Report of the Select
Committee on Security and Constitutional Affairs on a joint oversight visit to
Pollsmoor prison to consider the position of awaiting-trial prisoners, dated
1.
Aim of the visit
On
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 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] –
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,
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
4.1
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.
1.
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 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.
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 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 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.
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 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.
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 Prison should be for 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 also 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 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.
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.
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 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.
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
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.
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.