Report of the Portfolio Committees on Justice and Constitutional Development,
and Correctional Services on a joint oversight visit to Pollsmoor Prison to
consider the position of awaiting-trial prisoners, dated
The Portfolio Committees on Justice and Constitutional Development, and
Correctional Services, having undertaken the above oversight visit report as
follows:
Aim of the visit
On 23 October 2007, the Portfolio Committees on Justice and Constitutional
Development, and Correctional Services, and the Select Committee on Security
and Constitutional Affairs undertook a joint oversight visit to the Pollsmoor
Correctional Facility. The aim was to consider overcrowding in prisons, particularly the position of
awaiting-trial prisoners. Representatives from the Magistracy, the National
Prosecuting Authority and the Judicial Inspectorate of Prisons were also
present.
Participants
l
The following members of the Portfolio Committees on Correctional
Services, and Justice and Constitutional Development, and the Select Committee
on Security and Constitutional Affairs visited the Pollsmoor Correctional
Centre:
Portfolio Committee on Correctional Services: Mr D Bloem [Chairperson], Ms LS
Chikunga (ANC),Mr S Mahote (ANC),Mr E Xolo (ANC),Ms W Ngwenya (ANC), Mr J Selfe
(DA) and Mr H Cupido (ACDP)
Portfolio Committee on Justice and Constitutional Development: Mr G Magwanishe
[Acting Chairperson], Mr J Sibanyoni (ANC),Ms M Meruti (ANC) and Ms C Johnson
(ANC)
Select Committee on Security and Constitutional Affairs: Kgoshi L M Mokoena
[Chairperson] – Limpopo, Ms F Nyanda (ANC) – Mpumalanga and Mr L H Fielding (DA) – Northern Cape.
The Committees were accompanied by the following parliamentary support staff:
Ms R Lawrence (Personal Assistant to the Chairperson of the Portfolio Committee
on Correctional Services) and Ms G
Dinizulu (Committee Secretary to the Select Committee on Security and
Constitutional Affairs), Ms C Balie (Committee Secretary to the Portfolio
Committee on Correctional Services), Ms N Skaka (Committee Assistant) and Ms C Silkstone (Researcher to the Portfolio
Committee on Justice and Constitutional Development)
Pollsmoor Correctional Facility was represented by: Mr Mkabela ( Area Commissioner), Mr
Nthombeni ( Regional Commissioner:
Corporate Services), Mr Modisadife
(Head: Admission Centre), Ms Dayimani
(Head: Medium B Centre), Mr Molefe (Head: Medium C Centre), Mr Scholtz (Acting Head: Medium A Youth
Centre) and Ms Claassen (Head: Female
Section)
The Department of Justice was represented by the following members of the
Judiciary: Ms M van Eeden ( Acting Senior Magistrate, Wynberg) Mr M Dimbaza
(Chief Magistrate, Wynberg), Mr H Swart (Acting Chief Magistrate, Cape
Town) and Mr Zantsi (Senior Public
Prosecutor, Athlone)
The Judicial Inspectorate of Prisons was represented by: Ms Pritima Osman
(Acting Director: Functional Services), Mr T Titus (Visitor’s Committee
Co-ordinator)
Overview of proceedings
The Department of Correctional Services gave a short briefing to the Committees
on the Pollsmoor Management Area, which was followed by extensive discussions.
MPs then spoke with a number of awaiting-trial prisoners, especially pregnant
women, juveniles and children.
Briefing on the Pollsmoor Management
Area
Pollsmoor is overcrowded. The present occupancy rate is 168%. While Pollsmoor
is designed to accommodate 4 252 offenders, at present the facility
accommodates 7 296 offenders in total. Of these, 4 823 (66.8%) are
awaiting-trial prisoners. At the Female Centre, which MPs visited, there are
397 offenders, of which 47% are awaiting trial. The occupancy rate is 162%.
The Department provided the Committees with the breakdown in the table below of
awaiting-trial prisoners, who had either not been granted bail or had been
granted bail but could not afford to pay. Sentenced juvenile offenders as well
as awaiting-trial juveniles (18-21) are housed in the Medium A section.
4.2
|
|
Admission Centre |
Medium A |
Female |
|
No bail |
2 531 |
877 |
152 |
|
Less than R 1000 |
851 |
242 |
40 |
|
Above R 1000 |
124 |
60 |
10 |
The
Department also provided the information, which is set out in the table below,
on the number of successful conversions to correctional supervision in terms of
sections 62 (f), 71 and 72 of the Criminal Procedure Act 51 of 1977 from
|
Month |
Admission |
Medium A |
Female |
|||
|
Submitted |
Successful |
Submitted |
Successful |
Submitted |
Successful |
|
|
March |
69 |
48 (69.5%) |
59 |
47 (79.7%) |
0 |
0 |
|
April |
75 |
32 (42.7%) |
29 |
14 (48.3%) |
0 |
0 |
|
May |
48 |
32 (66.7%) |
23 |
19 (82.6%) |
1 |
0 |
|
June |
48 |
38 (79.2%) |
15 |
12 (80%) |
0 |
0 |
|
July |
43 |
43 (100%) |
44 |
28 (63.6%) |
8 |
8 (100%) |
|
August |
104 |
21 (20.2%) |
90 |
48 (53.3%) |
5 |
2 (40%) |
|
September |
96 |
56 (58.3%) |
225 |
129(57.3%) |
14 |
10 (71.4%) |
4.3
Interventions to address overcrowding at Pollsmoor include:
·
The appointment of four additional court officials
(now a total of seven) to assist with the reduced bail applications and
alternative placements for awaiting-trial prisoners.
·
A list of section 62(f) and 63 applications is
submitted weekly by the court officials to the various courts.
·
Heads of centres attend monthly case-flow meetings
to address the management of overcrowding.
·
A list of awaiting-trail children is provided to
various courts and at case flow meetings on a monthly basis.
·
The names of awaiting-trial children are given to
the Department of Social Development each Friday.
·
There is constant interaction between the in-house
social workers and the Department of Social Development for available bed space
at places of safety.
Issues Arising
Applications in terms of section 62(f)
of the Criminal Procedure Act
In response to queries about the granting of applications to place an accused
under the supervision of a correctional or probation officer in terms of
section 62 (f) of the Criminal Procedure Act of 1977, representatives from the
Magistracy expressed doubt that the Department of Correctional Services has
sufficient capacity to monitor those released in terms of this section. It was
said that magistrates are unable to simply release persons
awaiting-trial without the assurance that there are arrangements in place to
ensure that they will return to court. MPs also heard that a common concern is
that the majority of juveniles are being held for ‘aggressive’ offences. Their
parents do not always want them at home for reasons that include being unable
to guarantee that they will be able to bring their children to court on the
appointed dates. There are also not enough places of safety and secure care
facilities.
Conditions of Bail
Pollsmoor officials explained that there were many awaiting-trial prisoners who
could not afford bail, even if it was below R1000, as shown in the Table in
paragraph 3.2. above. However, they could not provide
the Committees with a breakdown of the bail amounts under R1000, nor could they
tell the Committees precise details of the alleged crimes committed.
It emerged that the factors involved in granting bail are complex: bail is
intended to ensure that an accused returns to court on the appointed date, and
is meant to take into account the issue of whether the accused can afford bail.
Where the bail amount is small, it does not necessarily mean that the offence
is not serious. Magistrates also take into account the seriousness of the
offence, the strength of the case against the accused and the personal
circumstances of the accused. The number of previous convictions is also taken
into account.
Amendments to the Criminal Procedure Act were designed to make it more
difficult to get bail. Schedules 5 and 6 to the Act state that bail may not be
granted for the offences listed in these Schedules, unless there are
exceptional circumstances.
Lack of information on
the committal warrant
Awaiting-trial prisoners are not assessed when first brought to Pollsmoor. The
committal warrants that accompany awaiting-trial prisoners do not provide
sufficient details of the crime for which the accused is being detained.
Typically, the committal warrant will simply state in broad terms the crime for
which the accused is being held.
This makes it difficult for prison officials to establish whether a particular
awaiting-trial prisoner’s case should be brought to the attention of the
authorities. The lack of information means that awaiting-trial prisoners can
spend unnecessary time in prison. Prison officials need access to the court
file in order to properly understand why an awaiting-trial prisoners
is being held.
Legal facilities available to awaiting
trial detainees
Correctional Services officials said that there are facilities available to
awaiting-trial prisoners to meet with their legal representatives. The
Committees were
informed that the Legal Aid Board visits the facility on Tuesdays, Thursdays
and Fridays. Officials from the Department of Justice have also visited to
explain plea bargaining.
However, through further engagement with the officials, MPs established that
the Legal Aid Board does not always visit the facility and that consultations
between attorneys and their clients tend to take place at court. The
representative from the Office of the Inspecting Judge was of the view that if
the Legal Aid Board visited the facility more regularly there would be far more
applications for reduction of bail. The Legal Aid Board, however, has a
shortage of available practitioners, which impacts on its ability to conduct
prison visits.
It was also alleged that awaiting-trial prisoners, who are
children or juveniles, are often not given a chance to contact their parents
when first arriving at Pollsmoor.
Co-operation and liaison between
Departments of Correctional Services and Justice and Constitutional Development.
The Committees heard that there are inter-sectoral structures in place to
streamline or facilitate the processing of awaiting-trial prisoners. These
structures meet monthly. The Committees heard that awaiting-trial prisoners are
considered to be a priority for magistrates, and that magistrates are well
versed on issues such as juveniles in custody and the granting of bail of
relatively small amounts.
Visits from Magistrates
While magistrates used to visit offenders in prisons, this is no longer common
practice. With the creation of the Office of the Inspecting Judge, magistrates
no longer feel that this is part of their function, and only visit when
invited.
Caseload Backlogs
Although there are systems in place, the enormous
in-flow of cases creates backlogs. The Committees were informed that the
Department of Justice has once again, from September, instituted backlog courts
to reduce this problem.
Interventions to reduce the number of
Children Awaiting Trial at Pollsmoor
There are interventions to reduce the number of awaiting-trial children in
Pollsmoor. Every month a list of names is provided to courts and to the case
flow meetings. Every Friday, Pollsmoor provides the Department of Social Development
with a list of sentenced and awaiting-trial children. Pollsmoor is also
provided with information on the number of places available at places of safety
and at secure care facilities. There is constant networking taking place
between the in-house Social Workers regarding diversion, as well as available
bed-space at places of safety. This has seen a reduction in the number of male
children incarcerated from the end of August 2007 from 195 to 140 in late
October 2007.
Committees’ Recommendations
In different forms, several of the observations and recommendations in this
section have been made before. They are not particularly novel or exceptional
and can even be seen as predictable. The difference however is in the current
approach of the Committees. We are determined to follow up on these
recommendations and actively monitor progress in regard to them. We are acutely
aware of the challenges the relevant departments and other role-players face,
but we believe that incremental improvements are possible and certainly
necessary – and it is these modest, incremental improvements that our
Committees are seeking to pursue. We are also aware of our own limitations,
with our “over-loaded” programmes and inadequate research, technical and other
support, and so we would not be too ambitious in setting our own oversight
targets.
We need to be strategic and selective in our oversight targets. In this
respect, our main aim is to see incremental improvements in the position of
awaiting-trial prisoners in Pollsmoor and put appropriate pressure, consistent
with our oversight role, on the relevant departments and other role-players for
incremental improvements in the position of awaiting trial prisoners in other
correctional facilities. The Correctional Services Portfolio Committee will, of
course, focus more on the general conditions at correctional facilities and
further advance its oversight role in this regard.
However, our two Committees will work closer together to follow through on the
recommendations set out below. This will mean working both jointly and, in a
complementary way, in our own respective portfolios to monitor progress in
respect of the recommendations. We might also work with other relevant
portfolio and select committees to follow through on the recommendations below.
As part of the monitoring process, this report will be sent to the Departments
of Justice and Constitutional Development and Correctional Services for an
initial written response within two months of the date of its adoption. The aim
of the response would be to provide information to the Committees, convey the
initial views of the departments on the recommendations below, and set the
basis for the briefing referred to in 5.3 below. The report will also be sent
to the Pollsmoor management and other relevant stakeholders.
The Committees will also convene a joint meeting of the relevant Departments,
the Pollsmoor management and other stakeholders within six months to monitor
progress in regard to the issues raised in this report
and take matters further.
While the Committees appreciate the challenges, we feel that for awaiting-trial
offenders to constitute 66.8% of the Pollsmoor offender population is
altogether unacceptable. The Committees require a more comprehensive
explanation than we got during our visit on why this is the case and what is
being done to improve the situation, even if gradually over time. The
Committees are keen to get a better sense of how Pollsmoor fares compared to
other correctional facilities.
The Pollsmoor officials explained their approach to dealing with the high
number of awaiting-trial prisoners, especially children. However, the
Committees are not clear that this approach is being implemented effectively –
and will engage further on this at the briefing referred to in 5.3 above. The
Committees welcome the reduction in the number of male children incarcerated,
from 195 to 140, between the end of August and late October this year.
The Committees are concerned about the number of awaiting-trial prisoners who
are being detained in prison simply because they are unable to meet bail,
especially when the bail is below R1000. It is not cost-effective to
accommodate awaiting-trial prisoners where the bail amounts are small. The
Committees note that the Department of Justice and Constitutional Development’s
2006/07 Annual Report refers to section 63(A) of the Criminal Procedure Act
that allows for the release of awaiting trial prisoners, who have been granted
bail, but are unable to pay the bail. The Committees note that the Department
of Correctional Services was requested by the Criminal Justice System Review
Project to prioritise the release of such prisoners, and to submit a report by
end of May 2007, indicating progress. The Committees are interested in what
progress there has been in this regard.
The Committees feel that the judiciary should, where
possible, make use of alternative sentencing so as to ensure that those who
have committed petty offences are not sent to the already overcrowded prisons.
Prison should be for serious offenders.
The
Committees are concerned that Legal Aid Board practitioners do not regularly
visit Pollsmoor, except when they are informed that an accused does not have
legal representation. More immediate access to a legal representative will
result in more applications for reduction of bail, and a decrease in the number
of awaiting-trial prisoners. However, the Committees are aware that there was
no representative from the Legal Aid Board present during the oversight visit.
The Committees are also aware of the capacity constraints that face the Legal
Aid Board. The Committees will send this report to the Legal Aid Board and
request a report, within two months of the adoption of the report, on the
Board’s visits to Pollsmoor and other correctional facilities and the
challenges it faces in this regard.
The Committees feel that when an awaiting-trial prisoner is committed to a
correctional facility, adequate information of the crime, in respect of which
the accused has been charged, has to be contained in the accompanying
documentation. This information is usually contained in the case docket or
court file. If the information is made available, stakeholders will be better
able to ensure that awaiting-trial prisoners do not spend unnecessary time in
prison. The Committees request the Department of Justice and Constitutional
Development to report on the feasibility of providing the Department of
Correctional Services with such information.
The Committees feels that, within their constraints, magistrates should seek to
visit correctional facilities, particularly in respect of awaiting-trial
prisoners. The Committees are keen to understand what the difficulties are in
regard to this and how they might be addressed. The Committees will also raise this
with the Magistrates Commission, and also confer with the Judicial Inspectorate
of Prison.
While it is clear that there are structures in place that provide for
intersectoral engagement, it is not clear to what extent these structures are
effective. The Committees will engage on this further at the briefing referred
to in 6.3 above.
The Committees feel that there should be greater
collaboration between all role players around ensuring better conditions for
and the speedy sentencing of awaiting trial detainees – co-operation between
the Departments of Justice, Social Development, Safety and Security and
Correctional Services should be ongoing.
The
Committees note that while sentenced children and juveniles take part in
education, sport and developmental programmes in Pollsmoor, awaiting-trial
children and juveniles are not allowed to take part. This is apparently because
the latter category “fall under justice, not
correctional services”. The Committees are clear that this “silo” approach is
not acceptable and inconsistent with the notion of an integrated justice
system, and feel that all children and juveniles, both those sentenced and those awaiting-trial, should be allowed to take part in the
above-mentioned programmes. Some of the awaiting-trial juveniles have been
awaiting trial for long periods, some as long as three years.
The Committees note the interventions to address overcrowding in Pollsmoor.
There is obviously a need for more places of safety as children and juveniles
released from prison cannot always go back to their homes; sometimes there are
not even contact details of the families of those released, especially if their
families are in rural areas or provinces other than the
The Committees welcome the use of “backlog courts” and are interested in
progress in this regard.
The Committees agree that more should be done to ensure that
pregnant women, who have committed petty crimes, are not detained in prison but
are diverted to community corrections or to other appropriate intervention
programmes.
The
Committees will follow through on the recommendations set out above and are
keen to see progress in regard to them. We do not believe that we should simply
carry out oversight visits and write reports for the sake of doing so; there
have to be material outcomes. The responsibility for this does not reside
solely with the executive. Parliament also has a major responsibility - and,
consistent with our oversight role, we commit ourselves to working with the
relevant departments and other stakeholders to achieve progress in regard to
the above recommendations.
Acknowledgements
The Committees express their appreciation to the Department of Correctional
Services, the Pollsmoor management and other stakeholders for their
co-operation in ensuring that the study visit was productive. The Committees
acknowledge the assistance of Ms Christine Silkstone of the Parliamentary
Research and Information Unit in the preparation of this report.
Report to be considered.