Correctional Services Amendment Bill:hearings

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
28 August 2001
CORRECTIONAL SERVICES AMENDMENT BILL: HEARINGS

Documents handed out
Judicial Inspectorate submission (See Appendix)
Judicial Inspectorate Annual Report 2000
Correctional Services Amendment Bill [B8B-2001]

SUMMARY
Judge Fagan of the Judicial Inspectorate gave an oral submission. His main concern was the overcrowding of prisons and deterioration of facilities due to the huge numbers of awaiting trial prisoners. A proposed amendment provides a solution by enabling the Minister to release low-risk awaiting trial prisoners pending trial. A further amendment allows for the release of terminally ill awaiting trial prisoners. His full comments may be found in the written submissions.

MINUTES
Mr T S Setona was elected as chairperson for the meeting. Judge J J Fagan of the Judicial Inspectorate of Prisons was asked to give his comments on the Correctional Services Amendment Bill.

Judge Fagan commented that the biggest problem being faced at the moment was the extreme overcrowding of prisons which was due to the courts being unable to process cases fast enough. Overcrowding has also led to the prison facilities becoming appalling in most prisons.

An amendment of Section 81 proposes a solution by giving the Minister the power to release low-risk awaiting trial prisoners. Most awaiting trial prisoners remained in prison because they could not afford to pay even the low bail they had been granted. Although released, these prisoners would still then have to appear before court at their trial. At present, the Act only makes provision for the release of sentenced prisoners.

Another amendment makes provision for terminally ill awaiting trial prisoners. The Act presently provides for terminally-ill sentenced prisoners to be released to be able to go home and die in dignity but no such provisions exist for awaiting trial prisoners. At present an application must be brought before a magistrate in order to release an awaiting trial prisoner. It is proposed that the provision be extended by deleting a few words to allow all terminally ill prisoners to be released.

Discussion
Mr Lever (North-west) wanted to know if any thought had been given to moving medium risk prisoners to bases belonging to the Department of Defence that had been closed down, in order to create more space in prisons.

Judge Fagan thought that a good idea and said that a similar attempt had been successful in Kimberley where an old hospital had been utilized.

Mr Durant (Western Cape) wanted to know if the Office of the Judicial Inspectorate was putting pressure on the Minister of Justice to rectify the bottle-neck problem being experienced at the courts and also if the tagging of prisoners was being implemented.

Judge Fagan replied that the Department of Justice was doing their job well and as a result the number of awaiting trial prisoners was slowly coming down. Electronic monitoring had been successfully experimented with in Pretoria. The project had been approved by the Cabinet but then a dispute had arisen as to who would operate the system. The project was once again on track and would be used on awaiting trial prisoners and sentenced prisoners on parole.

Mr Matthee (KwaZulu-Natal) felt that the living conditions in prisons in South Africa were unconstitutional and would be found to be so by the Constitutional Court should the matter appear before them. In his opinion, the entire criminal justice system needs to be addressed.

Judge Fagan answered that the courts are being restructured and the system would be improved but this would take some years to achieve.

The Chair wanted to know about the situation regarding awaiting trial prisoners who have committed terrible crimes and also what avenues were open other than releasing the prisoners.

Judge Fagan responded that only low-risk prisoners, those who were not accused of crimes like murder and rape, would be released. He also felt that the people running the prisons were very good and were trying to the best of their ability but that it was difficult for them to cope. In New Zealand there are 24 000 prisoners but only 4000 in prisons. The other 20 000 were serving community service which stemmed from the concept of restorative justice. He felt that this was the route to go.

Mr Matthee (KwaZulu-Natal) enquired as to what was being done to empower magistrates to begin looking at community service sentences in situations where the people were not a threat to society.

Judge Fagan replied that this was exactly the way they wanted to go. Current legislation makes provision for other forms of sentencing.

The Chair was concerned about the release of "low-risk" prisoners in situations where the police where unaware of crimes they had committed in other parts of the country.

The judge replied that it would soon be possible, via a linked database, to obtain previous records of a prisoner within 24 hours of the conviction.

Mr Bloem felt that the problem lies not with Correctional Services but with the Department of Justice and the police and that the Justice Department should be approached and made aware of the fact that this problem was consuming the budget of Correctional Services.

Mr Matthee (KwaZulu-Natal) suggested that the different departments meet together to discuss the different issues.

The meeting was adjourned.

Appendix
THE CORRECTIONAL SERVICES AMENDMENT BILL [B 8B-2001].
SUBMISSION BY: THE JUDICIAL INSPECTORATE OF PRISONS.

1. The Correctional Services Amendment Bill [B 8B-2001] was passed by the National Assembly at its second reading on 11 May 2001 without opposition.

One of the proposed amendments is to section 81 of the Correctional Services Act No.111 of 1998. The section reads as follows with the amending words underlined:

"SpeciaI measures for reduction of prison population
81. (1) If the Minister is satisfied that the prison population in general or at a particular prison is reaching such proportions that the safety, human dignity and physical care of prisoners are being affected materially, the matter must be referred to the National Council.
(2) The National Council may recommend the advancement of the approved date for placement of any prisoner or group of prisoners under community corrections and the Minister may act accordingly.
(3) Community corrections granted in terms of subsection (2) is subject to such conditions as may be imposed by the Correctional Supervision and Parole Board under whose jurisdiction the prisoners may fall or the Commissioner in terms of section 75(7).
(4) In the case of unsentenced prisoners the Minister may release any such prisoner or group of such prisoners subject to such conditions as determined by the Minister with the concurrence of the Minister of Justice."

2. The Judicial Inspectorate of Prisons supports the proposed amendment.

The reasons stated shortly are:

PRISON IDEALS:

2.1 In terms of the Bill of Rights, each prisoner is entitled "to conditions of detention that are consistent with human dignity, including at least exercise and the provision . . . .of adequate accommodation, nutrition, reading material and medical treatment".

2.2 EMBODIED IN LEGISLATION

Prisoners' rights were expanded upon in the Correctional Services Act, 1998. The Act's stated object is "changing the law governing the correctional system and giving effect to the Bill of Rights... and in particular its provisions with regards to prisoners".

Under the heading:" Custody of all prisoners under conditions of human dignity", there are set out detailed general requirements under the sub-headings admission, accommodation, nutrition, hygiene, clothing and bedding, exercise, health care, contact with community, religion, belief and opinion, development and support services, access to legal advice, reading material, children, mothers of young children and complaints and requests. The emphasis shifted from that of punishment to that of detention under conditions of human dignity in order to better rehabilitate prisoners and prepare them to lead socially responsible and crime-free lives on their release.

2.3 THE REALITY - SEVERE OVERCROWDING

Six years after the April 1994 election, the conditions in our prisons fell far short of the stated aims. Some prisoners endured awful treatment due to overcrowded and understaffed prisons.

On 30 April 2000 the 236 prisons, built to accommodate 100 668 prisoners, were accommodating 172 271 prisoners. That meant that about 72 000 prisoners were kept in prison without the necessary infrastructure such as toilets, beds, showers, etc being available to them. This was worsened by the uneven distribution of prisoners resulting from the need to separate different genders and categories Whilst a few prisons were under 100% occupied, many were over 200% with one almost 400%.

The gross overcrowding in numerous prisons led to detention under horrendous conditions, especially for the awaiting-trial prisoners.

2.4 THE PROBLEM - AWAITING-TRIAL PRISONERS

The cause of the overcrowding was the unprecedented growth in the number of awaiting-trial prisoners. Whilst the sentenced prisoner population slowly increased (from 92 581 in January 1995 to 108 307 on 30 April 2000), the number of awaiting-trial prisoners almost tripled (from 24265 in January 1995 to 63964 on 30 April 2000).

The average period that awaiting-trial prisoners remained in prison increased even more dramatically. Over the four years preceding 30 April 2000 the number of awaiting-trial prisoners held for longer than three months increased from 3 957 to 27 357. So almost half of all awaiting-trial prisoners had been held for longer than three months.

The list of infringements of prisoners' basic human rights caused by overcrowding was endless. Numerous newspaper reports and articles had drawn attention to the plight of prisoners. This had to be addressed without delay.

2.5 SOLUTION - REDUCTION OF THE NUMBERS

Considering the enormous cost involved in building new prisons, which amounts to about R200 000 per prisoner, the answer was not merely to build more prisons. The number of awaiting-trial prisoners was totally unacceptable and had to be reduced. If the number could be reduced to the figure of five years before, that is 24 000, there would be almost 40 000 fewer prisoners. The aim should be to reduce the number further, to at most 20 000 awaiting-trial prisoners.

2.6 STEPSTAKEN

Since the beginning of last year the problem of overcrowding in prisons has been tackled in earnest. The Departments of Justice, Correctional Services and Welfare and the South African Police Service working as an integrated justice system, commenced projects to reduce the cycle time of people held in custody awaiting trial. On 31 January 2000 the National Council for Correctional Services recommended the advancement of the parole date of certain categories of sentenced prisoners and called for urgent attention to be given to the steep increase in the number of awaiting-trial prisoners.

Steps taken by the various departments and NGO's such as The National Institute for Crime Prevention and the Rehabilitation of Offenders (NICRO) and Business Against Crime were having an impact on the number of awaiting-trial prisoners, but they were long-term. The total number of all prisoners kept rising (from 166423 in January 2000 to 170328 on 31 July 2000).

2.7 MASS RELEASE OF AWAITING-TRIAL PRISONERS

Conditions under which awaiting-trial prisoners were held were ghastly. Examples are: one toilet being shared by more than 60 prisoners; an overwhelming stench of blocked and overflowing sewage pipes; shortage of beds resulting in prisoners sleeping two to a bed whilst others slept on the concrete floors, sometimes with a blanket only; inadequate hot water; no facilities for washing or drying clothes; broken windows and lights; insufficient medical treatment for the contagious diseases that were rife.
Immediate action was required. There was no time to wait for long-term solutions.

The Judicial Inspectorate of Prisons, the independent office which oversees the treatment of prisoners mainly through the Independent Prison Visitors that it appoints, proposed the release of some awaiting-trial prisoners. The motivation was that they were being detained under inhumane conditions; that the spread of disease must be curtailed; that the enormous stress the correctional personnel were working under must be relieved and that the State could not afford the burden of paying for the accommodation of so many prisoners.

The awaiting-trial prisoners targeted for release were poor persons who could not afford to pay their bail amounts of R1000 or less. They had all been found by magistrates to pose no danger to their communities should they pay bail and be released. It would not be an amnesty. They would all still have to appear in court on the days to which their cases had been remanded. Meanwhile they could be reunited with their families, return to their employment and contribute to their families' upkeep. Juvenile prisoners could return to school. Almost R1 million in accommodation costs would be saved daily.

The Cabinet approved the proposal and by 27 September 2001, 8 451 such prisoners had been released and some humanity restored to the overcrowded prisons.

2.8 THE POSITION TODAY

The numerous measures taken by the South African Police Service, the Departments of Justice, Correctional Services and Welfare, NGO's and other involved bodies, are showing results. Since 30 April 2000 to 24 April 2001 the number of awaiting-trial prisoners has dropped from 63 964 to 55 216. Awareness of the awful conditions in which awaiting-trial prisoners are held, have led the police, the magistrates, the prosecutors and the heads of prison among others, to take innovative steps to reduce the level of overcrowding.

But the inhumane manner in which awaiting-trial prisoners are still held in many prisons, remains totally unacceptable. The numbers must be brought down by greater Lice of alternatives to incarceration for those awaiting trial and for those being sentenced.

The aim remains to reduce the number of awaiting-trial prisoners to a maximum of 20 000. Then there can be talk of human dignity and rehabilitation.

3. THE OMISSION - A BIG MISTAKE

3.1 In terms of the Correctional Services Act. No 8 of 1959. the President and the Minister can release awaiting-trial prisoners. It was in terms of that Act that the 8 451 awaiting-trial prisoners were released in September last year. But the 1998 Act contains no similar provision. It provides only for the release of sentenced prisoners. It was obviously an oversight.

3.2 It must be put right. It must be done before the 1998 Act is fully promulgated as section 137 of the 1998 Act provides for the repeal of the 1959 Act. It is essential that awaiting-trial prisoners could be released should conditions of overcrowding necessitate it in general or at a particular prison.

3.3 The prisoners most entitled to be released should the prison population have to be reduced, are the awaiting-trial prisoners as
(a) They are the ones who in law are presumed to be innocent. (At a guesstimate, half of them will eventually in any event not be found guilty).
(b) They will stand trial in due course.
(c) Those to whom bail have been granted (19 780 on 22 May 2001) have already been found by magistrates to pose no danger should they await trial outside prison in the community.
(d) Those to whom bail have been granted but are in prison, are there because of their inability to pay bail, i.e. because of their poverty.
(e) On their release, they can return to their work and support their families and, in the case of juveniles, return to school.

3.4 The backlog of cases is improving very slowly. There are still more than 170 000 cases outstanding despite the efforts of various departments to improve things. There are still more than 55 000 awaiting-trial prisoners and that is after the mass release last September. (Six years ago there were only 24 000 such prisoners)
The awaiting-trial period is on average about 41 / 2 months in the district courts and 71 / 2 months in the regional courts. Some people are held for years. It amounts to detention without trial.

3.5 There should be no more than 20 000 awaiting-trial prisoners and their cases should be heard within weeks, not months and years as at present.

3.6 So for some years to come, until the backlog of cases has been worked off, South Africa will have this overcrowding crisis of awaiting-trial prisoners. Periodically when conditions demand it, there may have to be releases from prisons or at a particular prison to deal with the crisis. Those releases should be, not of sentenced prisoners, but of awaiting-trial prisoners, especially those who cannot pay their bail due to poverty.
Taking away the power to release awaiting-trial prisoners, will be an awfully retrogressive step. The approval of the amendment to section 81 is accordingly strongly recommended.

4. ANOTHER OMISSION - RELEASE OF DYING AWAITING-TRIAL PRISONERS.

4.1 Section 79 of the Correctional Services Act, 1998 reads:

"Correctional supervision or parole on medical grounds
79. 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 final phase of any terminal 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, to die a consolatory and dignified death."

4.2 Section 79 applies only to sentenced prisoners. There is no corresponding provision for awaiting-trial prisoners.

4.3 Due especially to the HIV-Aids pandemic, prisoners are dying at an increasing rate. Whilst there were but 188 "natural" deaths in prison in 1995, there were 1 087 such deaths in 2000. The projection, unless a cure is found, is 7 000 deaths per annum in five years and 45 000 in ten years.

4.4 Many of the prisoners that are dying are awaiting trial. It is accordingly imperative that section 79 be amended to provide for the release of such prisoners also.

This can be affected by substituting the word 'prisoner" for the words "person serving any sentence in a prison and" in the first line of section 79.

5. Should the Committee wish to hear verbal presentations, the Inspecting Judge of Prisons would be pleased to elucidate and amplify on these submissions.

JJ FAGAN
INSPECTING JUDGE OF PRISONS