Correctional Services Bill [B65-98]: hearings

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
14 August 1998
CORRECTIONAL SERVICES BILL [B65-98]: HEARINGS

Documents handed out:
Judicial Inspectorate (written)
Pelican Park Rehabilitation Centre (oral)
Penal Advocacy Network, Gauteng (written)
Penal Advocacy Network, Western Cape (oral)
Police & Prisons Civil Rights Union (oral)
Prisoners' Aftercare League (oral)
South African Human Rights Commission (oral)
United Prisoners of South Africa (written)

SUMMARY
Various organisations presented their recommendations with regard to the Correctional Services Bill.

DETAILED MINUTES
Mr Paxton from the Department of Correctional Service gave a brief summary of the Bill before the presentation of the submissions.

South African Human Rights Commission
The chairperson introduced Ms Meyer from the South African Human Rights Commission. Ms Meyer stated that the Commission is pleased with the Bill in that it acknowledges dignity. However a lot of issues are being left to the regulations.

Section 18
The Commission made the recommendation to remove the limitation on the reading material of prisoners.

Mr Paxton replied to this by saying that there may be reading material that may prove to be harmful for security reasons.

Section 100
The Commission made the recommendation that prisons should be open to various organisations. The chairperson responded by saying that she did not think that the committee is ready to open up the prisons to everyone just yet, especially to NGOs who often find so much fault. The chairperson felt that the committee should be given some time to consider this recommendation.

One of the committee members stated that he felt that human rights should apply to the people working in the prison and not only to the inmates. The chairperson also stated that wardens and other officials are killed by inmates and often in these instances, the Human Rights Commission says nothing. Ms Meyer's reply to this was that her understanding is that the commission's duty is to discuss or make recommendations on the Bill which concentrates on the prisoners. It is for this reason that the Commission has not dealt with the rights of prison officials.

Mr Dickson
Mr Dickson said that he had noticed that the Human Rights Commission has made recommendations concerning the regular feeding of prisoners. In his opinion, the commission had failed to take the problem of overcrowding into account. If prison officials are going to serve meals at "regular" intervals, they will definitely be serving meals the whole day. Mr Dickson made the recommendation to leave meal times to prison authorities.

In terms of "segregation" and "solitary confinement" it is recommended that the two be defined.

Section 7 - Accommodation
In terms of accommodation, overcrowding has become an increasing problem. There is a crime wave and the fact is that there is little that we can do in terms of overcrowding. This inevitably leads to problems with accommodation. It is not intentional to overcrowd our prisons, but the fact is that our prisons do not have enough space. They therefore recommend that in this regard, the law must be lenient because it is not always possible to have "ideal" accommodation for inmates.

Section 12 - Health care
It is noticed that the bill has never made provisions for prisoners to receive organs. However it must be note that the onus is not on the state to give him an organ, but if his parents can afford to, then it should be allowed.

In cases of religion attention should be given where a prisoner changes his religion. For example a person may begin his sentence as a Catholic and later change to Seven Day Adventist. Seventh Day Adventists celebrate their Sabbath on a Saturday and this means that they do not believe in working on Saturdays. Often the prison officials are not tolerant of this change or do not believe the inmates, and this leads to complications as the prisoner begins to feel that their rights are being violated.

A committee member said that too much freedom of religion could also lead to complications. A prisoner could claim to be an Apostolic and later
Islamic just to avoid working. How can that situation be handled. Mr Dickson responded and said that he feels that the problem arises where prison officials do not complete the necessary documentation so as to indicate that prisoner "X" has changed his religion.

Mr Bloem (ANC) stated that in prison there are frustrated people and they would even change their religion for better food, whereby one day they would be Islam and the next day Seventh Day Adventist, and so on. How can this be prevented?
Mr Dickson said that there should be rules set down to prevent prisoners from changing religion as they feel. However the problem still remains that when people change their religion, they are not registered as such. Mr Gibson (DP) said that section 14(1) which deals with the freedom of religion covers the entire problem and therefore no amendment is needed.

On the right to strike it was said that the right causes unnecessary disturbance and violence, The law should however provide that prisoners have the right to voice their opinions.

Section 25
There should be a subsection stating that during solitary confinement, the prisoner should be totally isolated whereby s/he has no contact with other prisoners at all. At present this is not happening.

Mr Dickson also stated that he is not in favour of the Afrikaans word "geweld" because it means violence. The terminology here should be "dwang" which means the "necessary physical means of restraint"

Section 27 - Search
Prisoners must be searched at all times on a regular basis, however his property must be respected. Mr Nel asked whether he was suggesting that the orifices of prisoners should be searched without reasonable grounds? Mr Dickson responded that overcrowding causes problems and because of this there is so much violence. So yes, prisoners should be searched regularly to protect the officials in the prisons.

Section 37 (b) - prisons should be subject to the regulations of the Labour Relations Act which are being ignored. For example, often prisoners work in workshops without masks and ear muffs etc. It is crucial that the Labour Relations Act must be applied.

Section 43 - Location and transfer of prisoners
Mr Dickson proposed that prisoner be properly taken care of during long trips - this is not happening at present. Prisoners do not receive water or food during long trips. No stops are made to allow these prisoners to use toilets.

Section 45 states that released prisoners should be provided with material and financial support. Here the law is saying that prisoners are entitled to it. However, sometime the prisons just do not have the budget. Mr Dickson therefore recommends that this decision be left up to the head of the prison.

Section 55 - Parole
Mr Dickson says that it is unfair to expect prisoners to pay board or lodging. According to him the person is not an unsentenced prisoner, and therefore he sees no reason as to why the prison should pay board. In addition he said that there should be no difference between a day parole prisoner and other unsentenced prisoners.

Mr Dickson felt that section 57 is unclear.

Section 58 - Supervision
This should be better designed in terms of privacy.

Section 62 (1) - Seeking Employment
Here the law should be more flexible. According to Mr Dickson there should be an appointment of a job-creation officer.

Section 104 (1) - Contacts for joint venture prisons
Here Mr Dickson felt that the issue of privatization of prisons must be addressed.

Mr Gibson (DP) stated that the section does not in fact cover privatisation. The Chairperson requested Mr Dickson to speed up his presentation.
Mr Dickson went on to speak about escaping. He feels that prisoners must be made aware that when they attempt to escape, they are ceding all rights.

In terms of unlawful disclosure of information Mr Dickson felt that a tighter grip should be taken. In conclusion to his submission, he feels that the law has enlightened us to see that we are moving in the right direction.

Pelican Park Rehabilation Centre
The Chairperson introduced Mr Naidoo of the Pelican Park Rehabilation Centre. Mr Naidoo said that the introduction of boot camps are vital so that prisoners will not have the impression that they are on a holiday. He made the following recommendations:
prisoners should be working and paying board and they should be made to understand that prisons are not holiday camps
inmates should be used as workers for the RDP
the state should look at alternatives to paying for the upkeep of children of female inmates up to the age of five as this is expensive for taxpayers.
the government should work towards introducing constructive programmes because at the moment prisons do not rehabilitate people especially rapists and murders.
Mr Naidoo made a final appeal to the committee: "don't give them the understanding that crime pays, because it doesn't"

Mr Bloem asked Mr Naidoo to define rehabilitation versus punishment. Mr Naidoo responded by saying that prison does not rehabilitate rather prisoners view it as being a holiday camp because s/he is not forced to work. Rehabilitation refers to making restitution and working towards a goal to rehabilitate oneself and look toward to a new life.

POPCRU
Mr Booi from POPCRU made his presentation. His concern was around personnel. For instance personnel issues are not covered in the Bill but are covered by the Labour Relations Act. The second concern was around discipline procedures for personnel. Here he felt that currently the disciplinary procedure should conform to the Labour Relations Act. The third issue was that of joint ventures prisons. He felt that this could be problematic. If some prison are run privately and others are run by government, there will be imbalances: it will be difficult for personnel within these prisons to be treated equally?

Mr Paxton said to Mr Booi that the reason why personnel issues have not being mentioned in the Bill is because they are mentioned in the Labour Relations Act.

Mr Bloem stated that POPCRU had already made a submission with regard to joint venture prisons and it had been dealt with in a former public hearing.

Human Rights Committee
The final presenter, Ms Mbelle of the Human Rights Committee welcomed the Bill. Their recommendations in their submission dealt with:
Healthcare - both physical and mental. The recommendations looks at what constitutes physical and mental well-being. With regard to healthcare there must be examinations at all times even in solitary confinement. Searches must be conducted by medical doctors.
Disciplinary procedures, solitary confinement, segregation and use of force were also addressed.

The Chairperson asked whether the department is not already providing emergency health care. Ms Mbelle responded that the Bill does not make provisions specifically for this. Shortness of time prevented further questioning.

Mr Nel (ANC) requested that the department go through the submissions so that when the committee starts their deliberations, they could consider a departmental summary of the submissions. He requested a copy of the existing Act and regulations.

Appendix
JUDICIAL INSPECTORATE
OFFICE OF THE INSPECTING JUDGE
11 August1998

CORRECTIONAL SERVICES BILL (B65- 98)
Many thanks for the opportunity of submitting written comments to your Committee on the Correctional Services Bill.

As you are no doubt aware, Mr. Gideon Morris and I are presently involved in the establishment of the Judicial Inspectorate in accordance to the provisions of the existing Act. As a result, we have come across certain problems in the implementation of the present Act which will continue to exist if the Correctional Services Bill were to be adopted without further amendment. In this regard, we respectfully recommend that your committee give consideration to the amendment of certain of the provisions of the correctional Services Bill, as proposed and set out hereafter, namely:

·Clause 25(1): Delete the words "within three and substitute the following "as soon as practicable".

·Clause 30(7): Delete the words "appeal against the decision" and substitute refer the matter".

·Clause 91(2): Delete "or" in line 9 and add after Visitors' Committee "or an Independent Prison Visitor and may of his or her own volition deal with any complaint".

·Clause 93(1): Delete the word "may" and substitute "must as soon as practicable".

·Clause 94(5); Add after the word "urgency" in line 14 "or in the absence of such a committee".

·Clause 95(1); Delete the whole subclause and substitute the following "where appropriate the Inspecting Judge may establish a Visitors' Committee for a particular area consisting of the Independent Prison Visitors appointed to prisons in that area".

We noted that in clause 86 (1) of the Bill, the Inspecting Judge's powers have been extended to include reporting on "any corrupt or dishonest practices in prison". During separate discussions with the Commissioner of Correctional Services and the chairperson of the National Advisory Council on Correctional Services both of them expressed serious reservations as to the advisability of allocating this power to the Judicial Inspectorate. They were of the view this could result in confusion as to the main objective of the Judicial Inspectorate and could also jeopardise the perception of independence of the Inspecting Judge. In our respectful opinion, these views deserve serious consideration.

Based on a recent experience that we had at the Johannesburg Prison, we are also of the view that clause 32 of the Bill, which relates to the "Use of force", should be amended so as to provide for the compulsory examination by a medical doctor of all prisoners against whom force has been used, as provided for in this clause. This will facilitate enquiries into allegations of the excessive use of force, it would protect the Department of Correctional Services against unfounded claims, and it would assist prisoners who might have been victims of unwarranted and excessive use of force.

In conclusion, I should also mention that we discussed the above-mentioned recommendations with members of the National Advisory Council on Correctional Services and representatives of the Commissioner of Correctional Services, who indicated that they were in broad agreement with the proposals. Should your Committee require any further information in amplification of the proposals, I would gladly oblige.

J J TRENGOVE
INSPECTING JUDGE

 

Penal Advocacy Network, Gauteng
10 August 1998
The Draft Correctional Services Bill

Written and submitted on behalf of the Penal Advocacy Network, Gauteng, including the following organisations:
The Centre for the Study of Violence and Reconciliation
Lawyers for Human Rights
Institute for Security Studies

The above mentioned organisations would like to commend the Department on drafting this Bill which for the first time attempts to introduce a system which conforms to human rights principles and international standards. This is a great improvement on previous, and the current, version of the Correctional Services Act. This is one of the first steps towards ensuring that South Africa has a progressive and effective penal system. However, we believe that in certain respects the draft Act does not go far enough in devising a system which would adequately fulfil the principles it purports to achieve.

The adoption of the Constitution and the Bill of Rights means that it should be recognised that prisoners have certain enforceable rights, and are entitled to acceptable standards of treatment. The department is obliged to provide those standards directly for prisoners and prisoners can claim their positive performance. The Draft Act attempts to provide a basic framework for the administration of corrections in conformity with the Constitution and International Standards, frequently stating a general principle and leaving the content of that principle to regulation. This is insufficient in that it leaves too great a discretion to the Minister. In simply restating the principle espoused in the Constitution or the Standard Minimum Rules, as it frequently does, it fails to provide clarity on the true meaning of the right/principle. It creates the scenario of 'standardless delegation', enabling the prison administrator, or the Minister to generate their own standards. Any of the rights of prisoners which are restricted should only be done through legislation. Prof Van Zyl Smit argues that "the restrictions must be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which deny them the protection of the law. "

The Act often makes use of the term 'adequate' which is a potentially difficult terms for any court to have to interpret, let alone a prisoner or prison administrator.

Greater clarity and specification is required in the Act. This would enable prisoners and anyone else who wished to consult the Act, to have greater understanding of their rights in the prison context.

Specific Comments on each Chapter of the Act

CHAPTER TWO
Ad Section (1): Purpose of the Correctional System
The purpose of the correctional system is clearly stated. However, although it states that the detention of all prisoners occurs whilst 'ensuring human dignity', human dignity is not referred to in relation to the implementation of community corrections. This should also be a guiding principle here, particularly as the issues such as electronic monitoring, search and seizure and home monitoring are all aspects which have potential consequences on the human dignity and rights of those serving community corrections.

This section should also have a reference to the principle espoused in the case of Hofmeyer v Minister of Law and Order which says that prisoners have all those rights expect those which are specifically removed/limited by virtue of their incarceration.

CHAPTER THREE
Ad Section 4(2)(c): Approach to Safe Custody
Perhaps this paragraph should also include a specific reference to the rights contained in the Constitution. Although the preamble to the Act says that it intends to give effect to the Bill of Rights, a similar clause should be inserted here for greater clarity.

Ad Section 4(2)
A provision should be added which provides for a prisoner bringing legal action against the Department for enforcement of any of the rights or the provisions contained in the Act. Such a clause could read "All rights, interests and legitimate expectations shall be justiciable".
[The Constitution has a provision Section 38 which says " Anyone listed in this Section(The Bill of Rights) has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of Rights."]

Ad Section 5: Establishment of Prisons
The Definition Section defines prisons fairly broadly, and often the boundaries of prisons may not be well defined. Since the Act regulates the conduct of the public, as well as prisoners and staff on prison property, perhaps the correctional services should be obliged to indicate, by way of a notice on the property, that any such property is prison property and that there are certain regulations which should be followed.

Also in the definition is the reference to "premises adjacent to any such place". How broad is this meant to be defined, and how much of adjacent property can be construed as a prison for the purposes of this Act?

Ad Section 6 Admission
6(2)This Section should contain some reference to a time frame in terms of which a prisoner's particulars should be recorded. For instance, the words "on admission" could be included in this section.

6(5)According to the Health Act, the definition of communicable diseases is a broad one, and would include illnesses such as HIV and AIDS. It should be mentioned that pre-counselling, and other required procedures should be followed before such tests, and the results will be kept confidential.

Ad Section 7: Accommodation
This is an example of a section where the Act merely repeats the wording of the Standard Minimum Rules without providing sufficient content to be of any real meaning. For instance what is the meaning of "adequate or detention under conditions of human dignity". What are the implications for new prisons built according to different design specifications, and for old prisons?
The regulation of the size of cells and the management of space is an important aspect of humane conditions of detention.

Currently the Departmental Orders prescribe the relevant conditions, including space per prisoner. The space requirement is 3.5m² per prisoner in a communal cell, and 5,5 m² for a single cell. These minimum standards should be contained in a transparent manner in the Act, rather than in Regulations, or in Departmental Order which have dubious legal standing and are not publicly accessible.

The Act should also contain a provision that the accommodation conform to certain design specifications. There should in addition be a procedural safeguard which provides that designs should be lodged with the Inspecting Judge, the Human Rights Commission, or similar body before construction. Subsequent inspections of prisons can ascertain whether prisoners are actually being accommodated according to these specifications.

The Standard Minimum Rules and other standards regulating the treatment of detained persons, contain far more detail relating to the accommodation requirements for prisoners, some of which should also be repeated in this Act. For example:
•SMR 9(1)"it is not desirable to have two prisoners in a cell or room"
Contrary to this, the Department has a provision (regulation 97(2)) which states that if more than one person should be accommodated in a single cell, there should be not less than three persons. The Act should clarify this kind of question, so that not more than one person is accommodated in a single cell.

• SMR 9(2)Prisoners should be carefully selected for the sharing of dormitory accommodation.

• SMR 10In all places where prisoners are obliged to live and work, the windows shall be large enough to enable them to read or work by natural light;
That they allow for the entrance of fresh air.

• SMR 12Sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary in a clean and decent manner.
Current overcrowding results in too few toilets per prisoner, and the consequent inability of the prison to maintain them in functioning order.

Overcrowding affects the standards of accommodation in any prison. Provision should be made to control levels of overcrowding in the prison. For instance there may be a provision stating that the Area Manager should notify the courts of the levels of overcrowding in their area. Such a communication should have the effect of reducing the number of people sentenced to prison at that particular time. We realise that such a provision would be difficult given prevailing attitudes towards crime and criminals.

Suggestions on dealing with the problems of overcrowding are dealt with at the end of this submission.

This section of the Act only deals with the separation of prisoners according to whether they are sentenced/unsentenced, male/female, or child/adults. It should also deal with segregation according to compatibility of inmates.

Ad Section 8: Nutrition
S8(1)It should also be specified that the diets should conform to certain dietary requirements specified by the Department of Health or some other relevant body.

S 8(3)It would be unconstitutional to include the words "Where reasonably practicable" in this section. The Constitution says that everyone is entitled to freedom of religion, and that "religious observances may be conducted at states institutions" (S15(2)). We suggest that this section be redrafted to read as follows:
"Due regard should be given religious requirements and cultural preferences in relation to dietary regulations."

S8(6)Clean drinking water should be available to prisoners at all times.

Ad Section 9:Hygiene
This section should state explicitly that the Department must provide bedding to prisoners.

It should be stated more explicitly that certain items should be provided to prisoners in order to maintain personal hygiene consistent with human dignity; such as toothpaste, toilet paper, etc.

Ad Section 10: Clothing
The Department should provide prisoners with clean clothing....

Ad Section 11: Exercise
This section sets out the minimum standard for exercise. However, it should also be stated that the Department should take pains to increase, as much as possible, the amount of exercise available to prisoners, subject to their security classification and the facilities available.

It should also be stated that the required one hour of exercise does not include time taken to fetch meals, escorts for medical treatment, or travelling to court, etc. Frequently, the only exercise which prisoners currently receive is the time which they are unlocked from their cells in order to collect their food.

Ad Section 12: Health Care
12 (1) The draft includes the clause "The Department must provide health care within its available resources.."

In the case of Van Biljon and others v Minister of Correctional Services and others 1997 (4) SA 441 (C), the Cape Provincial Division rejected the argument that prisoners were not entitled to better treatment than free individuals in the same medical condition. It said that the Constitution provided more extensive positive rights for detainees than were enjoyed by the population at large, and since imprisonment denied HIV prisoners access to resources and put them at a greater risk of infection, the Correctional Services could not rely on the same standard. However, the court took into account budgetary constraints in its interpretation of "adequate". The court placed the onus of disproving availability of funds on the authorities.

IN the light of this case, it seems superfluous to include the proviso referring to resources. It also potentially gives the Department a ready made excuse for not providing adequate health to prisoners.

S12(2)The final draft contains the clause that "No prisoners is entitled to cosmetic medical treatment at state expense", whereas the 16th draft version stated that every prisoner was entitled to non-cosmetic treatment at state expense."
It is our view that the earlier version is preferable as the new drafting removes any form of discretion which the Commissioner may be called upon to exercise. For instance, one of the frequent demands for cosmetic surgery may be the removal of tattoos which identify prisoners with a particular gang. While at first glance such a request may appear to be cosmetic, it may have arisen from the situation where a prisoner disaffiliates himself from a particular gang, but his tattoo is a visible sign of his belonging to that gang. In the context of gang warfare and ostracization, or even victimisation, of a former gang member, or of any person wishing to 'cross the floor' to another gang, the presence of the existing tattoo may be life threatening. In such a case, the discretion to afford the prisoner the 'cosmetic' surgery should be allowed.

S11(3)This section allows for a prisoners to be treated by a medical practitioner of his choice subject to the permission of the Head of Prison. There should be some guidance contained in this section on what grounds the Head of Prison is to make his decision. The decision should be subject to the grounds of reasonableness, and should be in relation only to time of consultation and place of consultation.

Ad Section 13: Contact with the open community
S 13(3)Provision should be made for the extension of visiting requirements according to security classification, etc.

Somewhere in this Act, provision should be made for the facilitation of contact with families. The families of prisoners are often compelled to go through a cumbersome and frustrating process to obtain information on the whereabouts of prisoners. The Department should keep information relating to transfer of the prisoners, and should be able to respond promptly to enquiries from family members giving them reliable and helpful information. Perhaps there should be a 'family liaison person' whose job it is at each prison to assist families in the communication with inmates.

Ad Section 14: Religion
S14 (2)The phrasing of this sub-section is clumsy and needs re-drafting.

Ad Section 15: Death in Prison
S 15(1)The head of the Prison should be obliged to report all deaths as required by the Inquest Act.

S 15(2)& (3)It is not sufficient to state that the death should be reported 'forthwith". A time frame, perhaps of 'within 24 hours' should be indicated.

Provision should also be made in this Act for disposal of the body of the deceased, or the handing over of the body to the family.

All deaths, as well as the cause of deaths, should be recorded and published in a public document, such as the Departmental Annual Report.

Ad Section 16: Development and Support Services
S 16(1)The framing of this section is vague. It could include a greater reference to pre-release counselling, and other services which the Department should provide.

Ad Section 17: Access to Legal Advice
S 17 (1)The wording 'any legal matter' should be deleted from this section. It should not be left to the Commissioner or anyone in the Department to determine what is a legal matter. Any inmate should be entitled to consult his legal representative.

The definition of 'legal practitioner' appears not to include the services of para-legals. Since professional lawyers are often unaffordable for most prisoner, this provision effectively denies prisoners access to legal assistance.

We are aware of the difficulties associated with determining who is a bona fide para-legal. However, rather than excluding such people altogether, the Department should establish a system of recognising para-legals registered or associated with credible organisations.

S 17(2)The wording of this Section should be amended to say "The Minister may regulate such consultations..." The Minister should not in this Act be required to place restrictions on consultations. Any regulation should be confined to determining the time and place of consultations.

S 17(3)It is not at all clear what is intended by this sub-section.

S 17(4)Since it has been said that prisoners must be able to consult on 'any legal matter' then their opportunity to prepare should not be confined to instances where they wish to defend themselves and prepare their defence. They should be afforded these opportunities in the furtherance of 'any legal matter'.

Ad Section 19 : Children
S 19(1)(a)This should read "Every prisoner who is an child subject to compulsory education must attend educational programmes, and the Department must provide them. Sub-section (b) then becomes un-necessary.

S 19(2)Although this section does attempt to recognise the special needs of child prisoners, it does not go far enough. The United Nations Rules for the Protection of Juveniles deprived of their Liberty says that "the detention of juveniles (children) should only take place under conditions that take full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensure their protection from harmful influences and risk situations.(Rule 28). This principle is echoed in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The "Beijing Rules') where it says that efforts should be made to implement the relevant principles of the SMR so as to "meet the varying needs of juveniles specific to their age, sex and personality."(Rule 27.2).

Sub-section(2) could be greatly expanded to embrace these concepts. The current framing only requires the department to provide the bare minimum of services to children.

S 19(3)The words "where practicable' should be replaced with "the Commissioner should take all reasonable steps to ensure that prisoners..." This frames the obligation in a positive rather than negative way.

Ad Section 20: Mothers of Young Children
Provision should be made to encourage meaningful contacts between mothers and children not living with them in prison. It should also allow for the periodic stay of children.

Provision should also be made for psychological assessment of the child, and the assistance of social worker or psychologist in helping to determine the best arrangement for the child during the mother's incarceration. The Supreme Court bears responsibility as custodian of child.

Ad Section 21: Complaints and requests
S 21(3)The word 'promptly' should be inserted in relation to the referral of the matter to the Area Manager.

S 21(5)We support the principle that inmates should be encouraged to follow internal grievance procedures. However, the Act should not preclude any prisoner from having direct access to the Independent Prison Visitors.

Information about the IPV and the Inspecting Judge should be made available to all prisoners, and information relating to accessing these bodies should be publicly displayed.

Part Two: Discipline

Section 22: General
S 22(2) & (3)These two sub-sections create the ability for the department o punish a prisoner twice for the same offence. This creates a situation of 'double jeopardy'.

The meaning of the words 'disciplinary action' is unclear. In Subsection (2) it would appear to refer to a punishment which can be imposed, whereas in (3), it appears to refer to a disciplinary inquiry, which may be followed by the imposition of a punishment.

Section 23: infringements
The previous regulations of the Department in respect of infringements were criticised as being vague. Save for putting the list of infringements in the Act, the list appears to be, if possible, more vague and general than the previous list. For instance the regulation 99(g) refers to petty assault. IN this draft, 'assault' is deemed sufficient. Section 23 (c) says 'abusive' to any person. What precisely is abusive? Does this mean physically, verbally, or by 'words or gesture'? This is far too wide.

The definitions of the infringements are too broadly defined and almost any action could be read as one or another infringement. For example, "creates unnecessary noise or causes a nuisance'. This creates the opportunity for a correctional official to bring disciplinary action against someone whom he doesn't like, or against someone who is constantly asking him for things to which he is entitled.
"Conducts himself indecently be words, acts or gesture'., 'communicates with any person at a time, place where it is prohibited.' Where are the regulations of rules relating to the time and place where it is prohibited to communicate? The previous regulations referred to 'prohibited communication between prisoners'. This draft aims to punish such communication with any person.

S 23(t) makes it an offence to 'attempt to do anything referred to in this section'. This is taking the offences too far. How does one attempt to "make an unnecessary noise', or 'conduct himself indecently', or attempt to use insulting language'?

Section 24: Procedures and penalties
This section does attempt to create a just system of disciplinary proceedings. However, there should be a number of amendments to the current wording of the Bill.

S 24(2) the inmates should be given the charges in writing before the hearing, and not only at the time of the hearing.

The opportunity should be created for a prisoners to be represented by another person of his choice. This could be another inmate, or a member of the department, such as a social worker.

S 24(4) Similarly, the inmates should be given advised before the hearing of any charges to be brought against him, so that he is afforded the opportunity to prepare his defence, and arrange his witnesses.

The opportunity should be created for a disciplinary official to allow for an inmate to be legally represented

There has not been any provision made for the recording of the proceedings. A record would be necessary in the event that a prisoner wished to refer a matter for review in terms of section 24(7)(a).

S 24(5)We do not believe that solitary confinement should be a punishment.

This Section creates the incongruous situation where a person may be given 30 days in solitary confinement, which has to be approved by the Inspecting Judge, but he may be given 42 days restriction of amenities (in effect segregation) which does not have to be approved by the Judge. On our reading of the Bill, the effect of solitary confinement and segregation in terms of S 30(1)(b) are the same. In fact, there are less procedural safeguards for those inmates who have been given the punishment of segregation. This leaves the possibility wide open for the abuse of segregation instead of punishment under the more controlled, but more onerous title of 'solitary confinement'.

Section 25: Solitary Confinement
We do not believe that it is appropriate to re-introduce the punishment of solitary confinement. This represents a regression to former stringent methods of punishment. Also, international trends are towards the abolition of solitary punishment.

The Draft does not set out what is meant by solitary confinement. According to the definition, this means 'being held in a single cell with loss of all amenities'. What does segregation mean, particularly 30(1)(b) where a prisoner may be segregated for the purpose of restricting amenities? This appears to be a duplication of the punishment of solitary confinement, and creates the possibility for a great deal of confusion.

Solitary confinement may have a commonly understood meaning - that a prisoner may not be allowed to communicate with any other prisoner during their confinement.Is this what is intended in terms of this Act.? If not, it should be explicitly stated that a prisoners may continue to speak to other prisoners.

Cmax prisons
The introduction of the new Cmax prisons creates the scenario where prisoners may be held under conditions of solitary confinement without the Department having to follow the procedural safeguards set out in the Act. Cmax prisons are structured as special security prisons, but their effect is to discipline and control prisoners who are deemed to be a risk to prison security. Their conditions of imprisonment are in fact far worse than those under solitary confinement as envisaged by the Bill. Prisoners in Cmax are held in solitary confinement, are not allowed to communicate with other prisoners, have their amenities restricted, and have other amenities (such as additional clothes, cigarettes, etc,) denied them. Prisoners may be held up to three months, after which their period in Cmax may be extended.

This Bill needs to take into consideration these new 'security' regimes. No-where in the Bill does it deal adequately with the situation. At the very least, the Bill should state exactly the purpose of such a regime, and the limitations which may be imposed on the inmate. It should set our procedural safeguards which must be followed before a prisoner is sent there, and those which should apply once he is there. The Inspecting Judge should also play an ongoing monitoring role in relation to Cmax prisoners.

The Penal Advocacy network is not supportive of the concept of Cmax, and would recommend that this system be done away with altogether. We believe that it is an infringement of the human rights of the inmate, and that it is damaging to the mental health of the prisoner. The regime is counterproductive to the tenants of 'humane custody' envisaged by this Bill, and should not be supported in the future.

Part C: Security
Section 26: Safe Custody
This section refers to certain actions which a correctional official may make in relation to a prisoner (26(2)(a), (b), (c), the remaining provisions make no reference to prisoners and could apply to their powers in relation to a member of the public or other person. It is clearly not the intention of the Bill that a correctional official be authorised to apply a mechanical restraint to a member of the public, but it is not so clear in relation to the application of 'reasonable force'. The powers in relation to people other than prisoners should be more clearly stated. If the powers related to the public, then there should be greater procedural safeguards similar to those provided for in the Criminal Procedure Act.

The present Bill does not distinguish between sentenced and un-sentenced prisoners. For instance, S 26((2)(a) refers to ' may remove his or her property'. In relation to a sentenced prisoners this should refer only to unauthorised property.

The procedures for securing evidence for a criminal trial should be dealt with separately for securing evidence for a disciplinary hearing. In the case of the former, the provisions of the Criminal Procedure Act should apply.

Section 27: Searches
S 27(1)There should be greater clarity on what is meant by "reasonable grounds". A correctional official is given very wide discretion to conduct or to authorise the search of a prisoner, and should be given greater guidance on how to make such a decision.

The requirements for the more intrusive searches, eg, of bodily orifices should be more strictly controlled. For instance, these should take place upon the warrant of an independent judicial officer, and until such warrant has been obtained, provision should be made to hold the prisoners under observation.

The type of search used should be commensurate with the seriousness of the suspected infraction. ie, an official should not be authorised to conduct a search of a bodily cavity when looking for an unauthorised item of clothing.

S27(3)The wording "seize anything found' is too wide, as it means that any 'authorised' article may also be seized during a search.

The Minister should be obliged to make regulations dealing with how seised articles should be dealt with. The definition of unauthorised articles should also be dealt with in detail in the Regulations.

Section 28: Identification
It is often in relation to child prisoners that the issue of identification and determining the correct age of a prisoner is the most important. More often than not, the department is content to accept the age given by a prisoner in court, even when it is patently obvious that the 'child' is a well developed adult. This results in the abuse of younger prisoners by these older prisoners, as well as to a greater condition of overcrowding in the juvenile sections of the prison.

In relation to prisoners defined as children, the authorities should be under a special obligation to ascertain the age of the prisoner.

Section 29: Security Classification
The Bill does not stipulate how a security classification is to be determined, or what factors are to be taken into account. Nor does it stipulate who should make the determination. There should be provision made for some kind of procedural safeguard, as well as for the ability of prisoners to appeal against the decision.

The Bill does also not deal with the different types of prisons, or sections of a prison and what regimes should apply to each. This should be dealt with in principle in the Bill, and the details must be specified in regulation. In particular, the procedures and rules applicable in the Cmax prisons should be specified.

Section 30:segregation
As indicated previously, there is insufficient distinction between segregation and solitary confinement. Segregation may be authorised here for the 'whole day', effectively allowing solitary confinement.

S 30(1)(c)What medical grounds are envisaged here? If the prisoners is suffering from any mental illness, then segregation is not the appropriate mechanism to deal with him.

S 30(5)The Head of the prison may authorise the extension of segregation beyond the authorised seven days, to thirty days. In the case of solitary confinement, a the punishment is not implemented until the Inspecting Judge's authorization, whereas in the case of segregation, the Inspecting Judge is notified after its implementation.

The type of segregation or solitary confinement practised in Cmax would not be allowable in terms of this Bill.

Section 31: mechanical restraints
The use of shackles is presently a system which is much abused by the authorities. Consequently, this section should be restrictively drafted and carefully applied. Notification to the Inspecting Judge is not sufficient guarantee that abuses will not occur.

This section allows for the application of mechanical restraints for an initial period of 7 days which can be extended to a further 30 days. We cannot envisage any situation where a person should be shackled for such a long period of time, particularly since there are more secure parts of the prison where a prisoner who is in danger of escaping may be detained. Detention in a single cell should be a more than appropriate means of dealing with a prisoner who is in danger of escaping, or of harming a prisoner or other person.

In the case where it is suspected that a prisoner may be of danger to himself, then the application of shackles is an inappropriate mechanism to deal with the situation. This situation should be dealt with as if the prisoner were mentally ill.

The procedures for applying the shackles should be specifically dealt with. On which part of the body should they be applied, how many shackles at any one time, is it permissable for a prisoner to be shackled to a bed? If any shackles are to be applied, these should be restricted to those which make it difficult for a prisoner to run. He should be permitted the use of his hands.

Section 32: Use of Force
S 32(2)The use of force should only be used in the containment of violent situations. It should not be used to justify such pre-emptive attempts at prison searches.

Where force is used to overcome a recalcitrant prisoner who refuses to be searched, or refuses to co-operate, specific provisions should be drafted to deal with these instances, and would more appropriately be dealt with in relation to searches and seizures.

All instances where force is used should be properly recorded, state the reasons for the force, details of the force used, and the consequences for such force.

The Bills does not deal with special units of the DCS which are specially trained and equipped to deal with riot situations, such as The Special Task Unit. This should be provided for in the legislation.

Section 33: Non-lethal incapacitating devices
The Bill does not distinguish between the use of these devises in the prison and elsewhere. There would be different justifications for its use, for instance when escorting a prisoner to court or hospital.

The Act should impose further restrictions on their use. Presently it says only that they should be used according to the regulations. But specifically in regards to S33(3)(b) 'for the security of the prison or the safety of prisoners' is this insufficient. To the extent that there is a threat, this should be imminent. No time restrictions are placed on its use. There should also be restrictions against the 'routine' use of such devises, which are presently used in the Cmax section.

Section 34: use of fire-arms
See the submission made by Lawyers for Human Rights.

CHAPTER IV: SENTENCED PRISONERS
We commend the attempt to separate the regime of sentenced and unsentenced prisoners. However, in our view, the distinction does not always extend far enough. The previous chapters deal with sentenced and unsentenced prisoners in the same way, whereas the principles underlying their respective definitions is completely different. We have already indicated that in relation to search, there may be difference of approach and also distinctions between what is authorised for a sentenced prisoner as opposed to authorised articles for unsentenced prisoners, which is far wider.

Disciplinary procedures should also differ according to whether a person is sentenced or unsentenced - certainly the penalties which are imposed would be different. In the US, there is a common law distinction between pre trail and sentenced prisoners. In the case of Bell v Wolfish, the Supreme court held that pretrial detainees cannot be subjected to punishment.

Section 38: Assessment
Who will carry out the assessment?

Section 40: Labour of prisoners
S40(2)The Bill should provide for instances where prisoners may need to administer their own or business affairs whilst in prison. They should be allowed either to administer such interests themselves, or appoint a curator to do so on their behalf.

The Minister must make regulations which state that working conditions should meet the standards and safety requirements of the particular industry, and health and safety standards.

Under the current circumstances there are prisoners who by virtue of their security classification may not work. Provision should be made for these prisoners to be given sufficient activity to keep them occupied during the working day, and that such activity should conform to the general principles set out in the beginning of this chapter.

Section 41: Treatment, development and support services
S41(1) The words 'where practicable' should be deleted as they are unnecessary.

S41(2)The motivation for compelling illiterate prisoners to participate in educational programmes is unclear. It would probably be unconstitutional and unenforceable to retain this provision. They should be enouraged but not compelled. The department must make literacy programmes available to all illiterate prisoners.

Section 42: Development and Support committee
It should be stated who would be the desirable persons to include in the Development and Support committee. Such persons would include a social worker, psychologist, educationalist, and correctional officers. Members of the committee should receive training to enable them to fulfil the functions as envisaged in the section properly.

Section 43: Location and transfer
Currently the system of transfers is frequently used as a means of punishing, or controlling difficult prisoners. The Bill should explicitly contain a provision that transfer should not be used as a form of punishment.

This section should deal differently with the case where a prisoner requests transfer, and the case where a prisoners is transferred by decision of the authorities. Provision should be made for a prisoner to request a transfer, for instance if he wishes to be closer to his family; or to have access to certain work or educational opportunities.
Where a prisoners is transferred at the option of the authorities, there should be provision for a prisoners to appeal against such a decision.

Section 44: Temporary leave
We support the notion that prisoners should be allowed the opportunity for temporary leave. However, the factors taken into consideration by the Commissioner should be specified.

Section 46: Mental patients
This section specifies that when prisoners are referred to a special psychiatric institution during their imprisonment their sentences are interrupted, unless the Commissioner exercises his discretion otherwise. This constitutes unfair treatment to a prisoner who would be then disadvantaged by reason of his ill-health. This is not a condition over which most people have much control.

Any time spent in such an institution should be regarded as part of the sentence.

The Bill does not adequately deal with the situation of prisoners whose mental health does not amount to insanity, or which would not require transfer to a special institution. There should be provision for psychiatric care at the prisons.

CHAPTER V: UNSENTENCED PRISONERS
section 47: General Principles
S 47(2)The Act should specify what amenities an unsentenced prisoners is entitled to as opposed to a sentenced prisoner.

Section 50: Visitors and communication
The restrictions should be outlined here. At least an indication of the amount of time which a prisoner should receive in visits should be indicated.

CHAPTER V: COMMUNITY CORRECTIONS
Section 55: Day Parole
S 55(1)(b)We do not believe that a prisoners should be required to pay for his board and lodging.

S 55(2)Refers to 'Commissioner, Correctional Supervision and Parole Board, court or other body". What "other body' is envisaged and in terms of what Act? There are so many bodies which can make a recommendation in terms of this section. There should be a clear chain of command which regulates their decision making.

It should be stated that the purpose of day parole is to prepare the prisoner for release into the community.

CHAPTER VIII: NATIONAL COUNCIL FOR CORRECTIONAL SERVICES
The composition of the National Council is far wider than the previous National Advisory Council, and the Department is to be commended for this. The presence of a member of the SAPS, Department of Welfare, prosecution service, and from the judiciary is an important attempt to include representatives from other criminal justice agencies. This would serve the purpose of ensuring a dialogue across the different components.

S 85The primary function of the National Council is to advise on the correctional system and the sentencing system. In this regard the NC could play an important function in relation to overcrowding of prisons. The NC should monitor the situation of overcrowding in prisons, and through its representative structure, be able to make recommendations to government, or the different criminal justice agencies, on how it can best deal with the situation.

Any amnesties or bursting releases of prisoners should first be passed through this Council.

CHAPTER IX: THE JUDICIAL INSPECTORATE
Section 86: Establishment
The addition that the Inspecting Judge should report on any 'corrupt or dishonest practices' is an important one. Many of the problems facing the prisons system are exacerbated by the problems of corruption, and unless adequately dealt with, the problems will increase over time. However, it is not clear what are the intended powers in relation to corruption. The Bill says the Inspecting Judge may report on corruption. Clearly this is inadequate, and the power to investigate must be included.

However, this does add an additional burden to the task of the Inspecting judge. Sufficient resources have to be made available if this aspect is included, as specified, as specially trained investigators would be required to investigate and deal with corruption.

Section 91: Powers and functions
91(2)Although there is the potential for the Inspecting Judge to be swamped by individual complaints by prisoners, this avenue should not be completely denied prisoners.

The functions of the Inspecting judge are vast, and cover most of the important aspects of imprisonment: inspections, reporting on corruption; inquiry; review of solitary confinement; appointment and control of the Independent Prison Visitors; monitoring the use of shackles. It is necessary for the Inspecting judge to have sufficient resources to deal with all these issues.

The Inspecting Judge should also receive a report and may investigate any instance where the Special task Unit, or similar body, has been called into deal with a situation in prison.

Section 92: Expenses
The Inspecting Judge should have his own budget and should be able to negotiate this before hand. The budget should be approved by Parliament.

CHAPTER X: INDEPENDENT PRISON VISITORS
Section 93: Appointment
S 93(1)This makes provision for the appointment of a prison visitor for any prison or prisons. Given that many of our prisons are extremely large, both in size and population, it may be particularly onerous to expect one prison visitor to properly fulfil his/her functions in respect of the whole prison. Provision should be made for the appointment of more than one prison visitor per prison.

section 94: Powers and functions
It should be made clear that the prisons visitors do not only visit prisons, but they do so in order to inspect prisons. This may not take the detailed form of the Inspecting Judge's visits, but they should have the ability to visit any part of the prison they require and to report on the conditions of any part of the prison. For instance if prisoners complain that their food is rotten, the visitors should be able to visit the kitchens and storerooms to ascertain whether the food is properly stored and fresh.

CHAPTER XIV: JOINT VENTURE PRISONS
section 104: Contracts for Joint Venture prisons
It is our submission that the 25 year contract period is too long. If the Department is dissatisfied with the way that a prison is being run, or the departmental policy changes with regards to this type of prisons, the department is held to the continuation of the contract. The maximum period should not be more than 10 years, which may be renewed for a further period.

It is not clear which party bears the responsibility for carrying out the functions set out in Section 105(4). The disciplinary functions of the prison are not set out under the powers and functions of the controller.

Section 106: Appointment of the Controller
The Bill does not specify the rank of the controller. It is submitted that he should be at least of the same level as a head of prison.

Section 109
The Director is allowed to authorise the application of measures contemplated in S 107(2) in cases of urgency. "Urgency is not defined in the Bill.

section 110: Appointment of custody officials
Standards on who can become a custodial official must be formulated and strictly maintained. Certification should not be a mere formality, but must involve the same, or similar training as applies to correctional officials of the Department, and should include training on human rights.

Section 112: preservation of confidentiality
The rules relating to confidentiality should be the same as those applicable to any person in the service of the Department.

CHAPTER XV: OFFENCES
Section 120(1)(c)
This section is formulated too widely. For instance, a prisoner should be able to hand over a document or piece of evidence to his lawyer without permission.

In terms of this section, and infringement entails the possibility of a sentence of four years. However, section 116(d) which contains a similar provision relating to the relaying of any document out of the prison without authority opens one up to a possible sentence of ten years. This creates a disparity of possible sentences.

In contrast, Section 119 which deals with the issue of corruption has a comparatively low sentence of two years.

section 123: Unauthorised entry and communication with prisoners
The framing of this Section is too wide.

S 123(c)What is meant by 'interferes with any prisoner'? This is too broadly framed.

Here again, the potential sentence which one can receive is four years. Contrasted with S 119, the sentence appears to be very harsh.

Section 124: prohibited Publication
The framing of this provision is also very wide. Why should an account of a prisoner's imprisonment not be published. This contravenes the constitutional principle of freedom of expression and information.

S124(1)refers to prisoners. It would make logical sense to include parolees and probationers under this restriction.

CHAPTER XVI: GENERAL
Section 131: Limitation on legal proceedings
This section is similar to the South African Police Services Act. However, it should also contain provisions which protect minors, and should interrupt the prescriptive period until 12 months after the minor becomes an adult.

S31(5)Although this section gives the court the discretion to dispense with the requirements of the 12 month period, the courts should be alerted to the fact that prisoners are in detention, and that access to legal assistance is not always feasible. Lack of finances also makes it more difficult to initiate legal action.

Section 134: Regulations
There are some regulations which the Minister should be obliged to make, and others which he may make. The Minister must make regulations in relation to the following issues:
(a),- (i); (k) -(o), (r)(s)-(z), (bb), (cc)(ff)
Other issues are ones which the Minster may make regulations.

The Bill should provide that before regulations are passed, they should be submitted before the Portfolio Committee on Correctional Services and be open to discussion. They should also be submitted to the Inspecting Judge, National Council, and relevant health or labour authority where applicable.

Any departmental orders or instructions which affect the rights and privileges of prisoners, should be made public and be easily accessible to members of the public and to prisoners.

Penal Advocacy Network, Western Cape
COMMENTS ON THE CORRECTIONAL SERVICES BILL [65 - 98]
12 August 1998

1.Introduction
The Human Rights Committee has compiled this submission on behalf of the Penal Advocacy Network (PAN), Western Cape. PAN is a network of organisations which have an interest in South Africa's penal system from a human rights perspective.

Members of PAN who support this submission are:
After Care Correctional Organisation
Lawyers for Human Rights
Human Rights Committee
Masihlume
UCT, Medical School: Primary Health Care, Dr J van Heerden

The long-awaited tabling of the Bill is welcomed. The change of focus from prison as an institution to the rights of prisoners with a view to development of sentenced prisoners is supported. We believe that this approach of correcting sentenced people is progressive and will thereby contribute in the reduction of crime in South Africa.

We believe that there has to be a co-ordinated approach in managing crime. The modus operandi of the South African Police Services, the sentencing procedures by the courts and legislation passed by various government departments have a direct impact on the prison population. Similarly, the prerogative by the President to grant amnesty annually to a certain category of prisoners to ease the prison population also impacts on the court’s powers. The Departments of Safety and Security, Justice, and Correctional Services must make policy-making structures like the National Crime Prevention Strategy and the National Council for Correctional Services work.

We believe that health care in prisons is important in ensuring a healthy environment for prisoners. This means that staff should be trained in all aspects of medical care especially mental health. The restrictive conditions in prisons give rise to a range of psycho-somatic symptoms, which can be identified by suitably- trained persons.

Our comments will cover the following issues: prison health care, disciplinary procedures, use of force and oversight and transparency and co-ordinate criminal justice system. The comments are structured in the order in which they appear in the Bill. Proposed amendments are underlined and omissions are in [bold].

2. CHAPTER III
CUSTODY OF ALL PRISONERS UNDER CONDITIONS OF HUMAN DIGNITY

Part A 2.1 Accommodation, Bedding, Clothing and Nutrition
We believe that prisoners are entitled to the basic right to dignity as protected in the Constitution. In addition, the internationally accepted Standard Minimum Rules should apply. The Department of Correctional Services (DCS) has a duty to provide each prisoner with adequate clothing, bedding, and daily nutrition. With regards clothing and bedding, the DCS must take into account climatic conditions. These basic requirements contribute to promoting the physical and mental health of prisoners.

Recommendation
We propose the following amendments:-

- Accommodation
7(1): Prisoners must be held in cells which meet the requirements prescribed by regulation in respect of floor space, cubic capacity, lighting, ventilation, sanitary installations, bedding and general health conditions. These requirements must be adequate for detention under conditions of human dignity.

- Nutrition
8(1): Each prisoner must be provided with a diet as prescribed in the regulations.
The diet prescribed must be adequate to ensure the good health of prisoners.

8(4): The medical officer may order a variation in the prescribed diet for a prisoner and the intervals at which the food is served, when such a variation is required for medical reasons.

- Clothing and Bedding
10: The Department must provide every prisoner with clothing and bedding sufficient to meet the requirements of hygiene and climatic conditions, except where this Act allows a prisoner to retain or acquire appropriate clothing or bedding.

2.2 Prison Health Care
Health care should be interpreted widely to mean physical, mental and social well-being - as defined by the World Health Organisation. Health care in prisons has not been given the recognition is deserves by the Department of Correctional Services. A major threat to maintaining a healthy environment is over-crowding and the number of prisoners with infectious diseases and terminal illnesses e.g. TB, AIDS/HIV. It is therefore imperative that health care is seen as integral to the correctional system. The current Bill fails to place enough emphasis on mental health as it does on physical health.

Recommendations
We propose the following amendments to the Bill:-

12 (1): The Department must provide primary health care services in order to allow for the physical and mental well-being of every prisoner.

12(2) (a): Every prisoner has the right to emergency medical treatment at state expense.
(b): Every prisoner has the right to adequate medical treatment at state expense, but no prisoner is entitled to cosmetic medical treatment at state expense.
(c):Medical treatment must be provided by the medical officer or by a person or institution identified by the medical officer, except where the medical treatment is provided by a medical practitioner in terms of subsection 3.

12 (3)(a): Every prisoner may be examined by a medical practitioner of his or her choice and may be treated by such medical practitioner.
(b)A prisoner who is examined or treated by a medical practitioner of his or her choice is personally liable for the cost of the examination and treatment.

2.3 Reading material
The Bill places a limitation on reading material available to a prisoner;
(1) that the reading material must be conducive to his or her rehabilitation; and
(2) that the material should not constitute a security threat.
It is not clear who has the power and what basis will be used to decide what is rehabilitative. With respect to a security threat it is unclear against whom should such a threat be levelled and how is it measured as constituting a threat.

Recommendation
We suggest that the section should be amended as follows:-

18(1): Every prisoner must be allowed access to available reading material of his or her choice, unless such material has the potential to threaten the safe custody of the prisoner or other prisoners or the safety of the correctional officials.

2.4 Complaints and requests
Assaults in prisons with no recourse cannot be tolerated. The lack of immediate medical attention can hinder investigations and the eventual prosecution of perpetrators. There have also been allegations of delays in prosecuting prison officials who are suspected of assaulting prisoners. We believe that prisoners should be given an opportunity to lay a charge with the South African Police Services rather than wait for a prison official to lay a charge. Assaults, whether initiated by other prisoners or prison officials need to be processed as soon as possible.

Recommendations
We propose the following amendments:-

Section 21(2): The official referred to in subsection (1) must B
(a):record all such complaints and requests and any steps taken in dealing with them;
(b):if the complaint concerns an alleged assault;
(i) ensure that the prisoner concerned undergoes an immediate medical examination and receives the prescribed treatment; and
(ii) ensure that the prisoner is given adequate opportunity to lay a charge with the South African police.
(c): deal with complaints and requests promptly and inform the prisoner of the outcome.

Part B3. Discipline

3.1 Disciplinary infringements
The Bill as it is presently structured has a narrow definition of what constitutes a disciplinary infringement. Distress, anxiety, depression, mental disability can present with carelessness, fowl language, indecent behaviour, noise and shouting, causing disturbance, insubordination, defacing property/environment and self-harm. Drug users and diabetes sufferers could present with these problems. The Bill fails to take cognizance of the fact that mentally ill people have a difficulty in complying with rules, particularly in restrictive conditions such as prisons. Ideally, prison staff must be trained in prison health issues to become to detect a mental condition. Some of the infringements as phrased in the Bill are subject to wide interpretations. The infringement of " careless or negligent with regard to any labour or duty imposed" would seem to be trivial and unfair.

Recommendation
We recommend the exclusion of the following sections:

Section 23(1): A prisoner commits a disciplinary infringement if he or she:-
(e): [ is careless or negligent with regard to any labour or duty imposed or authorised by this Act];
(f): uses [insulting, obscene or] threatening language;
(g): [conducts himself or herself indecently by word, act or gesture];

3.2 Procedures and Penalties
We believe that a prisoner who is subjected to a disciplinary hearing should be entitled to representation. This is to ensure a fair and equitable hearing for the prisoner. There is a similar provision in the section on parole and correctional supervision with regards representation. We further propose a review procedure within a prescribed time limit by the Commissioner of any penalty imposed by a disciplinary official or head of prison.

Recommendation
We propose the following section be inserted in section 24 (4):-

Section 24 (4)(e): has the right to be represented by any person, except a fellow prisoner, a correctional official or an official of the South African Police Service or the Department of Justice.

Section 27 (7)(b): The Commissioner [may] shall within 3 days, confirm or set aside the decision or penalty and substitute an appropriate order for it.

3.3 Segregation
We believe that there needs to be a clear distinction between "Segregation" and "Solitary confinement". The Bill defines solitary confinement as being held in a single cell with the loss of all amenities. However, the Bill fails to define segregation. We are concerned that the current phrasing in the Bill creates a gap, which could in effect result in the placement of prisoners into solitary confinement without due process.

We believe that the provision relating to segregation (Section 30) seems be administrative in nature save sections 30 (1)(d) - (e). Solitary confinement is a punitive measure in the case of a disciplinary infraction.

Human Rights Watch make reference to the terms administrative and disciplinary segregation. Administrative segregation relates to isolation as a result of a medical condition or in the case of a prisoner being in a witness protection programme. Disciplinary segregation would apply in the cases where prison officials need to ‘control’ a prisoner who is violent and threatens to injure or others where there is a threat of escape. Disciplinary segregation in the terminology used in the Bill would be solitary confinement/isolation. We would support the use of terms in the Bill

Recommendation
We recommend that sections 30 (1) (d)(e) be omitted from the section. In the event of violent behaviour as displayed by a prisoner or where there is an attempted escape, such a prisoner must be subjected to a disciplinary hearing as provided for in section 24 (4) resulting in solitary confinement.

3.4 Solitary Confinement
In line with the above reasoning we would propose that sections 30(1)(d) and (e) should be the circumstances in which solitary confinement can be imposed. In addition, we believe that a provision should be made for a crisis situation requiring immediate action by a prison official e.g. where a prisoner is violently threatening other inmates and the situation is such that the prison official cannot wait for three days to have the action confirmed by the Inspecting Judge.

Section 25(1): [a penalty of] Solitary confinement must be referred to the Inspecting Judge for review. The Inspecting Judge must within three days confirm or set aside the decision or penalty and substitute an appropriate order for it.

Section 25(2):[ The penalty of] Solitary confinement may only be implemented after the medical officer has examined the prisoner and certified that the imposition of solitary confinement will not pose a danger to the physical or mental health of the prisoner and after the Inspecting Judge has confirmed such penalty; provided that where solitary confinement is imposed in terms of section 25(5), implementation may take effect immediately but for a period not exceeding three days.

Section 25(3): A prisoner in solitary confinement must be [visited] assessed at least once every six hours by a correctional official, [and] at least once a day by the Head of Prison , a medical officer or a registered nurse [or] and a psychologist.

Section 25(4): If a registered nurse or psychologist has reason to believe that solitary confinement poses a threat to the physical or mental health of the prisoner, he or she must immediately report the matter to the medical officer.

Section 25(5):Solitary confinement may be imposed under the following under the following circumstances;
(i) When a person displays violence, is threatening violence or is threatened with violence;
(ii) If a prisoner has been recaptured after escape and there is a reasonable suspicion that such prisoner will again escape or attempt to escape.

An additional provision must be inserted to allow for the monitoring of prisoners in solitary confinement by an independent prison visitor.

PART C
4. Security

4.1 Searches
The Bill makes provision for searches to be conducted by prison officials in a manner that invades the privacy and undermines the dignity of a prisoner "as little as possible". We believe that a search should not constitute an alternate form of torture. Some of the methods prescribed in the Bill could damage a prisoner’s health if the official conducting the search is not medically trained.

Recommendation
We propose the following amendment:-

27 (2): A search of the person of a prisoner is subject to the following restrictions:
(d) searches contemplated in subsection (1) (c), (d), (e) and (f) must be authorised by a medical officer and in the case of a search contemplated in subsection (1) (c), (d) or (e) the search must be carried out by a medical officer, while in the case of a search contemplated in subsection (1) (f), the search must be supervised by a medical officer.

4.2 Use of Force
Excessive use of force by prison officials is an area that concerns us. The use of force may in certain circumstances be justified to protect the lives of prisoners and staff. In the event that use of force is required, it must be proportional to the objective sought. The Indiana Department of Corrections states in its policy permits the use of physical force in the A protection of prison staff, prisoners, the prevention of self-inflicted injury, the protection of property, the prevention of escape and the enforcement of direct orders for co-operation relating to violations of the disciplinary code. A limitation is placed on the use of force to the extent that it must not be more than is strictly necessary (Indiana Department of Corrections, "The Use of Physical Force", Policy No. 02-01-109, Manual of Policies and Procedures, 1991). We are also concerned at the degree of harm that may result from the excessive use of force and the need for immediate medical attention.

Recommendation
We would therefore suggest the following:-

Section 32 (1) (b): A minimum degree of force must be used and the force must be necessary in the circumstances and proportionate to the objective sought to be achieved.

Section 32 (5): If force is used against a prisoner, the prisoner must be examined by a medical practitioner immediately after the incident and the medical officer must record all injuries.[based on the Basic Principle on the Use of Force and Firearms by Law Enforcement Officials B Adopted by the Eighth Crime Congress, Havana, 1990]

4.3 Firearms
We believe section 34 should be viewed in the context of the use of force provision. The use of a firearm amounts to the use of deadly force, and should meet the minimum with respect to the extent of the force used and whether or not it is proportional to the objective sought.

Recommendation
Section 34(3): A firearm must be used [in the manner prescribed by regulation] only when the legal requirements of self-defence are or when the safe custody of a prisoner or the safety of other prisoners/persons is threatened.

We would further propose that the other sections dealing with devices that may be used in controlling prisoners should be viewed in the context of use of force. A suggestion would be to place sections 33, 34, and 35 under the head of use of force.

CHAPTER IV
5. SENTENCED PRISONERS
The proposed amendments from point 5 to 7 relate to the provision of mental and physical health care for sentenced and awaiting trial prisoners, prisoners on parole and subject to community corrections. These proposals are based on the basic principles of the right to a healthy environment for all prisoners and staff, the importance of physical and mental well-being for all prisoners, the recognition of professional ethics and the right of prisoners in community corrections not to submit a medical investigation.

We propose amendments to the following sections:-

5.1 Assessment
The proposed amendment is aimed at the detection by prison authorities of a medical condition that may require ongoing medication such as diabetes, or withdrawal symptoms as a result of drug abuse, or a mental disorder requiring medication.

Recommendation
Section 38 (1): As soon as possible after admission as a sentenced prisoner, such prisoner must be assessed to determine his or her -
(b) physical and mental health needs;

38 (b)(i): Assessment to ascertain the prisoner’s physical and mental health needs must take place within 24 hours.

5.2 Location and transfer of prisoners
A medial practitioner should, in his/her professional capacity, be able to determine whether or not a prisoner can be transferred without the interference of a head of a prison. A prisoner’s medical condition should be prioritised where it is at issue with regards a transfer.

Recommendation
Section 43(3): A prisoner must be examined by the medical officer or registered nurse before his or her transfer. Where such prisoner is being treated by a medical practitioner, he or she must not be transferred until the prisoner has been discharged from the treatment or the transfer has been approved by the medical officer [after consultation with the Head of Prison].

A provision must be built into this section to allow for a prisoner to be heard before a decision is made to transfer. In addition, reasons for a transfer must be given in writing.

5.3 Placement and release
Section 45(1) as it stands places the responsibility of preparedness with respect to release and placement on the prisoner. We believe that the Department of Correctional Services should bear this responsibility.

Recommendation
Section 45(1): A sentenced prisoner must be prepared for placement, release and re-integration into society by participating in a pre-release programme.

CHAPTER VI
6. COMMUNITY CORRECTIONS

6.1 Medical examination
A medical officer should be able to recommend that a person in community corrections be examined. However, a person should not be forced to submit to a medical investigation. This becomes particularly sensitive when a prisoner is suffering from a life-threatening illnesses such as HIV/AIDS. In the event that a person receives a medical investigation, the procedure must be explained to a prisoner beforehand. That person must be informed of the results after the investigation. All medical information given should be confidential.

Recommendation
We propose that a clause be inserted in section 57 stating that

Section 57(2): All medical information is confidential and may only be released with the consent of the prisoner.

CHAPTER VII
7. RELEASE FROM PRISON AND PLACEMENT UNDER CORRECTIONAL SUPERVISION AND ON DAY PAROLE AND PAROLE

7.1 Length and form of sentences
We believe that a medical practitioner should not have the power to extend the sentence of a prisoner without the his/her consent. In a life-threatening situation as is envisaged here, the prisoner must be transferred to a hospital.

Recommendation
Section 74 (2): Any sick prisoner whose sentence has expired but whose release is certified by the medical officer to be likely to result in his or her death or impairment of his or her health or to be a source of infection to others, must be transferred to an appropriate medical institution for ongoing health care, under supervision of the medical officer [temporarily detained until his or her release is authorised by the medical officer].

7.2 Correctional supervision or parole on medical grounds
We support the intention of this section. However, we believe that the clause should be re-phrased to read as follows:-

Recommendation
Section 80: Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the terminal phase of a life-threatening disease or condition, may be considered for placement under correctional supervision or on parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the case may be, for palliative care purposes.

CHAPTER VIII
8. NATIONAL COUNCIL FOR CORRECTIONAL SERVICES
The Bill has adopted a multi-sectoral approach to the composition and functions of the National Council. This approach is welcomed in light of the move towards a co-ordinated approach in the criminal justice system, which includes correctional services. We believe that such an approach can assist in producing consistent strategies towards crime prevention and reduction.

In terms of the bill, the National Council will be composed of representatives from the magistracy, the High Court, the national prosecuting authority, and from the departments of Correctional Services, Welfare and the South African Police Services. The bill further allows for representation from the community. This includes persons with special knowledge of correctional systems and other persons who are from the community.

8.1 Functions and duties of the National Council of Correctional Services
In light of the above comments, we are concerned at the high levels of over-crowding in South African prisons. The passage in 1997 of legislation which restricts the right to bail and imposes minimum sentences for serious crime offenders will only exacerbate the crisis in our prisons. Minimum standards such as maintaining a healthy environment will be severely compromised.

We believe that the line of communication between the policy makers in the Justice, Correctional Services and Safety and Security ministries needs to be strengthened. Each department must be aware of the impact its laws will have on the other state departments - on a policy and legislative level.

Recommendation
We recommend that a provision should be added to section 85 with the effect that the National Council should receive a report on the prison population every three months from the Inspecting Judge. (Alternatively, a case where over-crowding reaches a percentage must be referred to the National Council immediately).

We further recommend that section 85 (2) should be amended to read:-

Section 85 (2): The Minister must refer draft legislation and policy developments that will have an impact on the correctional system to the National Council for its comments and advice

CHAPTER IX
9. THE JUDICIAL INSPECTORATE

9.1 Transparency and independence
The principles of transparency and independence form the basis of a democracy. We therefore support the establishment of the Judicial Inspectorate. We believe that this structure will play an important role in opening up prisons and in ensuring that basic human rights in prisons are observed. In order for the Inspectorate to be effective and credible, it must be independent and must be perceived to be independent by the public and prisoners.

Recommendation
We propose the following amendment:-
Section 91(4)(b): The report must be tabled in Parliament within 14 days of receipt by the Minister

Provision must be made in the Bill to allow the Inspecting Judge to present extra-ordinary reports to the Portfolio Committee on Correctional Services.

9.2 Powers, functions and duties of the Inspecting Judge
In terms of section 91(1), the Inspecting Judge will have to report on the treatment and conditions of prisoners in prisons as well as on corruption or dishonest practices. We would argue that providing for the Inspecting Judge to handle prisoners’ issues and misconduct on the part of correctional officials may confound the functions of the office. Conducting investigations with regards corruption will require certain specialist skills which may impact negatively on the resources available to the Judicial Inspectorate. We would suggest that a separate anti-corruption unit be established.

Recommendation
We would suggest that an anti-corruption unit be established in the office of the Public Protector. Alternatively, a Special Investigating Unit could be established with a specific mandate.

9.3 Appointment of assistants and inspectors
Section 88 and 90 make provision for the appointment of assistants and inspectors respectively. The Bill states that one or more legally qualified assistant(s) may be appointed and is silent on the qualifications of the inspectors.

Recommendation
We suggest that the Inspectorate should also employ people who are skilled in health care as a number of complaints relate to the non-delivery/inadequate health care. We believe that a well-represented team will be able to execute its tasks effectively.

We would therefore suggest that section 88 (1) be amended to read:-
Section 88 (1):From time to time the Inspecting Judge may, after consultation with the Minister, appoint one or more with a legal, medical or penological background

CHAPTER X
10. INDEPENDENT PRISON VISITORS

10.1 Appointment of Independent Prison Visitors
Section 93 states that the Independent Judge will be responsible for the appointment of Independent Prison Visitors for a designated area. This involves consulting with community organisations and public notification. Given the important role these persons will be playing, it would be advisable for independent visitors to be trusted by those who will be lodging complaints.

Recommendation
We propose the following amendment:-
Section 93(1): The Inspecting Judge must, after calling for nominations and consulting with community and non-governmental organisations in the designated area

10.2 Duties and Functions of Independent Prison Visitors
Independent prison visitors will be instrumental in the functioning of the Judicial Inspectorate. The independent prison visitor will forward complaints to the Inspecting Judge after an initial screening phase. Each prison visitor will fall under the jurisdiction of an area manager. Section 95 provides that Visitors from the prisons in the designated management area will form a committee. No provision has been made regarding how a committee will be formed in cases where there is only one prison per management area. One of the functions of these committees will be to "consider unresolved complaints with a view to their resolution."

Recommendation
We propose that the Inspecting Judge be empowered to alter management areas where it would not be feasible to constitute a committee or where failure to do so would render the Independent Prison Visitors dysfunctional in the area.

CHAPTER XII
11. GENERAL POWERS OF ENFORCEMENT

11.1 Access
Section 100 makes provision for judges, Members of Parliament and court officials to have access. We believe that state structures established to protect human rights such as the South African Human Rights Commission should be included in the category of people who can enter prisons. We believe that this is important in the spirit of openness. We further believe that organisations involved in monitoring and research on human rights abuses should be allowed access to prisons through accessible regulations. Adequate reasons should be given for denying access to prisons

CHAPTER XIV
12. JOINT VENTURE PRISONS

12.1 Duties and Restrictions applying to Contractors
Section 105(1) states that a contractor, subject to limitations in the Bill, must enforce sentence of the courts in a manner prescribed by the Bill. It is not clear whether the "limitations in the Bill" which are apply to facilities controlled by the State apply equally to private prisons.

We believe that institutions offering public services as in the case of private prisons must be held accountable and be subjected to the same level of scrutiny as state institutions. Areas of concern for us are the right to access to information and the right to just administrative action. Thus we would suggest that the private prison should be subject the Constitution.

Recommendation
We propose that a provision be made in section 105 stating that a contractor will be declared an organ of state for the purposes of this Act.

12.2 Powers, Functions and Duties of the Controller
Section 107 provides that the Controller - a Department of Correctional Services official - may avail of powers that would otherwise be exercised in a State-run prison to instil discipline in a private prison. Section 107 (2)(b) states that the Controller can place a prisoner of a specific class in circumstances as contemplated in section 30. This section deals with procedures with respect to segregation. Section 107(2)(c) provides that a Controller can confine a prisoner in a single cell. To avoid confusion, we would suggest that this section be deleted.

Recommendation
We believe that the decision to place a prisoner into solitary confinement must be done in consultation with the Director of the prison. Requirements with respect to medical examinations prior to being admitted into solitary confinement should also apply.

CHAPTER XVI
13. GENERAL

13.1 Regulations
We urge the Correctional Services portfolio committee to set in motion a consultative process in the drafting of the regulations by the Minister. We believe that the implementation procedures, which has been a cause of a number of gross human rights violations, needs to be subjected to close scrutiny by Parliament.

Recommendation
We would recommend that the following clause be inserted in section 134:-
134(1): The Minister must before making regulations under this Act,
(a) publish the draft Regulations in the Gazette for public comment within a specified time;
(b) send copies and invite comment on the draft Regulations from-
(i) any relevant Ministry,
(ii) any relevant organisation.
(iii) the Portfolio Committee on Correctional Services
(c) consider all comments timeously received;
(d) on request, report on the extent to which a specific comment or comments have been taken into account or if a comment was not taken into account, provide reasons therefore.
134(2) the Minister must, within 30 days after making a regulation under this Act, table it in Parliament.

14. Conclusion
The Penal Advocacy Network in the Western Cape supports the efforts expressed in this Bill in ensuring that the basic floor of rights of prisoners are observed. We support the independent monitoring structures such as the Judicial Inspectorate and in the Independent Prison Visitors to ensure greater accountability and transparency.

We however believe that prison health care needs to be given serious attention in light of the over-crowding in our prisons. The Department of Correctional Services needs to ensure that there are sufficient medical practitioners, nurses and social workers for the prison population. We would advocate for health care providers to receive specific training in neuropsychiatry [medical health care] and human rights. In light of maintaining standards and assisting health care
officials at prison, the Department together with the Department of Health should investigate the possibility of drafting a separate Prison Health Care Bill. The argument of having the health staff falling under the Health Department was endorsed by the Portfolio Committee on Correctional Services in May 1996. Alternatively, there health standards in prisons should be audited on a regular basis by the Department of Health.

Lastly, we are concerned with the high levels of recidivism and would therefore support efforts by the Department in partnership with community organisations, to work on programmes aimed at skilling prisoners to contribute positively to society.

Police and Prisons Civil Rights Union (POPCRU)

POLICE AND PRISONS CIVIL RIGHTS UNION (POPCRU)
17 August 1998
By : ABBEY WITBOOI
On behalf of POPCRU:

INTRODUCTKON
In this submission we mainly focused on related issues like, personnel development e.g. training, discipline conditions or service etc. Joint venture prisons and delegation of power will be given attention. Our view is that the act has sufficiently covered issues related to prisoners and thus, our impression is that a lot is lacking in as far as personnel issues are concerned. We believe that as much as the L.R.A is setting the basis in as far as personnel is concerned, the act must attempt to balance the relations. It appears that a lot is expected from personnel but there is no frame work in which it seeks to use as a means.

1.JOINT VENTURE PRISONS
We support the efforts of the government to alleviate the problem of overcrowding in prisons. However we feel that the act has got a lot of loopholes in as far as the running of those prisons is concerned. Having pointed out earlier about weaknesses in the act to address or setting out a framework for the maintenance of standards by specifically addressing personnel issues, we fail to see how those prisons will not become autonomous institutions. The structure of those prisons must be the same as those of the Department of Correctional Services. We have serious problems in as far as the employment (appointment) is concerned because at the and of the day we will have two types of workers. We strongly feel that the conditions of service area and specifically the employment policy to align it with the DCS employment set-up and conditions must be revisited and looked at critically.

Our position is that the power to employ personnel in prisons even in contracted prisons should remain with the commissioner. With reference to section 110 sub section 1, 2, 3, 4 and 5. It makes us to conclude that our position is valid so as to avoid a duplication and an unnecessary process.

2.PERSONNEL DEVELOPMENTS
We believe that the department needs to break with its past history where its personnel was used as a suppression tool, emphasizing the redevelopment of all those trained during the apartheid era. The bill does truly even attempts to address that but instead shift everything to the L.R.A. The disciplinary procedure framework is missing except that, dismissals forms part of the bill.

3.DELEGATION OF POWER
We believe that the delegation of power make the procedures and tasks of the department to be more easier and effective. The bill limits the delegation of powers of the commissioner to the level of deputy director or higher. This in our view is problematic in the sense that in small prisons, area managers at lower level and this leaves them with no power. At the same time they are entrusted with a responsibility of managing a prison as well as the assets of the department . The bill is also quiet on the delegation of power in terms of contracted prison and we feel that that self is a weakness.

 

Prisoners’ Aftercare League
PRISONERS' AFTERCARE LEAGUE PRESENTATION
WEDNESDAY, 12 AUGUST 1998

I would like to use this opportunity to extend my thanks to everyone involved in preparing the CORRECTIONAL SERVICES BILL.

I have been involved with prisons for the past 20 years directly and indirectly. It makes one feel good to see that the Correctional Services Bill was compiled with the intention of breaking away from the past and thereby bringing about a fair and just dispensation which operates within the framework of the 1996 Constitution.

As a whole the Correctional Services Bill makes provision for the majority of the needs of the day to day running of a prison, but, there are however a few aspects in the Bill which need either polishing up, amendments or a complete change. Then there are also, a few factors which have been left out that need to be addressed in this Bill to make the day to day running of a prison and the entire Correctional Services more functional.

The points that I wish to address are:

1.ACCOMMODATION
Section 7 of the Bill in its whole is at this stage in time very difficult to adhere to in the full letter of the law as it is written due to the overcrowding of our prisons. The prescribed floor space cubic capacity, lightening, ventilation, sanitary installations and general conditions are not up to the standards set down by law. As I said, the overcrowding is to be blamed for this contravention of the law. I feel , and it is my personal opinion, that subsection (1) of Section 7 of the Bill should be more flexible to avoid any legal disputes by prisoners, parents, non governmental organizations or anybody else in the future.

2.Section 12 which addresses HEALTH CARE is also incomplete due to the fact that donor organs and the donation of organs is not addressed in this section of the Bill.

3.Section 14: RELIGION. I would hereby like to advise that attention be given to the changing from one religion to another and that a more set-down rule applies here. There have been in the past too many incidents of unrest and confrontation between prison authorities and prisoners when changing from one religion to another.

4.Section 23(1)(o) under DISCIPLINARY INFRINGEMENTS should be a bit more flexible due to the fact that a prisoner has the right to strike when the authorities make themselves guilty of contravening the boundaries of the law and infringing on the prisoners' rights. In the past this has caused unnecessary violence in and destruction of prisons, by means of arson.

5.Section 24(2) which addresses PROCESURES AND PENALTIES. I cannot see how a hearing in front of a Head of Prison can be conductedand the accused not be allowed any representation. This is totally contradictory to the Constitution of the Republic of South Africa.

6.Section 25. I feel that this section of the Act is the only true means of punishing, but it is still too open for contact with other prisoners the way it now reads. I feel there should be a subsection which states that during solitary confinement a prisoner is not allowed to have any contact with any prisoner at any time. He should be totally isolated during such solitary confinement.

I am not in favour of the Afrikaans word "geweld" being used in this version of the law. The word "dwang" would be a more appropriate terminology.

Section 27, SEARCHES: A prisoner should not only be searched when there is reasonable grounds for such a search. He must be searched at all times on a regular basis. When he is searched by a correctional official, his property and place where he sleeps should be left the way it was found by the correctional official.

Section 37, subsection (b) should be subjected to the safety regulations of the Labour Act.

Section 40: LABOUR OF SENTENCED PRISONERS, Subsection (2): I feel that this subsection should be more flexible. If a prisoner should be allowed to generate income through labour or work done, he will be able to pay for his own studies if he so wishes to further his or her education.

Subsection 5: I feel that this section should be left to the discretion of the Head of the Prison to decide whether or not work should be done as a form of punishment.

Section 43: LOCATION AND TRANSFER OF PRISONERS does not address prisoners conditions in transit from one prison to another - especially long distance.

Section 45, subsection (3) should read: At release sentenced prisoners should be provided with material and financial support as prescribed by regulation from time to time and subject to the discretion of the Head of the Prison.

Section 55, DAY PAROLE subsection (1)(b): A prisoner is given day parole usually when he has no support structures after release. I feel that it is unfair to expect of him to pay for board and lodging and medical services even if he can afford it. He is still serving a prison term and should not be subjected to any payment.

Section 57(1) is very unclear and needs to be elaborated on.

Section 58, subsection (2) should be better defined as far as privacy is concerned.

Section 59, subsection (5) should be given written notice and not be just verbally informed.

Section 62(1) is a "thorn in the thy". It is my personal opinion that the law should be more flexible since South Africa has a very high unemployment rate. Provision should be made in the law for the appointment of a JOB CREATION OFFICER.

Section 81(1) SPECIAL REMISSION FOR SENTENCE OF HIGHLY MERITORIOUS SERVICE. I feel that two years special remission for meritorious service is too little if taken into consideration that a prisoner puts his life on the line in certain circumstances, and in other circumstances he saves another prisoner's life and when in cases where he makes such an enormous contribution by which the prison population and Correctional Services as a whole benefits to such an extent where such a contribution cannot be measured by means of money. Then a prisoner must be entitled to the maximum benefit of a special remission, therefore two years are too little. Such remission must also be subjected to a special Board of Enquiry and should be subjected to an enquiry by the Judicial Inspectorate.

Chapter XIV, JOINT VENTURE PRISONS. I see that under this chapter the question of privatisation of workshops has not been addressed at all. The workshops at prisons are a financial burden to the yearly budget and the budget of individual prisons. These workshops should be run on a business concept with profit making in mind to enable such a prison unit to be self-sustainable from the income which is generated by such workshops, therefore alleviating the pressure on the national budget for Correctional Services as well the tax payers.

Chapter XV, OFFENCES. Here I specifically refer to section 118 ESCAPING AND ABSCONDING. I feel that a person who escapes should by law not be entitled to any remission of sentence, of any parole of any kind irrespective of his behaviour after returning from such escape or absconding and should therefore serve his full sentence. As the law reads now, a prisoner who has made himself guilty of escape or absconding can be released on parole, which is by no means a sufficient deterrent for withholding a person from escaping or absconding. I feel that when a prisoner is incarcerated it should be stressed that he will violate all chances of parole, amnesty or remission if he ever makes himself guilty of an escape or absconding. Escapes and absconding have cost the tax payer millions in the past and no person who escapes or absconders can lead a normal life while on escape. He has to live by means of crime. This we cannot allow.

Section 128. UNLAWFUL DISCLOSURE OF INFORMATION. I feel that a prison sentence of two years is too little and that a harsher sentence should be imposed. I will explain my reasons for this verbally.

Section 131(1). I feel we should be more flexible here as far as the twelve calendar months are concerned. Correctional Services is still very much a closed system and very much a family, and sometimes a prisoner can only after release with safety institute legal proceedings against the Department. I will elaborate on this verbally.

I feel that the RIGHTS OF FEMALE PRISONERS should be better stipulated by law. After all, we have to do with the weaker sex when it comes to females and therefore certain privileges and allowances must be made by law to accommodate the female gender. As far as children incarcerated with their mothers are concerned the law does not cover the demand of preschool education of such children. I feel there should be a law which compels the Department to make available such preschool education for children incarcerated with their mothers.

I see that the question of LABOUR UNION ACTIVITIES by members of Correctional Services is not addressed under the new Correctional Services Bill. I cannot understand why this has not been done.

I would have liked to see in the Bill the provision being made for the establishing of HALFWAY HOUSES especially when it comes to joint ventures but seeing that this is not the time to discuss such a matter, I would leave it open for another opportunity.

But I do, however, feel that the establishing of BOOT CAMPS for prisoners under correctional supervision or parole should be established. When a prisoner has contravened his supervision or parole conditions on several occasions, he should not be sent back to prison, but rather to a boot camp where he is kept for a certain period and where he must be without any privileges of the normal incarcerated prisoner and where discipline is extremely strict thereby changing his frame of mind as far as discipline and rules and regulations are concerned so that he will not contravene his parole or correctional supervision conditions again. We have enough old empty prisons which can be used for such purposes where such an offender of his parole conditions can be incarcerated for a period. We are only overcrowding our prisons by sending these offenders back to prison where he is not utilised in any way and is an obstruction to the entire system. We are dealing with criminals. We must treat them humanely, but at the same time let them know that the authorities are in control and that they will take no nonsense.

I thank you for the opportunity you granted me and I hope my contribution, even how small it may seem, would help Correctional Services, the incarcerated prisoner, the Judicial System and our country as a whole to bring down the crime rate in South Africa which is plaguing us like a cancer.

The Portfolio Committee or anybody present at this hearing is welcome to consult with me at any time on any ideas or queries they might have on my submission.

WALLY WOLMARANS
CHIEF EXECTIVE OFFICER:
PRISONERS' AFTERCARE LEAGUE

 

SOUTH AFRICA HUMAN RIGHTS COMMISSION
1.Introduction
The South African Human Rights Commission ("the Commission") welcomes the Correctional Services Bill ("the Bill"). It provides a principled framework for the custody and treatment of prisoners by the Department of Correctional Services.

The Commission particularly welcomes the centrality of dignity of imprisoned persons in the overall purposes and objectives of the bill, and in the operations of prisons. The Bill of Rights provides for everyone to have their inherent dignity respected and protected. Together with the equality, dignity is one of the central rights in the Constitution from which all other rights flow, and the extension of this right to prisoners, who are often excluded from its protection, is critical.

The Bill expressly adopts a correctional approach to imprisonment, and establishes support structures and mechanisms to focus on the promotion of social responsibility and human development of prisoners, with a view to allowing them to be reintegrated into society as law-abiding citizens. For this purpose, the bill places obligations and duties on sentenced prisoners to participate in rehabilitative programmes. The Commission believes that the emphasis on both the rights and duties of prisoners strikes an important balance, and positions these notions as complementary and synergistic.

The Commission notes that it is the intention of the Criminal Procedure Amendment Bill (bill number 59 of 1998) to deal with minors and imprisonment, and that this does not fall into the ambit of this bill.

The Commission notes further that police cells are excluded from the definition of a prison, save for the purposes of escape, and accordingly the standard minimum floor of rights to not apply to persons detained in police cells. While this does not fall under the auspices of the Department, the Commission believes that the same protections should be extended to police cells, and will take the issue further with the Department of Safety and Security.

Finally, the Commission notes that many important aspects relating to the details of basic rights of prisoners are to be set out in regulations. Clearly the content of these regulations are of extremely significant, and the Commission requests that the content be published for comment and scrutiny by this Portfolio Committee before being finalised.

2.Rights of Detained Persons
2.1General Comments
This Chapter elaborates the rights provided to detained persons which are set out in the Bill of Rights. As such, the chapter must be central to the interpretation of the bill as a whole, in addition to providing general principles which inform all practices in the Department.
The extended description of the Constitutional rights provides a basic minimum floor of rights which may not be removed or tampered with by the Department, either for the purposes of discipline, or on the basis of limited resources. Accordingly, it is crucial that the specific content of these sections be lawful and appropriate, and that they be set out clearly. In addition, the contents of regulations referred to in the sections must similarly be monitored and scrutinized.

In addition, it is necessary that the wording in section 4(1)(c) which states that the department "may" not tamper with the minimum rights of prisoners be amended to state that the department "must" not tamper.

RECOMMENDATIONS
The Commission recommends that in section 4(1)(c) "may" be changed to "must".

2.2United Nations Rules
The United Nations ("the UN") provide for Standard Minimum Rules for the Treatment of Prisoners. The Commission believes that the Bill stands up well to assessment in terms of this international instrument; however there are certain aspects which could be considered for incorporation into the bill, which are addressed in the specifics of the submission below.

There are two categories of rights which could be considered for addition into this chapter. The Minimum Rules commence with a basic principle of non-discrimination, which reads as follows;

The following rules are to be applied without discrimination on the grounds of race, colour, sex, language, political opinions, national or social origin, property, birth or other status.

While this principle is central in our Bill of Rights, it may bear repetition as an introductory notion in the bill, for the treatment of prisoners. A further provision which could be added to the bill is one dealing with the retention of prisoner’s property, which reads as follows;

Money, valuables and personal effects which prisoners are not allowed to keep in their possession are to be kept in safe custody until the prisoner’s release.

RECOMMENDATIONS
The Commission recommends that a general section setting out the principle of non-discrimination in the treatment of prisoners be introduced into the bill. In addition, a section setting out the safe custody of property belonging to prisoners should be included.

2.3Accommodation
Section 7
The UN recommends that those imprisoned for civil offences should be kept separately to criminal offenders. While civil imprisonment has been removed for debtors, it still remains a possibility for offences such as contempt of a civil court. In this regard a recent judgement by Mr. Justice Pickering in the Eastern Cape Division in Uncedo Taxi Service Association v Maninjwa and Others (1998 (3) SA 417 (E)), held that civil proceedings for contempt of court, as opposed to prosecution via criminal proceedings, is unconstitutional as it requires proof of guilt on a balance of probabilities rather than beyond all reasonable doubt. The finding must still be confirmed by the Constitutional Court, but this may dispense with the issue. The Committee should give attention to this issue, perhaps with the assistance of the state law advisors.

The issue of overcrowding in prisons is one of the major challenges to the Department. One of the consequences of such overcrowding is a heightened level of friction and violence in cells, particularly during the late afternoon and night, when the day shift is completed. The UN recommends that dormitories are supervised at night, and the Commission believes that this would be a necessary inclusion into the bill.

A further basic minimum requirement which is omitted from the bill, is the provision of adequate, clean and separate bedding, which is one of the minimum standards in the UN standard minimum rules. This provision could also be included in section 10, which provides for clothing. The Commission has found that in many prisons, prisoners are not provided with adequate bedding, and in many institutions, are forced to share bedding.

RECOMMENDATIONS
The Commission recommends that:
• the issue of civil prisoners, and their accommodation be addressed by the Committee;

• the requirement of clean, separate and sufficient bedding be included into the bill.

2.4Nutrition
Section 8
The specifics of the diet provided to prisoners will be set out in regulations. Such regulations are a good example of why it is necessary to provide an opportunity to scrutinize and comment on the content, before they are finalized.
The serving of food at reasonable intervals may have ramifications for the existing programmes in many prisons, in terms of which meals are served at 8h00, 13h00 and 14h00. The implications of this are that 18 hours can elapse between hot meals. A recent change in the policy of the department has seen the removal of electrical appliances, which could previously be utilized by prisoners to make hot tea or toast or the like.

RECOMMENDATIONS
The Commission recommends that regulations in terms of the bill be published for comment, and for scrutiny by this Committee, before finalization.

2.5Medical treatment
Section 12
This section makes a distinction between health care, which is undefined, and medical treatment which is defined as including dental and psychological treatment. In so far as "health care" in section 12(1) appears to refer to basic service provision and encompass broad preventative practices and environment, it may be appropriate to refer to primary health care services, which is in line with the approach of the Department of Health. In addition, the Commission believes that the reference to the limitation of "within available resources", is inappropriate, and should be removed.

Section 12(2), which sets out medical treatment, is formulated in the negative, by stating that prisoners are not entitled to cosmetic medical treatment. While this is a legitimate limitation, it should follow a positive statement defining the entitlements of prisoners in this regard – for example "Every prisoner has the right to adequate medical treatment at state expense, but is not entitled to cosmetic medical treatment at state expense"

Section 12(3) provides for circumstances in which private medical treatment can be administered to a prisoner. Currently it is subject to two conditions: the permission of the Head of the Prison must be obtained, and the costs must be covered by the prisoner. While the latter condition is appropriate, the former is not necessary and should be removed. In addition, section 12(2)(b), which provides that a departmental medical officer must administer medical treatment, should be amended to allow private medical treatment as provided for in the section 12(3).

The current wording of section 12(4)(c) is clumsy, and masks the meaning of the section. The section could read more simply as follows:

No surgery or medical treatment may be effected without the prior consent of the prisoner, or the consent of the parents in the event of the prisoner being a minor, except where the delay in obtaining consent would, in the opinion of the medical office, would prejudice the health of the prisoner.

Section 27(3) of the Bill of Rights provides that no one may be refused emergency medical treatment. The Committee may want to satisfy themselves that the sections dealing with medical treatment cover this right adequately. It may wish to consider the introduction of an additional subsection in section 12 reformulating this right in the bill.

The UN rules provide specifically for pre and postnatal care to be available at women’s institutions. This specific inclusion may be appropriate, and the Committee should consider the question.

RECOMMENDATIONS
The Commission recommends the consideration of:

• the introduction of "primary health care" into section 12(1), and the removal of "within available resources";

• the amendment of section 12(2)to commence with a general statement of entitlement;

• permitting private medical treatment subject only to covering costs;

• the reformulation of section 4(c);

• the introduction of new subsections dealing with emergency medical treatment and pre and postnatal care.

2.6Contact with community
Section 13
Given the practical hurdles faced by prisoners to make contact with relatives, either on admission to prison, or when being transferred to another prison, it may be appropriate to place the onus on the department to make this contact, subject to directions from a prisoner not to do so, and to being provided with reasonable assistance from the prisoner.

RECOMMENDATIONS
The Commission recommends that the department take responsibility for contacting relatives after admission or transfer, with the assistance of prisoners.

2.7Reading material
Section 18
This section contains a limitation that a prisoner will not be allowed access to reading material "that is not conductive to his or her rehabilitation", or "which constitutes a security risk". These clauses are problematic – they do not distinguish between sentenced and unsentenced prisoners, and no indication is given as to what will be included in these categories, and who will exercise this discretion. It is possible that the sections may be abused.

RECOMMENDATIONS
The Commission recommends that consideration be given to the removal of the limitations contained in section 18(1).

2.8Complaints and requests
Section 21
In terms of the section setting out complaints procedures to the Head of Prison or his or her representative, the Commission recommends that special attention be given to complaints alleging assaults by correctional officials. Although the investigation of prison assaults falls within the jurisdiction of the South African Police Services (SAPS), the Commission receives various complaints regarding the refusal of correctional officials to allow access to SAPS officials for the purpose of investigation, in addition to medical treatment. Accordingly, the Commission believes that it is necessary to place a further duty on the official referred to in section 21(1) in cases where a prisoner alleges that he or she has been assaulted by a correctional official, which duty would include informing the SAPS, and ensuring that the prisoner is brought before a medical practitioner within a specified time after the registration of the complaint.

Given the large number of complaints which the Commission receives in this regard, it appears that this is a practical problem which needs some level of oversight and monitoring. Accordingly, it may be useful to build in a role for the Judicial Inspectorate in this regard, to facilitate a regular review of all complaints of this nature.

It has also been suggested that a special process for medical complaints be introduced, so as to ensure that medical treatment is provided timeously, where appropriate.

RECOMMENDATIONS
The Commission recommends specific procedures are introduced for complaints dealing with alleged assaults, and medical related issues. In addition, the Commission requests the Committee to consider building in a monitoring role for the Judicial Inspectorate with regard to assault complaints.

3.Discipline and penalties
3.1General Comments
The Commission welcomes this part of the bill. Offences are clearly set out, and explicitly defined, and provide a clear framework within which discipline will operate in the prison system.

One of the categories of penalties in section 24, is the temporary removal of amenities. Amenities are broadly defined in the bill, and are distinguished clearly from the minimum floor of rights, which may not be tampered with under any conditions. This is important and significant, and provides necessary protection for the prisoners.

3.2Dual punishment
Section 22
Section 22 (2) makes provision for the Department to take disciplinary action against a prisoner for an offence committed while a prisoner, on the strength of a conviction in a court of law. This may lead to dual punishment – both by a court in terms of a sentence, and by the Department in terms of disciplinary penalties, and this may eb inappropriate.

RECOMMENDATIONS
The Commission recommends that the Committee apply its mind to whether the dual punishment as tolerated in the section is appropriate.

3.3Disciplinary infringements
Section 23
Although a vast improvement on the existing infringements which are currently set out in regulations, some of the infringements contained in section 23(1)(a) to (c) are still relatively wide, and capable of abuse. For example, carelessness associated with a task provided for in section (e) may be unnecessarily wide, as is what constitutes an unauthorized article for the purposes of (m); (q) introduces difficulties of proof, and may discourage prisoners from reporting abusive behaviour on the part of correctional officials. Accordingly, the Commission requests that the Committee apply it’s mind to the tightening up of some of the categories of infringement.

RECOMMENDATIONS
The Commission recommends that the definition of the disciplinary infringements be narrowed.

3.4Solitary confinement and segregation
Section 25
Section 30
Solitary confinement as provided for in section 25 is defined as being held in a single cell, with the loss of all amenities, and can be effected only after a disciplinary hearing in front of a disciplinary official. Other safeguards are built into the section, including time limits to the confinement, approval by the Inspecting Judge and regular visits by officials and medical staff.

Segregation, although not defined in the bill, is provided for in section 30, and appears to be for administrative purposes. Similar safeguards to solitary confinement apply to segregation, but the action is administrative rather than as a penalty, and follows the exercise of discretion, rather than a formal "due process" procedure.

A further subsection appears to be necessary following section 25(4), which provides for a registered nurse or psychologist to refer a prisoner in solitary confinement to a medical officer for the purposes of discontinuing solitary confinement. Similarly, in section 30(2), a further subsection is required for a registered nurse to refer the prisoner to a medical officer or psychologist for discontinuation of segregation on medial grounds.

It is clear that the concepts overlap considerably – although there are various degrees to segregation, in extreme forms it will constitute solitary confinement. It may then be advisable term the concepts generically as "segregation", with alternative qualifiers, "disciplinary" and "administrative". This may prevent the practical use of segregation to effect solitary confinement without the necessary procedures, by drawing attention to the different purposes.

Section 30, which sets out administrative segregation, provides six categories in terms of which a prisoner may be placed in segregation. The categories appear to have objective bases for the action, save for subsections (d) and (e) which are reactive to violent actions, and escape. The Commission believes that these categories should be removed from the section, as the resultant segregation is punitive in nature, and is inappropriate as an administrative function. Both categories would fall under an infringement of discipline in any event, and disciplinary segregation may be introduced following an enquiry.

RECOMMENDATIONS

The Commission recommends that attention be given to:

• the introduction of the relevant amendments to sections 25 and 30 to provide for discontinuation of solitary confinement or segregation by a medical officer;

• the use of the definitions "disciplinary segregation" and "administrative segregation" as opposed to "solitary confinement" and "segregation";

• the removal of subsections 30(1)(d) and (e), as they relate to punitive segregation which is accommodated elsewhere in the bill.

3.5Procedures and penalties
Section 24
A hearing before the Head of Prison expressly excludes representation in section 24(2). However, for the purposes of a hearing before a disciplinary official, where the penalties are greater, it is not. It could be argues that it is implicit that representation is accordingly permitted.

Clarity on this question would be preferable, and the section should address the question of representation, by both expressly providing therefor, and setting out who may or may not represent a prisoner at the hearing. In section 76(3)(a) provision is made for representation of a prisoner before a Correctional Supervision and Parole Board by any person except a fellow prisoner, or an official of the Departments of Correctional Services, Safety and Security and Justice, and the same exclusions would be recommended.

RECOMMENDATIONS
The Commission recommends that express provisions be built into section 24 relating to representation, mirroring the provisions contained in section 76(3)(a).

3.6Use of force, search and seizure
Section 27
Section 32
Given the difficulty in establishing whether any use of force was reasonable or necessary, it would be advisable to add a further subsection to section 32, providing that the Head of the Prison or other correctional official ensure that a prisoner should be examined by a medical officer immediately following an incident where force has been used.

Section 32(b) sets out the limitations on use of force. The Commission would recommend that this section is rendered consonant with the proposed amendments to the provisions dealing with the use of force in the Criminal Procedure Act, namely indicating that the force must be necessary in the circumstances.

The section dealing with searches provides for searches involving the physical probing of the body and the taking of samples to be performed by a correctional services official. It seems clear that the nature of the tests requires them to be administered by a medical officer, and this should be made explicit.

RECOMMENDATIONS
The Commission recommends that the use of force be made subject to a test of reasonable necessity, and that provisions are made for immediate medical attention thereafter. In addition, the Commission recommends that certain tests be carried out by medical officers, rather than by correctional officials.

3.7Non-lethal incapacitating devices
Section 33
The Commission is concerned about the nature of the non-lethal; incapacitating devices, the use of which may be authorized by the bill. It may be appropriate for each device to be inspected by an independent medical officer, with a view to certifying that it will not result in or cause any permanent damage. This could also be provided for in regulations.

RECOMMENDATIONS
The bill should be amended to provide that before being approved for use, devices referred to in this section must be certified by an independent medical doctor as to being incapable of resulting in permanent damage.

4.Sentenced Prisoners
4.1Corrective approach
Section 36
The Commission commends the clear and deliberate adoption of the corrective approach as set out in the objectives of the legislation, and fleshed out in the various mechanisms and services made available to prisoners in terms of the bill.
As part of this initiative, the Commission welcomes the obligations placed on prisoners to participate in such programmes, and believes that this is important and necessary. However, the Commission is aware, through its various prison inspections, of the scarcity of resources relating to psychological treatment, support and development. The Bill adopts the formulation "as far as practicable" with respect to many of the services described in the sections. While this should not be used as an excuse for non-delivery, cognizance must be taken of resource constraints, and the formulation provides an indication of the direction policy should take.

4.2Placement and release
Section 45
Section 74(2)
This section in subsection (1) refers to an obligation on a prisoner to "prepare" for release. This seems inappropriate, and the Afrikaans version appears to reflect the correct approach, namely that the prisoner must be "prepared" for release, thereby placing the obligation on the department.

Section 74(2) allows a medical officer to temporarily detain a prisoner whose sentence has expired on medical grounds. It appears that the better approach would be to arrange for the transfer of the prisoner to an appropriate medical institution for on-going medical treatment.

RECOMMENDATIONS
The Commission recommends that the Department is obliged to prepare a prisoner for release. In addition, should a prisoner require further medical treatment at the time of release, a transfer to an appropriate institution is to be arranged, and the bill should be amended to facilitate this.

4.3Mental patients
Section 46
Any period spent in a mental health institution may be reckoned part of a sentence by the Commissioner. The rationale for this discretion is puzzling, as it appears equitable that this period should automatically be part of a sentence.

RECOMMENDATIONS
The Commission recommends that time served in an institution be automatically reckoned as part of a sentence.

4.4Unauthorised removal of prisoner
Section 117
This section provides for an offence relating to the unauthorized removal of a prisoner from a prison. This points to a broader issue around the transfer and transit or prisoners by agencies other than Correctional Services. This is often the case when prisoners are transported to court, attend court, or are questioned by the South African Police Services. When a prisoner is not in the custody of the department, it must be clear in whose custody the prisoner is, and which agency is accountable for the safety of the prisoner.

The compulsory use of a register in which is entered the details of all removals of prisoners, setting out times, dates, reasons, responsible officials, and for similar details to be entered on re-admission.

RECOMMENDATIONS
The Commission recommends that provisions be introduced into the bill to regulate the removal of prisoners into the custody of other agencies.

5.Community Corrections
5.1General Comments
The chapter on Community Corrections is a vast improvement in the framework governing correctional services. It consolidates all existing provisions dealing with correctional supervision, and creates a closed list of the forms which it can take, thereby guarding against abuse via the imposition of unduly hard community sentences, or "judge-made" sentences.

5.2Complaints procedures
Section 73
The complaint provisions for community corrections fall short of the procedures applying to prisons set out in section 21. In section 21 the Head of the Prison is obliged to refer a complaint to the Area Manager if the prisoner is dissatisfied with the response from the Prison Head. Section 73, on the other hand places the onus on the complainant by stating that he or she may refer the matter to the Area Manager if he or she is dissatisfied with the response. Section 21 also provides further recourse in the form of the Independent Prison Visitor, which is not available in the sphere of community corrections.

RECOMMENDATIONS
The Commission recommends that section 73(4) be redrafted so as to oblige the Head of the Community Corrections to refer a matter to the Area Manager, where the complainant is dissatisfied with the initial response.

6.Departmental Structures
General Comments
The bill introduces important innovations to the structure of the department, and sets up important advisory and monitoring bodies, with critical oversight functions.

6.2National Council
Chapter VIII
The role of the National Council in co-ordinating overall policy in the department is important, and the Commission commends the constitution of the Council, and particularly the inclusion of community representation. In line with the integrated justice system, it would be appropriate for the Council to have referred to it, not only legislation introduced by the Minister, but any legislation which has an impact on prisons, regardless of the introducing Minister. For example, legislation relating to the granting of bail has significant impact on the prison population. A further suggestion has been made that the National Council is given a specific mandate to monitor the overcrowding in prisons, as this is one of the most serious problems in the system.

RECOMMENDATIONS
The Commission recommends that the National Council have oversight of all legislation relevant to prisons, and that consideration be given to providing a specific mandate to monitor overcrowding in prisons.

6.3Judicial Inspectorate and Prison Visitors
Chapter IX
Chapter X
These provisions essentially re-enact the amendments which were effected in 1997. A strong monitoring and oversight agency is critical to the good functioning of a prison system, and the maintenance of best practice. The independence of such an agency is crucial, both for its own functioning, and for the establishment of credibility for prisoners. Much will depend on the smooth and effective functioning of this system, and the Commission trusts that sufficient resources will be provided for this purpose.

The bill extends the mandate of the Judicial Inspectorate to inspect and report on corrupt and dishonest practices in prisons. The Commission believes that this should be removed, as it will result in the mandate being too broad, and the workload too large. In any event the new mandate differs considerable form the existing terms of reference, and requires a different approach.

In the current act, the Inspecting Judge "must" appoint prison visitors. This is changed to "may" in the draft bill. The Commission recommends that the previous drafting be reverted to, as the Judge will require assistance, and the appointments should not be discretionary. The Judge should, however, be allocated discretion to alter management areas to suit the purposes of the Prison Visitor’s Committee. Further, the Inspectorate should table reports in Parliament directly, rather than through the Minister.

In addition to overcrowding, which is identified above as a major problem in the penal system, the problem of the long periods which elapse between the initial imprisonment, trial and sentencing. A suggestion has been made that Heads of Prison be obliged to forward a list of all prisoners who have been awaiting trial for a period longer than 6 months to the Inspecting Judge, at regular intervals. The list could also be copied to the Judge President and Senior Magistrate for the area.

Finally, the Commission would like to motivate for the inclusion of the Commission as an agency who can forward complaints directly to the Inspecting Judge, given the large volume of complaints from prisoners which we receive.

RECOMMENDATIONS
The Commission trusts that the Institution of the Judicial Inspectorate will be sufficiently resourced.
The Commission recommends that
• the previous wording be retained in relation to the appointment of prison visitors;

• the Inspectorate table its own reports in Parliament;

• the Inspecting Judge be empowered to re-allocate management areas for the purposes of Visitor’s Committees;

• Heads of prisons forward lists of awaiting trialists to the Inspecting Judge at regular intervals;

• The Commission be included as an agency who may forward complaints directly to the Inspecting Judge.

6.4Access to prisons
Section 100
This section allows automatic access to prisons to Judges, Magistrates and members of this Committee. The Commission believes that its constitutional mandate to monitor and protect human rights is justification for the inclusion of the Commission in section 100(1).

Section 100(5) allows the Commissioner to grant permission to another person to enter a prison. The Commission believes that this section should specifically cover organizations that wish to monitor human rights observance in prisons, and that the Commissioner be given a discretion to grant access for this purpose.

RECOMMENDATIONS
The Commission recommends that the South African Human Rights Commission is included in section 100(1), and that provision is made for inspection by other human rights agencies.

8.Joint venture prisons
8.1Duties and Restrictions applying to Contractors
Section 105(1)
The concept of joint venture prisons was introduced in the Correctional Services Amendment Act 102 of 1997 (‘the amendment Act’), and these provisions have been essentially re-enacted in the bill. Section 105 of the Bill stipulates the duties and restrictions that apply to Contractors. Although actions of Contractors are subject to the Bill which sets out more clearly the rights set out in the Constitution, it is not made absolutely clear whether all rights pertaining to prisoners detained in state prisons will automatically apply to prisoners detained in joint venture prisons. The rights to access to information and just administrative action are cases in point.

Clarity may be obtained by the inclusion of the words ‘…and the Bill of Rights’ to follow ‘… subject to the limitations of this Act’ in section 105(1), or alternatively to define a Contractor as an organ of state, thereby allowing it to fall under section 8(1) of the Constitution which binds all organs of state to the Bill of Rights.

RECOMMENDATIONS
The Commission recommends that a provision stating that a Contractor is declared to be an organ of state for the purposes of section 8(1) of the Constitution be inserted in section 105 of the Bill.

8.2Disciplinary measures
Section 105(4)(a)
Section 107
Section 109
In terms of section 105(4)(a) the Contractor may not take disciplinary measures against prisoners or impose punishment on them. The Commission supports this position, as the contrary position would leave scope for abuse. However, it is necessary for discipline be maintained in prisons for the purposes of security and good order, and accordingly it is necessary for certain provisions to ensure consistent discipline in joint venture prisons. It is recommended that express provision is made for the Director of a joint venture prison to request a disciplinary hearing by a disciplinary official, and for the Director to implement any penalty imposed by the disciplinary official, subject to the limitations of the Bill. This may have to be indicated as an exception to section 105(4)(a). It may be necessary to introduce an express provision to monitor such implementation to be added to the duties of the Controller in section 107(1).

RECOMMENDATIONS
The Commission recommends that the bill be amended to empower a Director of a joint venture prison to request a disciplinary hearing, and to implement the penalties, under the monitoring of the Controller.

8.3Controller and solitary confinement
Section 107(2)
In terms of section 107 the Controller is given the power to order the confinement of a prisoner temporarily in a cell, as contemplated in section 30, which deals with segregation. However, as has been discussed above, segregation must be differentiated from solitary confinement. This section appears to allow solitary confinement to be effected, via segregation, thereby short-circuiting the need for a hearing. The Controller is already given the power to order the segregation of a prisoner or prisoners in section 107(2)(b), and accordingly, the section is not necessary, and should be removed.

RECOMMENDATIONS
The Commission recommends that section 107(2)(c) be omitted.

 

UNITED PRISONERS OF SOUTH AFRICA
The old bill of 1959 never served the interests of transformation and third force activists in S.A. prisons took advantage of it wherever they could. And still today, these traitors totally ignore the call by government to transform and reform S.A. prisons. The poorest of prisoners and the most destitute of prisoners, be it in rural or urban prisons countrywide are constantly at their mercy, since these traitors have total disregard for the constitution of the S.A. govt. It is not within their humanity to swear allegiance to this new democracy and their sole purpose in S.A. prisons is to revive the apartheid way of doing things. These perpetrators must be identified, charged and imprisoned and we sincerely hope that the inspecting judge when he takes office, places this task as a prime priority on his agenda. Govt. has to initiate the strictest form of action against these henchmen, in order that all third force activity ceases to exist in our prisons.

Smuggling, gun running, murder, suicide, rape, sodomy, deep rooted racism, theft, corruption, abuse of govt. property are all the evils in our prisons that these henchmen are involved in. They are indeed a curse to this new democracy. We, the United Prisoners of S.A. praise the endeavours of our state law advisors who drafted the 1998 Correctional Services Bill. It does aspire to the requirements of a nation united in democracy. We are thankful that these scholars of justice have not forgotten prisoners who are at the mercy of these third force activists who are supposed to reform the lives of these people. At last, S.A. prisoners may exercise their full constitutional rights without hindrance, since there are various clauses which gives prominence to this. This Bill, has laid the foundation for a strong, democratic human rights culture in S.A. prisons. With this Bill, S.A. prisons can only prosper, ever forward.

The proper structures have been put in place to carry us into the new correctional era of governance. With this Bill it would be impossible to fail and it would also be hard to make a prisoners life a nightmare. Yes, the activists remain a curse in our prisons. We are fully aware how they use prisoners against each other, how they provoke inmates and orchestrate gang violence in cells. We are fully aware how they have created mayhem in prisons and smartly shove the blame on unions and innocent parties for disrupting law and order in prisons. Honourable comrades of this Committee, we are here today to inform you that you have traitors in the employ of the dept. whose prime agenda is to destabilise prisons and mislead the entire world and create the notion that the govt. of national unity cannot govern its prisons.

There are however a few issues of this Bill that needs attention e.g.

Religion.
It is factual that in our prisons there are prisoners from various denominations e.g. the Muslims. To note, it is imperative that they have compulsory prayers of five times a day and to perform these prayers would be very difficult since the construction of new prisons has not catered for adequate religious structures on par with that of a mosque. Prisons need to designed with proper places of worship since this Bill does give strong advantage to this cause.

Use of force
It is not clearly defined what type of force will be used against a disruptive prisoner and this clause is definitely open to vicious abuse. It must be more descriptive since disloyal employees will definitely abuse it as has always been the case.

Solitary confinement
We, oppose the clause of solitary confinement as it only takes us back to the days of apartheid. This solitary confinement will be a great opportunity for third force activists to brutalise and murder inmates in prison. They will indeed exercise this measure with out the authority of the inspecting judge. This clause must be scrapped since it does make a mockery of the bill of rights.

It is also worrying that there is no clause in this Bill which gives prominence to unions and N.G.O's alike, yet we are the stakeholders who interact with prisoners. There is endless red-tape involved before we can personally interact with a prisoner and this must change. A union policy must be drafted by the dept to clarify the position of N.G.O's and other bodies involved with prisoners. The feud between the dept and unions will never end unless a document is drafted to place things in order.

Furthermore to say , there is more good than anything else in this new Bill and we congratulate all stakeholders involved in the making of it. If this Bill is bad, then the weaknesses in it will expose itself for what it is. Comrade Limpo Hani and her committee has worked tirelessly to push for transformation and we appreciate all her efforts at this committee.

Thanking you all
Gavin Engel
U.P.S.A