The Inspectorate contends that there are at least 30 000 too many awaiting-trial prisoners in our prisons.

7.4       Sentenced prisoners  Back to top

135 120 of our total of 187 446 prisoners are serving sentences ranging from a few days to life imprisonment.  2 359 are in prison because they are too poor to pay their fines.  Below is a table showing the age and sentence categories as at 31 January 2005.

*Prisoners awaiting conversion of sentences following the abolition of the death sentence

The Inspectorate contends that there are at least 35 000 too many sentenced prisoners in our prisons.

7.5       Women  Back to top

There are 4 143 women in our prisons (as at 31 January 2005).  That represents 2.2% of the total prison population which reflects most favourably on our women when compared to Canada’s 9%, Australia’s 7%, USA’s 6.9% and England and Wales’ 6%. 

The 4 143 is represented by 1 098 awaiting-trial and 3 045 sentenced prisoners.  84% of the women are mothers of whom 55% have all but lost contact with their children.  (There are 318 infants under 5 years in prison with their mothers).

Of the women awaiting-trial, 342 had been granted bail but were too poor to pay it.  208 of the sentenced women were given a fine with an alternative prison sentence and were too poor to pay the fine. 

The average sentence served by women has gone up from 3 years 2 months to 5 years 10 months since 1995.  The huge increase in the number serving sentences of longer than 7 years appears to be due to the minimum sentence legislation enacted in 1997.  Most of the women, awaiting-trial and sentenced, are in prison for economic crime (theft, fraud, forgery and other), with crimes of violence as the second category. 

7.6       Children   Back to top

There are 3 284 children under the age of 18 years in prison, 12 are younger than 14 years.  1 775 of them are awaiting trial, 1 509 are serving sentences.   Children should not be in prison at all save in exceptional circumstances.  

8.         SOLUTIONS Back to top

8.1       Not more prisons  Back to top

We have 240 prisons with a combined capacity for 114 000 prisoners.  Four more prisons are being built at Kimberley, Klerksdorp, Leeukop and Nigel to be completed by March 2007.  They will provide 12 000 further places which will give us a total accommodation of 126 000. 

Prisons are expensive to build (R360m each is mentioned for the 4 new prisons) and expensive to operate.  The total budget of the Department of Correctional Services for the 2005/06 financial year amounts to R9 234 085 000.  That means an expenditure of about R25.3 million per day to secure and care for the 135 000 offenders currently serving a term of imprisonment in our prisons as well as the 52 000 people who are kept in our prisons as awaiting-trial detainees. 

The Medium-term expenditure estimate for Correctional Services indicates that within the next two years (2007/08) we will be spending more than R10 billion per annum on correctional services.  Considering that during 1997 we were spending 1/3 of this amount (R3.5 million), the escalation in the cost of maintaining our correctional system should be of concern to us all.

8.2       Less prisoners  Back to top

We are out of step with the world in our belief that imprisonment is the answer to crime.  With 4 out of every 1 000 South Africans in prison

(187 000 out of 46.6m), we are the worst country in Africa and one of the worst worldwide in our use of imprisonment. 

If women and children are excluded, it appears that we are imprisoning more than 1 out of every 100 men in South Africa (57% of our prisoners are men under the age of 30 years).  The concern is that with our overcrowding precluding rehabilitation, we are creating criminals. 

9.         SHORT-TERM FIXES  Back to top

            The inhumane treatment suffered by so many of our prisoners will have to be alleviated by a drastic reduction in the numbers held.  Three ways of doing so come to mind.

9.1       Release of awaiting-trial prisoners who are too poor to pay their bail amounts.  As will be seen from the table below, there were 13 880 such prisoners on 31 March 2005.

In every one of those cases, a magistrate had decided that the accused could await his/her trial without being imprisoned.  In effect the magistrate had decided that the accused was no danger to the community and could continue with his work or school until his court case.  As an incentive for the accused to attend court on the trial date, an amount of bail to be deposited had been ordered.  Regrettably in each of the almost 14 000 cases, the magistrate misjudged the ability of the accused to pay the bail and had effectively sent him/her to prison.

In September 2000, a special release of awaiting-trial prisoners with unpaid bail up to R1 000 resulted in about 8 500 releases.  (Should there be a fear that they would not stand trial, they could be placed under the supervision of a correctional official in terms of section 62(f) of the Criminal Procedure Act 51 of 1997).

9.2 Amnesty i.e. unconditional release of sentenced prisoners.  This has often been used in the past, for example in 1971 an amnesty of 6 months for first offenders and 3 months for recidivists; in 1981 an amnesty of ¼ remission with a maximum of 3 years; in 1984 and 1985, three burstings of 1 month remission of sentence; in 1986 and 1987, three amnesties of 6 months, 1 year and 3 months respectively.  Again in 1989, 1990, 1991, 1993, 1994 (including special remissions for children under 18 years, mothers with children under 12 years, disabled prisoners and prisoners of 60 years and older); in 1995 and in July 1998 on President Mandela’s 80^th birthday when about 12 000 prisoners were released.

9.3       Earlier parole Back to top

The advancement of approved parole dates is another method of alleviating the overcrowding.  Prisoners are released on parole which means they are conditionally released and the conditions can take many forms – from house detention to occasional reporting.  This method has also been used in the past.  It has the advantage that the offender remains under supervision and returns to prison should he not adhere to the conditions laid down. 

10.       LONG-TERM SOLUTIONS  Back to top

The longer term solutions are multiple.  The aim is to reduce our prison population from 187 000 (52 000 awaiting-trial and 135 000 sentenced) to 120 000 (20 000 awaiting-trial and 100 000 sentenced).  120 000 prisoners translates into 2.6 out of every 1 000 South Africans in prison.  While still bad by world standards (62.5% of countries have rates below 1.5 per 1 000), we would at least no longer rank among the very worst.  A few solutions are discussed below.  

Imprisonment rates in some prison systems worldwide 

These statistics were taken from World Prison Brief Online at 22 November 2004.  Statistics are not necessarily from the same year but represents the most recent figures available. 

11.       AWAITING-TRIAL PRISONERS Back to top

11.1    Unnecessary arrests – about 18 000 per month  Back to top

As shown in the table of releases from prison (page 15 above), there were 225 373 awaiting-trial prisoners who were taken to court and not returned to prison from court during 2004.  That amounts to 18 793 per month.  A few might have been tried and found guilty or pleaded guilty and given non-custodial sentences.  The probability is that in the vast majority of cases the charges were withdrawn. 

The question is why were these people arrested, held in prison on average for several months, only to learn at court that they were unnecessarily arrested and imprisoned.  A blatant such case was the arrest and handcuffing in January 2005 of the director and two curators of the military museum in Johannesburg ostensibly for displaying weaponry stolen from the Defence Force.

11.2    Unaffordable bail – about 14 000  Back to top

As shown on page 19 above, there are about 14 000 accused persons in prison because of their inability to pay their bail amounts.  This should not be so.  Bail should be affordable.  That about 14 000 persons are in prison because of their poverty is unacceptable.  Urgent attention from the Department of Justice and Correctional Development is called for.

11.3    Court delays  Back to top

As shown in the table on page 16, there are 7 490 prisoners who have been awaiting trial for 6-12 months, 4 582 for 1 to 2 years and 1 424 for more than 2 years (as at 31 January 2005).  Instances where accused persons are held for 4 years and longer, crop up time and again, 

These delays in finalizing cases are unacceptable.  Whilst appreciating that the Department of Justice and Constitutional Development and the South African Police Services are engaged in speeding up the judicial process, more urgent attention is required. 

Sentences of 7 years and less showed little change from 1997 (67 535) to 2004 (67 483), while sentences of more than 7 years increased rapidly from 1997 (29 376) to 2004 (67 081).  Life sentences increased from 638 in 1997 to 5 745 on 31 January 2005. 

Prison populations have changed substantially.  In April 1998, immediately before the implementation of the minimum sentence legislation, only 18 644 (19%) of the sentenced prisoners were serving a term of longer than 10 years.  This has since increased to 49 094 (36%). 

The numbers continue to rise.  The latest available figures (31 January 2005) show 5 745 prisoners serving life sentences compared to 4 772 twelve months earlier plus 50 302 serving longer than 10 years compared to 46 147 in January 2004.  Our sentenced prisoner population has increased by 26 813 prisoners since April 2000, despite about 7000 being released on nine months’ advanced parole in September 2003.  The growth rate of about 7 000 per year will inevitably lead to such inhumane conditions that mass releases will be required periodically.

The Inspectorate strongly recommends that the minimum sentence legislation should not be extended and that the discretion of judges and magistrates in regard to the imposition of sentences be restored. 

13.       THE IMPACT OF THE COMING INTO OPERATION OF THE CORRECTIONAL SERVICES ACT 111 OF 1998 Back to top

13.1    Background  Back to top

When the Union of South Africa came into being on 31 May 1910, prison legislation for the unified country was required.  The result was the Prisons and Reformatories Act 13 of 1911.  It was amended from time to time until its replacement by the Prisons Act 8 of 1959.  That Act was also amended time and again, inter alia by being renamed the Correctional Services Act in 1991.

13.2    The Correctional Services Act 111 of 1998  Back to top

The Correctional Services Act 111 of 1998 was assented to on 19 November 1998.  Its object was “changing the law governing the correctional system and giving effect to the Bill of Rights in the Constitution, 1996, and in particular its provisions with regard to prisoners”.  It came into operation piecemeal. 

On 19 February 1999, sections 1, 83-95, 97, 103-130, 134-136 and 138 were put into operation. Sections 83 and 84 established the National Council for Correctional Services (NCCS).  Sections 85 to 94 established the Judicial Inspectorate.  Sections 103-112 dealt with Joint Venture Prisons.  Sections 113 to 129 dealt with Offences.  On 1 July 1999 section 5 and on 5 February 2000 section 3 came into operation.  In 2001 the Act was amended. 

Treatment

On 31 July 2004 sections 2, 4, 6-49, 96-102 and 131-133 came into operation.  They set out in detail the manner in which prisoners should be held and treated, for example Admission (s6), Accommodation (s7), Nutrition (s8), Hygiene (s9), Clothing and bedding (s10), Exercise (s11), Health Care (s12), Contact with community (s13), Religion, belief and opinion (s14), Access to legal advice (s17), Reading material (s18), Children (s19), Mothers of young children (s20), Labour of sentenced prisoners (s40).  Further detail is contained in Regulations promulgated also on 31 July 2004. 

The coming into operation of these sections is excellent.  There are now clear guidelines on how prisoners should be treated.  

            Statutory Notification 

Four of the sections brought into operation on 31 July 2004 impacted directly on the Inspectorate i.e. s15 (deaths), s25 (solitary confinement), s30 (segregation) and s31 (mechanical restraints).  Deaths, penalties of solitary confinement, segregation and the use of mechanical restraints other than handcuffs and leg-irons must be reported to the Inspecting Judge.

13.3    Release Provisions of the Act Back to top

On 1 October 2004 the remaining sections of the Act, i.e. sections 50-82 came into operation.  They deal with Community Corrections (ss50-72) and Release from Prison and Placement under Correctional Supervision and on Day Parole and Parole (ss73-82). 

The implementation of those sections is welcomed by the Inspectorate, save for certain of the release provisions. 

S73(6)(a) requires a prisoner to serve half of the sentence before being considered for parole.  The 1959 Act allowed for credits earned by the prisoner to reduce such period (s65(4)(a)) in practice down to one third of the sentence in terms of Departmental Orders. 

As an incentive to rehabilitation and good behaviour, the Inspectorate is in favour of credits being retained (besides its impact on reducing overcrowding). 

S73(6)(b)(v) requires a prisoner sentenced in terms of the minimum sentence legislation (ss51 or 52 of the Criminal Law Amendment Act 105 of 1997) to serve at least four fifths of the sentence before being considered for parole (and not half as all other prisoners).

The Judicial Inspectorate urges that this provision be deleted.  There is no justification for prisoners convicted of those offences which already carry minimum sentences to be penalised again by being deprived of access to the Correctional Supervision and Parole Boards.  (The wide range of offences includes categories of arms and ammunition, assault, exchange control, corruption, extortion, fraud, forgery, theft, drugs, robbery, rape and murder offences).  The impact on overcrowding is self-evident. 

Consideration for parole does not mean release.  The Correctional Supervision and Parole Boards retain the discretion to decide whether an offender has been rehabilitated and is ready to be placed under correctional supervision or day parole or granted parole. 

S73(6)(b)(iv) requires those sentenced to life imprisonment to serve at least 25 years before placement on parole.  The position used to be that it was left to the parole boards to report to the NCCS who would consider such report and, having regard to the interests of the community, make a recommendation to the Minister of Correctional Services (s65(5) of the 1959 Act).  Generally prisoners serving life sentences used to be considered for parole after serving 10 years, then 15 years and latterly after serving 20 years. 

The Inspectorate recommends that the 25 year requirement be deleted and that the period be left to the NCCS to determine as before.  Rehabilitation does not require 25 years.  It depends on many factors and the Correctional Supervision and Parole Boards and the NCCS are eminently suited to determine whether and when an offender should be placed on parole. 

S78(1) empowers “the court” to grant parole to prisoners sentenced to life imprisonment (after they have served 25 years).  The NCCS used to consider applications for parole by such prisoners (s65(5) of the 1959 Act). 

The Inspectorate favours the NCCS as the body to consider whether parole should be granted to those sentenced to life imprisonment.  The judge who pronounced the sentence, if he/she is still alive 25 years after doing so, will remember little of the case.  He/she is in any event not trained or experienced in deciding whether parole should be granted.  On the other hand, the NCCS has been performing this task very well and has the necessary expertise to do so. 

S79 provides for placement under correctional supervision or on parole of a prisoner “in the final phase of any terminal disease or condition” to die a consolatory and dignified death.  S69 of the 1959 Act contained a similar provision for a prisoner:

“(a)      who suffers from a dangerous, infectious or contagious disease; or

(b)       whose placement on parole is expedient on the grounds of his physical condition or, in the case of a woman, her advanced pregnancy”. 

The Inspectorate regards the new wording as too restrictive and urges reconsideration.

13.4    Not retrospective Back to top

Section 136 provides that the release of prisoners already serving sentences shall not be affected by the Act and would be dealt with in terms of the Correctional Services Act 8 of 1959 and the policy and guidelines formerly applied (i.e. ½ minus credits down to ⅓).  Prisoners already serving life sentences are to be considered for parole after 20 years.  The Inspectorate suggests deletion of the 20 year period and that the period be left to the NCCS to determine as before. 

Subject to the reservations expressed above about certain of the release provisions, the Inspectorate welcomes the implementation of the whole of the Act.  

14.       THE WHITE PAPER  Back to top

The White Paper on Corrections in South Africa was launched on 30 February 2005.  It replaces the 1994 White Paper.  In 96 pages it sets out the aims and objectives of DCS as a guide to Correctional Officials and to inform the public.  The overriding theme is that our prisons are to become correctional centres of rehabilitation where offenders are given new hope and helped to change so as to become law-abiding citizens who can contribute positively to society on their release. 

The White Paper is well written.  It deals with the many aspects of corrections from the historical background right through to the ideals that are strived for.  It is an excellent practical guide.  DCS must be congratulated on its production. 

15.       PUBLIC AWARENESS  Back to top

During the year the general public have become considerably better informed of the conditions prevailing in our prisons.  A greater understanding of the problems faced by DCS is evident with a willingness to assist in dealing with the problems. 

 Numerous factors contributed to this knowledge.  DCS has made the prisons more accessible to the public and the media.  Imbizos (public meetings at which questions are encouraged) have been held at prisons throughout the country.  The Minister, the Deputy Minister and the Chairperson of the Portfolio Committee for Correctional Services attended imbizos and numerous other functions at prisons as well as paying visits to prisons.  Judges of the High Court visited and reported on prisons.  Attorneys visited prisons and produced a comprehensive report on the visits. 

The Inspectorate assisted in informing the public of the functioning of our prisons.  The aim was to gather support in solving the problems.  IPVs and Regional Coordinators held “stakeholders” meetings at various prisons. The Inspectorate’s Inspectors spoke at schools and accompanied numerous visitors to prisons.  In December 2004 they produced an informative booklet “Women in South African Prisons” as a contribution to the “16 Days of Activism Campaign 2004 Unite Against Women and Children Abuse”.  

The Inspecting Judge visited many prisons and spoke frequently at conferences, workshops and other meetings. 

The Media has been most helpful in informing the public of the situation in our prisons.  There were TV programmes, radio interviews, newspaper reports and magazine articles. 

By taking the public into its confidence, DCS has won many friends to support it on its way to achieving its goals. 

 16. DEATHS IN PRISONS        Back to top

The Inspectorate continuously receives reports from Heads of Prisons of all deaths of prisoners in prisons. It has also been granted access by DCS to all management information which is available in this regard. 

Deaths in prisons are classified by DCS in two categories namely Natural and Unnatural deaths. Natural deaths are those where a prisoner died because of illness including diseases such as Aids.  Unnatural deaths are cases where prisoners died because of suicides, assaults, accidents or similar events. 

During the period 1995 until 2004 the death rate in prisons has escalated from 1.65 deaths per 1000 prisoners per annum to its current level of 9.1 deaths per 1 000 prisoners per annum.