(Subcommittee) Management of Remand Detainees; with Deputy Minister

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Justice and Correctional Services

12 March 2021
Chairperson: Mr R Dyantyi (ANC)
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Meeting Summary

In a virtual meeting, the Department of Correctional Services (DCS) reported on its management of remand detainees, with a particular focus on remand detainees with bail of less than R1 000, and on the management of COVID-19 in remand detention.

Overcrowding remained a challenge in DCS facilities. As of 22 February, there were 140 702 inmates and only 120 567 available beds. The number of remand detainees exacerbated the problem. In January, there were 49 909 remand detainees, 3 337 of whom had been granted bail at less than R1 000.

In its efforts to reduce the number of remand detainees, the DCS had focused on the submission of applications to court for review of bail, in line with Sections 63A and 63(1) of the Criminal Procedure Act, and for consideration of the length of detention, in line with Section 49G of the Correctional Services Act. However, those applications had had a low success rate. From the first to third quarter of the 2020/21 financial year, 3 299 of 9 876 referrals under Section 63 had been successful (33.4%), and 2 519 of 5 811 referrals under Section 49G (43.3%). Its efforts had been hindered by an increase in the number of remand detainees with bail whose detention was shorter than three months, and by the courts’ focus on continued detention rather than on other outcomes, like reduced bail or release on warnings.

The Department had attempted to minimise the spread of COVID-19 in its facilities by instating a number of protocols governing quarantine and isolation procedures, and the admission of new remand detainees. During levels three to five of the national lockdown, the Department had suspended visits by members of the public and, to alleviate overcrowding, had expedited the submission of bail review applications to court. It had also implemented its Audio Visual Remand system at 47 courts linked to 22 correctional facilities, and a total of 1 138 remand detainees had attended court virtually through the system as of January. However, the system’s effectiveness had been hampered by underutilisation and connectivity problems.  

The Chairperson asked the Department to present again on the same issues during the next parliamentary term, because the Committee was not satisfied. Members were concerned about the capacity of the community corrections programme. Although the Department had asked for help in engaging with the other state entities involved in community corrections, Members felt it was not specific enough about what the challenges were and who was responsible for them. Also of concern to Members were remand detainees who had been in detention for longer than two years, and the low success rate for bail review applications submitted under Section 63 of the Criminal Procedure Act.

Meeting report

The Chairperson welcomed and introduced Mr Inkosi Holomisa, Deputy Minister of Correctional Services (DCS). Deputy Minister Holomisa paid tribute to King Goodwill Zwelithini, who had died earlier that morning after a hospital stay. He requested permission to leave the meeting early to attend interviews regarding King Zwelithini’s death.

Deputy Minister’s opening remarks

Deputy Minister Holomisa said that DCS’s presentation would present the status quo in two areas: the management of remand detainees with bail of less than R1 0000, and the management of COVID-19 in remand detention.

The global community continued to grapple with the effects of the COVID-19 pandemic, and the DCS was a “microcosm” of that community, not an exception. The pandemic had negatively affected healthcare systems, the economy, and the overall wellbeing of citizens. Remand detainees, like all citizens, had to adhere strictly to the protocols introduced by the government to minimise the spread of COVID-19, including physical distancing, hand washing, and wearing masks.

The DCS was at the front end of the criminal justice system through the detention of remand detainees, and at its tail end through the detention and eventual release of sentenced offenders. It did not have a “silver bullet” solution to the “perennial” problem of overcrowding, nor to the risks COVID-19 posed to its officials and inmates. A multi-pronged strategy and implementation plan, driven by all the relevant entities in the criminal justice system, was needed to mitigate or eliminate overcrowding.

The presentation would also confront the immediate challenge presented by remand detainees who could not afford bail of R1 000 or less. There were 3 337 such detainees, which exerted undue pressure on the DCS as a whole. The presentation would also cover the DCS’s thinking about the legislative and policy framework and the potential solutions therein.

Deputy Minister Holomisa handed over to Mr Mandla Mkabela, Chief Operations Commissioner, DCS. Mr Mkabela would make the DCS’s presentation on behalf of Mr Arthur Fraser, National Commissioner, DCS, who had a medical appointment. The Deputy Minister then left.

Management of remand detainees

Remand detainees with bail of less than R1 000

Mr Mkabela reported that as at 22 February, the national correctional services’ inmate population stood at 140 702 – 48 537 unsentenced inmates and 92 165 sentenced offenders. The total available bed space stood at 120 567, resulting in overcrowding. As of January 2021, there were 49 909 remand detainees, 3 337 of whom had been granted bail at amounts of between R100 and R1 000.

Overcrowding was a central challenge for the criminal justice system, and all stakeholders should play an active role in its management. Imprisonment should be seen as a last resort for only certain categories of offenders, such as high-risk offenders.

Mr Mkabela reported on the legislative and policy framework from which theDCS drew its strategies for reducing the remand detainee population, focusing on Section 63 of the Criminal Procedure Act (CPA).  

Section 63(A) of the CPA, known as the bail protocol, allowed for the head of prison to apply to the court for the release of the accused or the amendment of bail conditions, on account of prison conditions. To qualify, remand detainees with bail had to meet the following criteria:

  • Charged with Schedule 7 crimes only;
  • Detained in an overcrowded facility; and
  • Detainee’s case was handled by lower courts (regional or district courts).

Section 63(1) of the CPA allowed for the prosecutor or the accused to apply to the court for the amendment of the amount of bail or bail conditions. All remand detainees with bail qualified for Section 63(1) applications, but the detainee had to consent to the submission of the application. However, fewer than 20% of remand detainees detained in the DCS had bail. 

At a virtual meeting on 20 April 2020, organised by the Ministry, the DCS had made the following proposals to reduce the population of remand detainees during the lockdown period:

  • The DCS should continue with the submission of applications to court for review of bail for of all remand detainees with bail, in line with Section 63A and 63(1) of the CPA;
  • Submission of the application from the first month of detention, instead of from the third month; and
  • Submission of the application for consideration of the length of detention of remand detainees detained longer than two years, in line with Section 49G of the Correctional Services Act (CSA).

The DCS had also participated in case backlog meetings organised and led by the Department of Justice, and it shared information on remand detainees detained longer than two years with relevant cluster partners, such as the Department of Justice, the National Prosecuting Authority (NPA), Legal Aid, and the Office of the Chief Justice.

From the first quarter to the third quarter of the 2020/1 financial year, 63 applications had been submitted under Section 63 of the CPA. 3 299 of 9 876 cases (33.4%) had had a successful outcome. This had been hindered by an increase in the number of remand detainees with bail whose detention was shorter than three months – by agreement with the judiciary, applications were submitted only on the third month.

Over the same period, applications submitted under Section 49G of the CSA had resulted in 5 811 court referrals, 2 519 of which were successful (43.3%). The DCS had faced the challenge that courts were focusing on continued detention, rather than other outcomes such as reduced bail or release on warnings.

Management of remand detainees during COVID-19 pandemic

Mr Mkabela said that the onset of the COVID-19 pandemic had “exacerbated the prevailing unstable and uncontrollable situation.” He paid his respects to remand detainees who had died of COVID-19. Even as lockdown measures were relaxed, increased movement and admission of remand detainees had caused an increase in overcrowding and posed a threat to the DCS’s attempts to minimise the spread of COVID-19.

He described the protocols instated at DCS facilities to minimise the spread of COVID-19. For example, the process for remand detainees newly admitted to facilities included the following measures:

  • Processing in smaller batches, not exceeding 50, to promote social distancing;
  • Screening by a professional nurse; and
  • Quarantine for 14 days before distribution to housing units, although detainees could attend court within that period if they did not have presumptive symptoms.

Inmates were subject to daily screening, and presumptive cases were reported and quarantined. Inmates who tested positive for COVID-19 were isolated.

During lockdown alert levels three to five, visits by members of the public had been suspended, except for essential and permitted service providers. During the same period, submission of bail review applications to court had been prioritised and disposed of expeditiously, to alleviate overcrowding in remand detention facilities.

The DCS had also made use of its Audio Visual Remand (AVR) system, which allowed accused persons to appear in court virtually. The AVR system had been implemented at 47 courts linked to 22 correctional facilities, and a total of 1 138 remand detainees had attended court through the system as of January 2021. However, most AVR sites were underutilised, due to magistrates courts not sending name lists of remand detainees to appear before the AVR court. Some AVR sites were not fully functional because of connectivity challenges.

Mr Mkabela added that budget cuts affecting the compensation of employees had serious implications for the management of remand detainees, both in the current financial year and over the medium-term. The issue required urgent political intervention to prevent a “crisis” resulting from poor service delivery.


Mr J Selfe (DA) commented that the presentation had been difficult to follow due to technological glitches. He asked about Section 63A of the CPA, which allowed a head of prison to approach a court for a review of bail to remand detainees. Its criteria were explicit: the centre’s occupancy had to be reaching such proportions that it constituted a material and imminent threat to the human dignity, physical health, or safety of remand detainees. This was “quite an evidential mountain to climb.” Remand detention facilities were normally a separate part of the centre, and they were “horrendously” overcrowded, with detainees sleeping on the floor. How many successful applications had been launched under Section 63A?

Ms Cynthia Ramulifho, Chief Deputy Commissioner (CDC): Remand Detention, DCS, responded by directing Members’ attention to the breakdown of bail review applications in the presentation (see slide 25). In the first quarter, 1 280 of 3 700 (34.59%) referrals were successful; in the second quarter, 1 123 of 2 635 (42.62%); and in the third quarter, 896 of 3 541 referrals (25%). The challenge was an increase in the number of remand detainees with bail whose detention was shorter than three months.

Mr Selfe asked whether any detainees currently in incarceration had been in remand detention for more than two years, the provisions of the CSA notwithstanding. If so, why were they still in detention and what was being done about it?

Ms Ramulifho replied that, as mentioned in the presentation (see section 7), the DCS had been implementing alternative measures to deal with remand detainees. Some cases could not be attended to – for example, cases involving Schedule 7 crimes were sometimes delayed by police investigations. The issue was being addressed during cluster meetings. 

Mr Selfe said that a number of detainees and parolees could legitimately be released on bail, reduced bail, or warning. They were not being released because the DCS’s community corrections branch was not properly resourced or effective, and the judiciary lacked confidence in it. There had previously been a case management committee established in correctional services facilities, bringing the DCS together with the Departments of Justice, Police, and Social Development. Did those case management committees still exist, and if so, was there one in every correctional centre?

Mr Joseph Katenga, CDC: Strategic Management, DCS, replied that inspiring confidence in the community corrections system could not be a DCS issue. Community corrections involved social development, the policing sector, and so on. For example, it encompassed community policing forums and the utilisation of social development resources. Although the DCS could monitor the compliance of individuals in the community corrections system, health and mental health interventions had to be got right. A broader perspective, and the engagement of other entities, was needed. An offender was not only the DCS’s problem, it was a community problem.

Ms Ramulifho said that the DCS was drawing the cluster’s attention to the community corrections system, because it was a “dependent function.” The DCS was addressing the issue – particularly the case management systems and case backlogs – in cluster forums. It attended monthly court optimisation meetings at the national, provincial and local level, and participated in provincial efficiency enhancement committees.

Ms Vuyi Mlomo-Ndlovu, Deputy Commissioner, DCS, added that the DCS’s case management committees were concerned with DCS’s internal processes. The DCS did not participate in the case management process for remand detainees. That was a court process, which involved the prosecutor, the investigator, and the judiciary as decision-maker, and was based on information kept in the docket and by the prosecutor. The DCS submitted applications but did not consider them, and had little influence on the court’s decisions.

Ms J Mofokeng (ANC) asked about the intersectoral implementation of the Child Justice Act. There was a discrepancy between the report on the Act and the DCS’s annual report. The former said that there had been 61 remand detainee children in DCS facilities in the 2019/20 financial year, but the latter said that there had been 58 in the same period. She asked for clarity about this figure.

Ms Mlomo-Ndlovu said that the figures in the report on the Child Justice Act were given for the calendar year, while DCS’s annual report used the financial year. Such discrepancies were thus to be expected.

Ms Mofokeng also asked about DCS’s approach to lone children in remand detention. What kinds of programmes were provided for those children?

Ms Mlomo-Ndlovu replied that the number of lone children had fallen drastically. It was one of the issues that had been addressed by the intersectoral committee for child justice, because the Department of Justice, the lead department, had been concerned about it. The DCS had been advised that it could communicate with the court about lone children and ask for them to be placed in secure care facilities. In addition, the number of lone children had fallen, as the total number of children in remand detention fell. There were now fewer than 100 children in remand detention.

The children did not stay long in correctional services because they appeared in court every two weeks. In the centres, lone children were kept separate from sentenced offenders. The centres had been requested to provide children with board games to “keep them busy.” Some of the children had not attended school before they were arrested.

Ms W Newhoudt-Druchen (ANC) asked for a more detailed explanation of the slide showing the positioning of remand detention within the DCS (see slide 2). Firstly, the section about unsentenced detainees cited “involuntary mental healthcare users and deportation group: no longer detained.” What did this mean?

Ms Mlomo-Ndlovu replied that involuntary mental healthcare users and the deportation group were both groups that the DCS had gradually been removing from its facilities. They were nevertheless mentioned in the report so that the progress could be monitored. The involuntary mental healthcare users were forensic cases, sent to DCS as remand detainees but subject to forensic assessment. After the assessment, the court declared them to be state patients or involuntary mental healthcare users. It had been agreed at one of the mental healthcare conferences that involuntary mental healthcare users should be diverted away from the DCS. However, they had remained at the DCS until Chapter 13 of the CPA had been amended to allow such diversions. The DCS was now working with the Department of Health to facilitate the removal of those already in the DCS, and had seen good progress that year.

The deportation group referred to illegal immigrants arrested by the Department of Home Affairs. One such immigrant had pursued the matter in court, complaining that he had not committed a crime but was being detained among people who had. The court found that it was illegal for the DCS to detain the deportation group, as it had not been promulgated in terms of the Immigration Act. The DCS had used this judgment as a “pull-out clause,” amidst its overcrowding problems, and was gradually removing the deportation group. Home Affairs had marked several police stations to be used as detention facilities for them.

Ms Newhoudt-Druchen observed that the same slide mentioned 244 custodial facilities and 235 functional custodial facilities, with a question mark. What was the question mark for, and why were there two different figures?

Ms Ramulifho said that the figures reflected that 235 of 244 custodial facilities were active. The others were under maintenance, and had been for a while. For example, the Department of Public Works was working on certain remand detention facilities, whose inmates had had to be moved to other facilities. The question mark was a typo, left in the presentation by mistake.

Ms Newhoudt-Druchen asked whether the lone children in remand detention played board games alone. Did they not receive any kind of education?

Ms Ramulifho replied that the children were offered a soft life skills course. Some attended more than one programme. There were also indoor sports.

Ms Newhoudt-Druchen asked what issues contributed to the long detentions of remand detainees.

Ms Mlomo-Ndlovu replied that the DCS did not have access to the detainees’ court records. However, its analyses had shown that delays were caused by detainees changing lawyers, and by cases moving from lower courts to regional courts or sometimes to the high courts. Many of the cases fell under the regional court, but most started at lower courts. In addition, most of the cases were postponed. There were myriad factors, such as witnesses’ failure to appear, and the reasons for postponements were never communicated to the DCS. The DCS could effectively monitor only the time spent in detention. 

Ms Newhoudt-Druchen said she had been shown a video in which a female inmate made several allegations about correctional services facilities. The inmate showed contraband which she said had come not from visitors, but from officials. She had requested to speak to the Minister when he visited, but had been removed to another centre for the duration of his visit. She had also made other allegations. The video had gone viral on social media and did not look good. What was the Department doing about the allegations?

Ms Ramulifho replied that the DCS had not been aware of the video, but that they would address Ms Newhoudt-Druchen’s concern. They would investigate and report back to the Committee.

Adv G Breytenbach (DA) asked for clarification about the “rather bizarre answer” Mr Katenga had given to Mr Selfe’s question about community corrections. She had understood Mr Katenga to respond that the DCS could not be held responsible for community corrections because community corrections were an amalgamation of departments, and so it was “not really the DCS’s problem.” However, this could not be the case: community corrections fell under the DCS’s programme and was provided for in its budget. If something went wrong with a parolee under the auspices of community corrections, that would be a DCS issue.

The Chairperson invited Members to ask any further follow-up questions they had.

Mr Selfe noted the section of the presentation that reported on Section 63 outcomes, but clarified that he had been asking about Section 63A of the CPA, not Section 63(1). Although both sections had provisions allowing the amendment or reduction of bail conditions, he was interested in how many successful applications there had been in terms of Section 63A specifically.

Ms Mlomo-Ndlovu said that Section 63A, under which the submission of applications for review was based on prison conditions, required that the relevant remand detainee must have been charged with a Schedule 7 crime. The biggest problem faced by DCS was that the detainees’ charges had to be verified with the NPA. Sometimes Schedule 7 crimes did not appear on warrants, because there was not enough space on the warrant to list all the charges. However, if a detainee was disqualified under Section 63A, the DCS submitted their application under Section 63(1) instead. In that case, the DCS had to attain the consent of the accused to submit the application, because Section 63(1) allowed only the accused or the prosecutor to approach the court for a bail review. If the accused did not consent, there was nothing that the DCS could do. In any case, it reported on all Section 63 outcomes together, and separated Section 63A cases from Section 63(1) cases only for the submission of applications.

Ms Mofokeng said that she was “not comfortable” with the DSC’s answer about the discrepancy in the figures given for remand detainee children. There should be one number, and it had to be “convincing”. Measuring the number using different dates did not provide a “true reflection”. How did the DCS account for the additional three children not included in the figure in its annual report? The DCS had to deal with this discrepancy in the future.

Mr Mkabela replied that the DCS would follow up and respond in writing to the Committee about the discrepancies and how they would be fixed moving forward.

Ms Newhoudt-Druchen again asked about involuntary mental healthcare users, who the DCS had said were being removed from its facilities. Where did they go while they were awaiting assessment? Given that they were subject to mental health assessment but might nonetheless have been charged with a crime, were they still considered remand detainees?

Ms Mlomo-Ndlovu replied that one had been declared an involuntary mental healthcare user at the closure of the forensic process, and therefore involuntary mental healthcare users were not remand detainees. They were at the DCS not as remand detainees, but because they were awaiting beds at healthcare establishments. The Department of Health now managed them, and the courts referred them directly to healthcare establishments. The forensic unit of the Department of Health had drawn up a list specifying where they could be sent – they could be treated in any healthcare establishment, not only those designated for mental healthcare. 

Mr Katenga said there needed to be consideration of how justice -- the meting out of justice, and the perception of justice -- translated into the working of the correctional system. As Ms Mlomo-Ndlovu had mentioned, the DCS was dealing with issues that maybe it should not have to deal with. The Committee had to assist the DCS in engaging the police and other stakeholders.

Mr Selfe said he did not understand Mr Katenga’s point.

Adv Breytenbach agreed -- she was “more puzzled” than at the start. She said the DCS seemed to be “passing the buck.” What was it trying to tell the Committee? Was it not responsible for doing its job? If not, who was responsible? It was unacceptable. The Committee dealt with serious issues; it was “not a game.” The DCS’s request for the Committee’s assistance was not a substitute for answers to Members’ questions.

Ms Mofokeng was still concerned about the discrepancy in the number of remand detainee children. The Auditor-General had commented on discrepancies. The DCS’s response was not convincing.

The Chairperson noted that Members were unhappy with the DCS’s answers, and offered its delegation an opportunity to improve them.

Mr Katenga said that the DCS was trying to bridge a transition between prisons and corrections. Corrections did not begin with someone entering a detention facility – it began in society. Thus the White Paper on Corrections spoke of corrections as a societal responsibility. Yet the DCS was given a certain amount of money – which was meant to be used to detain people – and told to “fix” people who had been dysfunctional since their youth because of societal problems. “We can’t proceed in this manner” – the DCS could not fix people, society must fix itself. Then the DCS would not need to exist. 

Ms Ramulifho said that the law charged the DCS with providing offenders the opportunity to serve their sentences in a non-custodial manner and with helping them to reform. This was closely related to the mandate of corrections. Another CDC at the DCS was leading a detailed integrated approach, and the Department would report back on it to reassure the Committee about the work of community corrections in relation to remand detention.

Closing remarks

The Chairperson suggested two interventions to guide “the way forward.”

He suggested that the Committee should put the DCS’s presentation back in the programme for the next term. The DCS should prepare to provide a more satisfactory presentation on the same issues. That presentation should answer two questions. Firstly, it should reflect on whether the DCS had done the best it could do under the circumstances. Secondly, it should identify the challenges, problems and “blockages” faced by the DCS. It must provide concrete answers and interventions.

The DCS’s presentation had not demonstrated the progress that the Committee had wanted to see. The Committee remained concerned. As Mr Selfe had mentioned, the capacity of the community corrections branch was concerning. Community corrections was “a lifelong challenge” for the country, and determined what kind of society was being built. Correctional services was a reflection of society. The DCS had said in its responses that corrections was a societal issue and involved many stakeholders, but the Committee needed to know what the DCS specifically was doing. It also needed to list the various other stakeholders and specify where they were failing, so that those failures could be attended to. The Committee needed to know which issues outside of the DCS’s control presented challenges, so that it could give it the assistance it requested.

Likewise, the DCS seemed to have suggested that the judicial case-flow management forum in courts was not effective, and the Committee needed more detail about this. Where was the failure or the blockage? When it referred to postponements not shared with the DCS, were they referring to court postponements? Did it not hear what the outcome was when a court sat? Such “gaps” needed to be closed. The success rate for bail review applications was also very low. The DCS had to explain why. Some of the problems might not be the DCS’s responsibility, but they must be ventilated so that the Committee could engage those who were responsible.

Secondly, the Chairperson noted that technological difficulties had disrupted both the presentation and the discussion. He suggested that the Committee should consider holding some of its meetings in person, rather than virtually, during the next term. Fewer than 50 people would attend those meetings, which was permissible under the level one lockdown regulations. It would prevent “breakages in communication,” which were becoming frustrating.

Mr X Nqola (ANC) agreed that face-to-face meetings should be held. There were even spaces in Parliament where social distancing could be observed, and no lockdown regulations would be broken.

Ms Newhoudt-Druchen added that the DCS should rise to the fourth industrial revolution. Just as Members used virtual platforms, the DCS should be using AVR and strengthening its capabilities in that regard.

The Chairperson agreed. The DCS was a multi-billion rand department with a huge budget. However, it seemed a long way out – it did not even have drafting capacity, as the Committee had learned in previous meetings – and that should not be allowed to delay their activities.

The meeting was adjourned.

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