Report of the
Portfolio Committees on Justice and Constitutional Development 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 reports as
follows:
1.
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 our 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.
2. Participants
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 B Magwanishe (Acting
Chairperson), Mr JB Sibanyoni
(ANC), Ms M Meruti (ANC) and Ms C Johnson (ANC).
Select Committee on Security and Constitutional Affairs: Kgoshi
L M Mokoena (Chairperson) –
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)
3. 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 discussion. MPs then spoke with a number of
awaiting-trial prisoners, especially pregnant women, juveniles and children.
4. Briefing on the Pollsmoor
Management Area
Pollsmoor is overcrowded. The present occupancy
rate is 168%. While Pollsmoor is designed to
accommodate 4 252 offenders it currently has 7 296 offenders. 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
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 (to reduce bail) 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.
5. Issues Arising
5.1. 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 people 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.
5.2. 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 the 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 affordability of the accused. 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.
5.3. 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 prisoner is being
held.
5.4. 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 the courts. 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.
5.5. 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.
5.6. 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.
5.7. 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.
5.8. 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.
6. 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 roleplayers 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 should 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 roleplayers for incremental
improvements in the position of awaiting trial detainees 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 referred 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 referred 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 refer this report to the Legal Aid Board and request
a report, within two months, 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 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 inter-sectoral
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 in this regard.
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 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 believe 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 correction or 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