nutrition, reading material and medical treatment’. Overcrowding within prisons
means that it is impossible for the DCS to guarantee these rights.
(b) Health
issues: Overcrowding and unsanitary conditions leads to the spread of
diseases, including serious transferable diseases such as tuberculosis and
HIV/AIDS. According to the Inspecting Judge, the second highest cause of
complaints by prisoners related to complaints regarding the inadequate
provision of health care. The shortage
of trained professionals such as nurses and doctors to deal with the large numbers
of prisoners within the prison system means that the quality of care given to
ill prisoners is inadequate. Within the
prison system, nurses are employed by the DCS and are responsible for the
provision of primary health care.
Doctors are employed by the Department of Health.
(c) Effects
on education, training, rehabilitation: The high number of offenders within
the prison system and overcrowded conditions mitigates against the ability of
the DCS to provide adequate educational programmes, training programmes and
personal well-being programmes to prisoners.
This problem is particularly acute within the awaiting trial detainee
population, who generally are not offered any education or training programmes
as they are seen as a transient group who will not spend enough time in prisons
to benefit from these services. The fact
is, however, that many awaiting trial detainees spend years in prison and thus
the absence of programmes for this group is extremely problematic. Overcrowded conditions and the shortage of
sufficient professional staff means that very few sentenced prisoners have
access to education and training programmes which would assist in ensuring that
they become productive citizens after release from prison. The shortage of professional staff in the
area of care and the high turnover of professional staff, especially
psychologists and social workers, means that access to care programmes is also
insufficient. The goals of the DCS to
rehabilitate prisoners and ensure that they do not reenter the prison system
after release is thus impossible to attain due to overcrowding.
(d) Consequences
for security, discipline and staff morale: Overcrowding within prisons results
in the inability of DCS to provide effective security to prisoners within
overcrowded prisons. Overcrowding exacerbates
the spread of gangsterism within prisons.
Lock up hours are particularly problematic, when all prisoners are
confined in a limited space and it thus becomes difficult in overcrowded
conditions (i.e. 40 people in a cell designed for 15) for correctional
officials to monitor and control the situation within the cells. Escapes are also less easy to prevent in
overcrowded conditions. The effect of overcrowding on staff morale is as
important. Correctional officials are
powerless with regard to the number of offenders that are sent to each prison
and overcrowding results in the inability of correctional staff to control the
environment within which they work. This results in low staff morale, stress
and high levels of absenteeism.
F. Initiatives to
relieve overcrowding
The
following are some of the initiatives which have been taken to address the
problem of overcrowding in prisons. It
is widely recognised that the solution to overcrowding does not reside solely
with the DCS. A Justice Crime Prevention
and Security (JCPS) Cluster Overcrowding Task Team was established to identify
blockages that result in overcrowding.
Role-players in this task team included the DCS, the Department of
Safety and Security, the Department of Justice and Constitutional Development,
the Department of Social Development and the National Prosecuting
Authority. The work of this team has
been taken over by the Integrated Justice System Development Committee, its
substructure the Case Management Task Team and the Inter-sectoral Committee on
Child Justice.
1. Prison
Construction
Prison construction to deal with overcrowding encompasses a
variety of alternatives. Thus:
·
The
Government may retain responsibility for the construction of the prison.
·
Prisons
may be privatised to a larger or lesser extent.
In other words, the private company may be responsible for construction,
design, building, management and operation of the prison or some alternative
mixture of these responsibilities.
One
of the steps that has been taken by the DCS to alleviate the initial start up
costs of building prisons is to enter into agreements with private
companies. Two Public Private
Partnership prisons (PPPs) have been completed and are in operation: the
Mangaung Maximum Security Prison (Bloemfontein) and the Kutama-Senthumule
Maximum Prison (Louis Trichardt/Makhado). In both these cases, the private
operator is responsible for the design, construction and operation of the
prison and the DCS pays a fee to the private operator for each offender.
Some
concern has been raised that the PPPs are not as cost effective a solution to
prison construction as initially envisaged. The DCS is cautious about entering
into further partnerships. Other problems which have been raised by the
Portfolio Committee on Correctional Services include:
·
The
high budgetary allocation for PPPs mean that there is less money available for
the DCS to spend on other programmes, including improving the standard of care
and development in public prisons and expanding community corrections.
·
The
DCS is losing trained and skilled personnel to the public-private prisons as
they are offering more competitive salaries.
·
·
Notwithstanding
the above, studies have shown that the two public-private prisons in operation
are offering a better service than public prisons both in terms of efficiency
and humane conditions.
In
2002, a task team consisting of National Treasury, DCS and the Department of
Public Works reviewed public-private partnership prisons. Key findings were that:
·
There
is a need for the DCS to develop output specifications for design and operation
rather than input specifications.
·
It is
necessary to ensure that public-private prisons are developed in line with what
the DCS can afford rather than an ideal model. Budget constraints must be
established at the outset.
·
Comparable
accounting standards must be developed for DCS of Correctional Services’ prisons
and public-private partnership prisons.
·
Comprehensive
feasibility studies must be completed.
·
Clear
rules should be adopted for movement of staff from the DCS to public-private
prisons.
According
to the DCS, four new prisons will be built in 2005/06 using either PPP or
conventional public works procurement.
This will provide an additional 12 000 bed spaces.
2. Release on
bail in terms of Section 62(f) of the Criminal Procedure Act
The
JCPS Team on Overcrowding has tried to ensure more effective use of Section
62(f) of the Criminal Procedure Act, No. 51 of 1977 which allows for a
sentencing officer to release an accused on bail with the provision that the
accused is supervised by a probation officer or a correctional official (via
the community correction offices). It is
hoped that more awareness of this section will succeed in alleviating the fears
of sentencing officers regarding the granting of bail and thus ensure that more
accused are granted supervised bail instead of awaiting trial in prisons.
3. Release in
terms of Section 63A of the Criminal Procedure Act
According
to Section 63A of the Criminal Procedure Act, No. 51 of 1977, a Head of Prison
may apply to a court to release certain unsentenced prisoners if:
·
The
prison conditions will result in a material threat to the human dignity,
physical health or safety of the accused.
·
The
accused is charged with an offence in which a police official may grant bail.
·
The
accused was granted bail by the court but could not afford to pay the bail
amount.
4. Pre-trial
Diversion programmes
Diversion
refers to the provisional withdrawal of a case against an accused so that
lengthy and costly criminal procedures are prevented. Instead, accused are required to attend programmes
and/or perform some form of community service[7].
Although pre-trial diversion programmes are used primarily for young offenders,
there are also other diversion programmes in operation. These include victim-offender mediation and
the performance of community service as an alternative to prosecution. Some of
the criteria for diversion included in Part 7 of the Public Prosecutors Policy
Document are:
·
First
offenders in the majority of cases.
·
Admits
guilt.
·
Takes
responsibility.
·
Willingness
to repair damage caused by the crime.
·
Fixed
address.
·
Presence
of a parent or guardian.
·
Armed
robbery, murder and rape accused are excluded.
·
Voluntary.
·
Between
the age of 12-18 if a juvenile[8].
A
prosecutor identifies a candidate for diversion who is then screened by the
probation officer. The prosecutor makes
the final decision on diversion. The
establishment of diversion programmes is primarily the responsibility of the
Department of Social Development. However, Non-Governmental Organisations
(NGOs) such as NICRO also play an important role in this regard. Diversion can
also be applied at the sentencing stage.
Approximately
1 500 people were diverted each month on average by the lower courts in 2004/05
in comparison to 1 250 in 2002/03[9].
5. Saturday
Courts and Additional Courts Project
Saturday
and Additional Courts Project was established as an interim and emergency
measure to keep the outstanding court rolls under control and greatly assisted
in ensuring that cases were more speedily heard thus reducing the amount of
time that prisoners spent in prison before sentencing.
Before
the end of September 2004, the project had 109 courts in session on
Saturdays plus 68 Additional
courts. A total of 75 214 cases have
been finalised on this project since its implementation in 2001. These courts have, however, finalised less
cases during 2003/04 (23 649 cases) than in the previous year (29 969). The reasons for this include[10]:
·
Scaling
down of some offices as court rolls come under control and there is less need
for additional courts.
·
Scaling
down of Saturday courts due to shortage of funds from the Department of Justice
and Constitutional Development and uncertainty as to whether funds would be
available for the continuation of this project.
·
In
some offices the project was used for bail applications and as Child Abuse
Courts rather than for trial matters.
The
Saturday and Additional Courts project has been terminated and the courts which
were in operation ceased to operate from 30 September 2004. This is due to lack of further funding from
the Department of Justice and Constitutional Development for the project. Reasons for the termination of the project
given by the Department of Justice and Constitutional Development included:
·
Too
costly to sustain.
·
Abuse
of the project with regard to overtime payments for staff.
·
Viewed
as an interim measure.
However,
according to the NPA, the costs to the Department are favourable in comparison
to the number of cases that could be finalised. In addition, control measures
have been put in place to reduce abuse of overtime. While the NPA agrees that this project was
seen as an interim emergency measure, in their opinion, the existing high court
rolls in specific areas necessitate the continuation of the project, albeit on
a smaller scale.
6. Plea
bargaining initiatives
The
Criminal Procedure Second Amendment Act, No. 62 of 2001 regulates sentence
bargaining. The aim of the Act is to
allow a prosecutor and an accused person to negotiate and enter into an
agreement. In terms of the agreement,
the accused will plead guilty to a specified charge. It also empowers the prosecutor and an
accused to negotiate a sentence to be imposed by the court if the accused is
convicted of the offence to which he or she intends to plead guilty.
7. DCS
initiatives
Both
the Minister and the Deputy Minister of Correctional Services have prioritised
overcrowding in prisons. A national
overcrowding task team has been constituted.
This team is responsible for developing a Risk Management Plan on overcrowding
dealing with the two separate issues of sentenced offenders and awaiting trial
detainees.
G. Recommendations
Construction
of additional prisons can only offer a partial solution to the problem of
overcrowding. Building additional
prisons is a costly exercise and must be supplemented by alternative, more
creative solutions. The Portfolio
Committee on Correctional Services supports the use of the above mentioned
measures to address the problem of overcrowding in prisons. However, these measures should be accompanied
by continuous evaluation of their effectiveness in alleviating prison
overcrowding. The results of these
evaluations should be submitted on a regular basis to the Portfolio Committee
on Correctional Services.
The
following conclusions and recommendations are made with regard to resolving the
problem of overcrowding in prisons:
1. Policy on
awaiting trial detainees
Recommendation:
The long-term policy on awaiting trial detainees should be prioritised and
requires urgent attention by Government. The Portfolio Committee on
Correctional Services will interact with the JCPS cluster and with the relevant
Portfolio Committees on this issue.
Cabinet
has identified the policy gap that exists in relation to responsibility for the
incarceration of awaiting trial persons.
2. Intersectoral
cooperation
Recommendation:
Measures should be taken to ensure that the disbanding of the JCPS Cluster
Overcrowding Task Team does not result in a loss of intersectoral focus on the
problem of overcrowding. There should be
proper transference of the work of this disbanded team to the relevant
intersectoral task team and a commitment to retain the focus on prison
overcrowding. In addition the focus of the current team should be extended to
20 courts.
The
current team is focusing primarily on awaiting trial detainees. Studies have
shown that 20 of the 427 courts around the country deal with 25% of all
cases. A decision has been made to pilot
the project in 6-8 of these courts around the country. Head of prisons,
magistrates, the police, social workers and prosecutors are working jointly to
address this problem.
3. Rehabilitation
to reduce recidivism
Recommendation:
The Portfolio Committee on Correctional Services supports the focus of the DCS
on the rehabilitation of offenders and the correction of offending behaviour as
the most important long-term solution to the problem of overcrowding. Reducing the chance of re-offending will
ensure that fewer offenders re-enter the prison system after release from
prison. The Portfolio Committee will continue to constantly monitor the
Department of Correctional Services to ensure that the requisite resources are
correctly used to make rehabilitation the centre of the Department’s
activities.
The
Department of Correctional Services needs to take the consequential steps to
give effect to its objective of rehabilitation.
This includes filling the critical posts (for social and educators, for
example) and the reorientation of its programmes.
4. Non-custodial
sentences
The
National Prosecuting Authority and other relevant departments must market the
concept of non-custodial sentencing for appropriate offender types to all
sentencing officials. Sentencing officials should be made aware of the variety
of available options and be encouraged to use the sentencing options
creatively.
In
South Africa, the different types of sentences that may be imposed by the
courts are set out in the Criminal Procedure Act, Act 51 of 1977.[11] These
sentencing options include a number of non-custodial options, i.e., which do
not involve imprisonment of the offender. These include[12]:
(a) Fines:
The court may sentence a person to pay a fine. Fines may be imposed on
their own, but are usually given as an alternative to imprisonment, i.e. if
offenders do not pay the fine, they go to prison. The court has discretion to
decide on the amount of the fine and the date on which it should be paid. The
court also has discretion to suspend the fine for a fixed period on condition
that the offender is not convicted of the same offence during that time.
(b) Community
service orders: A community service order entails the offender rendering
free service to the community in his or her leisure time. The aim of community
service is to ensure that the offender repays his or her debt to society while
maintaining a stable lifestyle.
(c) Correctional
supervision: Correctional supervision entails sentencing an offender to
undertake certain activities in the community. The Act does not specify these
activities, but leaves it to the Department of Correctional Services to
develop. The court also has discretion to attach various conditions to
correctional supervision, including that the offender must remain indoors (at
home) during certain times, work a certain number of hours in a community in
his or her free time, pay compensation to the victim or participate in a
programme such as a training programme.
According
to Sloth Nielson[13], the vast
majority of correctional supervision sentences are conversions of direct
imprisonment by the Department of Correctional Services and are not sentences
meted out directly by the courts.
Some
of the problems that magistrates have cited for not using alternative
sentencing options, more specifically correctional supervision, include:
·
High
caseloads of community corrections staff and thus fear of abscondment.
·
Shortage
of probation officers and the delays that courts experience in receiving pre-sentence
reports, which means that sentencing officers have little information on which
to base their sentencing decisions.
·
Inadequate
management of the alternative sentencing system.
·
Lack
of resources for community corrections, including shortage of vehicles.
(d) Compensatory
orders: When a court imposes a sentence, it may direct that an offender pay
money to the victim of the crime for any damage caused to the property of the
victim. A sentence of imprisonment or a fine may be suspended on condition that
an offender pays compensation to the victim. However, the South African courts
do not often use this sentencing option. A compensation order will usually only
be given for loss of property and not for other losses such as loss of income,
pain and suffering.
(e) Suspended
sentences: Upon conviction of an offender, a court may impose a sentence
and suspend the operation of that sentence for a certain period on condition
that the offender does not commit further offences of a particular kind within
the specified time-frames. The suspension of sentences apply to prison
sentences as well as fines. This means that if the court imposes a prison
sentence or fine, and then decides to suspend that sentence, the offender will
not be liable to serve the period of imprisonment or pay the fine, unless he or
she violates the conditions of the suspension.
Sentencing
officials thus make insufficient use of alternative sentencing options to
incarceration. The Criminal Procedure
Act, No. 51 of 1977, gives sentencing officers wide discretion to suspend and
postpone sentences and to use innovative options as alternatives to
imprisonment. There is no need to change
the laws with regard to sentencing. Instead, the focus should be on ensuring
that sentencing officers use the wide variety of options available to them. One
way to increase the use of alternative sentencing options is to increase
awareness of these options. More importantly, attempts must be made to change
the mindset of sentencing officials who often regard imprisonment as the safe
and only sentencing option.
5. Community
Corrections
Recommendation:
It is imperative that DCS reprioritise its budget to ensure that more money can
be provided to community corrections. The DCS should also market community
corrections as an alternative non-custodial sentencing option. This can only
effectively occur once the community corrections offices are capacitated to
function better, which will require additional resources, including
personnel. Conversions of direct
imprisonment to correctional supervision by the Department of Correctional
Services is encouraged in appropriate cases.
As
of June 2004, there were 53 566 offenders under correctional supervision of
which 20 673 were probationers (who are serving a sentence of correctional
supervision) and 32 883 were parolees.
There is a total of 21 community corrections offices countrywide and 189
satellite offices.[14] There are a variety of ways that a person
can serve a sentence of correctional supervision, including:
·
As a
sentence handed down by the court.
·
A
person may have his or her sentence of imprisonment converted to correctional
supervision by the Commissioner of Correctional Services or the Parole Board,
or by the courts if applied for by the Parole Boards or the Correctional
Services Commissioner.
Budget
constraints have meant that community corrections has been short staffed, with
limited facilities to ensure the adequate supervision of probationers and
parolees. This results in abscondments
from the community correction programmes.
6. Diversion
Recommendation: The use of diversion away from the criminal
justice system should be encouraged for adult as well as juvenile offenders in
appropriate cases. The Portfolio Committee
on Correctional Services encourages the Department of Justice and Constitutional
Development to interact with the provincial departments of Social Development
to ensure a more efficient system of diversion from the criminal justice
system.
Diversion
away from the criminal justice system can be used effectively for certain
categories of adult offenders. The use of diversion by prosecutors should be
encouraged as the statistics described illustrate that the use of diversion has
not increased substantially since 2002/03.
7. Education on
diversion, bail and plea bargaining
Recommendation:
All relevant role-players must receive training on the full range of diversion,
bail and plea-bargaining initiatives available.
The
police, magistrates, prosecutors and judges should all be educated on the
various legal and procedural options that they have at their disposal to ensure
that accused do not have to spend lengthy periods in overcrowded prisons. In addition to some of the measures detailed
above (i.e. diversion, plea bargaining and use of the bail provision of section
62(f) of the Criminal Procedure Act), Section 59 of the Criminal Procedure Act,
for example, allows a police official (in consultation with the investigating
officer in charge of the case) to grant bail to an accused who is charged with
a less serious crime. In addition, the
R1 000 bail project is ongoing in that accused persons who are not able to pay
bail set under R1000 are bought back to court and the determination of a bail
amount is revisited by the court. The full range of options should be
identified and all role-players trained on the use of these options.
8. Saturday
Courts and Additional Courts project
Recommendation:
It is recommended that consideration be given to the reinstatement of the
Saturday Courts project based on an evaluation of the efficacy of the project
in terms of reducing overcrowding. The
Department of Justice and Constitutional Development and the National
Prosecuting Authority should report to the Portfolio Committee on this issue
and if it is shown that the dissolution of the project will negatively affect
overcrowding in prisons, the Department of Justice and Constitutional
Development should make funds available for continuation of the project until
the end of the 2004/05 financial year. In
the interim, steps should be taken to ensure a longer-term solution to the
problem of high court rolls, including the establishment of additional
permanent courts and more personnel.
9. Powers of
release
Recommendation:
While the use of legislative powers of release of prisoners is a short-term
solution, the Portfolio Committee on Correctional Services supports use of this
option by the Minister and the President for specific categories of offenders.
The
periodic release of certain categories of offenders is an option that is
currently used to alleviate prison overcrowding on a short-term basis. There
are a number of available options in this regard, including:
·
The
Minister of Correctional Services is empowered by section 81 of the
Correctional Services Act, No 111 of 1998, to release certain categories of
prisoners if in the opinion of the Minister, overcrowding has become a crisis
which negatively effects the prison population.
The Minister must act in consultation with the National Council for
Correctional Services. Prisoners who are
released using section 81 of the Act may be released under community
corrections. According to the White Paper of the DCS, this section of the Act
may also be used under certain conditions to release awaiting trial detainees
who have been granted bail but cannot afford to pay due to the prisoner’s
personal social conditions. In September 2003, 7 000 sentenced offenders had
their parole dates advanced by 9 months.
·
The
President of South Africa has the power, according to Section 82 of the
Correctional Services Act, No. 111 of 1998, to place sentenced prisoners on
correctional supervision or parole or to remit any part of a prisoner’s
sentence. The President also has the
power to pardon or reprieve offenders. The power of the President of South
Africa to pardon people convicted of crimes is outlined in Section 84(2)(j) of
the Constitution of the Republic of South Africa (Act 108 of 1996).
10. Technology
Recommendation:
Electronic monitoring is currently under consideration by DCS in the medium to
long term for use by parolees. However,
in terms of overcrowding, electronic monitoring can also be used for
probationers and awaiting trial detainees.
Other uses of technology to alleviate overcrowding should be considered,
including linking prisons and magistrates courts by video screens to arrange
the automatic remand of criminal cases instead of physically transporting
awaiting trial detainees to and from court.
The Portfolio Committee supports the stance of DCS in terms of its focus
on long-term rehabilitation of offenders to reduce the chance of reoffending
behaviour rather than on short-term solutions.
The
DCS initiative on the use of electronic monitoring for parolees has been put on
hold for the medium to long term for the following reasons:
·
The
project needed to be redesigned in terms of the PPP regulations.
·
A
feasibility study on the available technology at the time showed that
electronic monitoring was only effective in 26% of urban areas and 19% of rural
areas in the country due to its reliance on electricity and telephone
lines. These areas did not match up to
the existing offender population and thus the needs of the DCS.
·
The
DCS does not believe that it should release people on parole with electronic
monitoring without ensuring that their behaviour has been effectively
corrected. The main focus of DCS is thus
on its core business of rehabilitating offenders.
New
technological developments (i.e. developments in satellite and wireless
technology) have meant that the DCS can reconsider its position in this
regard. It is currently considering the
costs involved in utilising these new technologies. While consideration is thus been given to
electronic monitoring, the DCS will implement this parallel with substantial
efforts to improve the rehabilitation and correction of offenders and offending
behaviour.
A
project to video link courts to prisons is under consideration by the National
Prosecuting Authority and other role-players.
11. Prison
Construction
Recommendation:
The Portfolio Committee on Correctional Services will continue to hold
discussions with the Department of Correctional Services on the relative costs
and efficiencies of public-private partnership (PPP) prisons in comparison to
state-owned prisons. The Portfolio
Committee will visit the existing PPP prisons to assess the service provided by
these prisons in comparison to conventional state-owned prisons.
The
debate on the value of PPP prisons in comparison to conventional prisons is
ongoing. The DCS is currently exploring
options to renegotiate the existing contracts in order to make them more
economical or at least to ensure that any future contracts are more affordable
to the DCS.
12. Children
Recommendation:
All relevant stakeholders including the Department of Social Development and
the Department of Education must ensure that they provide sufficient
alternative residential facilities for both awaiting trial and sentenced
children.
While
the number of children awaiting trial in prisons around the country does not
greatly add to the overcrowding of prisons generally, those prisons where
awaiting trial children are kept, such as Pollsmoor, often suffer from
overcrowding. More importantly, the principle
remains that no children under the age of 18 years should be kept in DCS
prisons while awaiting trial.
The
Child Justice Bill will assist in ensuring that no children are kept in prison
while awaiting trial. However,
implementation of the Bill once it is passed by Parliament will require that
there are processes in place to achieve this objective as well as sufficient
alternative facilities for children who may require residential placement.
The
Department of Social Development has an important role to play in ensuring that
no unsentenced children under the age of 18 years are kept in prison while
awaiting trial. In this regard, the
Department was tasked with the responsibility of establishing secure care
facilities in each of the 9 province to house children under the age of 18
years who have been accused of crimes and are not immediately released into the
care of their parents or have not received bail. Secure care facilities are
targeted at children under the age of 18 years who may pose a danger to the
public or to themselves. It is thus a
facility with security features that also offers therapeutic services. These
facilities cater only for awaiting trial children.
There
are currently only 11 secure care facilities across the country. Each province has at least 1 secure care
facility and Gauteng and the Northern Cape each have 2 facilities. An additional 4 facilities are to be built in
the Eastern Cape, Free State, Kwa-Zulu Natal and Western Cape provinces. In
2003, there were approximately 1700 children awaiting trial in secure care
facilities.
According
to the Department of Social Development they aim to cater for 3 145 children
who are awaiting trial in secure care facilities or places for safety by 2005 [15]. It is the responsibility of the Department of
Social Development to ensure that they have sufficient secure Care facilities
around the country to ensure that no children need to stay in prison while
awaiting trial.
In
addition, a range of alternatives should be available to sentenced children,
other than DCS correctional facilities.
The absence of sufficient reform schools around the country is
identified as a problem. Reform schools
are schools maintained for the reception, care and training of children sent in
terms of the Criminal Procedure Act, No. 51 of 1977 or transferred under the
Child Care Act, No. 74 of 1983. There
are residential institutions where children who have been sentenced by courts
of law are placed.
Reform
schools are managed by the Department of Education. There are only 4 reform schools in the
country, 3 in the
This
results in numerous problems, including the fact that magistrates are
sentencing children to reform schools in the absence of these facilities. This means that children spend time in
prisons or secure care facilities while waiting for places in one of the four
reform schools in the country. The other
problem is that children from other provinces who do get placed in these
schools are far away from their families and support systems. In addition, placement of out of province
children in the Western Cape schools is hindered by the requirement of the
Western Cape Department of Education that children are accompanied with a care
budget from their respective province, which has not normally been budgeted for
by the provinces.
13. Women
Recommendation:
Priority should be given to ensuring that less women are incarcerated and that
diversion and alternative sentencing measures are applied where possible.
While
there are far fewer women in prison than men, the implications of imprisonment
for women (many of whom have children outside and sometimes inside of prison)
and their families are often disastrous.
All attempts should be made to divert accused women from the criminal
justice system or ensure that they have an opportunity to serve their sentences
within the community under correctional supervision.
H. Conclusion
The
Portfolio Committee on Correctional Services will allow the DCS a period of 12
months to interact with the other departments mentioned in the recommendations
and to implement these recommendations, where possible. The Portfolio Committee on Correctional
Services will follow up and monitor progress in implementation of the
recommendations
Report to be considered.
References
May,
E. (2001). Criminal Procedure Second Amendment Bill [B45-2001]. Research Unit
of the Parliament of
May,
E. (2004)
Office
of the Inspecting Judge Annual Report 2003/04.
National
Prosecuting Authority Annual Report 2003/04.
South
African Police Service Annual Report 2003/04.
Department
of Correctional Services: Draft White Paper on Corrections in
Child
Justice Project (2002). A situational Analysis of reform schools and schools of
industry in
Presenttation to the Justice
Portfolio Committee on the implementation
implications of the Child
Justice Bill for the national and provincial departments
for Social Development.
[1] Office of the Inspecting Judge Annual Report 2003/2004.
[2] This is primarily due to the more effective utilisation of measures (some of which are highlighted in this report) by police, prosecutors, magistrates, judges and heads of prisons to reduce the number of offenders who spend time in prison while waiting for trial.
[3] National Prosecuting Authority Annual Report 2003/04.
[4] Written communication from the NPA.
[5] In 1996/97.
[6] Muntingh, L (2001). After prisons, the
case for offender reintegration. ISS monograph No. 52.
Schoeman, M (2002). A classification system and an
inter-disciplinary action plan for the prevention and management of recidivism.
Doctoral Thesis.
[7] Dissel, A et al (1995). Sentencing
options in
[8] Policy Directives Part 7 & NICRO (2004). Juvenile offenders and their successful reintegration into society. Submission to the Portfolio Committee on Correctional Service.
[9] Statistics provided by the National Prosecuting Authority. Statistics for 2004/05 reflect only the first 6 months of that year.
[10] National Prosecuting Authority Annual Report 2003/04.
[11] Section 276.
[12] May,
[13] Overview of policy developments in South African Correctional Services 1994-2002 (CSPRI Research Paper Series, No. 1, July 2003).
[14] According to the Annual Report of the DCS (2002 to 2003).
[15] The Department of Social Development has
16 places of safety around the country.
These facilities are not meant to be used for children accused of
crimes. However, because of limited secure care facilities, they are used where
necessary. In 2003, there were
approximately 300 children awaiting trial in places of safety.
Presentation to the Justice Portfolio Committee on the implementation implications of the Child Justice Bill for the national and provincial Departments of Social Development.