Report of the Portfolio Committee on Correctional Services on factors contributing to overcrowding in correctional centres, dated 14 September 2011
1.1 The Portfolio Committee on Correctional Services in most, if not all, of its oversight reports, highlights the impact overcrowding has on, amongst others, service delivery to inmates and conditions of incarceration. It consistently recommends that interventions should be made to mitigate the effects of overcrowding. The first such recommendations were made as far back as 2005, yet the reduction in the inmate population is miniscule. This report draws attention to the role the judiciary could play in reducing the inmate population.
1.2 The Judicial Inspectorate for Correctional Services (JICS) in its 2009/10 Annual Report, states that, although the level of incarceration has dropped to 139%, considerably lower than the 170% recorded at the end of the 2002/03 financial year, South Africa’s incarceration rate remains the highest in Africa and one of the highest in the world. Nineteen of South Africa’s 239 operational correctional centres recorded levels of overcrowding greater than 200%, and conditions of incarceration at these centres are inhumane and do not comply with constitutional requirements governing detention.
1.3 Incarceration, even when justified and under the best possible conditions, is traumatic. That conditions in South African correctional centres barely meet minimum standards of humane detention and, in the vast majority of instances, do not promote the correction of offending behaviour, is well-known and indisputable. Because everyone has the right to freedom of movement, and, given the trauma inflicted by incarceration, even under the best conditions, the Committee remains convinced that custodial sentences should only be handed down in cases that absolutely demand it, and that only those who absolutely pose a risk to the community, or a flight risk, should be remanded in detention.
1.4 The Committee wishes to bring the matters outlined below to the JCPS cluster’s attention and intends to, in the near future, invite stakeholders to submit proposals on how existing provisions may be better utilised to limit the inmate population and promote the effective implementation of the provisions of the recently passed Correctional Matters Amendment Act.
2. FACTORS CONTRIBUTING TO OVERCROWDING IN CORRECTIONAL CENTRES
2.1 Information gathered during oversight visits and through interactions with the Justice and Crime Prevention and Security (JCPS) cluster and stakeholders, reveals a number of challenges that contribute to the correctional centres’ chronic overcrowding. The two main contributing factors appear to be the minimum sentencing provisions of the Criminal Law Amendment Act, and the ever-growing remand detention population.
2.2 When the death penalty was abolished, minimum sentencing legislation was proposed to assure the public that, the abolition notwithstanding, government remained committed to reducing serious crime. It served to appease a public which had become, and remains, increasingly concerned about the high levels of crime in the country. Many agree that the legislation, which provides minimum sentences of imprisonment (ranging from 15-25 years) for a small range of serious offences, including murder, rape, robbery and serious economic crimes, is a serious contributor to the high prison population. The legislation provides for progressively harsher penalties for repeat offenders but also allows for judicial discretion: courts may impose a lesser sentence in cases in which substantial and compelling circumstances exist that justify the imposition of a lesser sentence; judges must provide their reasons for imposing a sentence below the minimum. All stakeholders interacted with are of the opinion that the amendment of this legislation would contribute to a reduction in the inmate population.
2.3 The remand population remains a major contributor to overcrowding. According to the DCS’ records, on average, 733 of those in remand spend more than three years awaiting trial. More than 230 of these detainees will spend four to five years awaiting trial, while 90 will spend more than five years in remand before they are sentenced. One such inmate is detained at Durban-Westville and has so far spent just under eight years in remand. He has reportedly appeared before the magistrate’s court nine times, and 55 times before the Pietermaritzburg High Court. In 2010/11 the JICS reported that, although the remand population had by May 2010 decreased from almost 64 000 in April 2000 to 49 030, those in remand still constituted more than 30% of the inmate population, and 52% of the population are at those centres that are critically overcrowded. The JICS registered its concern that, though remand detainees are not convicted criminals, they are subjected to the same inhumane conditions sentenced offenders are subjected to. This presents an ethical dilemma that demands serious attention.
The Committee has, in most of its oversight reports, raised its concern about the poor use of legislative provisions and other agreements that may reduce the inmate population. Some of the provisions, if used more regularly, could effect a radical reduction, not only in the remand population, but also in the sentenced inmate population. These provisions are highlighted below.
3.1 Case and court management
Approximately 3-4% of remand detainees spend more than two years in remand. The JCPS cluster suggests that the reasons for this are varied and include the complexity of some cases that have multiple accused, multiple charges and multiple witnesses; unavailability of witnesses; the withdrawal and changing of legal representation; delays in securing High Court dates; and the loss of court records. Members of Parliament serving on the Police and Correctional Services committees have reported that they receive numerous complaints of cases having to be postponed owing to prosecutors, magistrates and judges being absent from work. The Committee recommends that every effort is made to ensure that courts are run in such a manner that matters are managed efficiently and speedily, and that, in so doing, the accessibility and effectiveness of the courts, in terms of section 165(4) of the Constitution, are ensured.
Greater use should be made of plea and sentence agreements in terms of section 105A of the Criminal Procedure Act, which would result in the speedy resolution of less serious offences. Such processes are prosecutor driven, and prosecutors should be encouraged to make use of these options.
3.3 Requests to refuse remand detention
During the Committee’s most recent oversight visits, it was revealed that prosecutors often request magistrates to remand cases indefinitely. Many detainees claimed that there was no evidence against them, or that investigations were deliberately being delayed. Given the prevailing conditions in correctional centres, and given every innocent person’s right to freedom of movement, such requests should be made only when there is sufficient evidence to warrant further detention. The JICS, in its 2009/10 annual report, recommends that prosecutors should, where an accused has been in remand for an unreasonably long time, and evidence is weak, request the court to refuse further remand, subject to matters being re-opened should compelling evidence emerge at a later stage. The Committee supports this recommendation.
3.4 Unaffordable bail
visit to remand detention centres the Committee has come across numbers of detainees
who have been granted bail of less than R1 000, but who could not afford to pay
it. The JICS reported that, in the 2007/08 financial year, 8 348 remand
detainees were detained simply because they could not afford to pay the bail
amounts set at R1 000 or less; half had bail set at under R500. In October 2010
the JCPS cluster reported that on 31 May 2010 the number of remand detainees
with bail amounts less than R1 000 stood at 4 458. This situation is
unacceptable given the provisions of section 62(f) of the Criminal Procedure
Act, which allows for an accused to be placed under the supervision of a probation
or correctional officer, while awaiting trial. In three of the four magisterial
districts of the Eastern Cape a protocol exists allowing all those with bail set
at less than R1 000, to re-appear before the court if, within 14 days of the
court having granted bail, they have not managed to raise the monies. Despite
this, the Committee, on its recent oversight visit to
3.5 Amendment of bail conditions
In terms of section 63A of the Criminal Procedure Act, Heads of Correctional Centres (HCC) may apply for the amendment of bail conditions on account of prevailing prison conditions including whether the centre is overcrowded. The JICS reports that this provision is grossly under-utilised. Parliament had in the past been informed that HCCs stopped making use of this provision, because courts summarily turned down applications made in terms of it. The DCS should provide the Committee with a report on the extent to which this provision has been used in the past 12 months, and how these applications were received by the courts.
3.6 Delays in decisions to grant bail
In 2010 the JCPS cluster reported that the category of inmates for whom the courts had not yet decided to grant bail stood at 37 865 at the end of May that year. This category placed enormous strain on the DCS, as it was impossible to divert them in terms of Sections 62 and 63 of the Criminal Procedure Act. Only in cases where the accused pose a threat to society, or pose a flight risk, should bail be denied
3.7 Alternatives to remand detention
In 2009/10 the number of detainees who had been granted bail but could not afford the amounts set, came to 10 089, while only 2 116 were awaiting trial in the community. The Committee supports the JICS’ recommendation that, even if remand is justified, consideration should be given to non-custodial alternatives. The community should be involved in such efforts, as such involvement promotes victim-empowerment and restorative justice.
3.8 Police investigations
Concerns about the South African Police Service’s (SAPS) apparent arrests regardless of whether evidence to do so and sustain a conviction is sufficient, are mounting. According to the JICS 2009/10 Annual Report the average period of remand detention is about three months, after which, typically, detainees are released for lack of sufficient evidence to secure a conviction. It is recommended that prosecutors and legal representatives be vigilant, and that, in cases where evidence is weak, courts be implored to refuse requests for remand detention.
3.9 Alternative sentencing
Courts should make greater use of alternative, non-custodial sentences, such as those contained in section 276(1)(h) and (i) of the Criminal Procedure Act. The DCS reports that, in 2009/10, a total of 21 782 offenders had served correctional supervision sentences. Greater use of alternative sentencing options will no doubt reduce overcrowding and will, more importantly, facilitate the speedy and smooth reintegration of offenders into society. In October 2010 the JCPS cluster reported that the continued incarceration of those serving sentences of less than six months impacts negatively on the provision of rehabilitation programmes. To date, magistrates have been reluctant to impose alternative sentences, largely owing to the DCS’ inability to track such offenders. Given that, with adequate monitoring, the benefits of alternative sentences far outweigh those of incarceration, their use, where appropriate, should be encouraged.
3.10 Electronic monitoring
The Committee recommends that, in this regard, the DCS should expedite efforts to introduce an electronic monitoring system that would make it possible to monitor and keep track of those sentenced to community corrections, parolees and those who have been granted bail. Keeping these categories of inmates to the minimum will result in a radical reduction in inmate numbers.
3.11 Offender Transfer Agreements
Foreign nationals place strain on
According to the DCS it costs the State approximately R123,37 per day to accommodate an inmate. The Committee believes this figure conservative, and not inclusive of all the costs associated with incarcerating a person. The reduction of the inmate population would generate savings that could be better spent in areas that would aid rehabilitation. The DCS reports, for instance, that in 2009/10, 12 740 offenders serving sentences of less than 24 months had no sentence plans. Stakeholders alarmingly report that, though many offenders may have sentence plans, it is unlikely that these sentence plans are implemented particularly given the DCS’ acute staffing and budgetary constraints. Rehabilitation need not be confined to correctional facilities, and may be more successfully achieved within the community. In view of this, the Committee advises that the recommendations made above receive due consideration, and that efforts to create a conducive environment for the implementation of alternatives to incarceration and remand in detention, are redoubled.
Report to be considered