OVERCROWDING

1
OVERCROWDING A Solution-oriented Approach

• PRESENTATION TO SELECT COMMITTEE ON SECURITY AND
  CONSTITUTIONAL AFFAIRS, NATIONAL COUNCIL OF
  PROVINCES
• By the Departments of Correctional Services,
  Justice and Constitutional Development, NPA,
  Legal Aid Board, Safety and Security and Social
  Development
• 20 October 2004

2
STRUCTURE OF PRESENTATION

• The current situation
• Facilities
• State of overcrowding
• Some causes of overcrowding
• Approaches and Initiatives by various departments
• IJS effectiveness
• SAPS
• DOJ CD and NPA
• LAB
• DSD
• CS
• Other aspects
• 1. Policy Gap on Awaiting Trial Detainees
• 2. Managing Incarceration of Children as ATD
  Sentenced
• 3. Appropriate sentencing - Management of Levels
  of Sentenced Inmates
• 4. Coordination of Facilities Planning
  Management
• 5. Restorative Justice, Community liaison, crime
  prevention overcrowding

3
The current situation

• State of overcrowding
• It is acknowledged by all role players that our
  detention facilities (police cells, prison cells
  and secure care facilities are overcrowded.
• Everyone is partly to blame everyone has part of
  the solution

4
IMPACT OF OVERCROWDING

• Consequences for inmates
• Consequences for DCS / police staff / DSD
• Consequences for DCS / police delivery / DSD
• Consequences for IJS effectiveness
• Human rights infringements
• Overcrowding also
• Disrupts penal reformation and rehabilitation
  programs
• Creates security risks and
• Encourages subversive activities amongst
  prisoners
• The interaction between hardened criminals and
  less hardened criminals nurtures perceptions
  that prisons are breeding chambers of criminal
  discourse.

5
The current situation

• Focus on Correctional Services
• State of overcrowding
• There are 244 prisons
• 2 are private prisons
• 4 are closed for repair
• 4 New generation facilities being planned/built
• (to house 3000 detainees each)

6
The current situation as on 30 June 2004

• Sentenced prisoners 136 436
• AWT 49 373 (26, 5)
• Total 185 809
• (Capacity 114 787)
• Overcrowding 71 022 (161,87)

7
APPROVED ACCOMMODATION VERSUS PRISONER POPULATION
PER REGION 30 June 2004

Regions Capacity Unsentenced Sentenced In Custody Total Occupation
EASTERN CAPE REGION 13 358 6 102 16 852 22 954 171.84
GAUTENG REGION 26 709 17 682 32 114 49 796 186.44
KWAZULU/NATAL REGION 20 179 9 486 21 205 30 691 152.09
LIMPOPO, MPUMALANGA NORTH WEST REGION 18 420 3 814 24 562 28 376 154.05
NORTHERN CAPE FREE STATE REGION 16 725 5 119 18 982 24 101 144.10
WESTERN CAPE REGION 19 396 7 170 22 721 29 891 154.11
Total 114 787 49 373 136 436 185 809 161.87
8
The current situation as on 30 June 2004

• CHILDREN IN PRISON (Between 14 18)
• Sentenced Children 1 731 (1,2 of total sent
  prisoners)
• AWT Children 1 705 (3, 45 of total
  awt)
• TOTAL 3 436 (1,8 of
  total number of persons in prison)
• and 2059 children awt in secure care facilities

9
GENDER OF PRISON POPULATION 2004
10

TRENDS

• Sentenced Prisoners steadily increasing (mostly
  because of more prisoners serving sentences of
  10 years and more and life imprisonment)
• Accommodation however increasing only by 20
  between 1995 and 2004 against 63 increase in
  same period of prisoners.
• Regarding AWT AWT numbers are steadily
  declining
• Between 1995 to 1999 the number of unsentenced
  detainees increased dramatically from 22 021 to
  55 523 (152 increase)
• Then steadied to a more moderate increase with
  average of 56 497 over following three years.
• Since then a moderate decline currently nearly
  on 1998 level

11
PRISONERS SERVING SENTENCE OF MORE THAN 10 YEARS
45000
40196
40000
35000
30000
25000
20000
15000
10000
1996
1997
1998
1999
2000
2001
2002
12
PRISONERS SERVING LIFE SENTENCES
6000
5505
5000
4542
4000
3708
3228
3121
3042
2951
3000
2000
1000
0
1996
1997
1998
1999
2000
2001
2002
13
Comparative Graph 1995 - 2004
14
Comparison 1995 -2004
1995 1998 2000 2002 2003 2004
Unsent 22 021 44 138 57 538 50 758 48 433 49 373 49 373 49 373
sentenced 91 835 88 302 111 948 126 862 131 240 136 436 136 436 136 436
Total 113 856 132 440 169 486 177 620 179 673 185 809 185 809 185 809
Accom 95 695 110 175 112 863 114 787 114 787

15
Awaiting trial detainees2004

• Of the 150 Correctional Centres which have
  Awaiting Trial detainees 21 are overcrowded.

16
Awaiting trial detainees

• The statistics of Correctional Services show that
  there are on average 50 000 awaiting trial
  prisoners per month in custody.
• If one take the approx number of 200 000 accused
  before our courts in consideration, the awaiting
  trial figure of 50 000 is not so alarming. Only
  26 of all accused persons before court are
  therefore awaiting trial in custody.

17
Awaiting trial detainees

• It is further evident that the courts are in any
  event releasing accused on bail, which accused
  should never have been released. The Regional
  Courts alone have over a 5-month period issued
  approximately 4000 warrants for accused who
  failed to appear before the courts during April
  to August 2004.
• In the District Courts the figure is even more
  alarming. A total of 68 140 warrants were issued
  during the same period (this figure does not
  include the thousands of warrants issued for
  traffic offences). The cost impact must be
  enormous for all the stakeholders concerned.

18
POLICE CELLS
The South African Police Service has detention
cells at most of it's police stations to
temporary accommodate the thousands of arrested
persons that are taken into police custody on a
daily basis. These cells also become
overcrowded at times due to the daily arrests
made, but is alleviated when awaiting trial
prisoners are transferred to the Department of
Correctional Services after court appearance.
19
UNDERSTANDING CAUSES OF OVERCROWDING

• IJS Incarceration Trend Research Project was
  established to develop a proactive approach
  identify magnitude significance of various
  blockages within system, to provide indication of
  possible solutions to increasing prison numbers.
• In process of building model to predict prison
  numbers, with commitment to build capacity of
  Depts to continue data on ongoing basis
• With above information being provided,
  participation additional contributions from all
  role players, blockages possible solutions
  within system will be more easily identified.

20
IJS Incarceration Trend Research Project

• List of number of key variables is being
  developed
• Number of sentenced unsentenced prisoners
• Crime trends sentenced unsentenced prisoners
  will be categorized by crime ( five categories of
  crime currently used by department)
• Level of overcrowding prison numbers relative to
  accommodation capacity
• Alternative sentencing number parolees
  probationers under correctional supervision,
  released to reform schools converted sentences
• Early exit from prison number of deaths
  (including both natural unnatural deaths)
• Sentencing policy proportion of prisoners
  sentenced in court to less than up to 2 years,
  5 years, 10 years, 20 years, 20 years life
  sentences
• Separate categories information will be provided
  regarding children under 18 years of age in prison

21
Causes of overcrowding cont.

• Some of the factors that are contributing to
  the increase in prison occupancy include
• SAPS
• Due to the disturbing crime incidents in the
  country, the SAPS introduced various
  crime-combating operations in order to
  destabilize these incidents. Police strategies
  such as Operation Crackdown, focusing on
  large-scale arrests As a result an increase in
  arrests in the various crimes was experienced.
  The offenders had to be held in police
  cells/custody and some are being held in
  Correctional Services facilities depending on the
  risks and progress in the prosecution.
• This operation is ongoing and is likely to
  increase the number of people arrested and held
  in prison while awaiting trial. The targets set
  in the Presidents State of the Nation Address,
  will also have an impact in our prison population
  in time to come.

22
Causes cont

• Bail
• As a result of a public outcry over a release of
  accused on bail that have allegedly committed
  serious offences, the Criminal Procedure Act has
  been amended (1995, 1997 and 1998) to make it
  more difficult for some accused to obtain bail
  the offences listed in Schedule 5 and 6 of the
  Criminal Procedure Act, Act 51 of 1977.
• Most of the total of 46 434 cases currently
  outstanding in the Regional and High Courts fall
  within the ambit of Schedule 5 and 6 Offences.

23
CAUSES OF OVERCROWDING IN CENTRES FOR SENTENCED
OFFENDERS

• The introduction of minimum sentences for certain
  categories of crime.
• Offenders who are unable to pay their fines.
• Unavailability of verifiable addresses.
• Non consideration of other alternative sentences
  by courts for short sentences.

24
CAUSES TO OVERCROWDING OF AWAITING TRIAL DETAINEES

• Delays in finalizing cases by courts
• Awaiting trial Detainees who cannot afford to pay
  bail set by the court
• Failure by Heads of Correctional Centres to
  encourage courts to apply diversion methods
• Failure by magistrates to apply diversion methods
  sentencing options

25
IJS INTERVENTIONS
26
IJS Initiatives

• IJS fora at National, Provincial and Area levels
  starting to pay off There are also monthly
  meetings with the SAPS, Directorate Public
  Prosecutions, Magistrates and the High Court
  President regarding the overcrowding situation.
• Alignment availability of information between
  various departments are receiving attention with
  as objective developing implementing
  information alignment between departments to
  enable visibility of information on operational
  level to inform day-to-day decisions on all
  levels of management
• Sound relations is in place between the courts
  and role players such as the Law Society and the
  Legal Aid Board to speed-up applications for
  representation.
• The Legal Aid Board now has specific contract
  persons for each Correctional centre.
• Monitoring of children that accommodates children
  awaiting trail happens on a monthly basis. This
  process is vital for planning purposes to provide
  alternatives for children in detention. The
  monthly statistics also fulfil the obligations in
  terms of the Integrated Justice System.

27
DAY TO DAY MANAGEMENT OF ATD LEVELS

• Implementation of Checklist by Prov Area is
  key challenge
• Bail Under R1000 back to court 11824 reduced to
  9488 in two weeks in an exercise by the NPA
  2336 released
• Encouraging greater use of s62f community
  corrections for bail conditions
• Use of s63a Heads of Prison application on
  basis of prison overcrowding 4346 applications
  nationally only 1150 successful in 2002/3
• Plea Bargaining, Admission of guilt, payment of
  fines
• Inmate Tracking pilot in Dbn, JHB ready to
  begin pilot project

28
SAPS INTERVENTIONS
29
SAPS- Perspective into Overcrowding in Prisons

• The South African Police Service is not apathetic
  towards the problems surrounding overcrowding in
  our prisons as the consequences of this results
  in a host of serious problems for all departments
  concerned and for the country as a whole.
• The SAPS recognises that the crime combating
  operations and law enforcement initiatives in the
  current high crime environment will continue to
  result and arrests and place pressure on the
  criminal justice system as a whole to deal with
  suspects and convicted offenders.
• The need for crime prevention initiatives to
  reduce the incidence of crime and hence the need
  for arrests is therefore prioritised in SAPS and
  the JCPS cluster. Following the May 2004 Cabinet
  Lekgotla government adopted for all clusters the
  priority to reduce contact crimes on the
  prioritised police station areas by 7 to 10 per
  annum from 2004 to 2014

30
MEASURES TAKEN BY THE SAPS TO ALLEVIATE PRISON
OVERCROWDING
The JCPS cluster has through its JOINTS structure
mobilise provincial and local counterparts to
assist in the development of station level
profiles that identify the causes and
contributing factors for contact crime per area.
These profiles are now being used to develop
crime prevention programmes for each of these
stations areas with input from and
responsibilities assigned to all relevant
stakeholders. The JCPS Cluster at national level
will receive these costed plans and consider how
to mobilise resources to support the programme.
The SAPS has taken cognizance of the fact that
the awaiting trail prisoners is a contributing
factor to the problem encountered in the
overcrowding of prisons.
31

• In order to address AWT burning issue the
  following action steps are in the process of
  being implemented or has already been
  implemented
• The Detective Service is mandated to investigate
  all cases reported to the S.A. Police Service.
  All detectives are sensitized to investigate to
  arrest perpetrators, and not to just arrest
  perpetrators in order to investigate reported
  cases.
• The opposing of bail for reasons other than that
  which will prejudice the course of justice must
  not be a deciding factor during bail
  applications.
• A module on the granting and opposing of bail has
  also been developed and is included in the new
  Detective Learning Program. This will equip law
  enforcement officers better in the procedures to
  be followed during the granting of bail, which
  would obviously contribute in the reduction of
  awaiting trial prisoners.

32

• Investigators have been instructed to ensure that
  witnesses are timeously summonsed to be at court
  on the requested dates. This will prevent cases
  being postponed as a result of non attendance of
  witnesses at court.
• All existing operational police officers,
  detectives and visible policing members are
  currently receiving additional training in the
  taking of proper statements. It is envisaged
  that this will enable public prosecutors at court
  to make immediate decisions without having to
  clarify issues in cases which will prevent
  delays in the judicial process.

33

• A further step in this direction includes the
  training of Detectives in investigative
  interviewing techniques in order to elicit
  maximum information from witnesses and suspects.
  
• The interaction between members of the SAPS and
  Senior Public Prosecutors ensures that
  shortcomings are identified and addressed in
  this training program which ensures that its
  intended purpose is achieved.
• Where suspects are arrested for more serious
  charges, such as Reckless and Negligent Driving
  and Drunken Driving, and these suspects have
  fixed address and workplaces they can be released
  by means of SAPS 496- warning to appear in court
  to ensure their appearances in court and to
  eliminate overcrowding of police cells.
• In cases where suspects have been arrested for
  less serious crimes such as Drinking in Public or
  Drunkenness these persons can be released by
  means of a J534-written notice to appear in court
  to ensure that overcrowding of police cells do
  not take place.

34

• In terms of section 56 of the Criminal Procedure
  Act, 1977 (Act No. 51 of 1977), a peace officer
  (including a member of the Police Service) may,
  if he or she believes on reasonable grounds that
  a magistrates court, on convicting an accused of
  that offence, will not impose a fine exceeding
  the amount determined by the Minister of Justice
  and Constitutional Development, such peace
  officer may, whether or not the accused is in
  custody, hand a written notice to the accused
  that calls on the accused to appear at a place
  and on a date to answer a charge of having
  committed the offence in question and which
  contain an endorsement that the accused may admit
  his or her guilt in respect of the offence and
  may pay a fine without appearing in court.
• The said Minister increased the amount of the
  fine that may be imposed from R 1 500 to R 2
  500 with effect from 14 February 2003. As a
  result of this, a person who is in custody of the
  Police Service may be released on a written
  notice by a member before his or her first
  appearance in the case where the member has
  reasonable grounds to believe that a magistrate
  will not impose a fine exceeding R 2 500 upon the
  conviction of the accused of that offence.
  Furthermore, persons who previously had to be
  detained for offences in respect of which a
  member had reason to believe that a fine of more
  than R 1 500 but less than R 2 500, will be
  imposed, could now be issued with a written
  notice to appear in court without arresting and
  detaining them. The increase of the fine has
  resulted in a decrease in the number of persons
  in detention awaiting trial.

35

• In terms of the Judicial Matters Amendment Act,
  2000 (Act No. 62 of 2000) Part II of Schedule 2
  of the Criminal Procedure Act, 1977, was amended.
  In terms of section 59 of the Criminal Procedure
  Act, 1977, a police official may release a person
  on bail before his or her first appearance in the
  lower court if that person is in custody in
  respect of an offence not mentioned in Part II or
  Part III of Schedule 2. This has resulted in the
  release of persons on bail for property offences
  where the value involved exceeds R 200 but is
  below R 2 500 and for certain minor offences
  relating to the possession of dependence
  producing drugs, which they could not do before
  the amendment. This amendment has resulted in a
  further decrease in the number of persons in
  detention awaiting trial.
• In the case of Centre for Child Law v Minister of
  Home Affairs and Eight Others, the High Court,
  during September 2004, issued an order that
  unaccompanied foreign children who are arrested
  in terms of the Immigration Act, 2002 (Act No. 13
  of 2002) may not be dealt with in terms of the
  Criminal Procedure Act, 1977, but must be dealt
  with in terms of sections 12 to 14 of the Child
  Care Act, 1983 (Act No. 74 of 1983). This means
  that such children will be dealt with, as
  children in need of care and the Childrens Court
  will decide how they will be dealt with in
  accordance with the provisions of the Child Care
  Act, 1983. Such children will therefore, after
  their arrest, no longer be detained in police
  custody or in a correctional facility, but will
  rather be placed in a place of safety pending the
  outcome of the proceedings before the Childrens
  Court. All members of the South African Police
  Service as well as the relevant staff from the
  Department of Home Affairs have been instructed
  to comply with the directives contained in this
  Court Order.

36
The Probations Officers Amendment Act, 2002 (Act
No. 35 of 2002) (hereinafter referred to as the
Act) came into operation on 7 November 2002 and
has as objective to have every child, who has
been arrested and who is likely to be detained
until his or her first appearance in court,
assessed by a probation officer. Section 4B of
the Act provides that such a child, who has not
been released after the arrest, must, as soon as
reasonably possible, but before his or her first
appearance in court, be assessed by a probation
officer. In order to enable the probation
officer to assess a child in detention, the
probation officer must be notified of the fact
that a child has been arrested and is likely to
remain in custody until his or her first
appearance in court. Accordingly, whenever a
child is arrested and he or she is not released
on warning, in the care of his or her parents or
guardian, or released on bail, the community
service centre commander must ensure that the
relevant probation officer is, as soon as is
reasonably possible, notified of the arrest and
detention and when and in which court the child
will appear. In terms of a circular issued to
all members, the Provincial Commissioner of every
province has to ensure that every police station
is provided with the relevant particulars of the
nearest probation officer within that station
area. Every station commissioner must also ensure
that probation officers who arrive at a police
station to assess a child in detention, is
assisted to perform the assessment. Children
that are arrested and must by order of a
magistrate be detained for longer than 24 hours
can be removed to a secure care facility or place
of safety or can be released in the care of their
parents/guardian to reduce overcrowding of police
cells.
37
The SAPS has developed a new Detective Learning
Program (DLP) to equip detectives to carry out
their functions in an effective and professional
manner. This program is competency based and on
completion continues in the workplace where
assessments are carried out to determine the
practical application of the theoretical
contents of the training program. This training
program is outcome-based and is presented over a
period of twelve weeks.
38
In order to supplement the detective services
with additional members, police management has
allocated 30 of all new police recruits to the
detective service after basic training. The
Investigative Interviewing program has now been
drafted into the existing basic training
curriculum of all police recruits. A further
two-week introductory detective course is
presented to the additional 30 of police
recruits. The South African Police Service
Division Crime Prevention compiled a Code of
Practice Code of Compliance and Due Diligence on
Custody Management which will address aspects
such as escapes from lawful custody and
overcrowding of police cells
39

• Another milestone for the SAPS is the
  implementation of the Automatic Fingerprint
  Identification System (AFIS) at the Criminal
  Record Centre which drastically speeds-up results
  on previous convictions of offenders.
  Previously the manual system provided 7 769
  results over a 20-working day period whereas the
  AFIS produces 152 686 results over the same
  period. These results minimizes the time delay
  in the finalization of cases.
• A further directive was issued to all commanders
  to inspect dockets to and from court in order to
  ensure that instructions of Public Prosecutors
  are complied with timeously in order to prevent
  delays in finalization of cases.

40

• One of the inhibiting factors in the management
  of detained persons in police custody is the lack
  of online management information. The results of
  this lack of online information are
• Swapping of identity take place within the
  holding facilities that allow for the escape of
  detained persons. Lack of crime intelligence
• Lack of management capabilities to ensure the
  timely reporting of children that are being
  detained for longer than 24 hours.
• Prisoner Population Prediction Model system need
  to be updated manually and is extremely time
  consuming.
• To eliminate these short comings the IJS-Board
  has approved the implementation of a Detention
  Management System for the SAPS as part of the IJS
  system. The development and implementation of
  this system is on track and it is the objective
  of the IJS-Program to start with the
  implementation of this system during the 2006/7
  financial year.

41
DEPARTMENT OF SOCIAL DEVELOPMENT
42
Department of Social Development

• The transformation of probation service
  necessitated the amendment of the Probation
  Services Act (116 of 1991). The Probation
  Services Amendment Act ( Act 35 of 2002) makes
  provision for amongst others the following
  Certain definitions, assessment, diversion, early
  intervention, family finder, family group
  conferencing, home based supervision, reception
  assessment and referral, pre-trial report,
  pre-sentence report and restorative justice.
  These amendments are in line with the proposed
  Child Justice Bill and make certain that
  probation officers will be able to fulfill their
  new functions. DSD has initiated a process to
  publish the regulations to the Probation Services
  Act and will consult with relevant role-players.
  DSD also plans to rewrite the Probation Services
  Act during 2004/5, to bring it in line with other
  pieces of legislation viz Child Justice Bill.
• There are approximately 600 probation
  practitioners doing probation work The Department
  has sub-contracted with Dept Social Development
  University Cape Town, to train all current
  probation officers by March 2005. Training has
  started and Mpumalanga and KZN probation officers
  have already benefited.
• The Department has sub-contracted with the
  Restorative Justice Centre in Pretoria to train
  probation officers in restorative justice and
  family group conferencing by March 2005. The
  project is on track.

43

• The Probation Services Amendment Act makes
  provision for the duties and appointment of
  assistant probation officers as well as the
  notion of home-based supervision.
• The Department has obtained donor funding for the
  appointment of assistant probation officers
  (apos) and for replication of home-based
  supervision programmes in all provinces. This
  model has proved to very successful and cost
  effective and the Department proposes it as a
  viable alternative to children being in detention
  in prison.
• There are 92 apos at present and 27 more are to
  be appointed
• Practical training of apos is done in each
  province at a place of safety/secure care where
  institutionalized children awaiting trial are
  reassessed by a training team together with
  probation officers and apos of the province.
  These cases are assessed for possible home-based
  supervision the aim being to have fewer
  children awaiting trial in residential and
  correctional facilities.

44

• The NPA has initiated a process to complete a
  database of programmes from the NPA provincial
  perspective. As part of the costing exercise for
  the implementation of the Child Justice Bill the
  DSD has identified diversion programmes as a
  major cost driver and all provinces have made
  provision for additional programmes. This
  information will feed into a database and will be
  captured in a GIS format
• This will be used as a reference point for
  criminal justice practitioners and will serve as
  a basis for availability of programmes per region
  and for the registration process of diversion
  programmes.
• The Department has contracted with NICRO to
  develop minimum standards for diversion (Donor
  funding R1,2 m). This will be utilized by
  national and provincial departments to monitor
  and fund programmes.
• The replication of home-based supervision
  programmes in every province has gained
  significant momentum in the recent few months,
  especially with the appointment of additional
  APOs. DSD believes that if this program is
  implemented in all regions it will alleviate the
  pressure on DCS and DSD to keep awaiting trail
  children in detention.

45

• Family group conferencing was piloted by the
  Department with donor funding during 1996/7 and
  proved to very successful. Therefore it was
  included in the Child Justice Bill. Family group
  conferencing is currently defined in Probation
  Services Act (116 0f 1991) and forms part of
  duties of probation officers. As part of the
  implementation of the Child Justice Bill the
  Department has contracted with the Restorative
  Justice Centre to train probation officers in
  restorative justice and family group
  conferencing. The project has produced excellent
  results so far.
• RECEPTION, ASSESSMENT AND REFERRAL
  CENTRES/SERVICES The provincial Departments have
  collectively established 54 RAR centers

46

• Secure Care Facilities
• At present there are bed capacity for 2131
  children 1981 male and 78 girls are in secure
  care as at end July 2004
• DSD is planning new secure care facilities with
  as a total for South Africa 2425 additional new
  beds at a cost of R 340 million for
  infrastructure and R187.7 million running costs
• Draft minimum standards for residential care
  facilities were developed. Current draft minimum
  standards for Secure Care needs to be reviewed.
  Norms and standards for secure care need to be
  developed including ratio of child and youth care
  workers per number of children. Ratios for day
  and night staff may be different. During a
  meeting with provincial representatives in August
  2003 norms and standard were developed. This
  include possible secure care centers with no
  more than 60 beds in a unit but up to four units
  per campus. Thus a center will be able to house
  up to 240 children in a center whilst sharing
  administration facilities and buildings

47
Correctional Services Initiatives to reduce
overcrowding
48
INITIATIVES TO REDUCE OVERCROWDING OF SENTENCED
OFFENDERS

• Conversion of sentences into Correctional
  Supervision
• Assisting offenders to obtain money to pay fines.
• Ensuring that support systems are in place for
  all offenders who are to be released on parole or
  correctional supervision
• Speedy placement of offenders with fines or
  correctional supervision

49
INITIATIVES TO REDUCE OVERCROWDING OF SENTENCED
OFFENDERS

• Ensuring that offenders who qualify for parole
  are placed out as soon as possible.
• Increased focus on programmes addressing
  offending behaviour to prevent re-offending.
• Focus on training, education and social
  development programmes.
• Expanding accommodation through the construction
  of four new correctional centres to accommodate
  12 000 offenders.

50
LEGAL CLAUSES NOT OPTIMALLY USED

• Sec 62(ƒ) of the C P Act, (Act no 51 of 1977)
  makes provision for placement of ATDS under the
  supervision of a Correctional Official as a
  condition of bail.
• Sec 63 of the C P Act, (Act no 51 of 1977) makes
  provision for the accused or prosecutor to apply
  to the court to reduce the amount of bail that
  was set by the relevant court.

51
LEGAL CLAUSES NOT OPTIMALLY USED

• Sec 63A of the C P Act, (Act no 51 of 1977) makes
  provision for the Head of Correctional Centre to
  approach the relevant court to release an accused
  person on warning in lieu of bail or to amend the
  bail conditions imposed by the court if the
  offender population of a particular correctional
  centre is reaching such proportions that it
  constitutes a material and imminent threat to the
  human dignity, physical health or safety of an
  accused.

52
LEGAL CLAUSES NOT OPTIMALLY USED

• Sec 71 of the C P Act, (Act no 51 of 1977) makes
  provision for placement of ATDS under the age of
  18 years who are in custody, instead of being
  released on bail, be placed under the supervision
  of a correctional official.
• Sec 72(1) of the C P Act, (Act no 51 of 1977)
  makes provision for ATDS to be released and
  placed under the supervision of a correctional
  official in terms of Section 62 (ƒ) and warns
  them to appear before the court instead of bail.

53
BEST PRACTICES IN SOME REGIONS

• Pretoria Local Prison has a Magistrate who deals
  with cases on daily basis successfully
• Sound relations with the Legal Aid Board which
  now has specific contract persons for each
  Correctional centre.

54
BEST PRACTICES IN SOME REGIONS

• Monthly statistics to Regional Office.
• Monthly statistics on successes in terms of
  sections 62(f), 63, 63A, 71 and 72
• Namelists of ATDs longer than 3 months is
  delivered (within a radius of 50 km) to the
  Senior Public Prosecutor, Senior Magistrate,
  Judges and Registrar of the High Court and the
  Station Commissioner of the SAPS.

55
SOCIETAL RESPONSIBILITY

• Municipal authorities do something about the
  number of offending suspects from their areas
• Local Govt must promote restoration of community
  institutions vital to promotion of social
  responsibility prior to conviction imprisonment

56
SOCIETAL RESPONSIBILITY

• Citizens their Community institutions not
  SAPS must be seen as the first line of promoting
  social responsibility (fighting offending
  behaviour).
• Let families communities be nurseries of social
  responsibility not of criminality.
• Honourable MPs help promote social
  responsibility in their constituencies

57
CRIMINAL JUSTICE CO-ORDINATION

• Improve information sharing and goodwill at
  operational level among affected structures
• Judiciary notes impact of (sentencing) decisions
  on existing Correctional Services capacity
• Wider utilization of Prosecutors and Clerks of
  Courts for admission of guilt and payment of fine
  without appearing in court.

58
DCS IMPROVEMENT AREAS

• DCS notes best practices from its own ranks
  reproduce them nation-wide
• Improve accountability of Heads of Correctional
  Centres on their legal obligations
• Optimal utilisation of existing facilities to
  relieve the most overcrowded facilities
• Building of planned new facilities

59
DOJ CD initiatives

• Re aga Boswa
• Improved Case Flow Management - Monitoring of
  duration of ATD
• Improved assistance by investigating officers to
  prosecutors
• Specialised courts such as commercial crime
  courts with emphasis on plea bargaining
• Visits by Judges, Magistrates and Prosecutors to
  the facilities to see the effect of overcrowding.

60
Positive interventions

• The implementation of the plea-bargaining
  approach as well as the legal provisions such as
  granting of bail by police for minor offences.
• The Saturday Court project also played a critical
  role in the finalization of cases and reduction
  of awaiting trial prisoners. Unfortunately this
  project has been terminated due to financial
  constraints.
• Other initiatives such as the Child Justice Bill
  and restorative justice approach should also have
  a positive impact on the number of people
  detained over the long term. These programmes
  recognise the need for early intervention
  programmes that attempt to steer young offenders
  away from prison and attempt to correct their
  behaviour. The objective being to intervene early
  in the lives of children when they get into
  trouble to prevent them from committing more
  serious crimes and even becoming repeat and/or
  violent offenders. Similar approaches can be used
  for adults who commit less serious crime.

61
NPA Interventions

• The NPS has recognised the importance of the
  alleviation of overcrowding as a strategic
  enabler and force multiplier in the achievement
  of its vision. Specific focus on the reduction of
  awaiting trial prisoners was therefore
  incorporated in our Strategic Plan
• Awaiting trial accused must only be detained in
  custody where the interest of the administration
  of criminal justice so requires
• Matters must continuously be re-assessed where
  the accused has failed to pay bail, especially of
  a thousand Rand or less and
• The number of awaiting trial prisoners must be
  reduced through the proper screening of cases. A
  strict policy of no case, no enrolment must at
  all times be enforced.

62
NPA interventions

• In addition to these strategic enablers, the NPS
  also envisaged improved co-operative
  relationships with other stakeholders in the
  criminal justice system. For this purpose the
  following indicators, which also assist in the
  management of ATD, were incorporated in the
  Strategic Plan
• A list of prisoners awaiting trial for six months
  or more must be obtained and those listed cases
  must be prioritised.
• An increased consideration to the payment of
  fines as admission of guilt as envisaged in
  section 57A of the Criminal Procedure Act, to
  expedite the finalisation of cases.
• Furthermore a policy, that unless it is necessary
  to detain the accused before completion of the
  investigation, the investigation should first be
  completed, must at all times be enforced. In
  less serious cases summons should be the method
  to secure the accuseds attendance before court
  and dockets should be brought to the SPP for
  decision instead of arresting the accused. (This
  policy resulted in an increase in decision
  dockets, from 485 780 received during the
  financial year 2002/2003 to 512 761 dockets
  received during 2003/2004).

63

• The NPS has embarked on several projects to
  address the overcrowding in our prisons.
• In pursuit of the strategic objectives relating
  to ATD, the NPS has embarked on a national
  initiative to review cases where bail was granted
  of R 1000 or less.
• We have also requested the support of the
  Judiciary in the Case Flow Management process.
  Discipline in the courts will definitely enhance
  case management, which will reduce the numbers of
  ATD.
• The IJS Court Centers were implemented and rolled
  out to 46 offices. It is important to extend
  these centers to more places countrywide. The
  valuable information provided on cycle times by
  the IJS centers has been found to be a handy
  management tool when monitoring cycle times of
  cases. The latest statistics received from these
  centers, indicate that the number of children
  younger than 18 years as a percentage of accused
  on the outstanding roll has increased from 9.5
  to 9.6.

64

• The NPS has also determined suitable new targets
  for all Lower Courts to improve the cycle times
  of cases. 90 of all District Court cases should
  not be older than 6-month, 75 of all Regional
  cases should not be older than 6-months, and
  12-months in High Court cases. Cases where the
  accused is in custody must be prioritised. These
  case cycle times are monitored by the NPS, from
  August 2004, on a monthly basis (previously on a
  6-month basis). The previous audit determined
  that only 11 of District Court cases and 40 of
  Regional Court cases were older than 6 months.

65

• The Cycle time of High Court cases is also
  continually monitored by the NPS. Various
  initiatives, to reduce the delays, have been
  implemented. Positive results have already been
  obtained from those Divisions where the docket is
  forwarded to the DPP Office, immediately after
  the first appearance in the Lower Court, in order
  for the DPP to effectively manage the outstanding
  investigation.

66

• The NPS has taken the initiative in the project
  to postpone cases of awaiting trial prisoners via
  electronic medium. We are currently awaiting the
  promulgation of an amendment to the Criminal
  Procedure Act. A pilot project will then be
  initiated at Pretoria and Durban.

67

• Since January 2003, the NPS has also commenced
  with the collation of Lower Court statistics of
  cases wherein the accused was diverted away from
  the criminal justice system. A total of 40262
  cases were diverted to date. If the Diversion
  program is successfully completed by the accused,
  the case against him/her will be withdrawn. In
  this regard the establishment of the Community
  Courts assisted greatly due to the fact that
  cases, which would have been postponed by your
  main courts, are now expedited and effectively
  finalised in the Community Courts. In the
  Hatfield Community Court, 128 cases were thus far
  diverted. The Community Courts in Hatfield and
  Bloemfontein have also managed to finalise a
  total of 678 and 506 cases, respectively.

68
The President, in his State of the Nation
Address, required an improvement in the quality
and cycle times of investigations and
prosecutions. In order to address this matter,
the NPS has, in execution of the Presidents
instruction and in conjunction with SAPS,
embarked on a project to determine the reasons
for the high rate of withdrawals and
postponements in our courts. The project mainly
entails an audit conducted on all cases withdrawn
and postponed over a period of three months
(July, August and September). Ten of the bigger
court centres have been identified for this
purpose. The data should enable us to identify
emerging trends and indicate specific areas where
some intervention is required. Members of SAPS
are assisting us with the collection of the
required data. A matter of grave concern is the
number of postponements per case, which impacts
negatively on our case cycle times. From total
number of 13 676 cases that were postponed, 365
cases have already been postponed for more than
15 times per case, with some cases exceeding 50
postponements per case!
69

• All Prosecutors, but especially the Control and
  Senior Prosecutors, should ensure that cases are
  not postponed without good reason. Realistic
  dates should be set for a postponement and the
  practise of routinely postponing cases for two
  weeks, even if it is clear that the investigation
  will not be completed, should be discontinued.
  Clear instructions should be issued on all
  outstanding investigations and the Investigating
  Officer should be held accountable on the return
  date.

70
LAB

• The essence of the Legal Aid Boards awaiting
  trial prisoners project is that the Board has
  identified those prisons at which a large numbers
  of awaiting trial prisoners are held. Particular
  attention is given to prisons at which high
  numbers of children are awaiting trial and/or at
  which large numbers of prisoners have been
  awaiting trial for longer than 6 months
• The Legal Aid Board has 57 Justice Centres
  nationwide each of which is responsible for the
  provision of legal aid in a certain number of
  magisterial districts. The staff of these
  Justice Centres visit the prisons within their
  areas which have been identified in accordance
  with the above criteria. Where possible such
  prisons are visited twice a month. All
  identified prisons holding a high number of
  awaiting trial prisoners are visited at least
  once a month.

71
LAB cont

• During prison visits the staff of the Legal Aid
  Board explain the Constitutional right to legal
  representation in terms of Section 35(3) of the
  Constitution, the reasons why accused persons
  should be legally represented and the fact that
  such services are provided free of charge by
  professional legal practitioners operating
  independently of the State. Awaiting trial
  prisoners are afforded an opportunity to apply
  for legal aid and arrangements are made to
  consult.
• Where possible plea bargaining is presented as an
  option.
• If and when the necessary resources become
  available the Legal Aid Board plans to extend the
  service, firstly to all prisons, and thereafter
  to persons being held in police detention cells.

72
POLICY PROBLEM STATEMENT ATDS

• Cabinet identified policy gap re responsibility
  for incarceration of awaiting trial accused
  persons.
• Cabinet noted that SA legal system presumes
  innocence until proof of guilt, yet awaiting
  trial detainees are accommodated in facilities of
  correctional system, which facilities are
  designed primarily for sentenced prisoners.
• Unsentenced detainees have unique status - set of
  rights requirements different from those of
  sentenced  
• Lack of coherent policy i.r.t service provision
  to responsibilities for ATDs
• Draft policy statement regarding detention of
  unsentenced persons is being developed
  inadequate responses from Departments
• Aim to draft medium to long term policy for
  Cabinet that will then inform strategic planning
  of all departments
• On basis of consensus approach - migration plan
  would be put in place for medium term.

73
POLICY PROBLEM STATEMENT ATDS

• Purpose of correctional services, to enforce
  sentences of courts, to ensure humane detention,
  promote social responsibility human
  development, principles on which South
  African legal system is based, are compromised by
  current accommodation of awaiting trial
  detainees in correctional centres.
• Apart from being in contradiction with principles
  of legal system, practice utilises DCS
  resources inappropriately, particularly staff who
  are trained in rehabilitation correction.

74
BACKGROUND

• DCS saddled with housing range of detainees
• SA prisons have following categories of
  unsentenced detainees in custody
• Awaiting trial detainees granted bail that they
  cannot pay
• Awaiting trial detainees denied bail
• Awaiting trial children
• Detainees on warrant from bailiff/sheriff in
  relation to debt
• Illegal immigrants detained while awaiting
  repatriation facing no charges
• Persons awaiting transfer to other institutions
  e.g. Children awaiting transfer to reform
  schools, Presidents Patients awaiting transfer
  to psychiatric institutions.

75
BACKGROUND

• Legacy from Dept of Prisons under Min of J
• DoP perceived to have sole custodial mandate.
• Legislative policy developments over last 10
  years apparent this perception cannot be
  sustained.
• Capacity of DCS not kept on par with other JCPS
  depts
• If unsentenced detainees removed from DCS still
  seriuosly overpoulated
• Places DCS at distinct disadvantage when
  resources which are meant for corrections are
  utilised for detention purposes.

76
INTERNATIONAL INSTRUMENTS

• Person arrested facing charges is innocent
  until proven guilty shall be treated as such.
• Reason for detention to ensure due process in
  court of law where they are to be tried, not in
  any sense for punishment or correction.  
• Clear separation of functions between agencies
  responsible for investigating crimes custodial
  administration.
• Accused person is detained may assist
  investigating authorities in their work, but
  conditions of imprisonment should never be an
  element of investigation.
• No unsentenced detainee may be compelled to wear
  prison clothes provided to sentenced prisoners.
• To be held separately as far as practicable.

77
CONSTITUTIONAL ARRANGEMENTS

• Lays down range of rights that impact on rights
  of unsentenced detainees in relation to their
  incarceration their passage through cjs
• 12(1) Everyone has right to freedom security
  of person
• 35 Arrested, detained accused persons
• (1) Everyone who is arrested for
• (2) Everyone who is detained, including every
  sentenced prisoner, has right-
• (3) Every accused person has right to fair
  trial, which includes right
• (4) Whenever this section requires information to
  be given to person, that information must be
  given in language that person understands.

78
ARRANGEMENTS BY SAPS

• at station where there is gaol, arrangement
  shall be made that prisoners who have been
  charged detained, be sent there, pending their
  appearance in court, ...... for detention, rather
  than be kept at station, unless, of course, it
  would, owing to distance to gaol, time factor or
  for any other sufficient reason, be more
  economical or more convenient to keep them at
  station
• SAPS Standing Order (General) 345.2

79
GOVERNMENT OBLIGATIONS TO UNSENTENCED DETAINEES

• Presumed innocence of unsentenced detainees
  obliges very limited restriction on human rights
  is justifiable.
• While right to movement is curtailed by warrant
  that empowers detention, continuity of basic
  human rights is obligatory on Government.
• Only basis on which rights can be curtailed is
  presumed threat to society, /or likelihood of
  escape that legal process has identified, or on
  basis of what is practicably feasible.

80
GOVERNMENT OBLIGATIONS TO UNSENTENCED DETAINEES

• Should be subjected only to restrictions
  necessary for maintenance of security good
  order in prison must, where practicable, be
  allowed all amenities to which they could have
  access outside prison.
• Range of services must be available to
  unsentenced detainees in line with general Govt
  policy
• Continuity in ed training
• Safety of person
• Access to social welfare services Accessibility
  to state provided health care Accessibility to
  visits, communication correspondence with
  family friends
• Accessibility to recreational reading resources
  
• Accessibility to legal representation

81
HUMAN DEVELOPMENT

• Without presuming guilt, given socio-economic,
  familial educational backgrounds of many of
  ATDs, is NB niche for promotion of human
  development while awaiting trial.
• life skills social development, including
  understanding of legal justice system

82
DURATION OF AWAITING TRIAL

• Constitution stipulates period of ATD to be as
  short as possible
• In practice many incarcerated for extended
  periods of time,
• Provision of involvement in productive activity
  that promotes recreation human development is
  crucial
• Length of stay of ATDs varies considerably might
  also negatively affect administering of these
  programmes.

83
SUMMARY OF GOVT RESPONSBILITIES

• Government obliged to provide facilities for
  unsentenced detainees that allow for
• Minimal limitation of individuals rights,
• Ensuring secure safe custody,
• Staffing of facilities with appropriate
  personnel responsible for ensuring delivery by
  range of govt agencies on rights of unsentenced
  detainees.
• Training of personnel in
• Promotion of human development
• Rights of persons in legal/judicial process
• Effective secure safe custody

84
POLICY PROPOSAL RE ATDS

• Long-term policy should confirm that DCS
• should not accommodate unsentenced in
  correctional facilities
• should not utilise correctional officials to
  secure care for, awaiting trial detainees.
• Policy should state services facilities for
  incarceration of awaiting trial detainees
• policy should define appropriate design
  resourcing of facilities in which awaiting trial
  detainees should be accommodated.

85
POLICY PROPOSAL RE ATDS

• Custodial responsibility for ATDs hence
  administration of holding or remand facilities
  should be reconsidered
• Prime responsibility must lie with DoJ
• Allocation of responsibilities to IJS Depts
  support roles of various departments should be
  defined.
• Necessary budgetary provisions for AT custodial
  responsibility be made to relevant department(s)

86
MIGRATION TO APPROPRIATE HANDLING OF ATDS

• Migration system required to shift from current
  status quo to desired handling of ATDs by
  appropriate agency in cjs.
• Immediate separation of unsentenced from
  sentenced, accommodation of ATDs on basis of
  categories determined on basis of previous
  convictions, status nature of alleged offence
  NB principles to inform short medium term
  management of ATDs.

87
MIGRATION TO APPROPRIATE HANDLING OF ATDS

• Immediate provision of services such as health,
  continuing education training, social work
  intervention to be defined according to mandates
  of relevant govt depts, not be responsibility
  of DCS.
• DCS Staff only to be utilised to manage
  administration of AT prison/section,
  facilitating access of personnel from other Govt
  Depts to render relevant services.
• Payment for accommodation feeding of ATDs to be
  made by DoJ to DCS.
• Delivery of payment for other services by Govt
  Depts according to SLA between DoJ relevant
  Dept.

88
MIGRATION TO APPROPRIATE HANDLING OF ATDS

• Solution may include handing over of some of
  older prisons, more appropriate for shortterm
  incarceration of ATDs than as correctional
  centres
• Will involve both financial human resource
  provisioning, training of necessary custodial
  capacity in another department, transitional
  arrangements will be necessary.

89
MIGRATION TO APPROPRIATE HANDLING OF ATDS

• Govt to address rights of ATDs being compromised
  by backlogs in court cases, length of their
  remand period, conditions that they have to
  endure in prisons.
• Situation tends to increase criminality of
  awaiting trial detainees hardening of
  anti-social attitudes behaviour.
• In prisons over 200 full, current percentage of
  ATDs is about 45,
• In prisons 100 full, current level of ATDs is
  about 20 of total population
• Ongoing IJS monitoring of ATDs levels and
  duration in order to utilize IJS processes to
  speed up processing of court cases, /or utilise
  range of options for alternatives to
  incarceration.

90
DETENTION OF ILLEGAL IMMIGRANTS AWAITING
DEPORTATION

• DHA is responsible for illegal immigrants
  Legislation empowers DG to cause illegal
  immigrants awaiting deportation to be detained,
  but without specifying where or how.
• DHA currently lacks expertise, structures
  funds to run its own detention facilities, has
  one privately run facility that it utilises
  oversees management.
• Held in following types of facilities in
  different regions of country
• Increase in illegal immigrants levels of
  overcrowding forced policy dilemma to surface.

91
POLICY PROPOSALRE ILLEGAL IMMIGRANTS

• Clear guidelines on custodial responsibility for
  illegal immigrants facing deportation are
  required.
• Detention facilities required for illegal
  immigrants substantially different from those
  facing criminal charges court proceedings.
• is tendency for escape from deportation
• cannot be presumption of threat to safety of
  society or
• Cannt be assumption of justifiable basis for
  rights to be severely limited

92
POLICY PROPOSALRE ILLEGAL IMMIGRANTS

• Detention facilities have to provide for family
  accommodation.
• Staff require an understanding of diverse
  cultures of illegal immigrants, of domestic
  international law relating to treatment of
  illegal immigrants refugees, range of
  appropriate languages, be trained in providing
  guidance to such people in relation to their
  deportation.

93
MANAGEMENT OF LEVELS OF SENTENCED OFFENDERS

• Sentenced Admissions from Courts
• From 1995 until 2000 number of admissions has
  shown slight increase but has been reasonably
  stable with average of 116 568 over 6 year
  period.
• In 2001 increased dramatically to high of 159
  641.
• 2002 showed marked decrease to 98 909 - lowest
  over period since 1995 (decrease of 62 from
  previous year).

94
SENTENCED ADMISSIONS

• Sentence Categories 1995-2003
• lt2years numbers have decreased