ATC130207: Report of the Portfolio Committee on Correctional Services on its Oversight visit to the Johannesburg Correctional Centre to Assess Remand Detention Facilities and Services, dated 21 November 2012

REPORT OF THE PORTFOLIO COMMITTEE ON CORRECTIONAL SERVICES ON ITS OVERSIGHT VISIT TO THE JOHANNESBURG CORRECTIONAL CENTRE TO ASSESS REMAND DETENTION FACILITIES AND SERVICES, DATED 21 NOVEMBER 2012

1. INTRODUCTION

1.1. A delegation of the Portfolio Committee on Correctional Services (the Committee) visited the Johannesburg correctional centre on 7 June 2012 to assess the conditions of detention and services available to remand detainees.

1.2. This report comprises a summary of the context of the oversight visit, observations made during the visit and the debriefing session which followed it, as well as those made during a recent briefing on the Justice, Crime Prevention and Security (JCPS) cluster’s progress as far as the implementation of the Correctional Matters Amendment Act (Act 5 of 2011), and finally the Committee’s recommendations.

1.3. The visit comprised orientation briefings by the centre management, a tour of the facilities, interaction with unsentenced inmates, correctional officials, independent correctional centre visitors (ICCV), and other key role-players such as the National Prosecuting Authority (NPA), the South African Police Services (SAPS) as well as Legal Aid South Africa (Legal Aid SA).

1.4. This report should be read along with Committee’s “Report on Factors Contributing to Overcrowding in Correctional Centres”, published in September 2011.

2. BACKGROUND TO THE VISIT

2.1 The Judicial Inspectorate for Correctional Services (JICS) in its 2009/10 Annual Report, stated that, although the level of incarceration has dropped to 139%, considerably lower than the 170% recorded at the end of the 2002/03 financial year, South Africa’s incarceration rate remained the highest in Africa and one of the highest in the world. Nineteen of South Africa ’s 239 operational correctional centres recorded levels of overcrowding greater than 200%, and conditions of incarceration at these centres were unacceptable and did not comply with constitutional requirements governing detention.

2.2 The Committee in most, if not all, of its oversight reports, highlights the impact overcrowding has on, amongst others, service delivery to inmates and conditions of incarceration. We consistently recommend that interventions should be made to mitigate the effects of overcrowding. The first such recommendations were made as far back as 2005. Although there has been a reduction in the prison population since 2005, South Africa ’s incarceration rate remains among one of the ten highest in the world: 301 out of every 100 000 people in South Africa end up in incarceration

2.3 Observations made during oversight visits and through interactions with the JCPS cluster and stakeholders, reveal a number of challenges that contribute to the correctional centres’ chronic overcrowding. One of the biggest drivers of overcrowding in South African correctional centres is the large number of persons who have been charged, but whose trials have not yet been finalised. In 2011/12 29% of South Africa ’s inmate population comprised remand detainees. While the remand population has decreased over the past five years, and at 14 August 2012, totalled just over 45 000, the number remains very high.

2.4 All, but three sections of the Correctional Matters Amendment Act, relating to the management of remand detainees were promulgated for implementation from 1 March 2012. Section 48, providing for the provision of uniforms for remand detainees, section 49E providing for the referral of terminally ill or severely incapacitated remand detainees to court, and section 49G providing for maximum incarceration periods would come into effect at a later stage.

3. CONDITIONS OF INCARCERATION

3.1. The Johannesburg management area comprises four correctional centres: Medium A, Medium B, Medium C and the Female correctional centres. The management area has an approved accommodation of 4 864 but at the time of the visit accommodated 9 492 and was thus 195% overcrowded. Only the Medium A and Female centres accommodated remand detainees

3.2 The management area had a post establishment of 2 256, of which 1 624 posts were financed. At the time of the visit 1 593 posts were filled. The post establishment was determined in 2003.

3.3 The Medium A centre could accommodate 2 630 male inmates, but at the time of the visit housed 4 587. Of this total 4 428 were remand detainees. Adult offenders were detained in the D1 unit while juveniles were detained in C1. The centre was 174% overcrowded, and 404 of its 407 posts were filled.

3.4 The Female centre could accommodate 605, but at the time of the visit accommodated 867, 344 of which were remand detainees. The centre was 143% overcrowded, and had 212 officials.

3.5 Both the Female and Medium A centres reported that overcrowding placed an enormous strain on the centres’ infrastructure, and conditions of incarceration. The centres pre-dated 1994, and were not built for humane detention, therefore the infrastructure did not compliment the unit management principles outlined in the White Paper on Corrections, and did not make efficient management of the population, possible. The severe overcrowding exacerbated this challenge.

3.6 The Medium A centre which was the most overcrowded, reported that because it only had a clinic, a not a fully-fledged hospital, the provision of medical care to remand detainees remained a major challenge. The clinic had no bed space, and those inmates who had to be admitted were accommodated in the 60-bed sickbay. The centre was serviced by a centralised pharmacy serving all centres in the area. Serious cases that could not be managed at centre level were referred to external hospitals. The centre stated that its relationship with the Department of Health could be improved.

3.7 The nutritional services at the Johannesburg management area were outsourced to an external service provider, and the management area reported no challenges as far as the services received.

3.8 Both the Medium A and Female centres reported that the Judicial Inspectorate for Correctional Services’ (JICS) independent correctional centre visitor (ICCV), visited daily and that mandatory reporting requirements were met. However, it was noted with extreme concern that the daily complaints register which heads of correctional centres were required to monitor daily, was only checked on a monthly basis at the Medium A centre, and weekly at the Female centre. It was unclear whether this oversight had been reported to the Inspecting Judge’s attention.

3.9 The Medium A centre reported a series of urgent repairs that were required. These included outstanding electrical repair work by the Department of Public Works (DPW), water leakages, blocked drains and toilets, and water seepage through walls. All of these challenges could be directly linked to the severe overcrowding experienced at the centre.

3.10 The Female centre reported similar water leakages, seepage and blockages. In addition, it reported numerous broken windows, and toilets. It gave no indication of when these would be attended to.

4. FACTORS LEADING TO LONG REMAND DETENTION PERIODS

4.1 JCPS cluster cooperation

4.1.1 Although the Medium A and Female centres reported good cooperation between themselves and the NPA, Legal Aid SA , the SAPS, the Department of Social Development (DSD) as well as feeder courts, remand detainees interviewed, painted a different picture. Legal Aid SA representatives were accused of providing poor services. In some cases there were no consultation with clients and poor representation in court leading to unnecessary delays in sentencing. Magistrates were accused of treating accused unfairly. The SAPS and NPA were accused of collusion and corruption: it was alleged that those servicing certain courts expected bribes in return for motivating for bail. Many detainees complained of having been assaulted by the police at the time of their arrest; none of those interviewed had indicated that they had been advised to lodge complaints with the Independent Police Investigations Directorate (IPID).

4.1.2 Concern was raised that despite platforms such as provincial case flow management committees being in place, stakeholders were still unable to resolve simple administrative challenges as simple as record keeping.

4.1.3 Citing a 45% national withdrawal rate, Legal Aid SA disputed that its legal practitioners were overburdened. It identified the fact that attorneys had no access to their clients over weekends, often arrived at centres on weekdays only to find that their clients were not available, or that officials were unable to locate offenders, and that consultation facilities were inadequate as factors impacting in the quality of service to inmates. While the relationship with the DCS’ national management was healthy, the relationship with centre managers had to be cemented.

4.2 Foreign nationals

4.2.1 Foreign nationals place strain on South Africa ’s already pressurised correctional system, because of the additional care they demand. There are approximately 10 000 foreign nationals in correctional centres across South Africa . A total of 8 000 of these offenders are from the Southern African Development Community (SADC) alone. South Africa has not entered into any inmate transfer agreements with other countries. With only 1 000 South Africans incarcerated in other countries, such agreements could only be beneficial

4.2.2 According to officials approximately 50% of the cases on the court roll at one of the city’s magistrate’s courts, were those of foreign nationals arrested mostly on drug-related charges. The Department of Justice and Constitutional Development (DoJ&CD) confirmed that ensuring adequate legal representation and fair trials for foreign nationals was a costly undertaking as the interpretation services especially were expensive. It was acknowledged that there was a need for greater cooperation between the Departments of Home Affairs (DHA), and other JCPS cluster departments.

4.3 Poor implementation of the audio-visual remand system

4.3.1 The Gauteng Department of Justice reported that the audio-visual remand (AVR) system was under-utilised in most courts. The system was highly dependent on the judiciary, prosecuting authority and correctional centres identifying cases that could be placed on the roll for postponement through the AVR system. Should use of this system increase, the turnaround time for postponements would be reduced, transportation to and from courts, and the associated escape risk would be limited, and matters could more speedily be finalised.

4.3.2 Though some judicial officials raised concerns about the suitability of the AVR system in highly populated circumstances. It was suggested that for a centre as large as Johannesburg a special court to hear only guilty pleas, and bail matters might be more suitable.

4.4 Bail applications/Unaffordable bail

4.4.1 In terms of section 63A of the Criminal Procedure Act, heads of correctional centres may apply for the amendment of bail conditions on account of prevailing prison conditions including whether the centre is overcrowded. The JICS reports that this provision is grossly under-utilised. Parliament had in the past been informed that heads of correctional centres stopped making use of this provision, because courts summarily turned down applications made in terms of it.

4.4.2 In 2010 the JCPS cluster reported that the category of inmates for whom the courts had not yet decided to grant bail stood at 37 865 at the end of May that year. This category placed enormous strain on the DCS, as it was impossible to divert them in terms of Sections 62 and 63 of the Criminal Procedure Act. The Committee is of the firm opinion that only when remand detention could be strongly motivated for, should it be opted for.

4.4.3 Judicial officers conceded that because the legislative provisions for bail were cumbersome, magistrates did not often take the time to determine whether the accused could afford the bail set, or whether it might be advisable to release them on a warning. The NPA representatives agreed that bail protocol should be revisited in order to simplify it.

4.5 Poor utilisation of diversions and alternative sentences

4.5.1 Judicial officers explained that because they had little faith in the DCS capacity to effectively implement the correctional supervision required when diverting offenders, or imposing alternative sentences, they were reluctant to impose such non-custodial alternatives. The DCS conceded that owing to its acute staff shortages, the implementation of correctional supervision was a challenge. For the system to be effectively implemented, the DCS would need to double, or even triple the staff establishment of its social reintegration branch.

4.5.2 It was emphasised that though much focus was placed on the JCPS-cluster departments and their role in ensuring that alternative sentences and diversions are effective, little is mentioned of the communities have to play. Corrections are a societal responsibility, and require joint efforts from social workers, psychologists, community workers and JCPS-cluster departments.

5. RECENT DEVELOPMENTS

5.1 In September 2012 the JCPS cluster reported that the number of remand detainees continued to decrease annually. This reduction was ascribed to interventions such as improved case flow management, and speedier trials; increased use of alternative dispute resolution mechanisms; emphasis on resolving long outstanding cases through additional backlog courts; giving priority to all matters where the accused have been in custody for long periods of time. The cluster reported that in most cases, matters were dealt with in three to four months. Fewer than six percent of matters remained unresolved for two years or longer. By the end of March 2012, the average length of time spent in remand had been reduced from 150 days to 96 days.

5.2 In July 2012 the JCPS cluster approved a protocol outlining their roles and responsibilities with regard to the implementation of provisions regulating the length of time a person may spend in remand detention. The DCS has developed a draft circular and relevant forms for distribution and training once implementation of the section commences.

5.3 An IT solution which will allow the DCS to identify detainees who, based on the length of time spent in remand, qualified for referral to court to have the matters reviewed. The IT solution was expected to have been finalised by the end of the 2012/13 financial year, whereupon section 49G would become implementable. The cluster was developing a plan for addressing the backlog of cases older than two years, which would be implemented three months before the coming into operation of the section.

5.4 Pending the insertion of a parallel provision in the Criminal Procedure Act, the judiciary would make use of the options highlighted in section 63A of that Act to manage DCS applications to have matters referred to court.

6. RECOMMENDATIONS

The Committee requests that the Minister of Correctional Services (the Minister) ensures that the following recommendations are considered, and where possible, implemented. The Minister should further ensure that responses on their feasibility and/or implementation progress reports are submitted within one month of the adoption of this report .

6.1 The Committee should be provided with a progress report on how the maintenance challenges mentioned above have been addressed. Every effort should be made to explore ways in which the impact over crowding has had on the infrastructure may be mitigated.

6.2 The Committee should be provided with a progress report on the DCS’ readiness to implement section 49G of the Correctional Matters Amendment Act, which regulates the period of time a person may be held in remand detention. The Committee further advises, that the training in the implementation of the provision, should not commence only when the section becomes implementable, but before.

6.3 Upon admission all remand detainees should be informed of their rights under the new legislation. In addition medical assessments must take place as required by the legislation. Where detainees arrive at centres with injuries sustained in police custody, they should be advised to press criminal charges, and/or lodge complaints with the IPID. Medical care should be provided immediately.

6.4 The DCS should ensure that Legal Aid SA-practitioners’ access to their clients was not unnecessarily restricted. The Committee acknowledges the myriad of infrastructural challenges faced by many correctional centres, and the Johannesburg centre in particular, but must urge heads of correctional centres to demarcate suitable spaces that may be used for consultation.

6.5 The DCS should provide the Committee with a report on the extent to which Section 63A of the Criminal Procedure Act had been used in between January and October 2012, and how these applications had been received by the courts.

6.6 The magistracy and judiciary’s reluctance to make use of the bail protocol is noted. It is recommended that the protocol’s impact since its implementation should be assessed, and that the necessary amendments, if any, be made to ensure that it may be utilised with the desired effect.

Report to be considered