Report of the Portfolio Committee on
Correctional Services on a joint oversight visit to Pollsmoor Prison to
consider the position of awaiting-trial prisoners, dated
The Portfolio Committee on Correctional
Services, and the Portfolio Committee on Justice and Constitutional
Development, having undertaken the above oversight visit, reports as follows:
On
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,
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)
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.
4.1
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.
5.1
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
6.1
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.
6.2
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.
6.3
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.
6.4
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.
6.5
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.
6.6
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.
6.7
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.
6.8
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.
6.9
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.
6.10 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.
6.11 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.
6.12
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.
6.13 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.
6.14 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
6.15 The Committees welcome the use of “backlog
courts” and are interested in progress in this regard.
6.16
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.
6.17 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.
7
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