Annual Report of the Office of the Inspecting Judge

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
21 May 2002
ANNUAL REPORT OF THE OFFICE OF THE INSPECTING JUDGE

Documents Handed Out:

Office of the Inspecting Judge Annual Report 2001/2002 Prisons & Prisoners.

Chairperson: Mr Joseph Mashimbye (ANC)

SUMMARY
The Judicial Inspectorate of Prisons has been tasked with looking into the conditions of prisons and prisoners. The Office of the Inspecting Judge presented their Annual their report on the progress made in the period 1 January 2001 until 31 March 2002.

The Chairperson extended an invitation to all stakeholders in the area of correctional services; NGO's, the South African Human Rights Commission and others to assist in policy formulation to transform correctional services. South Africa has come a long way in ensuring that the rights of all are respected. It was therefore his view that they might need to review the White Paper on Correctional Services and the Correctional Services Act, as he felt they needed to place more emphasis on the concept of correctional justice. He further hoped that they would be able to deal with the question of prisoners awaiting trial, as he had received letters from prisoners who were terminally ill but awaiting trial.

Briefing by Judge Fagan
Judge Fagan stated that he would firstly pick on salient points, before presenting the Report. He pointed out that the Inspectorate was still very young: it would be four years this week. It was completely independent from the Department of Correctional Services and in every province they had independent correctional officers.

They had since introduced independent prison visitors (IPVs). It was their policy to get people from within the community and those appointed went through a training programme and then they would visit prisoners in the prisons to ascertain their complainants. The IPV's would then electronically report back to the office on a monthly basis as to whom they had visited and what the complaints were. If there was a complaint from a prisoner the IPV's would note it and go to the Head Prison Officer to see if the complaint had been noted, they would then follow up to ensure that the complaint had been resolved. If the complaint had not been resolved, a meeting would be called at which twenty of the IPV's would look into why the complaint had not been resolved. If it could not be resolved after this the complaint was brought to the Inspecting Judge.

The Judge then stated that in South Africa four out of every thousand is in prison in comparison to the United Kingdom where it is a quarter of every thousand. This number in South Africa is too large and there is a need to reduce the number of prisoners. One half of the prisoners are awaiting trial, which was shocking. It was not a question of the prisoners sitting in prison for a week or two but it was quite common to come across people who had been awaiting trial for four to five years. He stated that they needed to get more mechanisms to reduce the overcrowding in prisons, but he did not think that more prisons would be the solution. There were enough prisons; they just had to reduce the number of sentenced prisoners. Though the number had been reduced to 120 000 this was still too many and they should try to set alternative sentences, for instance like in New Zealand there had about 20 000 prisoners, 6000 of whom were in correctional community services. Of the 55000 prisoners awaiting trial 20 000 had been granted bail but were too poor to pay the bail. Magistrates have fixed bail at unaffordable amounts.

He stated that due to the awareness campaign, for the first time since 1995 the overcrowding of prisoners awaiting trial had decreased. This was due to several reasons, for instance a number of prisons have opened; there are now courts in prisons to which the public have access. So far there are seven such courts operating countrywide. The introduction of the electronic tracking device which enables a prisoner awaiting trial to be tracked down when released and the AFTS (Automotive Fingerprint Tracking System) which guarantees that within 48 hours the history of a convicted person can be traced.

There have also been the amendments; for instance to the new Section 63A of the Criminal Procedure Act, 51 of 1977 (inserted by the Judicial Matters Amendment Act 42 of 2001). Although they had wanted to keep the discretion of the Minister of Correctional services to release prisoners if the situation became necessary. The Department of Justice wanted to involve the Magistrates, which is why this section was promulgated in December 2001. Now if a Head of Prisoners finds that the conditions are becoming intolerable amongst the awaiting trial prisoners he can apply to the magistrate who fixed the bail to either reduce the bail or release the prisoner without bail or place them under the supervision of a correctional officer. The Office of the Inspecting Judge had been trying to assist in implementing this, though they were only targeting prisoners with bail at around R500. They were trying to reach those with bail of R1000, though this was a rather clumsy process as the offence must be a Schedule 7 offence. The manner in which this operated was to give a list to the police or prosecutor involved. They would go through it and state whether they agreed or objected to releasing the prisoners on the list, the list would then go to the Director of Public Prosecutions who would state whether he agreed or not and then finally to the Magistrate Court.

In December there was also the introduction of plea-bargaining, through the insertion of section 105A in the Criminal Procedure Act 51 of 1977 (by the Criminal Procedure Second Amendment Act 62 of 2001). This will allow accused persons through their legal representatives to negotiate with prosecutors and to agree on a plea of guilty and an appropriate sentence. He stated that the problem with this Act was that a lawyer had to be involved. He felt that it was a mistake for it to be left like this. They had wanted to go into prisons and ask how many prisoners were willing to plead guilty and what they wanted their sentences to be. The idea behind this would now be to get an attorney pro bono or the Legal Resource Centre, get a Prosecutor to plea-bargain the case. They were keen on starting this but at the moment it was only being used for new high profile cases, but it should be used for all.

The Child Justice Bill had been in the making for a number of years, and hopefully at the end of the year it would be passed. This Bill would mean that within 24 hours any child under the age of 18 years who was arrested would appear before a probation officer.

On the issue of deaths in prisons he stated that they had increased, though unnatural deaths had not increased, neither violent deaths, the increase was in natural deaths, deaths due to what has been stated as opportunistic infections but what were in actual fact AIDS.
There was no Act that allowed for the release of an awaiting trial prisoner who was near death. There was only an Act applying to sentenced prisoners, which was problematic.

The Department of Correctional services had done research on HIV/AIDS and contrary to previous beliefs the people with HIV/AIDS in the prisons were the young people coming in. This virus was therefore coming from outside. Judge Fagan stated that it had been shown that men were thirty times more of risk of contracting the virus by sexual intercourse between men .
In South Africa there are 10 000 prisoners released every month countrywide and it was believed that approximately half of them would be HIV positive. He therefore believed that something had to be done about HIV/AIDS before it got worse in the prisons. The prisoners should be treated and educated about the disease in prison. There had been complaints that the condoms availed to the prisoners in prison were not adequate, as a special type was required.

Discussion
The Chair said they needed to understand if the body they had instituted to do the work in prisons was appropriate. The Chair also wanted to know what they had done about the numerous malpractices uncovered by the Jali Commission. He wanted to know how they were able to make their observations on the statistics on HIV/AIDS in such an informed manner because this was not a noticeable disease? He also wanted to know how well S63A had been popularised amongst the prison authorities and the prisoners themselves? He stated that the issue of awaiting trial prisoners was not only an issue for the Correctional Services Department alone, but for the rest of the Justice Service establishment.

Judge Fagan stated that from the observations made by the Jali Commission, they had distanced themselves from getting involved in the issues of corruption. This was because of the difficulty they would face having to examine the problems of prisoners whilst being regarded with suspicion as if their role was to investigate corruption. They had therefore tried to distance themselves from the issue, but if a prisoner complained about it they would look into it and collaborate with the Commission.

On the question of the statistics on HIV, blood tests had been conducted on those prisoners who had volunteered to be tested, and they had been counselled before hand. There was no compulsory testing and prisoners were not segregated.

The Chair replied that he had just felt it was unethical that for such an unnoticeable disease they could have such statistics.

Judge Fagan stated that they were obtained purely on voluntary testing. On the issue as to how far the S63A had been popularised he stated that it still was not implemented to a great extent. The idea was to hand it over to the Department of Correctional Services to implement.

Mr MA Mzizi (lFP) stated that he had seen in the report that overcrowding with respect to awaiting trial prisoners was still an issue, despite the implementation of the new amendment to ensure that it would be taken care of. Was this a factor that was worrying the Parliamentarians only?

Secondly on the matter of AIDS, they had cited in their report that the lack of exercise and insufficient fresh air and overcrowding contributing to the high rate. He wanted to know whether the people with HIV were arrested with the virus or contracted it in prisons? If the latter was the case what was the cause of them getting infected in prisons?
Was prison the correct place for awaiting trial prisoners or should there be another system, to ensure that they were not the problem of the prisons?

Ms SA Seaton (IFP) stated that there was nothing in the report to indicate the type of complaints they received with regard to corruption, assault and so forth. They were aware that the prisons were overcrowded and inhumane, what follow up had they done to rectify the circumstances in the prisons?

Mr SN Swart (ACDP) stated that as regards the S63A: when they were briefed by the Department they were informed that the magistrates were not happy with this due to the backlash. The Probation Services Amendment Bill was going to be debated that Friday, but why was the Child Justice Bill not enjoying a higher priority, it seemed like it was being crowded out, they would have to see if they could not have it tabled.

Mr FJ Van Deventer (NNP) stated that somehow people must come together to solve the problem of bringing prisoners back into the society. On the issue of AIDS it was an important issue and if there was any chance that something could be done to stop the spread of the disease the Department should talk to other Departments to get things done. This posed a dangerous threat to the whole of South Africa.

Judge Fagan stated that overcrowding was worrying the Department of Correctional Services a great deal. The Heads of Prisons are pleading for help from them so they were aware of the problem and were trying to see what they could do about it. Heads of Prisons are themselves getting involved in bailiff cases, by trying to contact the prisoners' families to plead that they come and pay the bail. There had also been the introduction of private prisons; so far there were two. There is never overcrowding in the private prisons, as they do not take more than 3000 inmates. This was a new idea and a good innovation.

On the question of whether the conditions prompted the high mortality Judge Fagan stated that from the research done by the University of Natal, AIDS was being introduced into the prisons by the young people who had been sentenced to short periods. Deaths were high among the prisoner's with short sentences. The immune system was affected by the conditions in the prisons; you could find a prison that was meant to accommodate thirteen prisoners having sixty four prisoners and only one toilet.

Mr Morris: Director of the Judicial Inspectorate, stated that on the issue of finding an alternative place for awaiting trial prisoners, they had not thought of it but it was worth looking into as the presumption of innocence was important.

Ms Ncgcobo: an Inspector of the Judicial Inspectorate, stated that types of complaint had been mentioned on page 18 of the report. Other requests had not been categorised such as when a prisoner requests a welfare officer to assist them with obtaining grants for their children. Such requests had been categorised as others. They intended to refine the detail and breakdown the complaints so that they could pinpoint an area and a particular complaint.

Mr Raga: Head of Legal Services at the Judicial Inspectorate, stated that in the unit they received 450-500 complaints per month, they wanted to introduce a system of analysis so that they could show from which prison the complaint came from.

Ms JE Sosibo (ANC) wanted to know how IPV's were allocated and what happened in provinces like the Eastern Cape where there were no IPV's?

Ms PW Cupido (DP) said she had noted that there seemed to be four problems in the prisons that had come up: overcrowding, awaiting trial prisoners, juveniles and the understaffing. They must find a solution and ensure that they would decrease and turn around the process in correctional services. On the issue of transformation, she believed that they must find a plan for transformation, they could not use the system of the past, as things would remain the same. They needed to implement a programme of job creation and education and set a time frame in which to implement the programme.

Ms E Ngaleka (ANC) stated that there were complaints that the IPV's had wanted access to confidential information. It should be raised with the IPV's that this was not correct. She further wanted to know where they got their figures that at least 6000 people released from prisons each month have AIDS. There had to be a basis for everything they say to the Committee. She advised them that there was a Government policy, a five year plan on how they intended to deal with the issue of HIV/AIDS. The Judge should therefore use the plan to merge this with the problems in prisons. She wanted to know if there was a relationship between the Department of Health and the Correctional Services? She further wanted to know how often the IPVs visited the prisons and whether they were paid?

Mr A Fritz: Head of Training and Research at the Judicial Inspectorate, said, on the allocation of the IPVs, that they had started off with a pilot programme in the Western Cape which they had run six months, after which they had implemented throughout the country. There was no preference as to where they first allocated IPV's. In the training programme for he IPV's he stated that they did stress limitation to rights and in regards to certain documents limitation this process applied.

Ms Ncgcobo stated the IPV's visits depended on the hours allocated to them by the office. They first had to look at the size of the prison. Due to the overcrowding IPV's worked more hours than necessary in a week.

Mr Morris stated that the IPV's worked an average of 60 hours per month and they were paid R80 per visit. Performance audits were done to ensure that these visits had indeed been undertaken.

Judge Fagan stated that as regards the AIDS statistics, these had been based on an estimate they did not know accurately, that is why they were engaged in further research, though there was a popular conception that because of the gang rapes the prisoners pick up AIDS. Research though has shown that the vast majority has the virus when they enter the prisons.

Mr NB Fihla (ANC) stated that in 1996 they toured Europe to see the operations of the prisons. In Denmark came across the concept of the Ombudsman and they felt it would be necessary to introduce such in South Africa in the form of this Inspectorate. The ideas behind it being that the conditions in prisons were abnormal, the prisoners had rights and those rights had to be protected.

He further stated that they had recently visited prisons in the Limpopo province and had been shocked at the situation, the prisoners were packed practically like sardines. If there was to an outbreak of a disease more than 500 prisoners would be infected. They had to seek some other measure of dealing with this problem. The Justice Department had introduced amendments to open up prisons to ensure for space, they had thought this would be a relief to deal with the cancer of prison overcrowding but this didn't seem to be the case. He suggested that if the Inspecting Judge and his team moved around and tried to popularise the amendment. Its implementation could go a long way.

Mr LN Diale (ANC) stated that he would like to know as to whether the IPV appointees were provided with means of transportation and if so where did it come from? If they were not how did they travel to the prisons? He then stated that he would like to reiterate the previous comment that the overcrowding was a bombshell, the smell in the prisons is intolerable it is as if the prisoners are not human beings.

He stated that he had asked a few prisoners awaiting trial why they were still in prison, and why they had not gone to court. He stated that they had responded by stating that either the investigating officer was still looking for witnesses, when he spoke to the sentenced prisoners some had revealed that they had been sentenced to three years for smacking a person. He therefore asked whether the Magistrates were a contributing factor to these sentences, and whether the fact of persons awaiting trial for so many years was because of the investigating officers.

Mr GC Oosthuizen (ANC) stated that the fact that there was overcrowding meant that something was being done, the police were doing their job. Though had they looked at alternative places to use as prisons such as army camps that were no longer being used to alleviate the pressing needs of overcrowding. To say that they needed more prisons was utopia: they needed to communicate the need for alternatives.

The Chair asked as what the process was of dealing with an IPV found guilty of misconduct, and whether there had been any cases of corruption in as far as an IPV was concerned.

Mr Morris stated that on the question of IPV's they had dismissed about nine, not only for corruption but also for non-compliance with their minimum standards. As regards corruption they had involved incidents of IPV's receiving money or entering into relationships with the prisoners and accepting posts within the Correctional Services. Since the question of independence was important such things were unacceptable. An IPV was normally appointed on a one year fixed contract, so as to ensure new people came in all the time.

On the question of transport: they did not provide transport, though they did in certain circumstances reimburse them if they had to travel to a visitors meeting. IPV's were appointed from the local community, therefore the issue of transport was not a problem.

Mr Raga stated that though it was beyond their mandate, if it did come to their attention that an awaiting trial prisoner can not get hold of the investigating officer. Or his attorney does not turn up at Court. They would intervene in this respect if the prison officers had not assisted. They did try and facilitate this linkup.

Judge Fagan stated that research was called for on the HIV issue: the ratio of 6:10 was a thumbsuck figure.

The Chair stated that a message must be sent to prisoners that the legislature is concerned with their rights only. The South Africa Constitution guarantees the protection of all rights, but a message must also be sent to the prisoners that they belong in prison. There is no compromise. The Minister has indicated that he is not happy with the impact the private prisons are having on the budget. On the Child Justice Bill the Minister ad not wanted to place before Parliament a Bill not capable of being implemented, but wants to put forward a workable Bill.

The meeting was adjourned.