This is the first annual report to be submitted by the Inspecting Judge of the Judicial Inspectorate of Prisons to the President and the Minister of Correctional Services in terms of Section 90(4)(a) of the Correctional Services Act, No 111 of 1998, hereinafter referred to as the Act.
This report, being the first Annual Report, deals mainly with the progress made with the establishment of the Judicial Inspectorate, the problems encountered in this regard, and the work actually done by the Inspectorate in the execution of its statutory functions and duties, during the period 1 June 1998 to 1 February 2000.
With a daily aggregate prison population of approximately 160 000 prisoners, accommodated in about 231 prisons throughout the Republic, under the care and supervision of some 35 000 correctional officials, the pursuit of the Inspectorate's primary objective, namely to monitor the treatment of prisoners and conditions in prisons, has proved to be a very formidable assignment. However, it is, in my view, most desirable to have an independent statutory authority such as the Judicial Inspectorate to perform this task. In the prisons, where this is already happening, it is without doubt leading to a better understanding and relationship between inmates and warders.
During my term of office, it has also become apparent that the success in achieving the objectives of the Inspectorate would, in a very large measure, depend upon the extent to which the Inspectorate is in fact, and is perceived by both the prisoners and correctional officials, to be an independent and impartial reporting authority. In all our discussions, meetings and interviews with prisoners, correctional officials, and their respective representative organizations, I and the other members of the Inspectorate therefore took pains to assert the independence of the Inspectorate, and to emphasize that it was not to be regarded as an extension of, or in any respect subservient to, the Department of Correctional Services.
I regret that there has been some delay in the preparation of this report. This is partly due to the following circumstances. Acting on the advice of my medical practitioner, I gave the Minister of Correctional Services and the Minister of Justice notice, on 15 March 1999, of my resignation as Inspecting Judge as from 30 April 1999. However, by 30 April 1999 my successor had not yet been appointed. As the Judicial Inspectorate could not function without an Inspecting Judge, I then agreed to withdraw my resignation on the understanding that I would be relieved of my responsibilities for the day to day running of the affairs of the Inspectorate, but would nevertheless be available, without payment of any remuneration, to sign documents or sanction decisions reserved for the Inspecting Judge in terms of the Act. Although it was anticipated that my successor would be appointed by June 1999 at the latest, the position was still unchanged as at 1 February 1999.
31 MARCH 2000
The Judicial Inspectorate is an independent office under the control of the Inspecting Judge. The Inspectorate was formally established with effect from 1 June 1998, in terms of section 25 of the Correctional Services Act no.8 of 1959 (as amended by the Correctional Services Act no.102 of 1997), and I was appointed by the President as the Inspecting Judge for a period of two (2) years, as from the aforesaid date.
The constitution and structure of the Inspectorate,and the powers, functions and duties of the Inspecting Judge, to which I shall later refer in greater detail, are presently governed by the provisions of sections 85 to 94 of the Act. These sections came into operation on 8 February 1999, being the date fixed by the President by proclamation no.R20, 1999 of 19 February in the Gazette, as provided for in section 138 of the Act.
The establishment of the Inspectorate must be viewed against the background of the Act as a whole, which provides for the introduction of radical and far-reaching changes in our correctional system and seeks to give effect to the Bill of Rights in the Constitution, Act 108 of 1996 and in particular its provisions with regard to prisoners. For example, in chapter III of the Act provision is made for the custody of all prisoners under conditions of human dignity, while chapter IV provides for an enlightened policy of implementation of prison sentences with the objective of enabling sentenced prisoners to lead socially responsible and crime-free lives in future.
The Judicial Inspectorate is one of the so-called independent mechanisms provided for in the Act to investigate and scrutinize the activities of the Department of Correctional Services. However, during the period covered by this report, the provisions in the Act in which the Inspectorate is mainly concerned, such as those set out in chapters III and IV, had not yet come into operation by virtue of a date fixed by proclamation, as provided for in section 138 of the Act and consequently, in carrying out its investigative functions, the Inspectorate still has to have regard to the provisions of the Correctional Services Act, 1959, and the regulations and orders relating thereto. The task of the Inspectorate will be considerably facilitated if a date for the coming into operation of the remaining provisions of the Act were to be fixed by proclamation in the Gazette in terms of section 138, as soon as possible.
Section 85 of the Act states that: (1) The Judicial Inspectorate of prisons is an independent office under the control of the Inspecting Judge. (2) The object of the Judicial Inspectorate is to facilitate the inspection of prisons in order that the Inspecting Judge may report on the treatment of prisoners in prisons and on conditions and any corrupt or dishonest practices in prisons.
Three aspects need to be emphasized. Firstly, the Inspectorate is an entirely independent statutory body. It is not, and should not be perceived to be an extension or arm of the Department of Correctional Services.
Secondly, the Judicial Inspectorate is an investigating and reporting authority, it does not have any disciplinary powers in respect of correctional officials or prisoners. In terms of section 90 (3) of the Act the Inspecting Judge is required to report to the Minister of Correctional Services.
Thirdly, the jurisdiction of the Judicial Inspectorate is confined to what occurs in prisons, it does not extend to what happens outside prisons.
Against this background, I now turn to the establishment of the Judicial Inspectorate and what has been done during the period covered by this report.
As at the date of my appointment, the Judicial Inspectorate existed in name only, it had not yet, in fact, been established. The Inspectorate had no human or financial resources and it had no physical infrastructure, such as office accommodation or equipment at its disposal. My first task was, therefore, to set up the office of the Inspectorate.
A senior official of the Department of Correctional Services, Mr. Gideon Morris, was seconded to the Inspectorate and appointed as the acting Secretary during June 1999.
A provisional budget, which allowed for the appointment of the necessary administrative support staff, including Inspectors, was submitted to, and approved by, the Department of Correctional Services, which is responsible, in terms of section 91 of the Act, for all the expenses of the Judicial Inspectorate. We thereupon embarked on the procurement of the necessary office accommodation and equipment, the compilation of job specifications, the advertising of all posts in newspapers nationally, and the process of selecting and appointing inspectors and the administrative support staff.
During the period June to November 1998, and also thereafter, in order to acquaint myself with the circumstances in which the Inspectorate would be functioning, I undertook a programme of orientation visits in the course of which I met and consulted with various people, interested organizations, correctional officials and prisoners, and informed them of the establishment of the Inspectorate, its structure, object, powers, functions and duties. In turn, I received valuable input from them concerning the practical implementation of the provisions of the Act.
I also visited the following prisons:
I furthermore attended a number of strategic planning sessions of the Department of Correctional Services during which I had the opportunity of addressing Area Managers and Heads of Prisons on the implications of the establishment of the Inspectorate.
During the course of my orientation visits I met with the following people and organizations:
During the course of these visits, I discovered, somewhat to my surprise, that correctional officials at grass root level, as well as the prisoners, knew very little about the establishment of the Judicial Inspectorate, its functions and objectives.We accordingly prepared a brochure, setting out, in plain language, the objectives, functions, composition, scope and purpose of prison inspections to be conducted by members of the Judicial Inspectorate, in pursuance of the provisions of the Act. Thousands of these brochures have already been distributed amongst prisoners and members of the Department of Correctional Services as part of the Inspectorate's information campaign. However, much still has to be done in this regard in order to gain the trust and confidence of both prisoners and correctional officials.
The principal or main function of the Inspecting Judge, according to section 90 (1), is to inspect or arrange for the inspection of prisons in order to report on the treatment of prisoners in prisons and on conditions and any corrupt or dishonest practices in prisons.
The specific statutory powers, functions and duties of the Inspecting Judge include:
In terms of section 89 (1) of the Act, the staff complement of the Inspectorate must be determined by the Inspecting Judge in consultation with the Commissioner. Within this complement, the Inspecting Judge appoints inspectors and the members of the administrative staff, headed by a secretary.
The main function of the inspectors is to assist the Inspecting Judge with the inspection of prisons, and to report to him on all matters relating to the treatment of prisoners and conditions in the prisons. They will, furthermore, be required to carry out such functions as may be assigned to them, individually or as members of a team, by the Inspecting Judge.
At the moment the staff complement of the Inspectorate consists of nine (9) inspectors and ten (10) administrative staff officials including the secretary, who is the chief administrative official. The staff complement needs to be increased, and additional members of staff will be appointed shortly, subject to the necessary funds being made available for this purpose.
Section 89 reads as follows:
As I have already indicated, it is most important for the successful functioning of the Judicial Inspectorate that it be perceived and accepted by prisoners, correctional officials and the public at large as an independent statutory body and not merely an extension of the Department of Correctional Services. For this reason the inspectors, with only a few exceptions, have been (and will continue to be), appointed from persons outside the ranks of correctional officials.
This inevitably resulted in the appointment of persons as inspectors, having no, or very limited, knowledge and experience of their assignment, namely the inspection of prisons in order to report on the treatment of prisoners and conditions in prisons.
As a consequence, it was essential to provide those appointees with intensive instruction and training concerning the relevant provisions of the Correctional Services Act, 1959 and the existing Regulations and the Orders, the relevant provisions of the new Act, as well as the implications of the Bill of Rights in the Constitution, and more particularly, those provisions relating to the treatment of prisoners and conditions in prisons.
The training and instruction programmes included orientation visits to prisons and participation in workshops conducted by various stakeholders.
Workshops conducted and training provided
United Nations Standard Minimum Rules for the treatment of prisoners.
Human Rights for Correctional Services
Bill of Rights
Treatment of prisoners and conditions in prisons
New Correctional Services Act,1998 (Act no.111 of 1998)
Principles and methods of prison inspection
Mr. David Johnson United Nations Human Rights Commission
Centre for the Study of Violence and Reconciliation Lawyers for Human Rights
South Africa Human Rights Commission
Department of Correctional Service
Director: Legal Services Department of Correctional Services
United Nations Human Rights Commission
This has been a time consuming, but also very fruitful, exercise. We are in the process of completing an inspection manual to assist the inspectors in the performance of their exacting task of inspecting prisons, and to provide them with uniform guidelines pertaining to the scope and manner of conducting such inspections. The main objective in providing the inspectors with such a manual is to ensure that prison inspections are carried out efficiently and expeditiously.
In terms of section 87 (1), the Inspecting Judge may, from time to time, after consultation with the Commissioner, appoint one or more person or persons with a legal, medical or penological background as an Assistant or Assistants in the performance of the Inspecting Judge's duties, for example, to assist in the conduct of a particular investigation or enquiry.
Such Assistants are appointed on contract for a fixed period or until the completion of a particular assignment. Such Assistants have the same powers, duties and functions as the Inspecting judge, but are under the authority and control of the Inspecting Judge.
However, a prerequisite for the appointment of these Assistants is the determination by the Inspecting Judge, after consultation with the Commissioner of Correctional Services, and in consultation with the Director-General of the Department of Public Service and Administration, of the salaries and conditions of service of Assistants
Although the Judicial Inspectorate initiated consultations with the Department of Correctional Services with a view to determining the salaries and conditions of service of Assistants as far back as March 1999, these consultations have thus far proven fruitless. On a number of occasions it was urgently necessary for the Inspectorate to engage the services of members of the legal and medical professions to assist in the investigation of conditions in certain prisons, but we were precluded from doing so simply because of the lack of positive response from the Department of Correctional Services to our proposals in regard to this matter. This has been a most frustrating experience.
The delay in the determination of the salaries and conditions of service of Assistants is seriously hampering the Inspectorate in the execution of its functions.
During 1998, the Inspecting Judge conducted the first Commission of Enquiry, in terms of the provisions of section 90 (5) of the Act, into allegations of mass assaults upon prisoners at the Johannesburg Medium B prison.
The Inspecting Judge's report of his findings and recommendations arising out of this enquiry was submitted to the Minister of Correctional Services in terms of the provisions of section 90 (3) of the Act, during February 1999.
As part of the ongoing process of their in-service training, the inspectors visited a number of prisons as set out hereunder and, in addition, conducted pilot inspections at the following prisons:
The inspectors furthermore conducted investigations into allegations of mass assaults by Correctional Officials on prisoners at Witbank Prison, during December 1998, and East London Prison, during July 1999. Reports on the Inspectorate's findings arising out of these investigations were submitted to the Minister of Correctional Services on 13 May 1999 and 29 November 1999 respectively.
Prisons visited by members of the Judicial Inspectorate:
In terms of section 92 (1) of the Act, the Inspecting Judge must, as soon as practicable, appoint Independent Prison Visitors for the various prisons throughout South Africa.
The primary function of Independent Prison Visitors, as set out in section 93 of the Act, is to deal with the complaints of prisoners by:
(a) regular visits;
(b) interviewing prisoners in private;
(c) recording complaints in an official diary and monitoring the manner in which they have been dealt with; and
(d) discussing complaints with the Head of Prison, or the relevant subordinate correctional official, with a view to resolving the issues internally.
Thus, at each prison, the Independent Prison Visitor or Visitors form a vital link between the prisoners, the Head of Prison and the Judicial Inspectorate.
In terms of the Act, all complaints from prisoners, save in exceptional circumstances, have to be submitted to the Judicial Inspectorate via the Independent Prison Visitors.
For the purposes of dealing with complaints, Independent Prison Visitors have been given fairly extensive powers. For example, the Act provides that they must be given access to any part of the prison and to any document or record. The Head of Prison is required to assist the Independent Prison Visitor in the performance of his or her assigned functions. And, if the Head of Prison should refuse any relevant request from the Independent Prison Visitor, the dispute must be referred to the Inspecting Judge whose decision will be final.
The underlying purpose of the Act, in providing for the appointment of lay persons as Independent Prison Visitors, is probably to stimulate the communitys interest and involvement in correctional matters and promote public confidence in the treatment of prisoners and the conditions in South African prisons.
It is clear from the provisions of the Act that the persons appointed as Independent Prison Visitors should be responsible, reliable, public-spirited persons of integrity, interested in the promotion of the social responsibility and human development of prisoners.
Furthermore, it is essential that the persons appointed as Independent Prison Visitors are received by the prisoners, the correctional services officials concerned and the general public, to be independent functionaries.
In terms of the Act, the Inspecting Judge can only appoint an Independent Prison Visitor for a particular prison or prisons after publicly calling for nominations and consulting with community organizations Compliance with these requirements has proved to be a very cumbersome, time consuming, and expensive exercise, particularly, if regard is had to the fact that eventually Independent Prison Visitors would have to be appointed to some 231 prisons throughout South Africa.
The concepts publicly calling for nominations and consulting with community organizations are not defined in the Act. The Inspectorate has construed the first requirement to mean that nominations have to be called for by means of appropriate notices published in newspapers circulating in the areas where the prison or prisons concerned are situated. As to consultation with community organizations, we have endeavored to identify, and then to consult with, organizations, such as NICRO, that are interested in the welfare of prisoners in the respective areas.
Although the powers, functions and duties of the Independent Prison Visitors are prescribed in the Act in general terms, the Inspecting Judge is required to make rules concerning the appointment and work of the Independent Prison Visitor. This includes matters such as:
Criteria for appointment as an Independent Prison Visitor.
As this was an entirely novel project for which there were no existing rules, criteria or guidelines, it was decided to embark on a pilot project consisting of the appointment of fifteen (15) Independent Prison Visitors for a period of three (3) months at the following prisons in the Western Cape, namely:
The aim of this Pilot Project was to enable the Inspectorate to draft a uniform system and rules of procedure for the following:
These Independent Visitors were then appointed as independent contractors, for a period of three (3) months, in terms of a contract, the terms of which were settled in consultation with the Office of the State Attorney.
The Independent Prison Visitors were remunerated at a rate of R38.65 per hour, approved by the Department of Public Service and Administration, in anticipation of the final determination thereof by the Minister of Correctional Services, in terms of the provision of section 93 (8) of the Act.
This project terminated on 31 October 1999. However, as result of the positive response of prisoners, correctional officials and members of the public, the services of the Independent Prison Visitors were extended for a further period of 2 months.
A final report which reflect the results of the Pilot Project was compiled by the Office of the Inspecting Judge. This report also contained various recommendations, which had to be considered before the provisions of the Act relating to Independent Prison Visitors could be implemented on a national basis. In formulating these recommendations, consultation took place with various role players.
This report was submitted to the Commissioner of Correctional Services as part of the ongoing process of consultation on 21 October 1999.
The Judicial Inspectorate and various other interested parties made a thorough analysis of the results of this pilot project. Based on these results of the Pilot Project an Organizational Procedures and Administrative Rules Manual was sanctioned by the Inspecting Judge in terms of the provisions of section 93 (6) of the Act. This document was published by the Office of the Inspecting Judge as a resource document and training manual for Independent Prison Visitors who would be appointed on a national scale.
The total cost of this pilot project amounted to R106 961.75, being R86 298.93 for the payment of remuneration and allowances to Independent Prison Visitors and R 20 662.82 for travel expenses.
A partnership was formed with the Office of the High Commissioner for Human Rights to facilitate the development of training programmes for Independent Prison Visitors.
As phase one (1) in the development process a workshop was held between the following role-players:
Centre for Study of Violence and Reconciliation
Lawyers for Human Rights
Department of Correctional Services
Human Rights Commission
A comprehensive training framework which will form the basis of all future training programmes for Independent Prison Visitors was compiled.
As phase two (2) in the development process, a training manual is at present being compiled in consultation with the Office of the High Commissioner for Human Rights. Inspectors and other members of staff of the Judicial Inspectorate will receive detailed training during March/April 2000, which training will in turn enable them to undertake the mammoth task of training Independent Prison Visitors, prisoners as well as members of the Department of Correctional Services on a national basis.
The Office of the High Commissioner for Human Rights has pledged financial support to the value of R394 800,00 for the training of Independent Prison Visitors.
During the period, August to October 1999, the Judicial Inspectorate embarked on an extensive programme of consultations with non-governmental organizations, Municipalities, Churches, Government Departments and Educational Institutions in an effort to obtain nominations of Independent Prison visitors.
In KwaZulu-Natal we met with the following persons and organizations:
Director and staff of NICRO
Representatives of the Independent Complaints Directorate (ICD)
Mayor and Deputy Mayor of New Castle
Mayor and Town Clerk of Vryheid
South African Human Rights Commission
Representative of the South African Gender Commission
Port Shepstone Welfare Society
Representatives of the Legal Resource Centre
Representatives of the Medico-Legal Unit
Representaive of the Human Rights Committee
In Gauteng we met with the following persons and organizations:
Director and staff of NICRO (Gauteng)
Office of the High Commissioner for Human Rights (OHCHR)
The South African Youth Commission
The Gauteng Rehabilitation Trust
The South African Prisoners Organisation for Human Rights (SAPOHR)
Director-General of the Department of Welfare and Social Services
Department of Criminology (University of Pretoria)
The process of publicly calling for nomination in Gauteng Province has been concluded by placing of advertisements in all local newspapers. The appointment of Independent Prison Visitors to all prisons in the Gauteng Province should be finalized by 1 May 2000 subject to the final approval of the Minister of Correctional Services of the remuneration and allowances to be paid to the Independent prison Visitors in terms of the provisions of section 93 (8) of the Act.
We have also made significant progress in calling for nominations in KwaZulu-Natal Province
In terms of the provisions of Section 94, the Inspecting Judge has approved the establishment of Visitors Committees at Cape Town and the Boland districts.
Visitors Committees in all other provinces will be established concurrently with the appointment of Independent Prison Visitors, in those provinces.
The Functions of the Visitors Committee are
Prisoners complaints received directly by the Office of the Inspecting Judge
Section 90 (2) Complaints received directly by the Inspecting Judge provides that: "The Inspecting Judge may only receive and deal with the complaints submitted by the National Council, the Minister, the Commissioner, a Visitors' Committee and, in cases of urgency, an Independent Prison Visitor and may of his or her own volition deal with any complaint."
Despite this provision, a total of 968 complaints have been received directly from prisoners by the Office of the Inspecting Judge. These complaints had to be investigated by members of the Judicial Inspectorate as no Independent Prison Visitors had been appointed to these prisons. As a consequence the Inspectors had to travel extensively throughout the country in an attempt to resolve prisoners complaints.
These complaints are additional to the complaints received and dealt with by the Independent Prison Visitors. All complaints received at the Office of the Inspecting Judge are recorded and case-files are opened for further investigation.
Complaints of an urgent nature such as deaths in prison, assaults, hunger strikes, etc. are effectively dealt with and therefore this office will continue to give preference to complaints of this nature.
Complaints were investigated at the following prisons:
Discussions have taken place between the Office of the Public Protector, the South Africa Human Rights Commission and the Judicial Inspectorate to establish referral systems between these organisations.
Complaints dealt with by Independent Prison Visitors
It has been our experience that the ability to resolve the day to day complaints of prisoners is directly related to the accessibility that this office has to the prisoner and the local prison authorities.
For this reason the appointment of Independent Prison Visitors at a prison is integral to the effective resolution of the day-to-day complaints of prisoners.
Nature of Complaints received:
1. Treatment and conditions in prison:
The statutory objective of the Judicial Inspectorate , as defined in section 89 (1) of the Act, was amended in February 1999 by including the inspection of prisons for the purpose of reporting on any dishonest and corrupt practices in prisons.
It was quite clear from the outset that this amendment would increase the workload of the Judicial Inspectorate considerably. A separate unit would have to be established to deal with this aspect of the Inspectorate 's assignment because the nature of investigations into dishonest and corrupt practices in prisons differs fundamentally from the nature of inspections relating to the treatment of prisoners and the conditions in prisons. The former necessitates a criminal investigation whereas the latter is concerned with the humane treatment of prisoners, and ensuring their human dignity.
Consequently, the question of establishing a specialised Anti-Corruption Unit arose for consideration. The Department of Correctional Services already had a fully operational Anti-Corruption Unit which was responsible for investigating corrupt and dishonest practices in the Department as a whole, including prisons.
In order to prevent an unnecessary duplication of functions, resources and infra-structure, consultations were then held with the Department of Correctional Services Management with a view to defining the respective roles of the Judicial Inspectorate and the Department of Correctional Services in combating the evil of dishonesty and corruption practices in the correctional services system.
During these discussions, it appeared that the Department of Correctional Services was considering disbanding its Anti-Corruption Unit and transferring full responsibility for investigating and dealing with corrupt and dishonest practices within the Department to the Judicial Inspectorate.
However, we pointed out that this would require an amendment to the Act because, as I have already mentioned, in terms of section 85, the Inspectorate 's jurisdiction is restricted to investigating dishonest and corrupt practices in prisons, and not the Department as a whole, and reporting thereon to the Minister.
As at 1 February 1999 this question had not yet been resolved
In terms of section 91 of the Act, the Judicial Inspectorate is funded by public funds defrayed from the budget vote of the Department of Correctional Services.
Funds are made available to the Judicial Inspectorate under the programme Operational Management in the budget of the Department of Correctional Services.
The Judicial Inspectorate is dependent on the co-operation of the Department of Correctional Services for the payment of all its expenses.
Expenditure for 1998/1999 financial year:
Professional and Special Services
Expenditure for 1999/2000 financial year:
Professional and Special Services
R 1 559,041.76
R 2 896,114.73
In conclusion, I would like to record my thanks to the Minister of Correctional Services, the officials of the Department of Correctional Services, and all the other persons and organizations referred to in this report for their assistance in setting up the Office of the Judicial Inspectorate .I would also like to express my sincere thanks and appreciation to all the members of the personnel of the Judicial Inspectorate for their dedication, commitment and loyal service during the period covered by this report.
31 MARCH 2000