In December 2015, the United Nation general assembly adopted the first update to minimum standards on treating prisoners in 50 years - and named it in late South African president Nelson Mandela’s honour.
The UN Standard Minimum Rules for the Treatment of Prisoners - known as the Nelson Mandela rules - contain 122 rules which “represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations”.
The assembly further decided that Nelson Mandela International Day, celebrated on 18 July each year, be used to promote humane conditions of imprisonment.
In this factsheet, we provide an overview of the South African prison sector and list the biggest pressure points.
The Judicial Inspectorate for Correctional Services is the body tasked with overseeing South Africa’s correctional services and inspecting and reporting on how inmates are treated.
(Note: Two advocacy groups have launched a court bid to ensure the inspectorate enjoys the institutional independence that the constitution requires. It is currently receiving its budget from the department of correctional services and is administratively and operationally linked to it, making it very difficult for the inspectorate to hold the department accountable for violations.)
|SA prison facilities
|Total number of prisons
Source: 2015/16 Judicial Inspectorate for Correctional Services report
Two of South Africa’s maximum security prisons, Mangaung in Bloemfontein and Kutama Sinthumule in Limpopo are privately run, a spokesman for the department of correctional services, Tshifhiwa Magadani, told Africa Check.
Inmate populationA quarter of prisoners in the 2016/17 financial year were remand detainees, defined as people awaiting trial or those awaiting extradition. The majority of prisoners (97%) were men.
|Average inmate population
Source: Department of correctional services annual report for 2016/17
Nxumalo also provided Africa Check with a racial breakdown as at the end of 2016.
|Prisoners by race
In answer to a June 2017 parliamentary question, the minister of justice and correctional services said that 11,842 foreigners were being held in South African correctional facilities. Of these 7,345 had been sentenced and 4,497 were awaiting trial, with 1,380 being prosecuted for being in the country illegally. The majority were Zimbabweans (41.5%), followed by Mozambicans (24%).
Correctional services minister Michael Masutha also said that during the 2017/18 financial year it would cost an estimated R133,805.35 to house a prisoner. Considering the inmate population of 161,054 at the end of 2017, this adds up to R21.5 billion for the year.
Problems plaguing SA prisons
1. Lack of accurate data
In his 2016 budget vote speech, correctional services minister Michael Masutha said that the auditor-general “still has serious concerns about the credibility of our records”.
The auditor-general's report for 2015/16 stated that the department’s reported performance information for its incarceration, rehabilitation and care programmes wasn’t reliable “when compared to the evidence provided”.
This calls into question several crucial indicators, such as the number of inmates who had escaped, died unnaturally or were injured in an assault.
At the end of March 2017, South Africa’s prisons only had 119,134 bed spaces available for an average inmate population of 160,280.
“The main driving factor behind overcrowding is the remand detainee population,” Clare Ballard from the advocacy organisation Lawyers for Human Rights told Africa Check.
Legal Aid South Africa’s Wilna Lambley told the Wits Justice Project that about 8,000 people who can’t afford bail are in prison awaiting their trial. Clogged-up court rolls furthermore lead to delays and jam-packed communal cells.
Prisons in urban areas have the worst overcrowding rates. In the 2015/16 financial year, Johannesburg Correctional Centre’s Medium B was 233% full, which translates into a shortage of 1,736 beds.
Pollsmoor prison in Cape Town had the biggest shortage of beds (2,448) in 2015/16 financial year. Following a court challenge by Sonke Gender Justice and Lawyers for Human Rights, the Western Cape High Court held that the conditions in Pollsmoor’s remand detention centre were unconstitutional. Leptospirosis, a disease spread by rats, had by then claimed two lives.
The court ordered that government reduce overcrowding to 150% within 6 months.
“Government met the ruling. As of 26 June, their statistics showed that overcrowding levels were 149%,” national prison specialist at Sonke Gender Justice, Ariane Nevin, told Africa Check.
In the end, Ballard added, the cause of overcrowding “is a poorly functioning criminal justice system – we’re simply not prosecuting crime at the rate and pace and with the effectiveness we should be”.
3. Infectious diseases
In a landmark constitutional court case, the state’s responsibility to take care of prisoners’ health was solidified.
Dudley Lee contracted TB while he was an awaiting trial inmate at Pollsmoor prison between 1999 and 2004. Lee sued the minister of correctional services for failing to implement the measures required by law to decrease the risk of disease in prisons.
After a seven-year court battle, Lee won his case and was awarded R270,000 in damages.
“The Lee case requires an overhaul of health services and prevention in prisons. There has been an unprecedented influx of international funding from the Global Fund and PEPFAR for TB screening and testing in prisons,” John Stephens told Africa Check. Stephens is a senior legal researcher at the activist organisation, Section27.
The department’s 2016/17 annual report claimed that 1,034 of the 1,239 prisoners with TB in that year were cured, a rate of 83%. As for HIV, the department reported that 24,506 of the 25,042 prisoners who tested positive for HIV were on antiretroviral therapy, a rate of 98%.
“Screening, testing and treatment are critical, but unless we deal with the issues of overcrowding and ventilation we are throwing money away,’’ says Stephens.
4. Human rights violations
The first of the Mandela Rules states: “No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification.”
Assault and torture
Dr Malose Langa, a lecturer in the psychology department of the University of the Witwatersrand, conducted an analysis of torture in South Africa. He focussed on cases reported in the annual reports of the Independent Police Investigative Directorate (IPID) and the Judicial Inspectorate for Correctional Services (JICS) between 2007 and 2011.
Langa found that assault by prison officials was one of the most common complaints reported to the JICS (6,000 cases) and IPID, which received 1,778 complaints of assault and 89 of torture in the same time frame. According to Langa’s analysis, more than 200 inmates died of unnatural causes such as suicide and assault in the period.
In 2013, the Prevention and Combating of Torture of Person’s Act was introduced, which criminalised torture in South Africa. The Act’s definition of torture includes any act that causes severe mental or physical pain or suffering with the aim of extracting information or a confession from a person; or as a form of punishment or coercion.
Langa said that the introduction of the act has not “changed anything in the prosecution of officials who torture inmates”. IPID’s 2015/2016 annual report listed that 3 police officials were prosecuted for torture under the new act.
Despite JICS documenting 15 complaints of torture in its 2015/16 annual report, Luvuyo Mfaku, spokesperson for the National Prosecuting Authority (NPA), couldn’t provide the Wits Justice Project with the number of torture cases that have been prosecuted since the introduction of the act.
“We don’t categorise crimes in a specific database if they fall under general prosecutions,” he said.
Apart from assault, segregation - formerly known as solitary confinement or isolation - is one of the most common methods of torture used in prisons, according to Langa.
The Correctional Services Act defines solitary confinement as “being held in a single cell with loss of all amenities” which “may be for part of or the whole day”. It also lists the conditions under which segregation is permissible:
- if a prisoner requests to be placed in segregation;
- to give effect to the penalty of the restriction of amenities;
- if prescribed by a medical practitioner;
- when a prisoner is a threat to himself or others;
- if recaptured after escape and there is reason to believe that he will attempt to escape again; and
- at the request of the police in the interests of justice.”
Despite these provisions, 4 civil society organisations operating in South Africa submitted to the United Nations Human Rights Committee that “there is reason to conclude” that solitary confinement as a form of punishment “still occurs under the guise of ‘segregation’”.
With thanks to the Wits Justice Project, which use investigative journalism to expose miscarriages of justice, for input and guidance in putting this factsheet on South African prisons together.
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