South Africa

A Review of Civilian Oversight over Correctional Services in the Last Decade (Research Paper No. 4)

The restricted and hidden nature of the prison regime was dramatically apparent in apartheid South Africa, where prisons shunned outside scrutiny and engagement in all correctional matters. The correctional system was an inherent part of the political apparatus that upheld the apartheid state. Prisoners were segregated according to race, and the staff hierarchy echoed similar racial lines. The adoption of the Bill of Rights in firstly the interim and then the final Constitution in 1993 and 1996 finally established the right of prisoners to be treated with human dignity and set out the mandatory minimum rights of people deprived of their liberty and those held in custody. These guideline principles, later amplified in the Correctional Services Act of 1998, seek to define how the Department of Correctional Services (DCS) should implement its correctional mandate in keeping people in custody. Recognising the importance of accountability and oversight mechanisms in respect of public institutions, the Constitution created vehicles for civilian oversight. Mechanisms were also created to focus exclusively on prisons. A decade after this transition, it is timeous to evaluate how these mechanisms are functioning, and to what extent they are serving their envisaged purpose.

Optional Protocol to the Convention against Torture and Other Cruel and Inhumane Treatment (Research Paper No. 2)

South African ratified the UN Convention Against Torture in December 1998 and played a significant role in the drafting of the Optional Protocol to the Convention against Torture (OPCAT). The UN General Assembly adopted the OPCAT in December 2002 and since February 2003 the OPCAT has been open for signature. By October 2005 there have been 48 signatures and 13 ratifications. The Protocol requires 20 ratifications to become binding on UN members. The OPCAT is a powerful international human rights instrument as it provides for national and international visiting mechanisms to all places where people are detained. This includes prisons, police cells, immigration centres, and psychiatric hospitals, amongst others. Regular visits to such facilities have been proven as an effective measure against torture and the ill treatment of people deprived of their liberty. This paper investigate the implication for South Africa should it sign and ratify the OPCAT.

Policy Developments in South African Correctional Services 1994 - 2002 (Research Paper no. 1)

The period 1994 to 2002 in South African Correctional Services history is reviewed in this paper and was prompted by the apparent confusion characterizing correctional policy during this period. During this period substantial policy changes were adopted, such as the privatization of prisons, but with limited debate and oversight. The paper records for historical purposes important trends and mistakes made during this period, but also serve as a clear reminder of the importance of transparent knowledge-based policy development.

Prisoners' Rights Litigation in South Africa Since 1994, a Critical Evaluation (Research Paper No. 3)

Prisoner's rights litigators face serious challenges when they take on the Department of Correctional Services. There is a lack of respect for the Rule of Law within prison services, which means existing rules are disobeyed, court orders ignored and corruption and misconduct condoned or covered up; representatives of prison services often fear taking responsibility and therefore often fail to act, passing on cases to court in an attempt to "pass the buck"; the leadership in the Department often does not know what is going on in individual prisons; the public and the newspapers have little sympathy for prisoners and there is little publicity for the plight of prisoners and consequently representatives in the prison service feel that they can get away with actions that would otherwise not be tolerated; and conditions of overcrowding in the prisons are often caused by problems in the criminal justice system and must be addressed if one wants to improve the conditions under which prisoners are kept. This means that at present litigation against the Department of Correctional Services seldom brings lasting changes in the conditions of prisoners and/or in the way prison officials and the political leadership in the Department operate. Despite these problems, prisoners' rights litigation could be a powerful weapon deployed to address the lack of respect for the Rule of Law, which lies at the heart of the problems faced by the Department. Other non-legal strategies could be used alongside litigation strategies to place ever more pressure on relevant officials and the political leadership in the Department. Such pressure would then force the prison leadership to act because inaction would become impossible.

The presentation provides an overview of the research conducted to assess the efficacy of the Judicial Inspectorate for Prisons in South Africa.

This report provides a detailed analysis of the legal mandate and powers of JICS. A number of recommendations are made to enhance its independence, efficiency and effectiveness.

The report provides a detailed analysis and evaluation of the Independent Prison Visitors (IPV) system of the Judicial Inspectorate for Correctional Services (JICS). Recommendations focus on the appointment process of IPVs; the performance management system for IPVs; the quality of feed-back given to prisoners; the training of IPVs; Interaction between IPVs and DCS officials; additional IPVs or the allocation of more time; Interaction with prisoners and work outside mandated duties, and political oversight.

The problem of overcrowding within the South African prison system has been identified as a key challenge, which negatively affects the ability of the Department of Correctional Service (DCS) to rehabilitate offenders. The first objective of the report is to describe the main causes and consequences of overcrowding. Secondly, is to highlight some of the current initiatives to address the problem of overcrowding in prisons. Lastly, the report seeks to identify specific recommendations by the Portfolio Committee on Correctional Services to alleviate prison overcrowding.

South African Human Rights Commission Commissioner Charlotte McClain-Nhlapo briefs the Parliamentary Portfolio Committee on Correctional Services on the situation of children and youth in prisons.

A Review of the Judicial Inspectorate of Prisons of South Africa (Research Paper No. 7)

This paper reviews the effectiveness of the Judicial Inspectorate in fulfilling this mandate as an oversight structure.

Alternative Sentencing Review (Research Paper No 6)

Whilst the South African legislation makes ample provision for non-custodial sentencing options, practice reveals that these sentencing options are severely under utilized. Research in a number of jurisdictions reveals a system beset by practical problems, lack of knowledge, infrastructure problems, and attitudinal obstacles. Practical recommendations are provided on promoting non-custodial sentencing options as a result of the research.

Report of the Evaluation of the Independent Prison Visitors (IPV) System (Research Paper No. 5)

In 1999 the relevant sections of the Correctional Services Act was promulgated to provide for the establishment of the Judicial Inspectorate of Prisons. The Independent Prisons Visitor, as provided for in the Act, is the main mechanism of the Judicial Inspectorate to hear and address the complaints of prisoners. With hundreds of Independents Prison Visitors appointed by 2003, this paper reviews the effectiveness of the system to address the complaints of prisoners.

South African Prisoner's Right to Vote: Addendum to "Prisoners' Rights Litigation in South Africa since 1994: a Critical Evaluation" (Research Paper 3A)

Subsequent to the Constitutional Court case in which the right of prisoners to vote was secured prior to the 2004 general election (Min of Home Affairs v NICRO), this is an addendum to Pierre de Vos's paper on the impact of litigation to promote the rights of prisoners

Inspecting Judge for Prisons in South Africa, Judge Fagan, addresses the consequences that the minimum sentencing legislation passed in 1997 will have on overcrowding in South African prisons.

This document provides an overview of the work of South Africa's Parliamentary Portfolio Committee on Correctional Services for the 2004 calendar year.

The power-point presentation highlights the prison policy from 1994 to 2002 in South Africa.

The presentation demonstrates the international, domestic legislative obligations and case-law jurisprudence in addressing alternative sentencing mechanisms in South Africa.

A study of best practice in prison governance (Research Paper No. 9)

Despite the fact that the Department of Correctional Services has attracted significant media attention as a result of the Jali Commission's investigations, this paper focuses on examples of good governance. The purpose is to demonstrate that despite adverse conditions, individual managers are able to delivery effectively on the department's mandate. The intention is that such examples should be sued for internal learning and replication purposes.

Offender rehabilitation and reintegration: taking the White Paper on Corrections forward (Research Paper No. 10)

This research paper focuses on offender reintegration and based on international and domestic research, interrogates the notion of offender reintegration. In an effort to support the further realization of the White Paper it formulates principles, based on extensive international meta-analysis supported by local research, on what works and what does not work in offender reintegration. It argues for an approach to offender reintegration that is based on knowledge and rigorous in design and, implementation and evaluation.

The Treatment of Children in South African Prisons - A Report on the Applicable Domestic and International Minimum Standards (Research Paper No. 11)

The purpose of this report is to describe the compliance requirements in terms of domestic and international law for the Department of Correctional Services as it pertains to the treatment of children in prison. International law is replete with normative standards applying to the treatment of children in prison. As this research paper focuses on children in prison, the emphasis is placed on the relevant provisions of the Convention on the Rights of the Child and the UN Rules on Juveniles Deprived of their Liberty, as well as some of the provisions of the UN Standard Minimum Rules for the Treatment of Prisoners. Further, the Correctional Services Act of 1998 is an important legal framework in the administration of prisons and the treatment of all prisoners, including children. The White Paper on Corrections, released in March 2005 by the Department of Correctional Services, constitutes a comprehensive blueprint augmenting the legal framework in the Act. The report also pays attention to the situation at ground level and identifies particular problem areas. This paper makes a number of observations in relation to the need to upgrade some areas of these domestic laws and policies to ensure compliance with the international law framework. Examples of practical compliance and non-compliance are also highlighted, calling for the need to go beyond progressive laws and policies.

The submission deals with three broad themes in relation to the budget and strategic plan, namely achievements of the DCS, areas of concern, and reporting.

The submission was made in response to South Africa's initial report to CAT and focused on the criminalisation of torture and conditions (including allegations of torture) in South Africa's prisons.

Corruption in the prisons context

The point of departure of this paper is that corruption is a human rights issue, which is accentuated in the prison context given the nature of imprisonment. Three factors create an intrinsic risk for corruption in prisons. Firstly, the all-encompassing nature of imprisonment regulates every aspect of prisoners' daily lives: from having the most basic necessities to having access to luxury items, or even illegal items and activities. Secondly, the state as the controller, establishes a highly unequal power relationship between the prison bureaucracy (represented by the warder) and the prison population. Thirdly, the closed nature of prisons and their general marginalisation from the public eye and political discourse do not assist in making prisons more transparent. Against this backdrop, poor management, weak leadership or organised crime can have a devastating impact on the overall operation of a prison system and, ultimately, on the human rights of prisoners. The paper seeks to clarify key concepts relating to prison corruption. By means of defined relationships, for example between individual warders and individual prisoners, or prisoners and warders as collectives, the nature of prison corruption is described. It concludes that there are fundamental differences between prison corruption and corruption found in others sectors of the public service. The research was done prior to the release of the Jali Commission Report Executive Summary and relied on publicly available documents.

Investigating prison corruption

Who investigates corruption, what is investigated and who makes these decisions are important considerations in the fight against corruption. Investigating corruption is one component of anti-corruption strategies. Investigations can be done in different ways, can be based on different assumptions and be driven by different motivations. These assumptions and motivations are reflected in their respective mandates and terms of reference. Some investigations are fact-finding missions with fairly broad and open mandates, while others may be very specific with the intention of bringing about prosecutions and recovering state assets.

The Effect of Sentencing on the Size of the South African Prison Population

This report was commissioned by the Open Society Foundation for South Africa (OSF) and recently presented at a conference on sentencing held in Cape Town. South Africa has a serious prison overcrowding problem. The total number of prisoners has grown steadily and dramatically over the last 11 years. The cause of the increase has changed during this time. Between 1995 and 2000, the major driver of the prison population rise was a massive increase in the size of the unsentenced prisoner population. After 2000, the number of unsentenced prisoners stabilised, and then began to decrease. But the prisoner population continued to grow, now as a result of an increase in the number of sentenced prisoners. This growth continues, despite the fact that the number of offenders admitted to serve custodial sentences is decreasing. The bulk of this increase consists of prisoners serving long sentences. Thus, the rate of release of sentenced prisoners is slowing down.

The impact of sentencing on the size of the prison population

South Africa has a serious prison overcrowding problem. The total number of prisoners has grown steadily and dramatically over the last 11 years. The cause of the increase has changed during this time.

Prisons in a Democratic South Africa - a Guide to the Rights of Prisoners as Described in the Correctional Services Act and Regulations

The Correctional Services Act (CSA) was promulgated in 2004 creating a human rights based framework for South Africa's prison system. In a sense the prison system was delayed in its transformation compared to other government functions in the justice and protection services cluster. Whilst the CSA was passed by Parliament in 1998 it was only in part promulgated and the final and full promulgation took place in October 2005, nearly seven years later. With a new legislative framework in place, the following questions can then rightly be asked: What does a constitutional democracy mean for prisoners? How are the rights of prisoners described in the new Act? What are the rights of children, women, and Aids patients in prisons? How does overcrowding affect prisoners' rights? The purpose of this resource book is to describe in an accessible and user-friendly format the human rights framework for prisoners in South Africa based on the Constitution, Correctional Services Act and the Regulations accompanying the legislation. Where appropriate, reference is made to other legislation that has a direct bearing on the rights of prisoners. It is not a legal text and it is not aimed at lawyers and persons studying prison law, although they may find it useful as a first introduction to a particular topic.

The Department of Correctional Service (DCS) commissioned an unlinked, anonymous HIV and syphilis surveillance research study among staff employed by, and offenders in the custody of, the Department of Correctional Services in South Africa.

This submission deals with the Department of Correctional Services Budget Vote 2007.

The submission deals with the following: the strategic plan; real and nominal values in the budget; size of the prison population; privatisation; prison construction programme; low spending on the rehabilitation programmes; and community corrections.

This submission to the South African Department of Justice and Constitutional Development deals with the Implementation Plans for the Victim’s Charter with a focus on the status of, and services to victims of torture, particularly in places of detention. It addresses redress for victims of torture and victim participation in parole board hearings.

The submission on the Children's Amendment Bill focuses on the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) and the Optional Protocol to the Convention against Torture (OPCAT), and their applicability to the Children’s Amendment Bill.

The submission focuses on deaths and assaults in prisons and calls for the criminalisation of torture.

Jali Commission Report - Summary and Comment

The Judicial Commission of Inquiry into Allegations of Corruption, Maladministration and Violence in the Department of Correctional Services – The Jali Commission - wrote a comprehensive report that investigated various areas of the Department of Correctional Services (DCS). The Jali Commission established that the DCS had various problems that made it function in a manner that left a lot to be desired. The Jali Commission made various recommendations (114+) in its 1800+ page report. The CSPRI summarised the Jali Commission report and put in a user-friendly language for most of us who do not have time to read and comprehend the whole report and also for ease of reference.

Prisons in South Africa's Constitutional Democracy

Prisons serve a set of complex, mutually conflicting and hard-to-achieve goals. Prisons must house people in a humane manner but simultaneously appeal to the punitive nature of prisons — order and security must be maintained while providing an effective deterrent, and appease political opinion. It is in this “inherent policy vagueness” that stakeholders (for example, politicians, bureaucrats and civil society) must find a compromise (Boin, James and Lodge, 2005: 7). Can a constitutional democracy, such as South Africa, find an acceptable compromise, and what would “acceptable” mean under the rules of a constitutional democracy? This report investigate these questions and looks at what are the constitutional requirements for prisons as well as the threats and stumbling blocks en route to meeting these.

This submission was made in response to South Africa's Department of Correctional Services tabling of its 2008/09 budget. It addressed the size of the prison population, the seven-day establishment, the PPPs, and the implementation of the White Paper on Corrections.

This submission is made to the South African Portfolio Committee on Justice and Constitutional Development and addresses the Criminal Law (Sentencing) Amendment Bill [B15 of 2007]

This submission focuses on the prevention and combating of torture, cruel, inhuman or degrading treatment within the context of the Prevention of and Treatment for Substance Abuse Bill [B12- 2008]. The overall objective is to promote the use of two international instruments (UNCAT and OPCAT) and, more specifically, to assist in creating the enabling legislation to give effect to section 12 of the Constitution.

"This publication aims to provide guidance on how the UN Convention against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT) can be used as a resource in South Africa to eradicate torture and ill-treatment...This prohibition of torture imposes on states obligations which are owed to all other members of the international community; each of these obligations has a correlative right. It signals to all states and to the people under their authority that 'the prohibition of torture is an absolute value from which nobody must deviate.' At the national level it de-legitimates any law, administrative or judicial act authorising torture."

The submission analyses statistics on deaths in custody and medical parole releases. An overview of legislative provisions is provided and recommendations are made in order to achieve greater consistency in decision-making.

This submission discusses the South African Criminal Procedure Amendment Bill 42 of 2008, which aimed at allowing audio-visual link-up with the courts and at addressing the expungement of criminal records. The Criminal Procedure Amendment Act was adopted in 2008 (Act 65 of 2008).

Women prisoners present specific challenges for correctional authorities despite, or perhaps because of the fact that they constitute a very small proportion of the prison population. This document discusses matters affecting women in prison settings and why women are at risk of HIV in prisons.

An Assessment of the Impact of HIV/AIDS on Correctional System governance with Special Emphasis on Correctional Services Staff

The incidence of HIV/AIDS infection in South African prisons has been extensively documented in recent years. This research has focused variously on the geographic and demographic spread of the disease and on the rights of inmates to prophylactics and to appropriate treatment and care. In contrast, little research has been directed towards the incidence and impact of the pandemic amongst correctional officials. From this research it is evident that whilst the Department of Correctional Services (DCS) has developed a fairly coherent (albeit unevenly implemented) programme for the prevention and treatment of HIV/AIDS amongst inmates, and notwithstanding the recent launch of a “Framework for the Implementation of a Comprehensive HIV and AIDS Programme” it has yet to develop and implement systematic measures to manage the disease amongst its own staff.

The Changing Face of Life Imprisonment in South Africa.pdf

This article investigates the meaning and use of life imprisonment in South Africa in four major legal historical eras: life imprisonment at the time when the death penalty was still lawful in South Africa (including life imprisonment as early as 1906); life imprisonment in the immediate aftermath of the abolition of the death penalty (1994-1998); life imprisonment following the introduction of the minimum sentences legislation (1998-2007); and life imprisonment after December 2007, when the sentencing jurisdiction of the regional courts was extended to include life imprisonment.

Prisoner Re-Entry in Cape Town – An Exploratory Study

Every month in South Africa approximately 6000 sentenced prisoners are released, some on parole and some on expiry of sentence. After serving their prison sentences it is society’s expectation that they will refrain from committing crime and be productive citizens. They are expected to find employment, rebuild relationships with their families and communities, and cease from engaging in certain activities and avoiding the risks that caused their imprisonment in the first instance. Unfortunately, it is the case that many released prisoners commit further offences and find their way back to prison, some in a remarkably short period of time while others return after several years. This study is concerned with the immediate post-release period and asked a very simple question: “What happens to people immediately after they have been released from prison?” The question is aimed at gaining a deeper and empirical understanding of what prisoner re-entry and reintegration into society mean and what the obstacles are to successful reintegration. When people’s lives have effectively been put on hold for several months or years, how do they pick up the strings where they had left them, if there are indeed strings to pick up?

by Vanja Karth, Jean Redpath & Michael O'Donovan. Report prepared for the Open Society Foundation for South Africa (OSF-SA).

The submission deals with the following: the size of the budget; the size of the prison population; Meeting the minimum standards of humane detention; Performance and operations indicators; Engaging prisoners in programmes and employment; Development of sentence plans; Preparing for release and post-release support; and the handover report.

This submission was made to South Africa's Parliamentary Portfolio Committee on Correctional Services, in response to DCS tabling its 2009/10 Annual Report. The submission discusses internal and external accountability, inmate labour, parole and social reintegration, human resources management, and services to offenders.

This submission to the South African parliamentary Portfolio Committee on Justice and Correctional Services on the 2008/9 Department of Correctional Services Annual Report addresses the issues of safe custody, challenges faced by the pre-trial detention population, staff management and social reintegration.

The submission deals with the following: research and information; dealing with complaints; torture and ill treatment; deaths in custody, formulating clear recommendations, and performance indicators for centre-level monitoring.

A Societal Responsibility: The role of civil society organisations in prisoner support, rehabilitation and reintegration

There is a growing number of civil society organisations in South Africa working with offenders and prisoners focusing on prisoner support, rehabilitation and reintegration, reflecting in many ways the ‘societal responsibility’ that the White Paper on Corrections advocates for. These organisations provide services broadly aimed at promoting offender reintegration and reducing the chances of re-offending.

Ex-prisoners' Views on Imprisonment and Re-Entry

In the past 15 years much research has been conducted on the prison system in South Africa focusing on governance, law reform and human rights. It is, however, of particular concern that the voices of prisoners and ex-prisoners had not been heard in the current discourse, one that has been dominated by the Department of Correctional Services (DCS), Parliament, service delivery organisations, academics and human rights activists. In essence, there has been a lot of talk about prisoners and ex-prisoners but there has been little listening to prisoners and ex-prisoners taking place.

Reducing Prison Violence: Implications from the literature for South Africa

Few would argue that prisons are violent places and South Africa is no exception. The consistently high number of deaths and complaints of assaults recorded by both the DCS and the JICS over several years indicate that violence is a “normal” feature of the South African prison system. Amongst all the strategic objectives towards transformation of the prison system and the distractions, the most important objective of any correctional system is to detain prisoners under safe and humane conditions. This, very explicitly, means that individuals, when imprisoned, must not only be safe but they must also feel safe. Regrettably this is not the case and thus the need for this paper to take a closer look at violence in South Africa’s prison system. This is done by reviewing the literature on prison violence to gain a deeper understanding of the problem and also to establish whether there have been any effective measures implemented elsewhere to reduce prison violence. Based on these a number of recommendations are made to improve prison safety in South Africa.

Roundtable discussion on oversight over the prison system

This roundtable discussion, hosted by CSPRI, is the first in a series of three, and included representatives from Parliament, the Judicial Inspectorate for Prisons, SAHRC, media and civil society organisations. The discussions focused on the different oversight mandates, successes achieved in exercising oversight as well as the problems faced. Strategic priorities in prison oversight were identified by the participants.

Roundtable Discussion on the 2008/9 Annual Report of the Judicial Inspectorate for Correctional Services

The second, in a series of three roundtable discussion, focused on the 2008/9 Annual Report of the Judicial Inspectorate for Correctional Services. Since its establishment in 1998 the Inspectorate has made a valuable contribution to promoting and protecting prisoners’ rights and South Africa. The Inspectorate has the mandate to inspect prisons in order that the Inspecting Judge may report on the treatment of prisoners and conditions in prisons. After nearly a decade in existence, it is necessary to examine how the Inspectorate has fulfilled its mandate and how oversight over the prison can be improved in cooperation with other stakeholders, such as civil society, Parliament and the academic community. The discussion focused on the state of correctional centre and the prevention of human rights violations.

Roundtable Discussion on the White Paper on Corrections in South Africa

In March 2005 the Department of Correctional Services released the White Paper on Corrections in South Africa which articulated a new 20-year vision for the correctional system. This vision articulates an antithesis of what was inherited from the previous regime. But it does raise serious questions about its attainability. Nearly five years into the implementation of the White Paper, results in respect of rehabilitation services to prisoners remain modest. The lack of budgetary alignment to the vision of the White Paper has also been remarked upon by Parliament. In many regards, conditions of detention fail to meet the minimum standards set out in the Constitution and the Correctional Services Act. This roundtable discussion focussed on a critical examination of the White Paper as a policy document and also on progress towards realising the objectives of the White Paper. Some may argue that the White Paper has made a valuable contribution by providing the Department with a new purpose and paradigm, whilst others state that meeting the minimum standards of humane detention is a pre-requisite for large scale rehabilitation services. Did the ambitious vision of the White Paper set the Department up for failure?

This submission focuses on five aspects of the budget vote: the budget in relation to other budgets; meeting the minimum standards of humane detention; the performance indicators; high prison construction costs; and social reintegration.

This submission focuses on inmate labour in South Africa, with specific reference to the rights issues applicable and related to labour performed by sentenced inmates.

This submission to the South African Parliamentary Portfolio Committee on Justice and Correctional Services on theCriminal Procedure Amendment Bill (Bill 39 of 2010) discusses the amendments to section 49 of the Criminal Procedure Act (use of deadly force by police) and its deviation from the Constitutional Court case Ex parte Minister of Safety and Security: In re S v Walters. The Bill was adopted in 21012 (Act 9 of 2012).

The Human Rights Committee has found that South Africa violated a prisoner’s rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected when deprived of liberty. South Africa was also found to have violated its obligation to investigate and remedy the violation of those rights.

This policy document seeks to prevent torture and other cruel, inhuman or degrading treatment of persons in custody of the South African Police Service (SAPS). It contains instructions which will eventually be incorporated into SAPS National Orders. The commentary provided does not form part of the instructions, but is intended to give guidance to members.

The submission to the South African Portfolio Committee on Correctional Services deals with the Correctional Matters Amendment Bill.

The presentation is a evaluation of the functions, interaction and effectiveness of the Independent Prison Visitors System (IPV system) in order to determine whether the system is functioning in accordance with its purpose and mandate.

This submission addresses the Department of Correctional Services’ responses to the comments made by stakeholders on the Correctional Matters Amendment Bill during the public hearings of 25 January 2011.

This submission discusses the South African Implementation of the Geneva Conventions Bill 10 of 2011, which aimed at domesticating the Geneva Conventions into South Africa's domestic legal framework. The Implementation of the Geneva Conventions Act was adopted in 2012 (Act 8 of 2012).

The submission deals with two bills, being the Independent Police Investigative Directorate Bill and the Civilian Secretariat for Police Service Bill. The first places the emphasis on the absolute prohibition of torture and argues for the inclusion of the crime of torture into the bill and strengthening the investigative powers of the proposed Police Investigative Directorate (IPID) as well as its independence. In respect of the Civilian Secretariat for Police Service Bill attention is paid to establishing a detention visiting mechanism to enhance transparency in line with OPCAT.

The submission deals with the Implementation of the Geneva Conventions Bill and addresses: lack of a definition of “grave breaches”; the criminalisation of all breaches not of a grave nature; the need to determine the sentence; and applicable law.

Simon Johnstone-Robertson, Stephen D Lawn, Alex Welte, Linda-Gail Bekker, Robin Wood. From South African Medical Journal 2011;101:809-813. Prisons are recognised internationally as institutions with very high tuberculosis (TB) burdens where transmission is predominantly determined by contact between infectious and susceptible prisoners. A recent South African court case described the conditions under which prisoners awaiting trial were kept. With the use of these data, a mathematical model was developed to explore the interactions between incarceration conditions and TB control measures

Survey of Detention Oversight Mechanisms Provided for in the Laws of SADC Countries.pdf

Given the slow rate at which SADC countries have signed and ratified OPCAT, this paper explores existing statutory detention oversight mechanisms in the domestic laws of SADC countries with a particular emphasis on prisons. The notion of individuals or institutions visiting places of detention to inspect conditions of detention and treatment of detained persons is not new and is found even in the antiquated laws of several countries reviewed here.

Remand detention in South Africa: An overview of the current law and proposals for reform

This research report provides an overview of the necessary research to develop possible solutions for limiting the amount of time remand detainees spend in custody. The report discusses, firstly, the bail provisions in the Criminal Procedure Act with regard to the right to liberty and in the broader constitutional notion of proportionality. Second, case law from regional and international bodies dealing with pre-trial release is explored, and third, detention time limits and automatic bail review proceedings are discussed. Fourth, the conceptual distinction between fair trial rights and liberty interests and the South African courts’ treatment of “undue delay” cases is described. The report concludes with the recommendation that a constitutional challenge, based on the Criminal Procedure Act’s failure to adequately protect the accused’s right to liberty, be brought on behalf of South Africa’s remand detainees. Such a challenge would be based on the right to liberty and argue that without custody time limits and a regular, automatic review of bail decisions, the law in relation to bail, as it currently stands, is unconstitutional.

The law and the business of criminal record expungement in South Africa

This report reviews the use and expungement of criminal records in South Africa and was prompted by a recent amendment to the Criminal Procedure Act which created, for the first time, a mechanism for certain criminal convictions to be expunged. The situation of criminal records and their expungement is, however, not a simple one and the creation of additional registers (Sex Offender Register, Child Protection Register and Diversion Register) have added another dimension to the issue. The overall impression from the legal framework is that different pieces of legislation use different yardsticks in respect of expungements. It is furthermore a general conclusion that the scope of the mechanism created in the Criminal Procedure is extremely narrow and that very few former offenders would in fact benefit from it. The creation of this mechanism also saw the private sector creating a profit opportunity with some companies charging amounts as high as R7 500 for handling the expungement application, a procedure that should cost no more than R100. The report concludes by recommending that the retention and expungement of criminal records should be selective, purposeful and based on knowledge.

The submission calls for the criminalisation of torture and cites instances where torture was perpetrated in prisons. It also calls on the South African government to ratify OPCAT.

South African budget aims to ease pressure on courts

This week’s Budget brought good news for the upgrading and construction of court buildings, a Sake24 report notes.

Shortage of translators at Johannesburg Magistrates' Courts

More than half of the cases heard on a daily basis in the Johannesburg Magistrate's Court and its ten satellite courts demand foreign language translators, and there are not enough of them to meet demand, reports Beeld newspaper.

NGO asks Inspecting Judge to investigate illegal treatment of Pretoria escapees

Constitutional and legislative protocols breached during press conference held after recapture of three prisoners attempting to escape by climbing over a wall at Pretoria Central Prison on 16 March 2012, says Civil Society Prison Reform Initiative (CSPRI).

On Tuesday 17 April, CSPRI delivered a submission on the budget vote (Vote 21, 2012/13), the strategic plan (2012/13 – 2016/17) and the annual performance plan (2012/13) of the Department of Correctional Services to the Portfolio Committee on Correctional Services.

On 18 April 2012, the Community Law Centre delivered a submission to the African Commission on Human and Peoples' Rights. The submission dealt with three issues, namely compliance with the Robben Island Guidelines, domestic oversight over places of detention and limiting the use of pre-trial detention.

A 48-year-old man arrested for being drunk in public was beaten to death in a Durbanville, Cape Town, police cell in the early hours of Saturday 21 April 2012.

The Judicial Inspectorate Quarterly Report for the period 01 January – 31 March 2012 articulates the activities within the three core programmes of the Judicial Inspectorate, namely: (1) Administration; (2) Complaints processing, monitoring, and investigations; and (3) Community Oversight and Stakeholder engagement.

"An important finding is that the policies in respect of the services and activities available to children are varied and inconsistent. Inconsistencies exist in relation to information provided at admission, orientation of new admissions, conditions of detention, the segregation of children from adults, access to education, access to recreation and preparation for release. ... Based on snapshot data, children remain awaiting trial in DCS facilities for an average of 70 days."

President Zuma "releases" Cele as police chief, appoints Phiyega

Police Chief Bheki Cele was fired by Mr Zuma on 12 June after the president received a report compiled by a board of inquiry chaired by retired Justice Jake Moloi.

Du Toit brothers arrested in 2002, found guilty in 2012.

CSPRI made the following submissions to Parliament on the Prevention and Combating of Torture of Persons Bill. These submissions represent the views of a group of organisations and address, primarily, whether the contents of the Bill comply fully with the obligations imposed on the state in terms of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). These submissions also include recommendations on what the Bill should include and / or exclude as well as suggestions on how the text could be amended.

This submission deals with human resources, staff training, children in prisons, discipline and turnstiles. Many of the problems facing the Department of Correctional Services are longstanding and the Portfolio Committee is familiar with these. CSPRI expresses concern about the persistence of these problems. For reasons that are not always clear the same issues undermine performance in the Department without a solution in sight. CSPRI makes a number of recommendations as to how to address the concerns noted.

With this submission, CSPRI wishes to draw the Portfolio Committee’s attention to the fact that since its establishment in 2000, the JICS has not been the subject of a review process scrutinising whether it is indeed advancing prisoners’ rights in South Africa. CSPRI submits that continuous and regular review is necessary in order for state institutions to adapt to changing needs and improve efficiency and effectiveness. The submission discusses the independence of JICS and the current investigative regime and encourages JICS to include recommendations, based on national and international law and jurisprudence, whenever it reports concerns.

CSPRI made a submission to the Commission of Inquiry into allegations of police inefficiency in Khayelitsha and a breakdown in relations between the community and the police in Khayelitsha. Bearing in mind the obligations under the Convention against Torture and its Optional Protocol, the recommendations touch upon meaningful independent oversight, including at the provincial level; improved training of law enforcement officials; prompt and impartial investigations of allegations of torture; and public co-operation.

The ability of the JICS to effectively promote and protect the rights of inmates depends on the extent to which it is independent of political and executive influence. Accordingly, this submission focuses on the financial and administrative aspects of the JICS as well as the nature and objects of its legislative powers.

Following the outcome of an interdepartmental project led by the DCS aimed at re-engineering the way in which awaiting trial detainees are dealt with, the Cabinet Lekgotla decided in January 2009 that the DCS must establish a Branch that will be responsible for the management of awaiting trial detainees.This White Paper deals with the remand detention population as a very distinct entity from the population of sentenced offenders. It recognises the unique challenges associated with persons who are detained although not yet found guilty of any crime. It distinguishes this population from a population focused on rehabilitation and acknowledges the duty to hold such a population for purposes of attending court.

This is in response to the Commission of Inquiry into allegations of police inefficiency in Khayelitsha and a breakdown of relations between the community and the police in Khayelitsha

SA Constitutional Court finds government liable for prisoner contracting TB in pre-trial detention

Mr Lee, was detained at Pollsmoor Maximum Security Prison in pre-trial detention from 1999 to 2004, appearing in court no fewer than 70 times. Mr Lee contracted TB while in prison. The court found there is a legal duty on the responsible authorities to provide adequate health care services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity. The court further found there is a probable chain of causation between the negligent omissions by the responsible authorities and Mr Lee’s infection with TB. The case was remitted to the High Court to determine the amount of damages.

Mr Lee contracted tuberculosis (TB) while in prison. He sued the Minister for damages on the basis that the poor prison health management resulted in his becoming infected. The High Court upheld the claim on the basis that the prison authorities had failed to take reasonable steps to prevent Mr Lee from contracting TB.The majority of the court noted that there is a legal duty on the responsible authorities to provide adequate health care services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity.

African Policing Civilian Oversight Forum (APCOF)

The African Policing Civilian Oversight Forum (APCOF) is a network of African practitioners active in policing reform and civilian oversight over policing in Africa.

Southern Africa Litigation Centre (SALC)

The Southern Africa Litigation Centre (SALC) promotes and advances human rights and the rule of law in southern Africa, primarily through strategic litigation support and capacity building.

Man dragged 400m by South African Police vehicle dies in detention

The man, a 27-year-old Mozambican taxi driver identified as Mido Macia, in detention of head injuries and internal bleeding, according to an initial post mortem report. The incident was captured on video by bystanders. The video shows the man scuffling with police, who subdue him. He is then bound to the back of the pick-up by his arms before the vehicle drives off in front of scores of witnesses in the east Johannesburg area of Daveyton. Nine policemen have been arrested and charged with murder.

The submission is made in response to the 2013/14 Budget Vote as accompanied by the Department of Correctional Services (DCS) Strategic Plan 2013/14 - 2016/17 and Performance Plan 2013/14 - 2016/17. The submission deals with three broad issues: (1) alignment between the Strategic Plan and the budget, (2) creating safer prisons, and (3) rehabilitation and reintegration. The latter two focal areas are in response to a general request from the Portfolio Committee for submissions on these two issues.

2012 Human Rights Report

South Africa's white paper on remand detention management finalised

The final draft of the South African government's White Paper on Remand Detention Management has been published on the Department of Correctional Services (DCS) website, bringing the policy framework in line with provisions in Correctional Matters Amendment Act. The White Paper marks the end of a process aimed at closing a policy gap in the 2005 White Paper on Corrections in respect of awaiting-trial detainees.

Presentation by Jean Redpath, CSPRI researcher

CSPRI hosts a round table on South Africa's Remand Detention White Paper

The Chief Deputy Commissioner for Remand in the Department of Correctional Services, Ms Britta Rotmann, explained the thinking behind the final draft white paper on remand detention at a roundtable in Cape Town on 23 May 2013.

CSPRI responds to the Minister of Justice’s claim that prison overcrowding is an indication of the NPA “doing a good job”. Statistics provided by CSPRI counters the Minister's claims on the efficacy of the NPA.

This presentation indicates that the state now incarcerates close to 3 remand detainees for every person a judicial officer eventually finds guilty and sentences to a term of imprisonment in a year. The current ratio of 3 to 1 implies that 2 out of 3 remand detainees will never be convicted and sentenced to a term of imprisonment. It further implies that the “correct” remand population should be one third of its current size i.e. around 17,000 people.

South Africa's President Zuma signed the Prevention and Combating of Torture of Persons Act No. 13 of 2013 into law on 25 July 2013.

This report deals with the following: the value of independent oversight, foreign and international models of best practice, oversight structures relevant to the Khayelitsha police stations, and gave recommendations.

This submission discusses the 2013/14 Department of Correctional Services (South Africa) Annual Report. More specifically, it discusses human rights violations in prison (including allegations of torture), the mandate of the Judicial Inspectorate for Correctional Services, rehabilitation and the review of the White Paper on Corrections, the SIU investigation into corruption in prison, lengthy pre-trial detention and leadership instability.

This article was published in AHRLJ Volume 15 No 1 2015. Although South African courts have expressly held that any evidence obtained through torture is always inadmissible, the author is unaware of a decision from a South African court to the effect that evidence obtained through cruel, inhuman and degrading treatment is, like evidence obtained through torture, inadmissible in all circumstances. In this article, the author first deals with the issue of evidence obtained through torture and thereafter relies on the practice of international and regional human rights bodies, such as the Committee against Torture, the Human Rights Committee, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Independence of Judges and Lawyers, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights, and some of the sections of the South African Constitution, to argue that South Africa has an international obligation to exclude any evidence obtained through cruel, inhuman and degrading treatment. In support of this argument, the author relies on the jurisprudence of the South African Supreme Court of Appeal on the nature of the right to freedom from torture and argues that the same approach could be applied to the right to freedom from cruel, inhuman and degrading treatment

This submission deals with South Africa’s performance in relation to, and compliance with, international standards with reference to offender management, offender rehabilitation and independent monitoring, as was requested by the Portfolio Committee on Justice and Correctional Services (the Portfolio Committee).

This is a judgment of the Eastern Cape Local Division at Port Elizabeth of the High Court of South Africa, and relates to a claim for damages arising from allegations of torture occurring at St. Albans Prison.

Former sex workers affiliated to the Sisonke Sex Worker's Movement have been trained as paralegals by the Women's Legal Centre to provide paralegal advice and assistance to sex workers

This submission to the South African parliamentary Portfolio Committee on Justice and Correctional Services' strategic planning session addresses the issues of long periods of pre-trial detention, low prosecution rates, the independence of the Judicial Inspectorate for Correctional Services, human rights abuses in prison, sentencing reform and effective prison oversight.

Submission to the UN Human Rights Committee in response to the Initial Report by South Africa under the International Covenant on Civil and Political Rights at the 116th session of the Human Rights Committee

This overview of cross cutting issues emanates from five alternate thematic reports submitted by civil society organisations (the Alternate Reports) in response to the Initial Report by South Africa (the State Report), to be reviewed by the UN Human Rights Committee during its 116th session. The Alternate Reports which provided the basis for this overview are:  Recognition of Civil and Political Rights: A continued struggle for Transgender and Intersex Persons in South Africa  Shadow Report on Participatory Democracy to South Africa’s State Report and their Responses to the List Of Issues On The International Covenant On Civil And Political Rights (ICCPR)  Thematic Report on Criminal Justice and Human Rights in South Africa  Thematic Report on the Rights of Migrants and Asylum Seekers in South Africa  Thematic Report on Violence Against Women and LGBTI Persons in South Africa

Submitted to the African Commission on Human and Peoples’ Rights in response to South Africa’s Second Periodic Report under the African Charter on Human and Peoples’ Rights, to be reviewed at the 58th Ordinary Session of the African Commission on Human and Peoples’ Rights

Armchair discussion on the National Prosecuting Authority, 22 November 2016, Jean Redpath

ACJR takes JICS delegation on an oversight study tour to London, UK

From 8 to 12 May 2017, ACJR staff Lukas Muntingh and Gwen Dereymaeker took a delegation of the South African Judicial Inspectorate for Correctional Services (JICS) to London, United Kingdom, on a study tour. The objective of the study tour was to engage with UK oversoght institutions to identify successes and challenges in the South African prison oversight structure.

Gwen Dereymaeker gave the following presentation at a seminar organised by the Judicial Inspectorate for Correctional Services at Durban Correctional Centre on 7 September 2017. She first addresses the history of super-maximum prisons around the world, international criticism of supermax (being prolonged solitary confinement), and the supermax regime in the US and the UK. She then examines the South African regime, in particular that of Ebongweni: admission criteria, detention regime, challenges and questions whether the detention regime such as that practiced at Ebongweni is constitutional.

ACJR's Gwen Dereymaeker presentation made at the seminar organised by the South African Judicial Inspectorate for Correctional Services on super-maximum prisons on 7 September 2017 at the Durban Correctional Centre.

There was a miscarriage of justice on several grounds, namely the denial of the accused’s right to a properly qualified interpreter, the refusal to allow his son to testify, and the negative bias of the presiding officer. The accused was not afforded a fair trial and his murder conviction therefore cannot stand.

S v Frederick & S v Maxhongo, Judgment on Review 11 July 2018, Review 18531 and Review 18532. The Court asked that in cases where there is a long history of drug use and abuse, the prosecution should rather request a probation officer’s report to investigate the accused’s circumstances and the desirability or not of prosecution.

Solitary Confinement - A review of the legal framework and practice in five African countries

This report investigates the legal frameworks of five African countries (Kenya Malawi, Mozambique, South Africa and Zambia) as they relate to the use of solitary confinement. The effect of long periods of solitary confinement have been shown to have severe impacts on a prisoner’s mental and physical well-being. The UN Human Rights Committee (UNHRC) has noted that the use of prolonged solitary confinement may amount to torture or to cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). In December 2015, the UN General Assembly adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules (‘2015 UNSMR’). The 2015 UNSMR addresses a key shortcoming in the protection and treatment of people in places of detention, as it, for the first time, sets down norms and limitations on the use of solitary confinement. The report concludes that there are major areas of non-compliance in each of the countries and this requires urgent attention

The recent announcement by President Ramaphosa to call together a committee of experts to assist him to appoint a new National Director of Public Prosecutions (NDPP) is unprecedented, and an extremely important move in the right direction towards greater transparency and accountability at South Africa's National Prosecuting Authority. An earlier report by ACJR dealt in detail with the problems at the NPA and, amongst others, recommended that the appointment procedure of the NDPP be reformed. In this fact sheet the current procedure for the appointment and dismissal of the NDPP is set out and problems identified. This should inform debate and stimulate ideas on the reforms we would like to see.

This fact sheet considers the performance of the National Prosecuting Authority since inception. The data suggests increases in investment have not brought commensurate returns.

The Equality Court in Cape Town declares unfair discrimination in the allocation of police resources in the Western Cape.

This discussion document deals with three key concepts associated with the National Prosecuting Authority (NPA) and its relation to the public, namely accountability, public interest and trust. It is suggested that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner.

This fact sheet unpacks the idea of visible policing in South Africa. In so doing, it highlights that the concept should be engaged with critically. It suggests that the SAPS sector policing philosophy, which is problem-oriented and data-led, should be the focus of the Visible Policing programme.

This factsheet maps the history and structure of the prosecution authority before and after 1994 showing that the independence of the prosecution authority oscillated between extreme points with reference to the relationship with the executive. The historical developments of the prosecution authority must be seen against the devolution and centralisation of prosecutorial power and its independence, or not, from political control and interference.

The evidence in this study suggests that the criminal procedural system metes out a disproportionate ‘punishment’ in the form of infringement of the socio-economic rights of the families of detainees, regardless of guilt or innocence.The study recommends a number of interventions to seek to ensure that remand detention is used only for short durations or when absolutely necessary, thereby minimising socio-economic harms.

Africa Criminal Justice Reform (ACJR) has produced research on the South African criminal justice system relating to the police. This resource list contains summaries and links of work that we have produced in recent years on the topic of police.

Africa Criminal Justice Reform (ACJR) has produced research on the South African criminal justice system relating to the National Prosecuting Authority (NPA). This resource list contains summaries and links of work that we have produced in recent years on the topic of the NPA.

Africa Criminal Justice Reform (ACJR) has produced research on the South African criminal justice system relating to prisons. This resource list contains summaries and links of work that we have produced in recent years on the topic of prisons.

On 30 March 2020, Minister of Justice and Correctional Services issued these Directions in the Schedule to address, prevent and combat the spread of COVID 19 in all courts, court precincts and justice service points in the Republic of South Africa.

Recent media reports showed again how police officials grossly misused their power and, against departmental prescripts, used a 'sjambok' to assault a man for apparently not wearing a mask. Such reports are not isolated and have a very direct impact on trust in the police and thus the legitimacy of the police. The core of the problem seems to be twofold (1) that SAPS managers are not enforcing the internal disciplinary code, and (2) the National Prosecuting Authority (NPA) very rarely prosecutes police officials, especially for human rights violations. We have updated ACJR Fact sheet 9 (originally published in February 2019) with statistics for the past two financial years and it appears that the situation has worsened. This does not bode well for general trust in the state and specifically in the police. There is little sense in tough talk about law enforcement when the police themselves are not being held accountable and increasingly regarded as hostile to the general public.

The severity of the punishment, if caught, is not a deterrent to committing crime. If consumers of alcohol can be fairly certain that if they get behind the steering wheel of a vehicle that they will be stopped and tested, they will be less likely to do so and make alternative arrangements or postpone their travel.

By L Muntingh, J Mangwanda, K Petersen, T Lorizzo and V Petrovic

Annexure Four: COVID-19 restrictions and the impact on criminal justice and human rights | South Africa

Report by K Petersen, J Mangwanda, L Muntingh and J Redpath (2022)

Report - Overview and key findings COVID-19 restrictions and the impact on criminal justice and human rights (Kenya, Malawi, Mozambique, South Africa & Zambia)

This report makes a number of overview observations dealing with broader issues of governance, human rights, the socio-economic impact of the COVID-19 pandemic and the criminal justice system. A central lesson to be taken from these findings is the need for continued vigilance in seeking a balancing of rights and the importance of evidence-based policy-making, especially where there is the potential that those already socio-economically vulnerable may be pushed deeper into poverty. Report by L Muntingh, J Mangwanda & K Petersen

After signing the Optional Protocol to UNCAT (OPCAT) in 2006 and ratifying it in March 2019, South Africa designated a National Preventive Mechanism (NPM), with the SA Human Rights Commission (SAHRC) being the coordinating structure. Since ratification in March 2019, it appears that to date, the NPM has not been fully functional and institutional arrangements for visiting places of detention under the banner of the NPM remain unclear. There is also uncertainty as to how the constituent parts of the NPM will fulfil the responsibilities under OPCAT. In view of the above, the members of the Detention Justice Forum (DJF) agreed to assess the operational functionality of the NPM in the respective sectors of the DJF member organisations. This also provided an opportunity to identify issues for clarification on the NPM’s mandate and its relations with other components as well as government departments responsible for places where people are or may be deprived of their liberty. This report provides the findings of the assessment performed amongst members of the Detention Justice Forum (DJF) based off a questionnaire that was developed. This report was prepared by K Petersen & J Mangwanda, December 2022