Annual report for the
period 1 April to 31 December 2000
Submitted to Mr. Thabo Mbeki,
President of the Republic of South Africa
Mr. Ben Skosana, Minister of Correctional Services
the Inspecting Judge
J J Fagan
in compliance with the provisions of section 90(4) of the
Correctional Services Act 111 of 1998.
Office of the Inspecting Judge
Private Bag X9177
Tel: (021) 421-1012/3/4/5/6
Fax: (021) 418-1069
FROM THE INSPECTING JUDGE.
In executing its statutory mandate of monitoring the conditions in which prisoners are held, this office found that prisoners in certain prisons were being kept under the most awful conditions. The cause was overcrowding. Our 236 prisons were designed to accommodate 101 000 prisoners. In April 2000 they were holding 172 000 prisoners, of whom 64 000 were awaiting trial. The Department of Correctional Services was trying to cope as best it could but the crisis required drastic action. The Cabinet came to the relief by authorizing the release of some 8451 awaiting-trial prisoners who could not afford to pay their bail amounts.
This office believes that the number of prisoners should and can be drastically reduced. The aim should be 100 000 sentenced prisoners (presently 108 000) and 20 000 awaiting-trial prisoners (presently 54 000).
The year was productive in many ways. Independent Prison Visitors were appointed in Gauteng and Free State and the number in Western Cape brought up to full strength. They have proved to be a success and their introduction to the other provinces is planned for the year 2001.
About 74 362 complaints of prisoners were dealt with by Independent Prison Visitors during the year 2000 and 1321 directly by this office. Our inspectors carried out 68 inspections at prisons.
There was co-operation in various matters with the Departments of Correctional Services, Justice, Welfare and Population Development, the South African Police Service, the Human Rights Commission, Business Against Crime, NICRO, Lawyers for Human Rights, SAPOHR and Universities. Conferences were attended and addressed. Articles were written and there were TV and radio interviews to inform the public of the overcrowding problem and the steps taken and to be taken to alleviate it.
Having visited many prisons and having spoken to many correctional officials, independent prison visitors and prisoners, my impression is that the Department of Correctional Services is doing well under difficult conditions caused by overcrowding.
31 JANUARY 2001
2. ORGANISATIONAL STRUCTURE.
3. ORGANISATIONAL OBJECTIVES.
The statutory objective of the Judicial Inspectorate is to give effect to the provisions of section 85(2) of the Correctional Services Act 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.
4. STAFF COMPOSITION.
The team in the Office of the Inspecting Judge
5. APPROVED STAFF ESTABLISHMENT.
In terms of the provisions of section 89(1) of the Correctional Services Act the staff complement of the Judicial Inspectorate must be determined by the Inspecting Judge in consultation with the Commissioner (of Correctional Services.) As on 31 December 200 the Inspectorate employed 25 full time staff members and 117 community members appointed on a contractual basis, as Independent Prison Visitors.
||Post level.||Salary level.|
|9||Support Staff||6 and lower|
|Free State||Gauteng||Western Cape|
8.1 THE POSITION.
Our prisons are severely overcrowded. Reports from Independent Prison Visitors described the awful treatment that some prisoners had to endure due to overcrowded prisons. Visits to prisons bore this out. Built to accommodate 100 668 prisoners, the prisons housed 172 271 prisoners in April, which meant that approximately 72 000 prisoners were kept in prisons without the necessary infrastructure such as toilets, showers, beds, etc. being available to them. This was worsened by the uneven distribution of prisoners resulting from the need to separate different genders and categories. Whilst some prisons had an occupancy rate of 100%, many were over 200% with one reaching an astonishing 393%. There was gross overcrowding in numerous prisons, which led to detention under horrendous conditions, especially for awaiting-trial prisoners.
8.2 THE PROBLEM: AWAITING-TRIAL PRISONERS.
The Department of Correctional Services cannot be blamed for the overcrowding, as the explosion in prisoner numbers could not have been foreseen. Whilst the sentenced prisoner population slowly increased (from 92 581 in January 1995 to 108 307 in April 2000 i.e. 17% growth), the number of awaiting-trial prisoners almost tripled (from 24 265 in January 1995 to 63 964 in April 2000 i.e. 164% growth).
The average period that awaiting-trial prisoners remain in prison increased even more dramatically. Over the past four years the number of awaiting-trial prisoners held for more than three months increased from about 4 000 to over 27 000. With an average detention cycle time of 138 days, half of all awaiting-trial prisoners had been held for longer than 4½ months, some for years.
Besides the awaiting-trial prisoners being deprived of their constitutional rights to humane detention and a speedy trial, the cost to the state is enormous. At R88.00 per day to house a prisoner, that amounted to R5.6 million per day to keep awaiting-trial prisoners in prison.
The list of infringements of prisoners basic human rights caused by overcrowding was endless. Newspaper reports and articles had drawn attention to the plight of prisoners, as had court applications. It had to be addressed without delay.
8.3 THE SOLUTION.
Considering the enormous cost involved in building new prisons, which amounts to about R200 000 per prisoner, the answer is not merely to build more prisons. The number of awaiting-trial prisoners in relation to sentenced prisoners is totally unacceptable and must be reduced. If this number can be reduced to that of five years ago, i.e. 24 000, there would be almost 30 000 fewer prisoners. But the aim should be to reduce the number even further, to at most 20 000 awaiting-trial prisoners.
There are two ways of reducing the number of awaiting-trial prisoners. Firstly, by reducing the inflow and secondly, by getting those in prison out.
8.4 STEPS TAKEN.
Since the beginning of the year 2000, the problem of overcrowding in prisons has been tackled in earnest. The Departments of Justice, Correctional Services, Welfare and Population Development and the South African Police Service working as an integrated justice system, commenced projects to reduce the cycle time of people held in custody awaiting trial. On 31 January 2000 the National Council for Correctional Services recommended the advancement of the parole date of certain categories of sentenced prisoners and called for urgent attention to be given to the steep increase in the number of awaitingtrial prisoners.
Steps taken by the various departments and NGOs such as The National Institute for Crime Prevention and the Rehabilitation of Offenders (NICRO) and Business Against Crime were having an impact on the number of awaitingtrial prisoners, but they were long-term. The total number of all prisoners kept rising (from 166 423 in January 2000 to 170 328 on 31 July 2000).
8.5 RELEASE OF AWAITING-TRIAL PRISONERS.
The situation regarding awaitingtrial prisoners had deterioated to such extent that immediate action was required. The Judicial Inspectorate proposed the release of awaitingtrial prisoners as justified and urgent in terms of section 66 of the Correctional Services Act, No. 8 of 1959, as
(i) They are being detained under inhumane conditions
and in flagrant disregard of the Bill of Rights, the Correctional
Services Act, 1998 and the United Nations Standard Minimum Rules for the Treatment of Prisoners;
(ii) The spread of disease must be curtailed while still manageable;
(iii) The enormous stress the personnel of the Department of Correctional Services in the prisons are working under must be relieved;
(iv) The State cannot afford the burden of paying for the accommodation of so many prisoners.
8.6 THE PROPOSAL.
The prisoners most entitled to release were those who had not been convicted nor sentenced. The presumption of innocence applied to each of these awaiting-trial prisoners.
The Courts had already in the case of each prisoner considered whether he was a danger to the community or not. Thus of the 59 275 awaiting-trial prisoners (of whom 19 218 were juveniles) in prison on 31 July 2000, 40 315 had been denied bail. The latter were considered unsafe for release because they constituted a danger to the community or were unlikely to attend court to stand trial.
The remaining 18 960 awaiting-trial prisoners had all been granted bail by the Courts, i.e. they had not been regarded as posing any danger to their communities should they pay bail and be released.
Of the 18 960 prisoners in prison on 31 July 2000 because they could not afford to pay bail could be subtracted those whose bail was fixed above R1000.00, as the charges were more serious. These amounted to 7 036, which left 11 924 with bail fixed at R1000.00 and less. The proposal was that those 11 924, excluding (for public policy reasons) those charged with rape, should be released. They would all still have to appear in court on the days to which their cases had been remanded and adhere to such conditions as had been imposed by the Courts who determined their bail.
The contention was that those awaiting-trial prisoners who would be released were all poor persons who could not afford to pay their bail amounts of R1000.00 or less and their release would potentially bring about their reunion with their families, a return to their employment, their contributing to their families upkeep and their regaining their human dignity. Juvenile prisoners could return to school.
It was stressed that it would not be an amnesty. Each of the prisoners would still have to stand trial.
The saving to the State in not having to accommodate the prisoners would exceed R 1 million per day.
8.7 APPROVAL OF RELEASES.
On 10 July 2000 the National Council for Correctional Services approved the proposal. With commendable speed, the Minister of Correctional Services placed the matter on the agenda of the Cabinet which on 6 September 2000 agreed to the release of the awaitingtrial prisoners.
By 27 September, 8 451 such prisoners had been released and some humanity restored to the overcrowded prisons. It then became a matter of maintaining it by keeping down the inflow of awaitingtrial prisoners.
8.8 EARLIER RELEASE ON PAROLE.
To lessen the overcrowding in prisons, the National Council for Correctional Services had recommended that 9 months advancement of their parole date be granted to all sentenced prisoners excluding aggressive and sexual offenders. This recommendation was accepted by the Minister of Correctional Services and the Cabinet and was implemented from mid-October 2000. By 16 November, about 3000 such prisoners had been released.
9. THE WAY FORWARD.
The numerous measures taken this year by the various departments, including the mass releases, have brought some relief to our overcrowded prisons. Since 30 April 2000 to 16 January 2001, the number of awaiting-trial prisoners has dropped from 63 964 to 54 562 and the total prison population from 172 271 to 162 525.
The challenge presently and for the future is to reduce the numbers further by greater use of the alternatives to incarceration for those awaiting trial and for those being sentenced and already sentenced.
9.1 SUGGESTIONS TO REDUCE THE AWAITING-TRIAL PRISON POPULATION:
(Dropped from 64 000 in April 2000 to 50 000 in September /October 2000, then up to 55 000 in December 2000 aim 20 000).
Reducing the inflow from the courts
(i) Pre-trial diversion especially for juveniles;
(ii) Greater use by police of their powers to release arrested persons on bail;
(iii) Wider use by prosecutors and clerks of the court of the procedure of admission of guilt and payment of a fine without a court appearance;
(iv) More information by investigating officers to prosecutors to assist them in placing adequate facts to the courts who has to determine the release or not of suspects,
(v) Greater use by courts of alternatives to incarceration for those awaiting trial viz. Release on warning; bail in a affordable amount; placement under supervision of correctional officials; electronic monitoring; children (under 18 years) to be placed in the care of parents or guardians or held in places of safety.
Getting them out
(i) Courts on remand dates to consider alternatives to further incarceration;
(ii) Cases of awaiting-trial prisoners to be given preference over those of accused awaiting trial outside prison;
(iii) Consideration to be given to various methods of expediting trials of awaiting-trial prisoners for example additional courts, prosecutors and presiding officers ( advocates and attorneys de bono):
(iv) Withdrawal by prosecutors of trivial cases, weak cases and cases where the accused had been awaiting trial for an inordinate period. A withdrawn case can always be reopened.
9.2 SUGGESTIONS TO REDUCE THE SENTENCED PRISON POPULATION.
(Increased from 108 000 in April 2000 to 113 000 in Aug/Sept 2000, and then dropped back to 108 000 in December 2000, the aim is 100 000)
Reducing the inflow
(i) Greater use of diversion especially for juveniles;
(ii) Greater use of non-custodial sentences viz.
a) postponed sentences with or without the various conditions set out in section 297 (1)(a)(i) of Act 51 of 1977, for e.g. monetary compensation to the victim , community service and submission to treatment ;
b) the suspension of sentences with or without conditions ;
c) discharge with a reprimand (the conviction is recorded as a previous conviction ) ;
d) affordable fines ;
e) correctional supervision;
f) for juveniles, placement in the custody of a suitable person and/or under supervision of a probation officer or correctional official.
Getting them out
(i) Increased use by the Commissioner, in cases of a fine with alternative imprisonment and the fine is unpaid, of immediate release under correctional supervision (section 287(4)(a) of Act 51 of 1977);
(ii) Increased use by the Commissioner of applications to court to convert sentences of imprisonment into correctional supervision or another non-custodial sentence (section 276 A(3) of Act 51 of 1977);
(iii) Increased use of parole.
The aim remains to reduce the number of prisoners to: Awaiting trial 20 000 Sentenced 100 000.
10. CORRUPTION AND DISHONESTY.
The statutory mandate of the Judicial Inspectorate includes investigating and reporting on any corrupt or dishonest practices in prison sections 85 (2) and 90 (1) of the Correctional Services Act.
This office has not commenced any such investigations. It will require a separate unit because the nature of investigations into corrupt and dishonest practices differs fundamentally from that relating to the treatment of prisoners and the conditions in prisons. The former entails a criminal investigation whilst the latter is concerned with the humane treatment of prisoners and ensuring their human dignity.
Furthermore this office has no desire to start such a unit and would like to be relieved of its mandate in that regard. The reasons are:
(i) This office in fulfilling its mandate of monitoring the treatment and conditions of prisoners necessarily has to deal with correctional officials in prisons. This applies to inspectors from this office and more particularly to our Independent Prison Visitors. Should the officials fear that our inspectors and Independent Prison Visitors are conducting criminal investigations, the good relationship that exists between the officials on the one hand, and our inspectors and visitors on the other hand, would be impaired and seriously hamper our work.
(ii) The Department of Correctional Services already has an Anti-Corruption Unit which investigates corrupt and dishonest practices in prisons. This Unit will now operate under the Chief Directorate Good Governance of the Department.
(iii) When allegations of corrupt and dishonest practices in prisons come to the notice of this office, most likely from our Independent Prison Visitors, they are taken up with the appropriate correctional officials. They are, when deemed necessary, reported to the Departments Anti-Corruption Unit. They can also be reported to the South African Police Service or the Office of the Public Protector.
(iv) It would appear that the presence of Independent Prison Visitors in prisons has an inhibiting effect on corruption and dishonesty.
For these reasons and at the request of this office, the deletion of its mandate in regard to corruption and dishonest practice is contained in the Correctional Services Act Amendment Bill to be tabled in Parliament during 2001.
11. DEATHS IN PRISON.
Based on the actual figures the number of natural deaths in prison has escalated from 186 such deaths recorded in 1995 to 1087 recorded for 2000. This is an overall increase of 584% during the past five years.
These are natural deaths which from the post mortem reports, would appear to have been caused by HIV/Aids in most of the cases.
Although, the prison population also increased by 38% during the same period the overall rate of the increase in deaths in prison was considerably higher.
A projection based on the actual figures of the past five years was made of the number of deaths that could occur should the escalation continue. Based on this, unless a cure is found, deaths of prisoners caused by HIV/AIDS will amount to 7000 prisoners per annum in five years and to 45 000 per annum in ten years.
12. FINANCIAL REPORT.
In terms of the provisions of section 91 of the Correctional Services Act, the Department of Correctional Services is responsible for the expenses of the Judicial Inspectorate. During the period 1 April 2000 to 31 December 2000 the expenses were as follows:
|Personnel||R 1 553 582|
|Administration||R 716 112|
|Stores||R 106 809|
|Equipment||R 43 254|
|Professional & special services||R 857 396*|
|Miscellaneous||R 9 088|
|Total expenditure:||R 3 286 241|