Management of Remand Detainees in South Africa - DCS-Home

Discussion Document
on
Management of Remand Detainees
in South Africa
Prepared by:
and
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Acknowledgements
We are grateful to the following individuals and organizations that assisted in various
ways in the preparation of this discussion document:-
Chief Deputy Commissioner of Corrections, Teboho Motseki for leadership and guidance
from the conceptualization phase to the final stages of the document.
DC Remand Detention Systems and Security, Willie Damons for being a dedicated
project leader throughout the process of initiating and finalization of the document.
Director Policy and Research Vuyi C Mlomo-Ndlovu for conducting situational analysis in
SAPS and DSD and coordinating the writing of the document through collaborations with
the Director of Impact Research International and his staff.
The Management of Awaiting Trial (DCS) project team for their contributions in
organizing workshops and gathering all the relevant information for the discussion
document (Collin Govender, Rishi Naidoo, Adri Phaal, Heinrick Le Roux, Mandy
Spammer and Sydney Dube).
Officials from Information Management and Systems Development Directorates of DCS
for participating in situational analysis visits to several police stations and secure care
facilities.
DCS Regional Head of Corrections, Regional Coordinators of Corrections and Heads of
Remand Detention Facilities and their staff for their active participation in situational
analysis and provision of information.
Head office and regional offices of DSD for allowing the MATD project team to conduct
situational analysis in selected secure care facilities in Gauteng, North West and Free
State.
Head office and regional offices of SAPS for allowing the MATD project team to conduct
situational analysis in selected police stations in Gauteng, North West and Free State as
well as volunteering officials to accompany the project team to all stations.
Jacqueline Leyds, the Managing Director of Bosasa Youth Development Centres and her
team for allowing the MATD project team to conduct situational analysis in the Secure
Care Facility situated in Krugersdorp and provision of all information and statistics for all
youth development centres.
Willie Scholtz and Gert Jonker from Business-Against-Crime (BAC) for their contribution
in the development of the original concept document.
Michael Acres and Chris Giffard from Treasury Technical Assistant Unit for their
contributions in workshops held and facilitation of others.
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The National Development Committee secretariat of the JCPS cluster for participating in
workshops organized by the MATD task team as well as continuous support and
encouragement.
The National Development Committee for contributions made in shaping the problem
statement, challenges and proposals submitted in the document.
Gert Jonker from Business-Against-Crime for conducting a desktop study on
International Best Practices with regard to management of Remand Detainees.
Many other people contributed significantly to this project at Impact Research
International (Pty Ltd) including Ms Kgaugelo Rasidile, Ms Kim Woolnough, Mr France
Mathlwa, Ms Caroline Ederman, and Ms Percy Mtetwa.
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List of Acronyms
APIS Automated Person Identification System
CBO Church Based Organizations
CCTV Closed-circuit Television
CJS Criminal Justice System
CPA Criminal Procedure Act
CPF Community Police Forum
DCS Department of Correctional Services
DHA Department of Home Affairs
DOD Department of Defence
DoJCD Department of Justice and Constitutional Development
DPW Department of Public Works
DSD Department of Social Development
EMC Executive Management Committee
FS & NC Free State and Northern Cape
HCC Head of a Correctional Centre
HIV/AIDS Human Immunodeficiency Virus /Acquired Immune Deficiency Syndrome
ICCPR International Covenant on Civil and Political Rights
IJS Integrated Justice System
IRI Impact Research International
ISSCJ Inter-sectoral Committee for Child Justice
JCPS Justice Crime Prevention and Security
KZN KwaZulu-Natal
LAB Legal Aid Board
LASA Legal Aid South Africa
LMN Limpopo, Mpumalanga, North West
MATD Management of Awaiting Trial Detention
NCPS National Crime Prevention Strategy
NGOs Nongovernmental organizations
NME Not Mentioned Elsewhere
NPA National Persecuting Authority
NPSP Nizhny Novgorod Project for Justice Assistance
RD Remand Detainee
RDFs Remand Detention Facilities
RSA Republic of South Africa
SAPS South African Police Service
SCF Secure Care Facilities
TAU Technical Assistance Unit of Treasury
TB Tuberculosis
UDHR Universal Declaration of Human Rights
UN United Nations
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Table of Contents
Preamble 10
CHAPTER 1: Introduction and Historical Background 12
1.1 Introduction 12
1.2 Categories of RDs 12
1.3 Role players in the Management of RDs 13
1.4 Challenges faced in South Africa 14
1.4.1 Overcrowding 15
1.4.2 Criminal Justice Systems (CJS) Matters 16
1.4.3 Policy Matters and Legislative Frameworks 19
1.4.4 Services and Programmes 19
1.4.5 Facilities and Security 21
1.4.6 Systems and Tools 21
1.4.7 Foreign Nationals 22
1.4.8 Oversight/Monitoring 22
1.5 Cluster approaches 23
Chapter 2: International Trends 25
2.1 Introduction 25
2.2 International standards: Key principles and rights relating to RDs 25
2.2.1 Guarantee of Personal Liberty 27
2.2.2 Adherence to requirements of International Standards 27
2.2.3 Politically Binding Commitments 28
2.2.4 International Instruments 28
2.2.5 Judicial Supervision 29
2.2.6 Reasonable Suspicion 29
2.2.7 Periodic Judicial Confirmation of the Detention 29
2.2.8 The Right to Legal Counsel 29
2.2.9 The Right to Notify Others 30
2.2.10 The Right to not be tortured 30
2.3 Governance models in the Management of RDs 31
2.3.1 Management by the Ministry or Department of Correctional Services 31
2.3.2 RDs jointly managed by the Investigating Authority and Correctional
Department 31
2.3.3 RDs managed by other Departments 31
2.3.4 RDs managed by Local Government 31
2.3.5 Participation at various levels of the Criminal Justice System 31
2.4 National Legislation 32
2.5 Overcrowding 32
2.6 Services to RDs 32
2.7 Alternatives to Remand Detention 33
2.8 Oversight / monitoring and evaluation 33
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2.9 International Best Practice regarding RDs 34
2.9.1 Interdisciplinary approaches to reduce the length and application of
Remand detention in order to eliminate the problem of overcrowding 36
2.9.2 Staff working conditions and training 36
2.9.3 Juveniles in remand detention 36
2.9.4 Women in remand detention 36
2.9.5 Access to information and legal counselling 37
2.9.6 Constructive and purposeful education, occupation and other
activities in remand detention 37
2.9.7 Contact with the utside world 37
2.9.8 Health 38
2.9.9 Prevention of ill treatment in pre-trial detention facilities 38
2.9.10 The need for monitoring of Remand Detention Centres 38
2.10 Proposals for South African context 38
Chapter 3: Legal Framework 41
3.1 Introduction 41
3.2 Domestic Legal Framework 41
3.2.1 Constitution of the Republic of South Africa, 1996 41
3.2.2 Criminal Procedure Act 51 of 1977 43
3.2.3 South African Police Service Act 68 of 1995 (SAPS Act) 46
3.2.4 Correctional Services Act 111 of 1998 46
3.2.5 Immigration Act No 13 of 2002 47
3.2.6 The Mental Health Act No. 17 of 2002 47
3.2.7 The White Paper on Corrections in South Africa 2005 47
3.2.8 The protocol on the procedures to be followed in applying section 63A
of Criminal Procedures Act, 1977 48
3.2.9 Management of awaiting detainees policy 48
3.2.10 Child Justice Act (Act 75 of 2008) 48
3.3 International legal framework 48
3.3.1 The Universal declaration of Human Rights (UDHR), 1948 49
3.3.2 The International Covenant on Civil and Political Rights (ICCPR) 49
3.3.3 The African Charter on human and people’s rights 51
3.3.4 Other applicable international standards and guidelines 51
3.4 Conclusion 51
3.4.1 Challenges arising from the Legal Framework 52
3.4.1.1 Criminal Procedure Act (Act 51 of 1977) 52
3.4.1.2 Correctional Services Act (Act 111 of 1998) 52
3.4.1.3 Child Justice Act (Act 75 of 2008) 53
3.4.2 Proposals 53
Chapter 4: Profile of RDs 56
4.1 Introduction 56
4.2 Overview of RD population in DCS 57
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4.2.1 General inmate population 57
4.2.2 Regional distribution 57
4.2.3 RDs and crime 58
4.2.3.1 Top Ten Crimes 60
4.2.4 RDs and bail 62
4.2.5 RDs and length of detention 62
4.2.6 Admission and releases 64
4.2.7 Children RDs 64
4.2.7.1 Age distribution of RD children 65
4.2.7.2 RD children and Crime categories 66
4.2.7.3 Children and length of detention 67
4.2.8 Female RDs 68
4.2.8.1 Age distribution of Female RDs 68
4.2.8.2 Females and Crime categories 69
4.2.8.3 Females and length of detention 70
4.2.9 Foreign Nationals 70
4.3 RDs managed by DSD 71
4.4 Summary of the profile 77
4.4.1 General population of DCS (April to June 2008 and May to January 2010 77
4.4.2 Crimes 78
4.4.3 Period spent in detention 78
4.4.4 Bail 78
4.4.5 Admission and releases 79
4.4.6 Children RDs 79
4.4.7 Female RDs 79
4.4.8 Foreign Nationals 79
4.4.9 RDs managed by DSD 80
4.5 Issues for policy and legislative framework 80
Chapter 5: Current Management of RDs 82
5.1 Introduction 82
5.2 Current Situation: Management and governance of RDs 82
5.3 Responsibilities of different institutions 82
5.3.1 South African Police Service (SAPS) 82
5.3.2 Department of Correctional Services (DCS) 83
5.3.3 Department of Social Development 86
5.3.4 Department of Health and Mental health 88
5.4 Legal services 88
5.5 Cluster Approaches 89
5.6 Challenges 90
5.7 Proposals 91
Chapter 6: Infrastructure, Security and Intergovernmental Structures 93
6.1 Introduction 93
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6.2 Spread of physical infrastructure across CJS 93
6.2.1 Department of Correctional Services 93
6.2.1.1 Remand Detention Facilities 97
6.2.1.2 Maintenance of Facilities 98
6.2.2 SAPS 100
6.2.3 DSD 100
6.3 Challenges related to facilities 101
6.4 Security 102
6.4.1 Legislative Provisions 102
6.4.2 Security Operations 103
6.4.2.1 Personnel Security Measures 103
6.4.2.2 Physical Security measures 104
6.4.2.3 Technological Security Measures 104
6.4.2.4 Information Security Measures 104
6.4.2.5 Operational Security Measures 104
6.4.2.6 Management Supervision 104
6.5 National security of the country 106
6.6 Challenges related to security 106
6.7 Proposals 108
6.7.1 Facilities 108
6.7.2 Security 109
Chapter 7: Systems and Tools 110
7.1 Introduction 110
7.2 Information Management Systems 110
7.2.1. Challenges 111
7.3 Tools 112
7.3.1 Automated Personal Identification System (APIS) 112
7.3.1.1 Challenges 113
7.3.2 Video Postponement 113
7.3.2.1 Challenges 116
Chapter 8: Monitoring/Oversight 117
8.1 Introduction 117
8.2 Prescripts and Operations 117
8.3 Proposals 119
Chapter 9: Summary and Policy Proposals 122
9.1. Introduction 122
9.2. Key Challenges 122
9.3. Key recommendations based on international best practices 123
9.4. Challenges and Recommendations for Legal Framework 125
9.4.1 Torture, cruel, inhuman and degrading treatment 125
9.4.2 Definitions and scope to be covered by remand detention 125
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9.4.3 The safeguards for children in detention 126
9.4.4 Basic facilities that remand detention facilities and resources should have 126
9.4.5 Remand detainees with serious illnesses 126
9.4.6 Maintaining discipline 126
9.4.7 Surrender of remand detainees to police for investigations 127
9.4.8 Custody of information/data on remand detainees 127
9.5 Issues and Recommendations for Profiles 127
9.5.1 Summary of profiles 127
9.5.2 Issues for policy considerations 128
9.5.3 Recommendations 129
9.6 Issues and recommendations based on current management on RDs 130
9.6.1 Summary and challenges 130
9.6.2 Recommendations 132
9.7 Issues and recommendations on Facilities and Security 133
9.7.1 Facilities 133
9.7.1.1 Challenges related to Facilities 133
9.7.1.2 Recommendations 134
9.7.2 Security 135
9.7.2.1 Challenges related to security 135
9.7.2.2 Recommendations 136
9.8 Issues and recommendations on systems and tools 137
9.8.1 Information Management Systems 137
9.8.1.1 Challenges 138
9.8.1.2 Recommendations 138
9.8.2 Tools 139
9.8.2.1 Automated Personal Identification System (APIS) 139
9.8.2.1.1 Challenges 139
9.8.2.1.2 Recommendation 140
9.8.2.2 Video Postponement 140
9.8.2.2.1 Challenges 140
9.8.2.2.2 Recommendations 140
9.9 Issues and Recommendations on Oversight/Monitoring 141
9.9.1 Summary of issues and challenges 141
9.9.2 Recommendations 141
9.10 Proposals 141
Annexure: Contrabands 143
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Preamble
On 30 March 2009, the Department of Correctional Services (DCS) requested Impact
Research International (IRI) to participate in a collaborative process of writing a discussion
document for the JCPS cluster on the management of Remand Detainees (RDs) in South
Africa.
It must be pointed out that this discussion document was written at a time when the new
government structures were being put in place, following the April 2009 elections. Thus, the
names of departments, units and agencies used in this document reflect what was obtained
on the ground prior to the 2009 Presidential Inauguration and subsequent announcement of
the new South Africa government departments. However, it is reasonable to assume that the
changes may not have substantial and immediate implications for the specific topic at hand:
management of RDs in South Africa, as the key role players are likely to remain the same
except that some agencies, units and directorates may change their departmental affiliation.
In preparing this document, we engaged in a systematic process of sifting through and
analysing the contents of several documents that were available to us. We also conducted
our own desktop review and analysis of available literature and raw data on RDs, both locally
and internationally.
Summary of Chapters
In chapter one, an introduction is given and the historical background of the management of
RDs is outlined, including the different categories of RDs, the key role players in the
management of RDs, and the challenges faced in South Africa with regard to RDs.
In chapter two, literature on international trends with respect to the management of RDs is
reviewed and summarized. The issues discussed in this chapter include: international
principles and best practices, governance models, national legislation, service provision,
overcrowding, rights of RDs, alternatives to remand, and oversight issues. The chapter also
highlights some proposals for the South African context.
In chapter three, a summary of international and national legal frameworks (e.g. Acts, White
papers, Policy guidelines, etc) applicable to the management of RDs are reviewed. Issues
pertaining to the Rights of RDs and how they can be realized in the South African context are
also discussed in this chapter. The chapter concludes with a discussion of the challenges for
South Africa and proposals on how these challenges could be addressed.
In chapter four, profiles of RDs detained in DCS and DSD facilities are presented. Available
statistical data are presented which show the profiles of RDs in terms of gender
differentiation, age categories, nationality, and time spent in detention at an RD, number of
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warrants, bail options, and so on. Challenges and proposals arising from the demographic
characteristics of RDs in DCS and DSD facilities are discussed.
Chapter five provides specific information on the current management of RDs, based on the
situational analysis report prepared in 2008 which reflects the situation in SAPS, DCS and
DSD. Also, guidelines for the management of RDs prepared by the NPA are summarised
and evaluated. The lack of clear guidelines for the management of RDs is highlighted as
needing urgent attention. The chapter concludes with a brief description of the challenges
and proposals emanating from the issues discussed.
Issues relating to infrastructure, security and inter-governmental structures are covered in
chapter six. A number of critical issues are discussed including: provincial distribution of
physical facilities, problems experienced in these facilities, security requirements and type of
security provided, technology and identification issues, and so on. Key challenges and
recommendations are included.
Chapter seven provides information on systems and tools including challenges.
Chapter eight provides information on monitoring / oversight including proposals on
indicators.
In the last chapter, chapter nine, general conclusions and broad policy recommendations
arising from the document are presented. In order to enhance clarity, the challenges and
recommendations are presented per selected area.
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CHAPTER 1: Introduction and Historical Background
1.1 Introduction
In 2006, Cabinet mandated the Department of Correctional Services (DCS) through the
Justice Crime Prevention and Security (JCPS) cluster structures to lead a project of re-
engineering the Management of Awaiting-Trial Detention (MATD) system in South Africa.
The scope of the project goes beyond addressing congestion of facilities and includes
ensuring that all provisions of the Constitution, legislation and international protocols
applicable to unsentenced inmates are applied. A Chief Directorate was established in DCS
in 2007 to drive the re-engineering process, including the development and implementation
of a synchronised cluster programme of action aimed at meeting short- to long-term
strategic needs for managing Awaiting Trail Detainees (RDs).
The DCS team operates as a project team responsible for the implementation of deliverables
outlined in the Strategic Plan document of DCS and as a lead department within the JCPS
cluster for MRD . The other institutions represented in the JCPS MATD task team are: the
South African Police Service (SAPS), the Department of Social Development (DSD); Legal
Aid South Africa (LASA), previously known as Legal Aid Board (LAB). the Department of
Justice and Constitutional Development (DoJCD) including representatives from Inter-
sectoral Committee for Child Justice (ISSCJ) and National Prosecuting Authority (NPA); and
the Integrated Justice System Transversal. Representatives from the Technical Assistance
Unit of Treasury (TAU), Business Against Crime and the Department of Home Affairs (DHA)
are invited on an ad hoc basis.
Within the JCPS cluster, there is a prevailing notion that there is no institution that was
assigned to take responsibility for detention management of RDs with the exception of
Children RDs; hence most legislation and policies developed around RDs focus more on
case flow issues and less on detention management issues. Contrary to this, the preamble
of the Correctional Services Act (Act 111 of 1998) as amended, state clearly that the aim of
the said legislation is:
“To provide for a correctional system; the establishment, functions and control
of the Department of Correctional Services; the custody of all prisoners under
conditions of human dignity; the rights and obligations of sentenced prisoners;
the rights and obligations of unsentenced prisoners;……..”
Though the DCS keeps almost 95% of RDs, most of its operational policies focus on
provisions for sentenced offenders. The White Paper on Corrections (2005) acknowledges
that DCS keeps a range of detainees within its facilities as a legacy from the time when the
Department of Prisons was administered under the Ministry of Justice and further stipulates
that this perception cannot be sustained. The White Paper expressed a need for addressing
a policy gap of assigning responsibility in respect of incarceration of RDs.
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The White Paper further articulated that RDs have a unique status and protected by a set of
rights and requirements that are different from those of sentenced offenders. These rights
are outlined in the Constitution of Republic of South Africa (Act 108, 1996).
The White Paper stipulated a wide range of services which must be made available to RDs
which include continuity in education and training; access to social welfare services; access
to state-provided health care in line with Government policy; safety of person; accessibility to
visits, communication and correspondence with family and friends; accessibility to
recreational and reading resources; and accessibility to legal representation.
DCS was given a mandate by the Cabinet Lekgotla held in January 2009 to establish a
dedicated branch or a unit which will deal with the Remand Detainees (RDs) in South Africa.
The unit / branch will be headed by the Deputy Director General (equivalent of Chief Deputy
Commissioner) who will report directly to the National Commissioner of Correctional
Services. The National Commissioner will then report to the Deputy Minister of Justice with
regard to the issues of RDs. The Strategic Priority six of the Medium Strategic Framework of
the government (2009-2014) on intensification of fight against crime and corruption also
alluded to the above-mentioned mandate as follows:
“41.7 Promote the rehabilitation of detainees to reduce recidivism, addressing
the challenge of overcrowding in detention facilities through the creation of a
branch dealing with Remand Detainees (RD‟s), ensuring effective security in
detention facilities”.
The discussion document has been developed to provide guidance for the development of
policy and legislative framework by articulating challenges experienced with regard to
detention management of RDs and to recommend possible solutions.
This chapter will outline categories of RDs, role players in the management of RDs, summary
of challenges faced with regard to management RDs and cluster approaches.
1.2 Categories of RDs
The categories of RDs managed within the Criminal Justice System (CJS) in South Africa are
as follows:
Remand Detainees who have been detained with an option of bail but remain in
detention because bail has not been paid;
Remand Detainees who have been detained with no option of bail;
Remand Detainees who have been convicted and awaiting sentencing;
Remand Detainee children;
Remand Detainees who are foreign nationals and
Remand Detainees managed under the Extradition Act
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DCS further detains foreign nationals who are awaiting deportation but who have not been
criminally charged. This category will not be included in the scope of this discussion
document as they are not managed through the generic processes of CJS which involves
arrest and investigation by SAPS officials, prosecution, conviction and sentencing, however
the operational strategy for this category will be articulated in the protocol. They are
managed through the Immigration Act (Act 13 of 2002) and regulations which are
spearheaded by the Department of Home Affairs. They are detained in DCS and SAPS
facilities through the detention warrant issued by an immigration officer. It is, however, worth
mentioning that within the category of RDs who are foreign nationals, there are those that are
criminally charged for breaching the Immigration Act. The latter will be managed like any RD
who is the client of the CJS system.
Arrested persons who have not been charged and kept in SAPS cells are not RDs therefore
they will be excluded in the scope of the discussion document.
1.3 Role Players in the Management of RDs
Within the South African CJS, there are a number of role-players who are involved in the
management of RDs. The CJS consists of the following four core departments or institutions:
the SAPS, the DoJCD, the NPA and the DCS. However, the JCPS Cluster established by
cabinet includes the Department of Defence (DOD) and Department of Home Affairs (DHA),
in addition to a number of other stakeholders (e.g. the Legal Aid South Africa (LASA).
SAPS is responsible for arrest and investigation, while the NPA assumes the role of review
of evidence provided by the police and decides whether or not the available evidence
warrants prosecution of the accused. DoJCD is responsible for court administration (i.e.
prosecution and adjudication of cases brought before it by the police). The court further
decides whether the accused will be detained while awaiting trial or await trail out of custody.
DCS is responsible for carrying out court decisions with regard to detention of RDs and those
awaiting sentencing. The responsibility of detaining RD children is shared with the DSD.
DCS, however detains the bulk of RDs (approximately 95-96%) while the DSD detains in its
Secure Care Facilities (SCFs) only children RDs who constitute almost 3 to 3.4% of the DCS
RD population.
Arrested persons detained in SAPS facilities are not regarded as RDs. However, there are
RDs who are under the custody of DCS but who are kept in police cells for further
investigation from time to time.
Each of the JCPS cluster departments, excluding the DOD and the DHA, plays a significant
role in the CJS from the time a suspect is arrested to the time of sentencing (see figure 1.1
for an outline of the processes involved).
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A crime is
committed
Integration
into society
The crime is reported
10111
Incarceration
Investigation commences
� Witnesses identified
� Evidence secured
� Accused identified
The
Criminal Justice System
(Integrated or Dysfunctional?)
Acquittal
Fine
Verdict
Figure 1.1 Processes involved in the Criminal Justice System
1.4. Challenges faced in South Africa
An arrest is made and
the accused detained
or released on bail
Prosecution /
adjudication
takes place
The problem of RDs in South Africa dates back to the pre-1994 period when the Department
of Prisons was administered under the Ministry of Justice. With the prison reforms introduced
late in 1990, which involved separating the Prison Service from the Department of Justice,
the focus for the new DCS was the establishment of non-custodial sentences. From 1995 to
2005, DCS developed policy frameworks that focused on improved security initially and
rehabilitation of sentenced offenders later.
The National Programme on Diversion for Minor Offenders, which emanated from the
National Crime Prevention Strategy (1995), noted that the CJS was inappropriate for dealing
with juveniles where stigmatization could pose a burden on the normal development to
responsible adult citizen. Therefore, SCFs managed by DSD were established for detention
of children younger than 18 years.
Challenges faced with regard to the management of RDs will be discussed under the
following headings:
Overcrowding
Criminal Justice System (CJS) Matters
Policy Matters and Legislative Frameworks
Services, Programmes and Resources
Facilities and Security
Systems and Tools
15
Trial
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1.4.1 Overcrowding
Foreign Nationals and
Oversight/monitoring
Overcrowding is not a new phenomenon in South African Prisons and according to White
Paper on Corrections it can be traced back to early 1900’s when the prison system was
regulated mainly by various Provincial Ordinances. The inflated population was related to
transgression of the passed laws. In 1984, the driver of overcrowding, (according to the
Judicial Inquiry into the structure and functioning of the courts), was the incarceration of
prisoners as a result of influx control measures and in 1985 the key driver was the mass
detention of political prisoners as a result of State Emergency.
Though reforms in DCS did not focus on RDs, its population of inmates including RDs grew
from an annual average of 111,090 in 1995 to 163 892 in 2009 and this translates to an
increase in overcrowding from 16.9% to 42.5%. The annual average of RDs has more than
doubled over the same period from 23,783 in 1995 to 48,240 in 2009. A trend analysis from
April 2008 to March 2009 showed that out of the inmate population ranging between 157,
972 to 163, 973 detained in DCS, approximately, 30% (46 612 to 50 801) constituted RDs.
Children RDs (14 to 17 years) in DCS rose from 0.3% (80) in 1995 to 4.2% (1192) in 2007
and from April 2008 children gradually dropped to almost 1.6% of the RD population. The
highest number of children was observed in 2002 (2269). While DCS struggled with bed
space, the SCFs have never been occupied to 100%. For example, on 28 February 2008
and 10 February 2009 the SCFs had a bed capacity of 2112 and 2320 respectively and the
children RD population was 1560 and 1580 respectively. On 24 July 2008 the ratio of
children RDs in SCF to children in DCS was 2.5:1 (1635:653). The gradual reduction of
children in DCS facilities could be accounted for by the successful implementation of the
diversion programme and regular court appearances (every 14 days RD children have to
appear in court).
The increasing number of inmates has put a strain in DCS in terms of accommodation and
resource needs. At the end of June 2009, DCS facilities could only accommodate 114,782
inmates. However, these facilities had a population of 164,957 inmates. This translates to
43.7% of overcrowding.
According to international literature, the key drivers of overcrowding are the use of pre-trial
detention and the trend on serious crimes. The increase in serious crimes is closely related
to an increase in the use of pre-trail detention without an option of bail. Other drivers which
are beyond the control of institutions responsible for detention of RDs are the number of
admissions and the length of stay. In 2009 an analysis of RDs who have spent more than
seven (7) years in detention was done and factors found to be linked to their length of stay
are as follows:
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Multiple number of co-accused in one case or accused linked to other crimes that are
under investigation;
Withdrawal of legal representation by attorneys;
Delay in securing a date at the high court;
Loss of court records;
Changing of legal representatives;
Failure of witnesses to appear in court leading to the case being remanded for
several times;
Multiple witnesses in the case;
Requests for remand by defence, lawyers of the accused and the state;
Failure of accused to appear in court and
Request for separation of trials
In the South African context, there are other factors that are thought to play a role in failure to
reduce the number of RDs in addition to the previously mentioned key drivers. These factors
include an increased number of RDs who are detained without an option of bail (almost
75%); failure to pay bail by those few RDs who have been awarded bail; and delay in
finalizing court cases despite several court appearances. Of the category that has bail, DCS
constantly detains approximately between 7% - 11% of RDs who have bail of less than a
R1000. Within the RD population detained in DCS, approximately 3 to 4% are detained for
longer than 24 months and among this category, approximately 0.3% spends more than five
years. Figure 1.2 shows RDs with and without bail from April 2008 to 13 February 2010.
60000
50000
40000
30000
20000
10000
0
April 2008 June 2008
ATDs and BAIL: AVERAGE PER MONTH
August
2008
October
2008
December
2008
February
No Bail 37995 37311 36048 36523 36076 38083 37997 36898 36831 36349 37720 39681
2500 Rand 1441 1338 1326 1292 1206 1370 1268 1330 1168 1863 1159 1188
Grand Total 12127 11574 11537 11246 10535 11881 10900 10147 9336 9915 9414 10710
Grand Total 50122 48885 47585 47769 46612 49964 48898 47045 46168 46263 47134 50391
No Bail % 75.8% 76.3% 75.8% 76.5% 77.4% 76.2% 77.7% 78.4% 79.8% 78.6% 80.0% 78.7%
Bail % 24.2% 23.7% 24.2% 23.5% 22.6% 23.8% 22.3% 21.6% 20.2% 21.4% 20.0% 21.3%
2009
April 2009 June 2009
August
2009
October
Figure 1.2 RDs with and without bail from April 2008 to 13 February 2010
2009
December
2009
17
February
2010

There are documented measures for reducing RDs which include measures prior to first
court appearance, methods at first appearance, methods to fast-track certain RD cases and
management of juveniles. Measures prior to first court appearance include detention in
SAPS cells, and release in terms of several sections of the Criminal Procedure Act (Act 51 of
1977) (i.e. sections 59, 59A, 71, 72 and 56). Methods of reducing RDs at first court
appearance include bail, diversion and restorative justice. Methods of fast tracking certain
RD cases include the use of Plea-Bargain and the securing of criminal records within
10days. Fast tracking of cases for DNA analysis and forensic assessment appears to have
been ineffective because of the inadequacy of such services in the country.
There are measures that are available to DCS which include the use of section 63A,
promotion of section 63(1) and 105A of the Criminal Procedure Act (Act 51 of 1977) and
increase in accommodation. The former makes provision for the Head of a Correctional
Centre (HCC) to approach the relevant court to release an accused on warning in lieu of bail
or to amend the bail conditions imposed by that court when the offender population of a
particular correctional centre is reaching such proportions that it constitutes a material and
imminent threat human dignity, physical health or safety of the accused. It is worth
mentioning that this section is only applicable to those accused of an offence contained in
Schedule 7 of the above-mentioned Act. Section 63(1) makes provision for the accused or
prosecutor to make an application to the court to reduce the amount of bail that was set by
the relevant court. Some applications submitted are disapproved because of the following
reasons:
Lack of monitorable address (address that is difficult to trace by the monitoring
officials of DCS);
Nature of crimes committed (aggressive, sexual crimes, and multiple crimes);
Previous criminal record in terms of nature of crimes and interval between previous
and current offences;
Involvement in gang related crimes;
Refusal of the family to take responsibility for an RD (lack of family support); and
Inability to pay a reduced amount of bail. Factors related to inability to pay bail are
unemployment and poverty.
DCS managed to increase its accommodation from a bed-space of 95 002 in 1995 to 114
993 at the end of 2009; however some facilities remain overcrowded because
accommodation increased by 21% though the population increased by 42.5% over the period
of 14 years.
18

200000
180000
160000
140000
120000
100000
80000
60000
40000
20000
0
1995 avg
Capacity and DCS Population: 1995 to 2009
Capacity ATDs Sentenced In Custody Total Linear (In Custody Total)
1996 avg
1997avg
1998 avg
1999 avg
2000 avg
2001 avg
2002 avg
2003 avg
2004 avg
2005 avg
2006 avg
2007 avg
Figure1.3 Capacity and DCS Population from 1995 to 2009
2008 avg
2009 avg
At face value, the above mentioned measures appear to be ineffective in reducing the
number of RDs. However, it has to be noted that arrests made by SAPS do not all lead to
detention in DCS facilities. The SAPS recorded approximately 2 million crime-related
complaints during 2006/7 and 2007/8 financial years respectively according to their annual
reports. Out of these complaints, only 31 to 34% were referred to court. DCS population
constituted 2.3 to 2.5% of the arrests made by SAPS at the time and approximately 6.3% of
court referrals.
1.4.2. Criminal Justice System (CJS) Matters
The current CJS is characterized by the following:
Disjointed coordination of activities within and across relevant CJS departments;
Lack of joint planning and process optimisation in the CJS pipeline;
Lack of a single record that contains accurate information on RDs such as verified
identification and age etc;
Timeous and repeated processes involved in release and re-admission of RDs who
are scheduled to appear in remand hearings.
1.4.3. Policy Matters and Legislative Frameworks
The major challenge for DCS is the lack of appreciation of the full extent of the law as
it applies to remand detention, consequently of the appreciation of all laws applicable
to remand detention. There are several legislations that make provisions for
19

detention management of RDs such as CPA, Mental Health Act and Correctional
Services Act and its amendment.
Anomalies between the legislation of DCS (Correctional Services Act 111 of 1998)
and the White Paper on Corrections as well as between DCS legislation and
regulations. Though the legislation has assigned the provisions for the rights of RDs
to DCS, the bulk of its operational policies i.e., from regulations to policy procedures
focus more on provisions for sentenced offenders and less on RDs. The White Paper
on Corrections as a Policy framework clearly articulated the programmes and
services that must be provided to RDs; however the very same White Paper has
acknowledged that the purpose of correctional services and the principles on which
the South African legal system is based are compromised by the accommodation of
Remand Detainees in correctional centres. There is no commitment made for
provisions in terms of remand detention.
Inadequate training of officials in DCS who work in facilities that detain RDs as most
training provided in DCS training colleges focus on corrections and rehabilitation of
sentenced offenders.
Situational analysis conducted in 2007 revealed a lack of policy framework for
development of operational policies in SCFs as such there was lack of uniformity in
policies developed by Heads of SCFs. Since then, a Blue print document was
developed in 2009 to address a wide range of issues such as lack of uniformity in
management of SCFs; disparities in provision of services by the provinces and lack of
a Service Delivery Model for the Child and Youth Care Centres.
SAPS from time to time keeps a small number of RDs longer than seven days,
however there are no provisions through policy or legislative framework that
mandates SAPS to keep RDs.
Lack of protocols to address cross-cutting functions among the institutions detaining
RDs.
Inadequate provisions for RDs placed in DCS facilities for observations.
Lack of provisions in DCS for RDs managed under the Extradition Act.
1.4.4. Services and Programmes
Lack of clarity on services to be provided by the detention institutions for RDs other
than those stipulated in the constitutions as rights of accused;
Lack of differentiation in responsibilities of personnel that render services to remand
detainees and sentenced offenders in DCS;
Lack of specialized training for personnel working with RDs in DCS.
Lack of role clarification with regard to transportation of RDs for forensic assessment
and provision of emergency health services to RDs in court cells;
Lack of uniformity in the provision of guarding services for hospitalized RDs across
provinces and DCS regions.
Inadequate provision for management of RDs who are mentally ill and those RDs
who are on chronic medication from arrest to detention in SCFs and DCS.
20

Limited access for legal consultation in detention facilities due to lack of proof of
identification by legal representatives.
Inadequate resources and skills for management of RDs detained in DCS for
observation.
Lack of facilities to refer children with substance abuse problems.
Inadequate provisions for children detained with their mothers in SAPS cells.
Inadequate provision for RD children who are not willing to participate in the
mainstream educational curriculum including illiterate children (never been to school).
Inadequate provisions for pregnant girls in SCFs.
Lack of clarity at the provincial level on the roles and responsibilities of the
Departments of Education and DSD with regard to provision of educational material
and performance management of teachers who are seconded to work in SCFs.
1.4.5. Facilities and Security
Insufficient residential facilities for RDs in DCS, thus exacerbating the problem of
overcrowding in most Correctional Centres;
Inadequate and poorly maintained facilities that make admitting, accommodating and
releasing of RDs difficult.
Inadequate facilities in DCS for conversion into Remand Detention Facilities (RDFs)
thus leading to the undesired state of a mixed environment where sentenced
offenders and RDs share the same facility;
Inadequate space in DCS for accommodating trucks that drop and collect RDs for
court appearances and for searching RDs near the off-loading area.
Inadequate space for accommodating visitors, legal consultations, recreation, and
provision of programmes in SAPS, DSD and DCS.
Lack of library facilities for RDs in DCS facilities (provision of own defence).
Inadequate telephone facilities in SAPS and DCS for utilization by RDs to contact
families, legal representatives and significant others.
Under-utilization of SCFs for detention of Children who are in conflict with the law
because of their proximity to courts.
Insufficient SCFs for detention of children in conflict with the law, resulting in the
placement of some children in DCS facilities while waiting for a space in DSD
facilities.
High rate of vandalism in facilities that detain children in DCS and DSD facilities.
1.4.6. Systems and Tools
Inadequate automation of information, identification and tracking facilities for RDs;
Slow progress in the institutionalisation of “video postponement” as a mechanism to
reduce the massive wastage associated with thousands of RDs being released and
re-admitted into correctional facilities daily for postponement of cases.
Lack of tools (systems and information) to identify high risk individuals amongst RDs;
21

The lack of comprehensive information and effective management systems in respect
of children in conflict with the law;
Inadequate systems for monitoring institutions that arrest, prosecute, adjudicate and
detain Remand Detainees. The current judicial inspection only applies to DCS
facilities and is not extended to SAPS, courts and DSD facilities.
1.4.7. Foreign Nationals
Foreigners suspected of criminal offences are investigated, prosecuted and detained
without investigating their residency or nationality status;
Application for bail as prescribed in South African CPA (Act 51 of 1977) is done
without regard to residence status of a foreigners;
When illegal foreign nationals are convicted of less serious crimes, they are given
suspended jail terms and released back into society without verifying the nationality
status;
Formal status verification of foreigners is not included in criminal investigations;
Consular services are poorly managed during criminal investigations, prosecution and
detention;
Large numbers of convicted foreigners are never listed on the countries movement
control system;
Lack of key information for identification of persons arrested for alleged crimes and
suspected of being non-national thus leading to detention of such persons for longer
periods;
Lack of differentiation between non-nationals arrested and detained for deportation in
DCS facilities and those criminally charged and detained for further investigation and
prosecution;
Detention of illegal foreign nationals in DCS facilities while awaiting deportation
especially in regions far from the Deportation Centre in Krugersdorp.
Lack of established procedures for informing LASA about detained foreign nationals
who want to apply for refugee status; and
Exclusion of nationality status on the list RDs submitted to LASA seeking legal
representation.
1.4.8. Oversight/Monitoring
Inadequate systems of monitoring and evaluation of institutions that arrest, prosecute
and detain RDs;
The only legislation that has made provisions for oversight of detention institutions is
Correctional Service Act though RDs are detained in other facilities such as SAPS
cells and SCFs.
DSD national office does not have oversight functions over the SCFs.
22

1.5. Cluster Approaches
In order to deal with, among other things, the high levels of RDs within the CJS, the Criminal
Justice Strategy and the National Crime Prevention Strategy (NCPS) of 1996 highlighted the
need for an Integrated Justice System (IJS) based on improved interdepartmental co-
ordination. However, more than a decade later, achieving an Integrated Justice System has
remained elusive. The recently launched Criminal Justice Review once again highlighted the
same problems with respect to the management of RDs as were highlighted in the NCPS.
While acknowledging that there has been a lot of work done in order to improve the
functioning of the CJS in general (e.g. legislative interventions, improving resource allocation,
improvements in infrastructure, etc), the absence of a fully integrated justice system
continues to hamper efforts aimed at dealing with the RD problem.
In February 2008, the President’s State-of-the-Nation address incorporated the agreement
made by the Cabinet on a set of changes required for the establishment of a new
modernized, efficient and transformed CJS. This would entail among other things, setting up
of a new coordinating and management structure for CJS at every level, bringing together all
role players such as judiciary and magistracy, the police, prosecutors, correctional services
and Legal Aid South Africa (LASA). The Cabinet further approved a seven-point plan which
must be adopted and implemented in an integrated and holistic manner to achieve a new
dynamic and coordinated CJS. The plan incorporates the following:
Adoption of a single vision and mission leading to a single set of objectives, priorities
and performance measurement targets for the CJS by the JCPS cluster;
Establishment through legislation or by protocol a new and realigned single CJS
coordinating and management structure;
Making substantial changes to the present court processes in criminal matters
through practical, short and medium term proposals to improve the performance of
the courts, especially and initially the Regional Courts;
Implementation of key priorities identified for the component parts of the CJS, which
are part of or impact upon the new court process, especially as it pertains to
improving capacity;
Establishment of an integrated and seamless national CJS IT database/system
containing all information relevant to the CJS and review and harmonise the template
for gathering information relating to the CJS;
Modernization of all aspects of the systems and equipment of the CJS, including the
fast tracking of the implementation of the present projects; and
Involvement of the population at large in the fight against crime by introducing
changes to the CPF regime, including expanding the role to deal with all matters in
the CJS for example policing and parole boards as well as provision of financial and
administrative infrastructure to give it “teeth”.
23

A transformed CJS will exhibit a well coordinated function in the following systems:
Crime reporting;
Crime scene management and investigation;
Arrest processing;
Prosecution management
Adjudication management;
Incarceration management; and
Community supervision.
The Office of the Criminal Justice Review (OCJR) has been established to drive the
implementation of the seven-point plan and improved management of RDs falls under the
CJS review process as RDs are the clients of the system from arrest to conviction and
sentencing.
DCS was given a mandate by the Cabinet Lekgotla held in January 2009 to establish a
dedicated branch or a unit which will deal with the Remand Detainees (RDs) in South Africa.
A concept document which outlines the functions of the envisaged branch was developed
and presented to the National Development Committee of the JCPS cluster in 2009. Areas
of responsibility for the branch are:
Development of policy and legislative framework for detention management of RDs
(rationalization of current legislation);
Development of regulations and operational policies for RDs in DCS facilities;
Development of protocols for management of cross cutting functions
Development of strategy for management of RDs in Remand Detention Facilities and
mixed facilities.
Participation in and management of cluster projects related to RDs and
Provision of training to officials working in facilities that detain RDs in DCS;
24

CHAPTER 2: International Trends
2.1. Introduction
Remand Detainees (RDs) must be presumed innocent, until proven guilty in court. As such,
they have special needs and rights with regards to their legal status and access to their
lawyers. The treatment of RDs also ought to differ from that of sentenced offenders. For
example, RDs must be accorded more rights and fewer obligations with regard to practical
aspects of prison life. In this chapter, the international trends with respect to the management
of RDs are summarized, based on a report prepared by Jonker (2008). In some countries,
this group of detainees is referred to as Remand Detainees.
Remand is a legal term which has two related but distinct usages. Its etymology is from the
Latin re- and mandare, literally "to order." It evolved in Late Latin to remandare, or "to send
back word." It appears in Middle French as remander and in Middle English as remaunden,
both with essentially the same meaning, "to send back." Remand (court procedure) refers
to an action by an appellate court in which it sends back a case to the trial court or lower
appellate court for action. Remand may also mean the detention of suspects before trial
or sentencing.
In some countries, “to remand” is to summon to appear in court on a specific day in the
future. The prisoner is taken briefly before a magistrate, who will remand him or her until a
later hearing. He or she may be remanded on bail (i.e. mostly free provided specific
conditions are met). A remand in custody is utilized to keep the accused in prison until his
or her trial for more serious offences, or if the accused is believed to pose a high risk of
absconding or harming the public or where specifically required by law.
In Canada, the term “Remand” refers to persons who have been charged with an offence
and ordered by court to be detained in custody while awaiting further court
appearance. Although persons on remand have not been found guilty or sentenced,
they are held in custody because there is a risk that they will fail to appear on a later
court date, they pose a danger to themselves and/or others or they present a risk to
re-offend.
2.2. International Standards: Key Principles and Rights relating to RDS
South Africa is a signatory to a number of international instruments that provide guidance in
terms of the detention and management of RDs. These are covered in detail in chapter 3 of
this document which focuses on the legal framework regarding RDs. Table 2.1 shows the
key principles and rights of RDs across 18 different countries.
25

Table 2.1. International Standards regarding RDs across 18 different countries
26

2.2.1. Guarantee of Personal Liberty
The guarantee of personal liberty forms the basis of the protection of human rights. The
violation of a person’s right to personal liberty must always be impartially and independently
justified. If circumstances are such that this justification is rendered inconsistent and invalid,
then the deprivation of personal liberty is an encroachment on the rights of the person and
must be terminated immediately. This also applies to RDs, given that they are presumed to
be innocent until proven guilty in court. In theory, most countries adhere to this key principle.
However, under Chinese law, a seven and a half month period of investigatory detention is
allowed. During this time the suspect is held in custody but is not charged with a crime.
2.2.2. Adherence to requirements of International Standards
Adherence to the requirements of International Standards is imperative to all levels of the
criminal justice process. The issue of pre-trial detention has been significantly documented
and standards set by the UN Human Rights Committee and the European Court of Human
Rights. Most countries reviewed adhere to international standards in theory but in practice it
is not always followed through. There are several international instruments. However, for this
discussion document, the content that has been found to have significant relevance to South
Africa as a signatory to the United Nations comes from the UN Standard Minimum Rules for
the Treatment of Prisoners. The principles that apply to prisoners under arrest or awaiting
trail are reflected below:
“1. (a) Persons arrested or imprisoned by reason of a criminal charge against them, who are
detained either in police custody or in prison custody (jail) but have not yet been tried
and sentenced, will be referred to as "untried prisoners,' hereinafter in these rules.
(b) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(c) Without prejudice to legal rules for the protection of individual liberty or prescribing
the procedure to be observed in respect of untried prisoners, these prisoners shall
benefit by a special regime which is described in the following rules in its essential
requirements only.
2. (a) Untried prisoners shall be kept separate from convicted prisoners.
(b) Young untried prisoners shall be kept separate from adults and shall in principle be
detained in separate institutions.
3. Untried prisoners shall sleep singly in separate rooms, with the reservation of different
local custom in respect of the climate.
4. Within the limits compatible with the good order of the institution, untried prisoners may, if
they so desire, have their food procured at their own expense from the outside, either
27
Formatted: Width: 21 cm, Height:
29.7 cm

through the administration or through their family or friends. Otherwise, the administration
shall provide their food.
5. (a) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.
(b) If he wears prison dress, it shall be different from that supplied to convicted prisoners.
6. An untried prisoner shall always be offered opportunity to work, but shall not be required to
work. If he chooses to work, he shall be paid for it.
7. An untried prisoner shall be allowed to procure at his own expense or at the expense of a
third party such books, newspapers, writing materials and other means of occupation as
are compatible with the interests of the administration of justice and the security and
good order of the institution.
8. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if
there is reasonable ground for his application and he is able to pay any expenses
incurred.
9. An untried prisoner shall be allowed to inform immediately his family of his detention and
shall be given all reasonable facilities for communicating with his family and friends, and
for receiving visits from them, subject only to restrictions and supervision as are
necessary in the interests of the administration of justice and of the security and good
order of the institution.
10. For the purposes of his defence, an untried prisoner shall be allowed to apply for free
legal aid where such aid is available, and to receive visits from his legal adviser with a
view to his defence and to prepare and hand to him confidential instructions. For these
purposes, he shall if he so desires be supplied with writing material. Interviews between
the prisoner and his legal adviser may be within sight but not within the hearing of a
police or institution official.”
2.2.3. Politically Binding Commitments
Politically binding commitments, although different in character and methods of supervision,
are paralleled in content to the legally binding commitments (United Nations and Council of
Europe treaties, international case law and customary international law) as they relate
specifically to issues prohibiting the torture, cruelty, inhumane or degrading treatment or
punishment of RDs.
2.2.4. International Instruments
International instruments create and establish obligations on Nations to reduce and address
the risks involved in pre-trial detention. The core obligation is that the decision of pre-trial
28

detention must be made by an authority that satisfies the criteria related to International
Standards for independence and impartiality. It must be borne in mind that these criteria are
only met by a Magistrate or Judge while the prosecuting authority does not meet the criteria.
While the majority of countries reviewed have a Judge or Magistrate involved in the decision
to effect pre-trial detention, in the Ukraine it is the prosecutor who decides.
One of the international instruments which have implications for the detention institutions is
the Standard Minimum Rules for the Treatment of Prisoners, adopted on 30 August 1955 by
the First United Nations Congress on the Prevention of Crime and the Treatment of
Offenders. The rules are not intended to describe in detail a model system of penal
institutions. They seek only, on the basis of the general consensus of contemporary thought
and the essential elements of the most adequate systems of today, to set out what is
generally accepted as being good principle and practice in the treatment of prisoners and the
management of institutions.
2.2.5. Judicial Supervision
Another essential requirement or obligation according to International Law is that judicial
supervision should occur “promptly” after the initial deprivation of liberty. In practical terms,
this means that judicial supervision has to be effected within 1-2 days after the violation of a
person’s right to personal liberty. All countries reviewed are obligated to provide judicial
supervision to an RD as soon as possible. However, this does not always occur promptly.
2.2.6. Reasonable Suspicion
For pre-trial detention to be effected, reasonable suspicion regarding the alleged crime
committed by the suspect must be established. In addition, danger of the suspect fleeing,
interfering with the course of justice, committing further crimes or disturbing public order must
also be considered before a decision is taken.
2.2.7. Periodic Judicial Confirmation of the Detention
International standards require that “periodic judicial confirmation” of the detention occurs.
This is in addition to the initial judicial supervision required. There is no explicit obligation
upon detaining authorities to submit pre-trial detention to judicial supervision after the initial
confirmation by a court. However, international standards acknowledge the right of the
detainee to “challenge the legality of his or her detention before a court at reasonable
intervals.” In Germany, the accused may appeal against a court’s decision and request a
review every 2 months.
2.2.8. The Right to Legal Counsel
The right to legal counsel is another essential component regarding pre-trail detention. It is
the pre-trial detainee’s right to seek legal advice in his/her defence against the criminal
29

accusation that is made. As mentioned above in 2.2.7, international standards demand that
the detainee should be entitled to seek the help of a lawyer in challenging the legality of
detention before a court. All countries allow the detainee the right to legal counsel.
2.2.9. The Right to Notify Others
This is another essential safeguard against the risk of abuse related to pre-trial detention.
The detainee is entitled to notify significant others “with undue delay” after his/her arrest or
detention. In addition, International Standards stipulate that the detainee‟s physical and
mental condition should be carefully recorded whilst detained. Through notifying significant
others, the pre-trial detainee can maintain sufficient contact with the outside world through
visits from family (spouses, children, etc) and written and telephonic correspondence. In
most countries, the right to notify others is upheld. Notification can only be delayed on
request of the arrested person. However, the right to notify others can be restricted by the
prosecuting authority when it is deemed to be detrimental to the investigation as practiced by
Norway, Finland, the Russian Federation, Sweden, Denmark, Estonia, Germany and Iceland.
2.2.10. The Right to not be tortured
International Instruments provide detailed standards for the regime and conditions of pre-trial
detention. Due to there being on-going investigations regarding the pre-trail detainee, there is
a group that may be particularly vulnerable to ill treatment, cruelty and torture. In this regard,
the interrogation of pre-trial detainees is guided by international standards and complaints
about torture and cruelty are required to be investigated “promptly and properly”.
Furthermore, no statement given as a result of torture can be used as evidence in any court
proceeding, except against a person that was accused of torture. In 2002, the U.N.
Committee Against Torture voiced concern about detention under conditions resembling
isolation in Norway as well as in Sweden for excessive use of force by police officers and
prison guards.
In a Country Report on Human Rights Practices released by the Bureau of Democracy,
Human Rights, and Labour in March 2006, it was noted that the South African government
generally respects the human rights of its citizens. However, government, nongovernmental
organizations (NGOs), and local media reported the following serious human rights violations
with respect to RDs:
Lengthy delays in trials and prolonged pre-trial detention;
Use of excessive force by the police against suspects and detainees, which often
results in deaths and/or injuries; and
Abuse, (including beatings and rape) of prisoners and severe overcrowding in
prisons.
30

The human rights violations mentioned above must be borne in mind when devising policy
for the management of RDs in South Africa. Despite awareness and acknowledgement of the
above mentioned principles and rights related to RDs, major challenges are experienced in
seeking to address them in practice.
2.3. Governance Models in the Management of RDs
The following five governance models related to the management of RDs are mentioned in
the literature.
2.3.1. Management by the Ministry or Department of Correctional Services
This model has the Department or Ministry of Corrections as primarily responsible for the
detention and management of RDs. This governance model is currently the preferred and
most commonly used model internationally.
2.3.2. RDs jointly managed by the Investigating Authority and Correctional Department
Combined governance is another common approach whereby responsibility is shared
between the Investigating Authority and the Department or Ministry of Correctional Services.
The investigating authority is responsible for initial detention, transportation of the detainee
from court to the correctional facility and thereafter all transportation for court appearances.
2.3.3. RDs managed by other Departments.
In Russia, Kazakhstan and Armenia for example, the Ministry of Interior is still in charge of
some 10% of the remand detention centres. In China the procuratorate is responsible for the
entire management of remand detainees and in Canada the Department of Justice is
responsible for the management of RDs.
2.3.4 RDs managed by Local Government.
This governance model is mostly evident in the United Stated of America where each County
has its own jail managed by the elected County Sheriff. Some counties combine together to
manage a regional county jail. This is also prevalent in Denmark.
2.3.5. Participation at various levels of the Criminal Justice System
A successful approach to the management of RDs has to focus on all levels within the
criminal justice system in order for long term change to be effected. The Investigating
Authority, the Judiciary, Correctional Services, other relevant Governmental Departments
(such as DSD, DHA etc.) and relevant independent supervisory/regulatory bodies all have
unique roles to play in order to reach a collaborative, integrated approach to the
management of RDs.
31

2.4. National Legislation
The South African legal system is premised on the principle that accused individuals are
innocent until proven guilty. While the Constitution stipulates that periods of awaiting-trial
detention should be as short as possible, in practice many are incarcerated for extended
periods of time. At present there is a gap in existing legislation with regards to RDs and as
a result, the appropriate management of this group of persons has been largely neglected. In
order for a specific legislative system on RDs to be devised, all relevant government
departments and responsible bodies need to converge in discussion and collaboration.
2.5. Overcrowding
The excessive length and use of pre-trial detention is a major cause of overcrowding in
prisons. In some countries, the majority of the prison population comprises of detainees
awaiting trial. In Nigeria, for example, more than 25,000 prisoners are currently detained in
prisons without conviction due to delays in the justice system, missing files, absent witnesses
and prison mismanagement.
In India, as many as 7 out of 10 Indian prisoners are pre-trial detainees. The high number of
pre-trial detainees in India is attributed to delays encountered at various stages in the
criminal justice system, exacerbated further by an acute shortage of judges (10 judges per
one million people).
As of March 2007, South Africa’s Correctional Centre’s, which collectively have an
accommodation capacity of 115 327 inmates, housed 161 023 inmates. Overcrowding was
about 40% (45 696 people), meaning that the country’s correctional Centres were 140% full.
Of the total offender population, 48 228 inmates were awaiting trial. The problem of
overcrowding is particularly pertinent to the management of Remand Detainees since the
conditions in correctional facilities are often not conducive to upholding the rights of these
persons and considered to contribute towards an increase in “criminality”.
2.6. Services for RDs
According to international law, there are a range of services that must be provided to
awaiting-trial detainees, including:
continuity in education and training in line with Government policy;
safety of person;
access to social welfare services in line with Government policy;
accessibility to state-provided health care in line with Government policy;
accessibility to visits, communication and correspondence with family and friends;
accessibility to recreational and reading resources; and
accessibility to legal representation.
32

The above mentioned services will be further discussed under section 2.9. International Best
Practices regarding RDs.
2.7. Alternatives to Remand Detention
According to International law remand detention may not be imposed when its purpose can
be achieved by less restrictive measures. In this regard, the following alternatives should be
considered prior to a decision being made in favour of remand detention:
Correctional Supervision as determined by a court (Denmark);
Obligation to report to the police at designated times (most countries);
Being housed in appropriate institutions specifically meant to cater for the unique
needs of RDs, such as secure care facilities in the case of minors, remand centres in
the case of adults (The Auckland Central Remand Prison is an example of one such
centre);
Travel Ban’s (imposed in Finland and Sweden) to avoid a suspect fleeing/escaping;
The payment of bail money (prevalent in most countries);
The prohibition to leave a designated area of residence (prevalent in most countries)
and
Electronic handcuffs are currently being tested in one state in Germany.
2.8. Oversight / Monitoring and Evaluation
Inspections of detention facilities are an important safeguard against malpractice and abuse
in prisons, as recognized by international standards. Independent inspections are also in the
interest of prison management and staff, as a means of protection against unfair accusations
or reports. They are also useful for central prison authorities to receive information on
aspects of practice which they may not have been aware of.
Authorities responsible for the management of pre-trial detention facilities have a duty to
cooperate with inspection bodies. Regular inspections are vital to safeguard detainees
against abuse of legal rights, and physical abuse or ill treatment, as well as to monitor the
quality of living conditions, and regime in pre-trial detention institutions.
The external oversight of places of detention is a particularly important safeguard against
improper practices. National independent inspection bodies may include commissions or
persons appointed by the government, presidential human rights commissions and
inspection bodies appointed by parliament, the judiciary, or lay inspection bodies (sometimes
referred to as monitoring boards).
In most systems, there will be a body responsible for internal oversight, which might be
inspectors appointed by the ministry responsible, as well as bodies responsible for
administrative inspections. Ideally there should be a combination of internal and external
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inspections to ensure maximum oversight. Inspections may also be carried out by
international and regional bodies.
2.9. International Best Practices regarding RDs
The international best practices that have emerged from an overview of international
literature as documented by Jonker (2008) are presented in table 2.2.
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Table 2.2 Current International Best Practices related to RDs across 18 different countries.
35

2.9.1. Interdisciplinary approaches to reduce the length and application of remand
detention in order to eliminate the problem of overcrowding.
Efficient institutions should be established, in order to make effective routines for investigation
procedures and the course of justice. For the purpose of further developing the concepts and
application of alternatives to Pre-trial detention, particular emphasis should be put on developing
an adequate instrument of risk assessment to better enable the judicial authority to apply
alternatives to Pre-trial detention. In 1996, an interagency working group was set up in Australia
to investigate the high remand rate which had implications for reducing overcrowding. The
Nizhny Novgorod Project for Justice Assistance (NPSP) was initiated to reduce overcrowding of
jails in Russia. This project established a new system for recording information about each
detainee in order to assist prosecutors with supervising the progress of cases. The focal point of
the system is actually a new software program created by NPSP staff which facilitates prompt
interagency communication thereby promoting interagency co-operation.
2.9.2. Staff: working conditions and training
Staff should be provided with safe and adequate working conditions. The social status and
dignity of prison and police staff working with RDs should be strengthened. Staff should be
under the jurisdiction of the Ministry of Justice or its equivalent. Training of all prison and police
staff should include courses on the rights of RDs. Auckland Central Remand Prison in New
Zealand and the Adelaide Remand Centre in Australia are examples of remand facilities where
staff training has played a significant role in addressing the needs of RDs.
2.9.3. Juveniles in remand detention
All juveniles should be treated by non-custodial alternatives to detention. Only older juveniles
may be detained if they are accused of very serious crime and only as a measure of last resort
for the shortest possible period of time. Where custody is inevitable, juveniles must be separated
from adults and be given the opportunity to access education, training or other kinds of
purposeful activities. Most countries adhere to separating juveniles from adults in remand
facilities. There are also many countries that house juveniles in completely separate facilities.
However, in Iceland, juveniles are not separated from adults. In Latvia, an area of concern is the
rate of juvenile RDs which is currently at 6.1%. This figure is the highest in Europe and since
2000 more than 60% of juvenile RDs have been held without a court sentence.
2.9.4. Women in remand detention
The rights and needs of women RDs should be fully met. Issues of hygiene provision specialised
medical requirements and preserving links with families, particularly young children, all need to
36

e prioritised and addressed. Particular attention must be paid to women with young children,
and detention must not conflict with the UN Convention on the Rights of the Child, requiring an
assessment of the best interest of the child. In this regard, the literature only mentioned that
women RDs ought to be housed separately from men.
2.9.5. Access to information and legal counselling
Persons awaiting trial who are placed in custody must be informed about their legal rights. This
applies to remand prisoners of foreign origin who do not have command of the national
language. Those in Pre-trial custody must be ensured effective access to a legal counsellor of
their own choice, and effective access to international complaint mechanisms. Although most
countries provide RDs with access to information and legal counselling as stipulated by law, it is
noted that in Denmark the right of access to a lawyer is not always implemented in practice.
With regards to access to information, in Iceland, it is noted that persons under isolation are not
always informed about why the isolation measure was imposed. This prevents them from
exercising their right to refer the matter to court.
2.9.6. Constructive and purposeful education, occupation and other activities in remand
detention
Remand prisoners should be provided with an acceptable programme of activities in which they
can constructively spend their time. Relevant educational, occupational and other purposeful
activities for detainees should be provided. Most countries provide recreational, educational, and
work activities for RDs. However, in Canada it is noted that RDs have little or no access to
activities like recreation, work, rehabilitative programs and other services.
2.9.7. Contact with the outside world
Remand Detainees, especially young people and children must be given adequate contact with
the outside world, particularly their families in order to maintain familial relationships. Contact
with the outside world is provided by the majority of countries in the form of visits, telephonic
communication and written communication with significant others. In Australia, not only are
detainees able to receive visits regularly, but special visits can also be arranged at unique times.
However, in some cases restricted contact is imposed e.g. due to investigative reasons, in
Denmark, Norway and Sweden relevant authorities can restrict visits or insist that they take
place under supervision. In this instance, the detainee does have the right to appeal against
such restrictions in court.
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2.9.8. Health
The health needs of remand detainees must be addressed. This includes medical, dental and
psychological needs arising during ones stay as an RD. Currently TB and HIV/AIDS present
serious problems for all detainees. It must be noted that most countries provide for the health
needs of RDs. In Russia, a report by the Ombudsman revealed that some remand detention
facilities are occupied 4 times beyond their capacity. In addition, TB, HIV and other
communicable diseases are rife in Russian prisons.
2.9.9. Prevention of ill-treatment in pre-trial detention facilities
In order to prevent ill-treatment in correctional institutions a medical examination by medically
qualified personnel occurs upon arrest. Thereafter, the detainee is commitment to a temporary
confinement facility, and eventually sent to a remand prison. At the detainee’s request,
additional examinations and examinations by a doctor of ones own choice can be allowed.
Following a court decision on further detention, the prisoner must without undue delay be taken
to a remand prison under the jurisdiction of the Ministry of Justice. Prison staff, including staff in
Pre-trial detention facilities should not routinely carry any kind of weapon. In Russia the
Ombudsman voiced his concern over degrading and inhumane treatment that occurs during
interrogation. In Lithuania, concerns have arisen over ill treatment regarding the initial
investigation by police authorities.
2.9.10. The need for monitoring of Remand Detention Centres
Independent monitoring institutions such as Ombudsman institutions or NGOs must be
established, or existing institutions supported, to carry out monitoring in all places where people
have been remanded in custody. These reports should be made available to the public. For
example, in Poland independent supervision of pre-trial detention facilities is conducted by the
Ombudsman and NGO’s. In Australia an interdisciplinary working group has been set up to
investigate the high remand rate.
2.10. Proposals for the South African context
The Government of South Africa is obliged to provide facilities and services for awaiting-trial
detainees that allow for the minimal limitation of an individual’s rights, while ensuring secure and
safe custody. As such the South African government needs to address the following with
regards to the management of RDs:
Have systems in place to assess and evaluate current management of RDs in all
correctional centres and facilities in South Africa so as to obtain key information
regarding current national practices. It is widely accepted that South African literature on
RDs is largely non-existent. Therefore, research findings within the DCS needs to be
38

made available for focus to be cast on this important and relevant area that is currently
being developed;
South African legislation should clearly articulate the terminology to be adopted between
the concepts “Awaiting Trail Detainee” and “Remand Detainee”
Overcrowding is a serious challenge globally and locally. It impacts negatively on the
wellbeing of inmates in general. Thus, addressing the problem of overcrowding may
have direct positive effects on the nature and extent of the conditions that RDs are
exposed to. Proposals for managing overcrowding should focus on case flow
management and two major drivers for detaining institutions which are admissions and
length of stay.
o Risk assessment should be done and the results should be communicated to the
detention institution. Risk assessment should capture the dimensions related to
rationale for remanding a person such as possibility of not appearing in court,
intimidation of victims and witnesses, flight risk and nature of crime committed,
previous criminal record and possibility of absconding.
o Establishment of the Case Review Team within the CJS cluster for reviewing of
all the cases of RDs who are in detention for more than a year. The team will
establish whether there is sufficient evidence to proceed with prosecution and
continue keeping the awaiting trail in custody. The role of the institutions that
detain RDs should be clearly defined so that they cannot be regarded as
intervening in the area of the courts.
o Determination of custody time limits. These are limits in terms of time that an RD
can spend in custody. Once the time limit has passed the RD must be released
on bail. The awaiting trial may still be prosecuted but may not be retained in
custody after the time limit has passed.
Determine minimum services that will be provided to RDs in line with constitutional
requirements and taking into consideration the resource limitations within the country.
Establish appropriate and effective monitoring and evaluation strategies which will focus
on the CJS pipeline i.e., from arrest to conviction and sentencing. In addition to internal
monitoring and evaluation systems, establish an external monitoring and evaluation
mechanism for the CJS pipeline. This will assist to ensure that the rights of RDs are
respected and that abuse, torture, neglect at all levels is reduced.
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Establish a position on rights of RDs including how they will be promoted and met. The
rights should include the general population of RDs and such special categories as RDs
in detention for more than a year, women RDs, women RDs with children, foreign
nationals and mentally ill RDs. The right and needs of women RDs and women with
children should be respected at all levels i.e. from arrest and detention in police cells to
conviction and incarceration in DCS.
As one of the best practice interventions, develop appropriate training for staff working
with RDs in detention facilities. Training should include rights of RDs.
Contact with outside world should be treated as a right and not a privilege by the
detention institution.
Establish systems for prevention, identification and management of ill treatment in
detention facilities.
An integrated collaborative approach by all relevant government departments and bodies
is required in order to provide a comprehensive approach to the management of RDs in
South Africa.
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CHAPTER 3: Legal Framework
3.1. Introduction
The legal framework governing the management of Remand Detainees (RDs) in South Africa is
a very important aspect of RDs’ management and the issues that affect them. Thus, the
importance of ensuring a proper articulation of all legal regimes that are implicated in dealing
with RDs in this discussion paper cannot be overemphasized. These legal regimes are both
domestic and international in terms of the norms that they articulate. They cross-cut and are
found in various branches of the law, ranging from criminal law and criminal procedure,
constitutional law, immigration law, international law and the constitutive legal instruments of law
enforcement agencies such as the police, the prosecuting authority, correctional officers,
immigration and boarder control. They also include guidelines or standards that are not
necessarily promulgated into law but have normative significance in providing direction to actors
and stakeholders on how to deal with RDs. Thus, the legal framework within the domain of RD
management can be summarized as follows.
3.2. Domestic Legal Framework
3.2.1. Constitution of the Republic of South Africa, 1996
It is appropriate that the first point of reference in determining the legal norms that apply to the
management of RDs should be the constitution. This is important for two main reasons: firstly, in
a democratic state, the constitution is the supreme law and all other laws derive their validity
from the constitution. Thus, any law that is inconsistent with the constitution is void either wholly,
or to the extent of that particular law’s inconsistency. Secondly, any practice or procedure that is
based on a constitutionally invalid or inconsistent law, will suffer the same fate as the law in
question as would be determined by the appropriate courts or tribunal. In this regard, the
management of RDs must comply and be consistent with the provisions of the constitution on
the issue. In this regard, the Bill of Rights (chapter 2 of the constitution) becomes the general
point of reference for the rights of citizens and this includes RDs.
Section 12(1) of the Constitution, which deals with the right to “freedom and security of the
person”, has implications for RDs. The section provides that:
“Everyone has the right to freedom and security of the person, which includes the right:
a not to be deprived of freedom arbitrarily or without just cause;
b not to be detained without trial;
c to be free from all forms of violence from either public or private sources;
d not to be tortured in any way; and
e not to be treated or punished in a cruel, inhuman or degrading way”.
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� Arrested, Detained and Accused Persons under the Constitution
In Section 35, the Constitution makes elaborate provisions on “arrested, detained and accused
persons” and sets out a long list of rights that accrues to such persons within the Bill of rights
under Chapter two of the constitution. More important and germane to RDs is Section 35(2)
which specifies the constitutional rights of detained persons, “including every sentenced
prisoner.” Under this provision, such persons have the right:
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this
right promptly;
(c) to have a legal practitioner assigned to the detained person by the state and at
state expense, if substantial injustice would otherwise result, and to be informed of this
right promptly;
(d) to challenge the lawfulness of the detention in person before a court and, if the
detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at
least exercise and the provision, at state expense, of adequate accommodation,
nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person's-
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
It follows from the provisions of Section 35(2) that RDs and sentenced prisoners are entitled to
important constitutional rights relative to their status either as merely detained persons that are
awaiting trial or as sentenced prisoners. It is important to stress that the right “to challenge the
lawfulness of a detention in person before a court and, if the detention is unlawful, to be
released” is a non-derogable right as detailed in the Table of non-derogable rights in
Chapter 2 of the Constitution. Thus, every initiative at streamlining and improving the
management of RDs must take a cue from Section 35 of the constitution in arriving at policies
and directives that will implement an understanding of the provisions for the benefit of RDs.
Other constitutional provisions in Section 35 that have implications for RDs as accused persons
are subsections 3 and 4; they provide as follows:
(3) Every accused person has a right to a fair trial, which includes the right:
a. to be informed of the charge with sufficient detail to answer it;
b. to have adequate time and facilities to prepare a defence;
c. to a public trial before an ordinary court;
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d. to have their trial begin and conclude without unreasonable delay;
e. to be present when being tried;
f. to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
g. to have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this
right promptly;
h. to be presumed innocent, to remain silent, and not to testify during the proceedings;
i. to adduce and challenge evidence;
j. not to be compelled to give self-incriminating evidence;
k. to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
l. not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted;
m. not to be tried for an offence in respect of an act or omission for which that person
has previously been either acquitted or convicted;
n. to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
o. of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information must be
given in a language that the person understands‟.
3.2.2. Criminal Procedure Act 51 of 1977
The management of RDs as a matter of course is impacted by the criminal procedural process -
a process that applies and implements criminal law. In this regard, the Criminal Procedure Act of
1977 is the applicable law that governs that process. Section 50 of the Act stipulates
procedures on how to deal with persons after they have been arrested, which have implications
for RDs. The section provides that:
1(a) Any person who is arrested with or without warrant for allegedly committing an offence,
or for any other reason, shall as soon as possible be brought to a police station or, in
the case of an arrest by warrant, to any other place which is expressly mentioned in
the warrant.
(b) A person who is in detention as contemplated in paragraph (a) shall, as
soon as reasonably possible, be informed of his or her right to institute bail
proceedings.
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(c) Subject to paragraph (d), if such an arrested person is not released by reason that-
(i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of section 59 or 59A,
he or she shall be brought before a lower court as soon as reasonably
possible, but not later than 48 hours after the arrest.
(d) If the period of 48 hours expires-
(i) outside ordinary court hours or on a day which is not an ordinary court day, the
accused shall be brought before a lower court not later than the end of the first
court day;
(ii) or will expire at, or if the time at which such period is deemed to expire under
subparagraph (i) or (iii) is or will be, a time when the arrested person cannot,
because of his or her physical illness or other physical condition, be brought
before a lower court, the court before which he or she would, but for the illness
or other condition, have been brought, may on the application of the prosecutor,
which, if not made before the expiration of the period of 48 hours, may be made
at any time before, or on, the next succeeding court day, and in which the
circumstances relating to the illness or other condition are set out, supported by
a certificate of a medical practitioner, authorise that the arrested person be
detained at a place specified by the court and for such period as the court may
deem necessary so that he or she may recuperate and be brought before the
court: Provided that the court may, on an application as aforesaid, authorise
that the arrested person be further detained at a place specified by the
court and for such period as the court may deem necessary; or
(iii) at a time when the arrested person is outside the area of jurisdiction of the lower
court to which he or she is being brought for the purposes of further detention
and he or she is at such time in transit from a police station or other place of
detention to such court, the said period shall be deemed to expire at the end of
the court day next succeeding the day on which such arrested person is brought
within the area of jurisdiction of such court
The above provision of the Criminal Procedure Act in effect, acknowledges that a person
arrested on the suspicion of committing a crime could be detained either in a police station or
somewhere else particularly if bail is not granted. The provision indicates the circumstances
under which such a person could be detained relative to a determination by a court of law under
whose jurisdiction the arrested person is brought.
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In other words, there should be no arbitrariness in determining when and how a person is
detained; there must be a legal and judicial process which must ensure that the law is followed.
This demonstrates the overarching cardinal principle of the criminal justice process – that an
accused person (whether detained or allowed to go on bail) is presumed innocent until
proved guilty.
As a follow up to Section 50, Section 59 is relevant for RDs in terms of whether they may be
granted bail before their first appearance in court. The issue for determination in this regard is
whether the person qualifies for bail within the ambit of the Criminal Procedure Act. Section 59
clearly states that:
(1) (a) An accused who is in custody in respect of any offence, other than an offence referred
to in Part II or Part III of Schedule 2 may, before his or her first appearance in a lower
court, be released on bail in respect of such offence by any police official of or above the
rank of non-commissioned officer, in consultation with the police official charged with the
investigation, if the accused deposits at the police station the sum of money determined
by such police official.
This means that except for the crimes specifically listed in Part II or Part III of Schedule 2,
discretion for the bail release of RDs from custody should be exercised in their favour if the
conditions for such release are fulfilled.
RDs also have the benefit of release or bail based on prison conditions. Accordingly, Section
63A of the Criminal Procedure Act grants the “Head of Prison” as contemplated in the
Correctional Services Act, under certain circumstances and with regard to certain crimes, the
discretion to either seek the release of an RD or to amend the conditions of such a
person‟s bail where the head of prison is “satisfied that the prison population of a
particular prison is reaching such proportions that it constitutes a material and imminent
threat to the human dignity, physical health or safety of an accused.”
In essence, the over-crowding of prisons is a phenomenon that should be taken into account in
looking for ways of dealing with the management of RDs in South Africa. The nature of the
crimes for which accused persons have been detained either in police cells, holding cells or in
correctional facilities should determine which RD is released fully or on bail so as to decongest
the facility in question.
Similarly, Section 72 of the Criminal Procedure Act can be employed in properly managing RDs,
as it allows their release “on warning in lieu of bail” under certain conditions and with regard to
crimes that are not referred to in Part II or III of Schedule 2 to the CPA.
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3.2.3. South African Police Service Act 68 of 1995 (SAPS Act)
The role of the SAPS Act as part of the legal framework in the management of RDs is more
institutional than substantive. The substantive relevance of the SAPS Act is limited to how
members of the SAPS should perform their duties and functions in the overall CJS as prescribed
in the CPA and other relevant legislation, regulation, policy documents or guidelines. It is thus
important that the SAPS must see its role as critical to the effective management of RDs, as the
agency that has primary contact with suspects that eventually become RDs. The ability of the
state to effectively manage RDs will to a large extent be determined by the effectiveness of the
interaction between the SAPS and other stakeholders in the CJS such as Correctional Services
and the prosecuting authorities.
3.2.4. Correctional Services Act 111 of 1998
As a legal framework, the Correctional Services Act is pivotal in the detention management of
RDs. This is because DCS is the agency of state that the Act saddles with the responsibility to
take care of prisoners, which in the language used in the Act, includes RDs. The totality of the
Acts‟ provisions has implications for RDs (Chapter I to V excluding chapter IV).
Specifically, a number of provisions in the Act impact on RDs more directly. Section 7 on
accommodation specifies the requirement for prisoners’ accommodation and how different types
of prisoners should be housed. Chapter 5 of the Act, spanning sections 46-49, centres on RDs
as “unsentenced prisoners” and deals with such issues as the general principles governing the
detention of unsentenced prisoners, their clothing, food and drink, visitors and communication.
In these provisions, RDs are required to be treated humanely in terms of the quality of their
accommodation, their clothing, food and drink as well as their right to freely communicate and
receive visitors. These benefits are subject only to restrictions that are genuinely prescribed by
regulations.
One important issue that needs to be recognized is that the DCS is just one of the stakeholders
in the criminal justice system and as a result, does not work alone in the management of RDs.
There is a need for an integrated system with an effective synergy between the various
stakeholders such as the SAPS, the Department of Justice, the prosecuting authorities and
other such state agencies. An extract from Chapter 5 of the Correctional Services Act (Act 111
of 1998) is presented below:
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CHAPTER V: UNSENTENCED PRISONERS (ss 46-49)
46. General principles
(1) Unsentenced prisoners may be subjected only to those restrictions necessary for the
maintenance of security and good order in the prison and must, where practicable, be
allowed all the amenities to which they could have access outside prison.
(2) The amenities available to unsentenced prisoners which may be restricted for disciplinary
purposes must be determined by regulation.
47. Clothing
No unsentenced prisoner may be compelled to wear prison clothes, unless the prisoner's
own clothing is improper or insanitary or needs to be preserved in the interests of the
administration of justice and the prisoner is unable to obtain other suitable clothing from
another source.
48. Food and drink
Subject to restrictions which may be prescribed by regulation, unsentenced prisoners may have
food and drink sent to them in prison.
49. Visitors and communication
Subject to restrictions which may be prescribed by regulation, unsentenced prisoners may receive
visitors and write and receive letters and communicate telephonically.
[S. 49 substituted by s. 24 of Act 32 of 2001.]
3.2.5. The Immigration Act No 13 of 2002
The immigration Act administered by the Department of Home Affairs is relevant to RDs to the
extent that persons arrested for violation of the Act are detained for the purposes of being
brought within the criminal justice system rather than when they are detained for deportation for
violating immigration laws.
3.2.6. The Mental Health Act No. 17 of 2002
The relevance of the Mental Health Act to RDs centres on the provisions of chapter 6 of the Act
which deals with “state patients” with specific provisions from section 41 to 48. The criminal
process relating to state patients are clearly articulated in section 77(6) of the CPA regarding
whether they should be detained for observation or treatment and the circumstances
surrounding such detention. It follows, therefore, that the Mental Health Act and the CPA exist
as a twin legal framework that impact on a different class of RDs – those that may have mental
capacity problems.
3.2.7. The White Paper on Corrections in South Africa 2005
The 2005 white paper on corrections reiterated the need to deal with issues of corrections from
the constitutional imperatives created by the final constitution of 1996. It recognized that while
the constitution provided a system of detention that has a constitutional basis, the constitution
did not make any provision for an integrated justice system particularly in view of the
47

challenges of an effective criminal justice in the new South Africa. The White Paper further does
not include reforms relating to detention management of RDs.
3.2.8. The Protocol on the Procedure to be followed in Applying Section 63A of Criminal
Procedure Act, 1977
The Protocol was established as a joint effort between the SAPS, the NPA, the DoJCD and the
DCS in promoting and regulating cooperation among themselves in dealing with bail under
section 63A of the CPA. One of the main aims of the Protocol is to deal with the congestion of
prisons and as such, reduce the number of accused persons in custody.
3.2.9. Management of Awaiting Detainees Policy
This policy document was prepared by the DCS for the purpose of having a clear policy
framework that would inform it on how to deal with RDs, which by its mandate as a correctional
agency; it is required to keep in its correctional facilities. The policy document drew from the
Constitution of the Republic of South Africa, the Correctional Services Act, the CPA, the
Standard Minimum Rules for the Treatment of RDs (Rule 84), and the White Paper on
Corrections in South Africa (2005). A cardinal point of the policy document is the need to treat
RDs as persons who should receive the benefit of the presumption of innocence.
The policy was however withdrawn in 2009 financial year and will be replaced by Corrections
Policy.
3.2.10. Child Justice Act (Act 75 of 2008)
The Act was established, among others, to provide a criminal justice system for children who are
in conflict with the law and are accused of committing crimes. It makes provision for the
minimum age of criminal capacity of children and further talks about processes from arrest to
diversion, trial and sentencing of children. The Act will be implemented in 2010 and will replace
The Interim Protocol for the Management of Children Awaiting Trail.
3.3. International Legal Framework
The rules and principles that affect detained persons and prisoners have an international
imprimatur. This international acceptance and recognition of ways that prisoners are treated are
a creation of legal norms that are found in international declarations, treaties and guidelines.
These instruments have implications for South Africa in the conduct of its domestic affairs
relating to RDs. One can summarize the international legal framework as follows.
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3.3.1. The Universal Declaration of Human Rights (UDHR), 1948
The UDHR is the first international legal instrument that articulated the rights that are universal
to every individual in the modern conception of rights. It is, thus, the first instrument in the
tripartite International Bill of Rights. Article 9 of the UDHR provides that “no one shall be
subjected to arbitrary arrest, detention or exile.” In the same vein, Article 11 stipulates that
“Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.”
3.3.2. The International Covenant on Civil and Political Rights (ICCPR)
Article 9 of the ICCPR comprehensively makes the following provisions on the arrest and
detention of persons:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedures as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for
his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before
a judge or other officer authorized by law to exercise judicial power and shall be entitled
to trial within a reasonable time or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings before a court, in order that that court may decide without delay
on the lawfulness of his detention and order his release if the detention is not
lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
Similarly Articles 10 and 11 of the ICCPR prescribes the standard for the treatment of accused
persons including juveniles:
49

Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person.
2. (a) Accused persons shall, except in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment appropriate
to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as
speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders shall be
segregated from adults and be accorded treatment appropriate to their age and legal
status.
Article 11
No one shall be imprisoned merely on the ground of inability to fulfil a contractual
obligation.
Finally, Article 14(c) of the ICCPR underscores the right of an accused person “to be tried
without undue delay”. The essence of this injunction was stated in Fillastre v. Bolivia,
Communication No. 336/1988 where the United Nations Human Rights Committee found that:
“What constitutes „reasonable time‟ is a matter of assessment for each particular
case. The lack of adequate budgetary appropriations for the administration of
criminal justice… does not justify unreasonable delays in the adjudication of
criminal cases. nor does the fact that investigations into a criminal case are in
their essence, carried out by way of written proceedings, justify such delays.”
The ICCPR is a treaty which South Africa acceded to on 3 October 1994. Apart from the fact
that South Africa has an obligation under the ICCPR as a State party to the treaty, there is a
constitutional acceptance of international law as a very valuable norm in the South African legal
system. Section 39(1) (b) of the Constitution of the Republic of South Africa provides that “when
interpreting the Bill of Rights, a court, tribunal, or forum must consider international law.” Also in
this regard, Section 232 of the constitution stipulates that “customary international law is law in
the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” In the same
vein, Section 233 of the Constitution encourages the use of good interpretation of international
law in domestic adjudication. It states “when interpreting any legislation, every court must prefer
any reasonable interpretation of the legislation that is consistent with international law over any
alternative interpretation that is inconsistent with international law.”
50

3.3.3. The African Charter on Human and Peoples’ Rights
Articles 4, 5, 6, and 7 of the African Charter enshrine the right to the integrity of the person,
dignity and freedom from torture, inhuman and degrading treatment, the prohibition of arbitrary
arrest and detention as well as the presumption of innocence and the guarantee of fair trial
rights.
3.3.4. Other Applicable International Standards and Guidelines
The following international standards and guidelines are relevant to the management of RDs in
South Africa: the United Nations Standard Minimum Rules for the Treatment of Prisoners
(Standard Minimum Rules), 1955 and 1977; the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules), 1985; the Body of Principles for the Protection
of All Persons Under Any Form of Detention or Imprisonment (Body of Principles), 1988;
Resolutions of the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, 1990; United Nations Rules for the Protection of Juveniles Deprived of
Their Liberty, 1990; United Nations Standard Minimum Rules for Non-custodial Measures
(Tokyo Rules), 1990; a Pocket Book of International Human Rights Standard for Prison Officials
2004.
Other international standards and guidelines that are specifically Africa-grown under the
auspices of the African Commission on Human and Peoples’ Rights, include the Kampala
Declaration on Prison Conditions in Africa, the Ouagadougou Declaration on Accelerating Prison
and Penal Reform in Africa, and the Arusha Declaration on Good Prison Practice in Africa.
It must be observed that the above international standards and guidelines elaborate on the
principles contained in the international legal framework that has already been articulated. Many
of them are restatements and emphases of these principles and therefore only serve to buttress
the importance of a correctional system that respects the rule of law and implements in a
practical manner, the principle of the presumption of innocence to the benefit of accused
persons or RDs.
3.4. Conclusion
The management of RDs in South Africa is not an easy task and cannot be left to one agency. It
involves a number of agencies with different functions and mandates as established in the
domestic legal framework summarized in this chapter. It therefore means that all the agencies
must be positively and proactively committed to ensuring that their functions, as articulated in
their various constitutive legislation in the management of RDs or accused persons in detention,
are carried out in a synergistic manner that epitomizes an integrated criminal justice system. As
51

things stand, some challenges remain, which must be dealt with if a true integration is to
be achieved. These challenges are identified below.
3.4.1. Challenges Arising from the Legal Framework
An examination of the legal framework relating to RDs has revealed a plethora of legislation,
guidelines, protocols, policy papers, etc of different shades and provisions dealing with or
attempting to deal with RDs under different names and terms that could easily be confused.
The possibility exists that the different agencies may see their roles differently as a result
of the different ways issues pertaining to RDs are dealt with in the various legislation and
other documents. The SAPS, being the agency with primary contact with accused
persons may see their roles differently from the DCS, which ultimately receives the RDs
or accused persons that are not granted bail.
Related to the above, is the fact that each agency may interpret the legislation and other
applicable documents differently to suit each its own understanding of its functions; this
could eventually lead to some form of turf protection among the agencies, which
ultimately does not serve the CJS any good.
In order to identify gaps, specific reference will be made to three major legislations that guide the
management of RDs, namely:
The Criminal Procedure Act;
The Correctional Services Act; and
The Child Justice Act
3.4.1.1 Criminal Procedure Act (Act 51 of 1977)
The CPA focuses mainly on case-flow issues. These case flow issues include, amongst others,
the responsibility of the prosecuting authority; search warrants, arrests, summons, bail, trial,
assistance to accused, mental illness and criminal responsibility, pleas, conduct of proceedings,
sentencing and compensation and restitution. The reference to an RD as an accused is more
on CJS processes.
3.4.1.2 Correctional Service Act (Act 111 of 1998)
The Correctional Services Act guides the detention management of inmates in DCS facilities.
The Act was established to provide for amongst others, a correctional system; the
establishment, functions and control of the Department of Correctional Services; the custody of
all prisoners under conditions of human dignity; the rights and obligations of sentenced
52

prisoners; the rights and obligations of unsentenced prisoners; a system of community
corrections; release from prison and placement under correctional supervision, on day parole
and parole and the National Council for Correctional Services.
Chapter V which focuses on unsentenced offenders clearly stipulates that amenities which may
be restricted for disciplinary purposes and administration of justice must be determined by
regulations. Restrictions are not clearly articulated in the Correctional Service Regulations
(2004) because they have been included in general restriction applicable to sentenced offenders
under the reference “prisoners”. The position of DCS is very clear with regard to provision of
Development and Support Services and unsentenced offenders are excluded. They are only
entitled to receive such services as health, nutrition, and recreation. When it comes to clothing
the Act makes it clear that they may not be compelled to wear correctional centre clothes.
However, if they are provided with clothing, it must be different from that issued to sentenced
offenders. Regulations (Chapter 4) have only captured one sentence which reads as follows:
Unsentenced prisoners must perform such duties as may be necessary to maintain
good order and cleanliness of any cell, room or other place occupied by them and
may be permitted to perform other labour.
There is no document within DCS that clearly articulate the rights of RDs though this has
been captured in the introductory section of the Correctional Services Act (Act 111 of
1998).
Though RD children are incarcerated in DCS facilities, they are not managed as a special
category of RDs.
3.4.1.3 Child Justice Act (Act 75 of 2008)
The Child Justice Act (Act 75 of 2008) can be interpreted as case-flow legislation for children in
conflict with the law who have been accused of committing offences. The Act articulates clearly
all the provision for a child detained in police custody which includes visits by a wide range of
personnel including legal practitioners, social workers, probation officers, health workers,
religious counsellors. It is clear that children have to be cared for in line with special needs of
children. It is important to note that that the provisions for RD children incarcerated in
DCS are not stipulated in the Act.
3.4.2. Proposals
There is a need for new legislation that consolidates the provisions from the various
legislations in the legal framework pertaining to RDs that focuses entirely on the
management of RDs.
53

The new legislation should deal exclusively with RDs and should identify them in various
classes. For example, there should be parts dealing with the general RD population, juvenile
RDs and mentally challenged or legally insane RDs and RDs in detention for more than a year;
RDs who require legal representation, foreign national RDs, women RDs and women RDs with
children.
The new legislation should clearly articulate the following:
Minimum services that should be provided to all RDs in detention either in SAPS, DCS
and Secure Care Facilities.
Minimum standard facilities to be used for the detention management of RDs in DCS,
SCF or any other facility responsible for detention management of RDs.
The new legislation should clearly articulate the rights of RDs and how they will be
promoted. The following rights should be incorporated and provided for through the
establishment of minimum period of detention and stipulation of steps to be followed once the
minimum detention period has passed including compensation allowable.
Anyone arrested or detained on a criminal charge shall be brought promptly before
a judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the general
rule that persons awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the judgment.
Anyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings before a court, in order that that court may decide without delay
on the lawfulness of his detention and order his release if the detention is not
lawful.
Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
The new legislation clearly requires an integrated approach to the management of RDs
between the various stakeholders in the criminal justice system. The SAPS and the DCS should
work together from the point of arrest to enable the two agencies to account for the eventual
number of RDs together.
There should be provision in the legislation for an integrated identification system, which
would enhance a true integrated approach that has overall implications not just for the
management of RDs but for the entire criminal justice process in South Africa. For reflection,
please take some time to read the piece below, written by Judge Ted Matlow:
54

Comments made by The Honourable Judge Ted Matlow who is a judge of the Superior Court of
Justice of Ontario are as follows:
Almost everyone would agree, at least in principle, that no person accused of committing a crime
should be required to start serving a jail sentence until he or she has been found guilty after a
trial.
Yet, in Canada, thousands of people still awaiting trial and presumed innocent are detained in custody
every day, often for very substantial periods of time, and are forced to endure the same hardship
and punishment as criminals who have been tried, convicted and sentenced.
This occurs because, despite the lip service that is given to the presumption of innocence, there
is a commonly held belief that most persons charged with an offence have actually committed
it and that no serious injustice occurs when some of them are made to start serving their
sentences even before they are tried.
This belief, however, invariably disappears when people actually experience pre-trial detention or
learn about its realities from someone close to them.
The very real violation of principle that results is not unique to Canada. I know of no country in the
world where the same kind of violation does not also exist. The inclination to ignore this
violation of principle is universal.
Without question, there are some accused persons who must be detained while they await trial. Not
every accused person can reasonably be released on bail. However, there is no good reason why
accused persons awaiting trial must be treated exactly like convicted criminals while they
remain in custody.
Jails that are used as detention centres should be altered to create special segregated areas
designed specifically to accommodate accused persons awaiting trial in a humane
environment that both respects their integrity as innocent persons and, at the same time,
maintains the level of security that is reasonably required. The benefit that our community would
gain from this recognition of principle and decency would far outweigh the modest cost of making this
kind of change.
In these new accommodation areas, accused persons awaiting trial should be given more
comfortable living accommodations than those given to convicted criminals. They should not
be required to live in overcrowded cells. They should be given tastier food, freer telephone
access and more liberal visitation rights so that they can maintain close contact with those
close to them and to their lawyers.
As well, they should be permitted to follow a daily routine that is as close as possible to the routine
that they would choose to follow. It should include an opportunity to enjoy fresh air and exercise.
In conclusion, a critical analysis of all relevant legislation which is critical for the detention
management of RDs commenced in February 2010. The analysis entails identification of
implementation challenges.
55

CHAPTER 4: Profile of RDs
4.1. Introduction
In this chapter, profiles of RDs detained in DCS and DSD will be presented. Summary statistics
are provided on the profiles of RDs in terms of general inmate population, regional distribution,
crimes and crime categories, and such special categories as children, females and foreign
nationals. Key issues emanating from the profiles will be described including challenges and
proposals.
The statistics presented here are based on the Management Information System (MIS) of DCS
and information obtained from DSD. Most information captured in DCS is generated by DCS
through interviewing RDs on admission with the exception of information presented in the
warrant which is summarized below:
Police Station and Case Administration System Number;
District or Regional division;
Date of arrest;
PE Number and Court case number;
Name of the Correctional Centre;
Name of the accused, age;
Charge;
Next court date and the name of court
Bail particulars including amount of bail;
Stamp and the signature of the Magistrate
DCS has organised the nine provinces into six regions for coordination and management
purpose. These regions are:
Gauteng;
Eastern Cape;
KwaZulu Natal;
Limpopo, Mpumalanga and North West (LMN);
Northern Cape and Free State (NC&FS); and
Western Cape.
Trends in DCS will be reported in terms of the national and regional distribution.
56

4.2. Overview of RD Population in DCS
4.2.1. General Inmate Population
The table below shows the average of inmate population from April 2008 to January 2010 as
obtained from MIS. The inmate population ranged between 161922 and 165000. The RDs
constituted between 28 and 31% of the inmate population. The highest monthly averages were
observed in April 2008 (50122) and January 2010 (51584). The lowest monthly averages were
observed in December 2008 (46612) and September 2009 (45734). There was a downward
trend from April to December 2008 and from April to September 2009. A huge increase of 4189
and 4450 was observed between December 2008 and January 2009 and between December
2009 and January 2010 respectively.
180000
160000
140000
120000
100000
80000
60000
40000
20000
0
All ATDs and Sentenced Offenders
April
2008
June
2008
Septem Decemb
ber 2008 er 2008
Sentenced 112728 113102 114382 115653 114572 115108 115534 116334 115752 113377
Unsentenced 50122 48907 47540 46612 48885 48898 47045 45734 47134 51584
Grand Total 162850 162008 161922 162265 163518 164033 162607 162098 162926 165000
% ATD's and Total Inmate Population 31% 30% 29% 29% 30% 30% 29% 28% 29% 31%
% ATD's and Sentenced Inmate Population 44% 43% 42% 40% 43% 42% 41% 39% 41% 45%
March
2009
April
2009
June
2009
Septem Decemb January
ber 2009 er 2009 2010
Figure 4.1. All RDs and Sentenced Offenders: April 2008 to January 2010
4.2.2. Regional Distribution
The region with the highest number of RDs is Gauteng with approximately 34 to 36% (15856
and 18319), followed by Western Cape with approximately at 17 to 19% (8075 and 9676),
KwaZulu Natal with approximately 14 to 17% (6806 and 8665) and Eastern Cape with
approximately 12 to 13% (5872 and 6684). The regions with the lowest distribution of RDs are
LMN with approximately 6 to 8% (3152 and 3871) and Northern Cape and Free State with 11 to
12% (4982 and 5619). The pattern of decrease for regions is different from the national pattern.
57

60000
50000
40000
30000
20000
10000
Gauteng, KZN and Northern Cape and Free State regions had the lowest average number of
RDs in September 2009, while other three regions had the lowest number of RDs at different
months i.e., Eastern Cape in September 2008; LMN in June 2008 and Western Cape in
December 2008. All regions had an increase in the population of RDs which exceeded the
regional monthly average of March 2009 with the exception of KwaZulu Natal.
0
April 2008 June 2008 September
2008
All ATDs per Region
GAUTENG 16969 16914 16310 16064 16587 16598 16028 15856 16875 18319
EC 6100 5934 5872 5900 6221 6316 6153 6088 6100 6684
KZN 8665 8208 8091 8055 8195 8213 7520 6806 6833 7496
LMN 3433 3152 3210 3367 3431 3484 3245 3163 3603 3871
NC/FS 5930 5619 5233 5149 5344 5362 5182 4982 5111 5538
WC 9025 9078 8825 8075 9106 8925 8916 8839 8613 9676
Grand Total 50122 48907 47540 46612 48885 48898 47045 45734 47134 51584
4.2.3. RDs and Crime
December
2008
March 2009 April 2009 June 2009 September
2009
Figure 4.2. All RDs per region: April 2008 to January 2010
December
2009
January
2010
DCS utilizes five (5) broad crime categories which are “aggressive”, “economical”, “sexual,”
“narcotics” (drug-related) and others. These categories were developed to meet the
rehabilitation needs of offenders in DCS. As such, they differ from those utilized by SAPS. DCS
has reviewed its crime categories by extending them to seventeen. The revised categories have
not been computerized yet. Therefore, the profile report is based on five old crime categories.
The revised categories are presented below:
Murder and related offences
Culpable Homicide and Related Offences
Assault and Related Offences
Sexual Offences
58

60000
50000
40000
30000
20000
10000
Robbery and Related Offences
Theft Related Offences
Fraud, Deception and Related Offences
Drug and Alcohol Related Offences
Firearms and Ammunition Offences
Weapons and Explosive Offences (other than firearms and ammunition)
Property and Environment Damage
Public Order and Public Welfare Offences
Road Traffic and Vehicle Regulatory Offences
Offences against Justice, Procedures, Government Security and Government
Trafficking Related Offences
Offences against Freedom of Movement
Miscellaneous Offences
It is important to note that reporting on crime categories will not reflect the multiple crimes that
the RDs are detained for because the current Admission and Release system utilized for
capturing information in DCS allows for placement of an inmate in one most aggressive crime
category.
The majority of RDs are incarcerated for aggressive crimes (48 to 49%) followed by economic
crimes (29 to 31%) and sexual crimes (14 to 15%). RDs detained for drug-related crimes
ranged between 2 and 3%.
0
April 2008 June 2008 September
2008
ATDs and Crime Categories
December
2008
March
2009
April 2009 June 2009 September
2009
December
2009
Aggressive 23931 23276 22756 22908 23583 23536 22854 22510 23078 24973
Economical 14939 14853 14551 13612 14779 14976 14496 13738 13950 15471
Narcotics 1298 1289 1282 1087 1256 1229 1144 1052 1180 1310
Other 2362 2418 2120 2194 2338 2258 2030 2099 2265 2542
Sexual 7591 7072 6832 6811 6928 6900 6521 6335 6661 7287
Grand Total 50122 48907 47540 46612 48884 48898 47045 45734 47134 51584
Figure 4.3. Average RD’s per crime category: April to January 2010
January
2010
59

4.2.3.1 Top Ten Crimes
The top 10 crimes that RDs admitted in DCS were detained for are presented in the two tables
below. The crimes presented are based on the number of RDs admitted in DCS facilities from 1
January 2008 to 31 December 2009. The crimes were extracted from the warrants of detention
of RDs (J7). Figures are inclusive of multiple crimes committed by RDs and monthly admissions
which ranged between 21 and 26 thousand. The top 10 crimes for RDs admitted in DCS
facilities in 2008 and 2009 calendar years are presented below:
Table 4.1. Top 10 crimes: 1 January 2008 to 31 December 2009 for All RDs and Children RDs
All RDs
Ranking 2008 2009
Crime No of
Crime No of RDs
RDs
1 Theft 63206 Robbery 57463
2 Robbery 57613 Theft 56143
3 Housebreaking 43497 Housebreaking 44230
4 Assault 40807 Assault 34356
5 Rape 24133 Rape 22852
6 Murder 17067 Murder 16000
7 Suspect Stolen Goods Possess 9923 Suspect Stolen Goods Possess 8359
8 Fraud And Forgery 7731 Fraud And Forgery 7402
9 Malicious Damage of Property 7529 Murder Attempted 7357
10 Murder Attempted 7350 Malicious Damage of Property 6557
Total RD admission: 261192 Total RD admissions: 243733
Children RDs
Top 10 Crimes for Children RDs: 01 January 2006 to 31 December 2009 Excluding 2007 Calendar Year
Ranking 2006 2008 2009
Crimes No of RDs Crimes No of RDs Crimes No of RDs
1 Housebreaking & theft 1 781 Robbery 1985 Robbery 1453
2 Robbery 1 716
Housebreaking And
Theft
1517 Theft 1053
3 Theft NME 1 501 Theft 1343
Housebreaking &
Theft
1004
4 Rape 935 Rape 781 Rape 634
5 Robbery aggravating 765 Assault 622 Assault 434
6 Assault intentional 566 Murder 427 Housebreaking 289
7 Murder 564 Housebreaking 408 Murder 283
8 Housebreaking NME 324
Suspect Stolen Goods
Possess
183
Suspect Stolen
Goods Possess
98
9 Assault common 254
Malicious Damage Of
Property
173
Malicious Damage
Of Property
150
10
Malicious damage of
Property
243 Marijuana Possession 130
Marijuana -
Possession
133
Table 4.1: Top 10 Crimes: for All RDs and RD Children
According to table 4.1 above, the top three are economic-related crimes, however robbery is
regarded as an aggressive crime in terms of categorization of crimes in DCS. In terms of all RD
admissions, assault, rape and murder remained at the same ranking for two years in
succession. The top three crimes for children RDs are similar to those of the general population
60

of RDs. The figures on crimes that RDs are detained for might differ from those kept by NPA
because it has been discovered that the crimes written in the warrant of detention for RDs does
not reflect all the crimes for which RDs are investigated and prosecuted (see table 4.1.). Other
top ten crimes for males, females and foreign national RDs are presented in the next page.
Table 4.2: Top 10 Crimes for other Categories of RD admitted in 2008 and 2009r
Male RDs
Ranking 2008 2009
Crime No of RDs Crime No of RDs
1 Theft 58293 Robbery 56744
2 Robbery 56793 Theft 51267
3 Assault 38661 Housebreaking And Theft 33243
4 Housebreaking And Theft 34173 Assault 32624
5 Rape 24074 Rape 22769
6 Murder 16434 Murder 15401
7 Suspect Stolen Goods Possess 9685 Housebreaking 10316
8 Housebreaking 8681 Suspect Stolen Goods Possess 8137
9 Malicious Damage of Property 7221 Murder Attempted 7183
10 Murder Attempted 7154 Malicious Damage of Property 6263
Foreign Nationals RDs
Ranking 2008 2009
Crime No of RDs Crime No of RDs
1 Immigration Law 3115 Theft 3511
2 Theft 2947 Robbery 2618
3 Assault 2087 Assault 2237
4 Robbery 1988 Fraud And Forgery 1528
5 Fraud And Forgery 1261 Immigration Law 1485
6 Suspect Stolen Goods Possess 813 Housebreaking And Theft 844
7 Housebreaking And Theft 594 Suspect Stolen Goods Possess 830
8 Proh Habitform Med Use/Possess 535 Proh Habitform Med Use/Possess 647
9 Housebreaking 421 Housebreaking 550
10 Rape 417 Rape 470
Female RDs
Ranking 2008 2009
Crime No of RDs Crime No of RDs
1 Theft 4450 Theft 4419
2 Assault 2095 Assault 1684
3 Fraud And Forgery 1172 Fraud And Forgery 1097
4 Robbery 772 Robbery 682
5 Murder 613 Murder 574
6 Housebreaking and Theft 466 Housebreaking and Theft 478
7 Proh Habit form Med Use/Possess 386 Proh Habitform Med Use/Possess 392
8 Malicious Damage Of Property 301 Malicious Damage Of Property 292
9 Marijuana - Possession 292 Marijuana - Possession 214
10 Suspect Stolen Goods Possess 223 Suspect Stolen Goods Possess 210
61

4.2.4. RDs and Bail
The figure below represents the trend analysis on the number of RDs who had an option of bail
and those who had no option of bail from July 2008 to January 2010. The majority of RDs were
detained without an option of bail (approx 74 to 80%) and approximately 9 to 10% had a bail of
less than one thousand rand. Of the RDs with bail, those with bail that ranged between R1000
and R2500 constituted approximately 9 to 11%. There appears to be no significant differences
in the statistics regarding bail categories from region to region. This is perhaps not surprising,
given that the majority of RDs nationally are remanded for aggressive crimes.
60000
50000
40000
30000
20000
10000
0
April 2008
June
2008
ATDs and Bail Categories
Septemb
er 2008
Decembe
r 2008
March
2009
April 2009
June
2009
Septemb
er 2009
Decembe
r 2009
No Bail Option 37995 37311 36252 36076 36376 37997 36898 36352 37720 40846
2500 Rand 1441 1338 1273 1206 2659 1268 1330 1326 1159 1213
Bail Option 12128 11574 11288 10535 12508 10900 10147 9382 9414 10738
Grand Total 50122 48885 47540 46612 48884 48898 47045 45734 47134 51584
Bail Option 24% 24% 24% 23% 26% 22% 22% 21% 20% 21%
No Bail % 76% 76% 76% 77% 74% 78% 78% 79% 80% 79%
62
January
2010
Figure 4.4. Analysis on the number of RDs who had an option of bail and those who had
4.2.5. RDs and Length of Detention
no option of bail from April 2008 to January 2010
The figure below represents a trend analysis for the time spent by RDs from June 2008 to
January 2010. Approximately 67 to 73% of RDs spent a period ranging between one day and
three months, 15 to 17% spent a period ranging from more than six months to one year. Only
4% of RDs spent a period of more than 24 months. Of the RDs that had spent more than
2years, approximately 0.3 to 0.4% had spent more than seven years in detention. The longest
period spent by an RD in DCS facilities is more than 14 years according to the profile report of
RDs based on a snapshot for 31 December 2007. There are no children RDs that have spent
more than 2 years in detention from June 2008 to January 2010.

Less than 3 months >3 - 6 Months >6 - 12 months >12 - 18 months >18 - 24 Months > 24 Months
30000
25000
20000
15000
10000
5000
0
April
2008
June
2008
Septemb
er 2008
Decemb
er 2008
March
2009
April
2009
June
2009
Septemb
er 2009
Decemb
er 2009
Less than 3 months 26329 25084 25326 25489 25366 25589 23710 23395 24071 26482
>3 - 6 Months 9779 9398 8161 8189 9678 9277 8934 8180 8828 9818
>6 - 12 months 7549 8045 7775 6803 7395 7611 8052 7691 7425 8035
>12 - 18 months 3114 2922 2997 3143 3327 3299 3143 3283 3495 3711
>18 - 24 Months 1475 1586 1479 1228 1363 1377 1529 1523 1571 1675
> 24 Months 1876 1849 1802 1760 1755 1745 1676 1661 1746 1862
63
January
2010
Figure 4.5. Trend analysis for the time spent by RDs from June 2008 to January 2010
The snapshot for 13 February 2010 revealed that there were 1883 RDs who were detained for
more than 2 years. The region with the highest number of this group of RDs was Gauteng (892)
followed by Western Cape (246) and KZN (207). In terms of gender distribution, females
constituted 1.3%. Regions that had such categories of females were Gauteng and Western
Cape (see the table below for the summary).
RDs 24 months above as on 13 February 2010
>2 to 3
years
>3 to 5
years
>5 to 7
years
>7 years
above
Grand
Total
RC E/CAPE 128 54 11 0 193
RC
GAUTENG 573 281 36 2 892
RC KZN 162 42 3 0 207
RC LMN 120 50 4 0 174
RC N/ C& F/S 134 28 9 0 171
RC W/C 179 63 4 0 246
Grand Total 1296 518 67 2 1883
Table 4.5. RDs and Length of stay in detention as on 13 February 2010

4.2.6. Admissions and Releases
The monthly number of admissions from April 2008 to January 2010 ranged between 21002
(April 2008) and 20673 (January 2010). The highest number of admissions in 2008 was in
September (25325) and December (24526). In 2009 the highest number of admissions was
observed in December (22742). The highest number of releases which surpassed the number
of admissions was only observed in April 2008.
The ratio of admissions to releases was constant at 1:09 from June 2008 to January 2010. At
the end of January 2009 and 2010 the RD population was 50,295 and 50584 respectively.
Besides, the stable population that ranges between 46 and 50 thousands, DCS admits and
releases approximately 240 to 282 thousand RDs annually.
30000
25000
20000
15000
10000
5000
0
-5000
-10000
April 2008 June 2008 Septembe
r 2008
Admissions Grand Total Releases Grand Total Difference
December
2008
Admissions Grand Total 21002 22122 25325 24526 24445 21018 21809 21583 22742 20673
Releases Grand Total 23843 21299 22988 19953 23465 20263 21568 20004 18241 18601
Difference 2841 -823 -2337 -4573 -980 -755 -241 -1579 -4501 -2072
March
2009
April 2009 June 2009 Septembe
r 2009
December
2009
Figure 4.6. Monthly number of admissions from April 2008 to January 2010
4.2.7. Children RDs
64
January
2010
There has been a gradual decline in the number of children i.e., from 1016 in April 2008 to 495
in December 2009. There was a noticeable increase of 7.9% from December 2009 to end
January 2010 (534). In terms of regional distribution, the highest number of children at the end
of January 2010 was in KZN (184) followed by Eastern Cape (154), and Northern Cape and
Free State (70). The regions with the lowest number of children were LMN (14), Western Cape
(56) and Gauteng (57).

The figure below represents the average distribution of RD Children from April 2008 to January
2010. From December 2009 to January 2010 there was an increase of 7.8%. Female children
constituted between 2% and 4% while male children constituted between 96 and 98%. The
highest number of female children was observed in September 2008 (32) and April 2009 (31).
1200
1000
800
600
400
200
0
April
2008
June
2008
Septemb
er 2008
Decembe
r 2008
March
2009
April
2009
June
2009
Septemb
er 2009
Decembe
r 2009
Female 26 22 32 19 24 31 23 14 9 10
Male 990 784 775 755 746 745 651 609 486 524
Grand Total 1016 806 808 774 771 776 674 622 495 534
Figure 4.7. Average distribution of RD Children from April 2008 to January 2010
4.2.7.1 Age Distribution of RD Children
65
January
2010
The table below represents RD children in terms of age distribution from April 2008 to 15
January 2010. The highest number of RD children was observed in April 2008 (572) and the
lowest was observed in December 2009 (299). The 17 year old RD children constituted the
highest number ranging between 319 and 572. The 14 year old children constituted a small
number (i.e., ranging from 7 to 30).

1200
1000
800
600
400
200
0
April 2008 June 2008 September
2008
December
2008
March 2009 April 2009 June 2009 September
2009
December
2009
14 Years 30 17 13 19 15 13 13 7 11 11
15 Years 122 99 78 68 69 68 49 56 41 37
16 Years 293 236 243 225 220 226 207 182 144 167
17 Years 572 455 474 464 467 469 406 378 299 319

1200
1000
multiple crimes are not reflected as each RD is placed on the most aggressive crime category.
The trend analysis conducted in 2008 reflected that the number of RDs children detained for
multiple crimes is gradually increasing as compared to children detained for one crime. The
pattern of crime categories for children is similar to the national pattern.
4.2.7.3 Children and Length of Detention
The figure below represents the period of detention for children RDs from April 2008 to January
2010. Approximately 83 to 86% RD children were in detention for a period ranging between less
than 30 days to six months while 11 to 13 % spent a period that ranged between more than six
months to a year. Only 3 to 4 % spent more than one year. There were no children RDs who
were in detention for more than 24months.
800
600
400
200
0
April 2008 June 2008
September
2008
December
2008
March 2009 April 2009 June 2009
September
2009
December
2009
< 1 Month 384 289 338 324 321 318 269 256 199 235
1 - 3 Months 307 210 227 212 202 213 184 166 124 130
>3 - 6 Months 181 181 113 129 141 132 127 106 90 90
>6 - 9 Months 67 67 71 45 61 64 50 51 47 38
>9 - 12 Months 45 34 34 35 19 21 24 25 19 23
>12 - 15 Months 12 8 15 16 14 12 4 7 11 13
>15 - 18 Months 8 9 3 7 8 10 7 2 2 3
>18 - 24 Months 11 9 7 3 4 5 9 5 2 2
> 24 Months 1 1 1 2 1 1 1 2 2 2
Grand Total 1016 807 808 774 770 776 674 622 495 534
Figure 4.10. Period of detention for children RDs from April 2008 to January 2010
4.2.8. Female RDs
The figure below represents the distribution of female RDs from April 2008 to January 2010:
67
January 2010

1200
1000
800
600
400
200
0
April 2008 June 2008 Septemb
er 2008
ATD Females per Region
Decembe
r 2008
January
2009
E Cape 82 84 77 76 86 82 83 80 91 76 81
Gauteng 402 409 426 445 507 497 505 463 464 443 499
KZN 178 156 148 141 137 139 146 136 96 112 127
LMN 25 23 21 23 28 19 24 22 27 30 31
NC/FS 51 38 42 35 37 34 35 30 28 39 37
W Cape 312 269 262 208 241 277 258 264 277 273 309
Grand Total 1050 980 975 927 1036 1049 1050 994 983 973 1083
March
2009
April 2009 June 2009 Septemb
er 2009
Decembe
r 2009
Figure 4.11. Distribution of female RDs from April 2008 to January 2010
68
January
2010
Female RDs constituted between 2 and 2.2% of the RD population. The highest distribution of
female RDs is in Gauteng at 34 to 36% (402 to 505), followed by Western Cape at 17 to 19%
(208 to 312) and KwaZulu Natal at 14 to 17% (96 to 178). The lowest distribution is in LMN at 6
to 8% (19 to 31) followed by Northern & Free State at 11 to 12% (28 to 42) and Eastern Cape at
12 to 13% (76 to 84). The general population of female RDs demonstrated a gradual decrease
from April 2008 to December 2008 and at the same period in 2009. There was an increase of
11.3% from December 2009 to January 2010 and this was observed in all regions with the
exception of Northern Cape and Free State region.
4.2.8.1. Age Distribution of Female RDs
The figure below represents female RDs in terms of age distribution from April 2008 to January
2010. Adult females constituted the highest number of females at approximately 56 to 63% (611
in April 2008 and 669 in January 2010) followed by youths at approximately 36 to 41% (413 in
April 2008 and 404 in January 2010). Children constituted the lowest age group at
approximately 1 to 3% of the female RD population. The adult female RDs demonstrated a
downward trend from April to December 2008 and from April to September 2009. An increase of
17% from November to January 2010 was noted in the adult female RDs.

1200
1000
800
600
400
200
0
April 2008 June 2008 September
2008
ATD Females and Age Categories
December
2008
March
2009
April 2009 June 2009 September
2009
December
2009
Adults 611 559 541 530 583 600 580 572 614 669
Children 26 22 32 19 24 31 23 14 9 10
Youths 413 398 401 378 441 419 391 398 350 404
Grand Total 1050 980 975 927 1049 1050 994 983 973 1083
Figure 4.12. Age distribution of female RDs from April 2008 to January 2010
4.2.8.2. Females and Crime Categories
69
January
2010
The table below represents the distribution of female RDs in terms of crime categories from April
2008 to January 2010. Most female RDs were detained for economical crimes (398 to 456)
followed by aggressive crimes (365 to 402) and drug-related crimes (80 to 120). The number of
females detained for sexual crimes has increased from nine (9) in March 2009 to nineteen (19)
in January 2010. The pattern of crime for females is different from the national pattern.
1200
1000
800
600
400
200
0
April 2008 June 2008
September
2008
ATD Females and Crime Categories
December
2008
March 2009 April 2009 June 2009
September
2009
December
2009
January 2010
Aggressive 391 375 399 360 402 402 365 387 337 387
Economical 456 398 414 398 460 476 449 405 419 452
Narcotics 98 99 87 82 80 89 98 101 109 120
Other 91 99 69 76 95 74 76 82 92 105
Sexual 13 9 7 10 11 9 6 8 16 19
Grand Total 1050 980 975 927 1049 1050 994 983 973 1083
Figure 4.13. Distribution of female RDs in terms of crime categories from April 2008 to
January 2010

600
500
400
300
200
100
0
4.2.8.3. Females and Length of Detention
The figure below indicates the time spent by female RDs from April 2008 to January 2010.
< 1 Month 1 - 3 Months >3 - 6 Months >6 - 9 Months >9 - 12 Months >12 - 15 Months
>15 - 18 Months >18 - 24 Months > 24 Months
April 2008 June 2008 September
2008
December
2008
March 2009 April 2009 June 2009 September
2009
December
2009
Figure 4.14. Length of detention of female RDs from April 2008 to January 2010
70
January
2010
Approximately 81 to 87% spent a period ranging from less than 30 days to 6 months, 8 to 11%
spent a period ranging from more than 6 months to 1 year and 4 to 7% spent a period ranging
from more than a year to 2 years. Of the female RDs, approximately 2 to 2,5% spent more than
2 years.
4.2.9. Foreign Nationals
The number of foreign nationals detained in DCS from April 2009 to January 2010 ranged from
7881 to 8521. The number of RDs ranged from 3255 to 4016. At the end of January foreign
national RDs constituted 7.8% of the RD population in DCS. Adults RDs constituted 54,3%,
while youth and children comprised 45,5% and 0.2% respectively. Females consisted of 4%
and males comprised 96%. In terms of regional distribution the highest number of RD were
detained in Gauteng (85 to 86%). All other regions had less than 5 % of RD foreign nationals in
their facilities. Approximately 89 to 90% were in detention without an option of bail.
Approximately 98% of RDs were from African continent (98%) followed by Asia (0.9 to 1.5%),
South America (04 to 08%), and Europe (04 to 0.6%). RDs from North America and Oceania
constituted less than 0.1%. The top five countries from which most RDs come from in the
African Continent are presented in the table below:

Nationality April 2009 June 2009 September 2009 December
2009
January 2010
1436 1526 1593 1802 2010
ZIMBABWE
45% 48% 49% 51% 51%
907 860 855 897 1009
MOZAMBIQUE
29% 27% 26% 25% 26%
205 194 174 193 211
NIGERIA
6% 6% 5% 5% 5%
129 137 131 131 135
LESOTHO
4% 4% 4% 4% 3%
146 124 129 151 153
MALAWI
5% 4% 4% 4% 4%
Africa Total 3181 3198 3229 3547 3934
Table 4.4. Number of foreign national RDs from April 2009 to January 2010
4.3. RDs Managed by DSD
There are 34 secure care facilities nationally which are distributed in nine provinces as follows:
Eastern Cape: 6; Free State: 3; Gauteng: 3; KwaZulu-Natal: 6; Limpopo: 3; Mpumalanga: 1;
North-West: 3; Northern Cape: 3; Western Cape: 6. There are 9 private secure facilities which
have been contracted to Bosasa. They are distributed as follows: Eastern Cape: 1; Gauteng: 2;
Limpopo: 2; North-West: 2; Western Cape: 2.
The distribution of children from April 2009 to February 2010 is presented in the next page. The
number of children ranged between 1350 in April 2009 and 1535 in February 2010. The highest
number was observed in May (1940) and June (1945) and the lowest number was observed in
April (1350 and February (1535).
Figure 4.15: Distribution of Children in SCFs from April 2009 to February 2010
71

April June August October December February
Northern Cape 221 158 152 172 169 132
KwaZulu Natal 118 96 85 80 119 97
Free State 113 113 137 116 123 117
North West 66 84 72 64 79 58
Gauteng 600 690 642 660 590 562
Eastern Cape 131 133 125 131 114 0
Western Cape 0 588 569 569 569 569
Limpopo 101 83 83 84 110 0
Total for
Provinces 1350 1945 1865 1876 1873 1535
Table 4.5. Distribution of Children in SCFs from April 2009 to February 2010
In terms of provincial distribution, Gauteng had the highest number of RD children followed by
Western Cape and Northern Cape. The provinces with the lowest number of RD children are
North West and Limpopo. In terms of admission, the province that had the highest number of
admissions is Western Cape followed by Gauteng. With regard to releases the province that
had the highest number was Gauteng followed by KwaZulu Natal (see the next page for figure
on admission and releases).
72

The number of Admissions and releases of RD children in SCFs from April 2009 to February 2010 are presented in the table below:
Secure Care Statistics 2009/2010: Admissions
April May June July August September October November December January February
Northern Cape 79 89 66 65 38 57 78 62 67 69 60
KwaZulu Natal 80 75 75 60 75 57 79 79 97 69 107
Free State 48 49 42 56 53 52 44 51 55 68 43
North West 18 34 25 24 19 14 26 23 36 13 32
Gauteng 222 186 225 140 148 215 205 172 169 197 92
Eastern Cape 63 66 72 72 81 95 84 89 89 70 0
Western Cape 0 542 519 505 506 524 246 342 20 512 506
Limpopo 22 25 18 31 23 35 26 33 41 41 0
Total for
Provinces 532 1066 1042 953 943 1049 788 851 574 1039 840
Figure 4.16. Admissions in SCFs from April 2009 to February 2010
73

Secure Care Statistics 2009/2010; Releases
April May June July August September October November December January February
Northern Cape 68 45 50 49 53 54 67 86 69 74 63
KwaZulu Natal 69 83 80 73 61 60 62 71 99 81 70
Free State 38 37 40 46 43 45 47 40 58 45 62
North West 11 18 18 15 28 15 18 16 31 15 12
Gauteng 205 196 167 158 180 220 250 205 161 145 107
Eastern Cape 46 30 32 41 43 37 40 39 39 22 0
Western Cape 0 46 69 64 68 45 6 32 0 37 43
Limpopo 23 23 40 21 18 17 10 19 16 20 0
Total for
Provinces 460 478 496 467 494 493 500 508 473 439 357
Figure 4.17. Releases per province in SCFs from April to February 2010
74

There are 11 privately managed SCFs which have been contracted to Bosasa by DSD. Of the 11
facilities two (2) are not yet operational; they will become fully operational before the end of the
year. The total bed capacity provided by privately managed SCFs is 1186. The facility in Northern
Cape has been opened and will commence with admission of RD children as from 15 September
2009. Of the 9 facilities that are fully operational, five SCFs accommodate both females and males
while four (4) facilities only accommodate males. The list of the facilities is presented in the table
below:
Province Name of the Facility Bed Capacity Girls Boys
Eastern Cape Sikhuselekile 60 10 40
Gauteng Mogale & 300 0 300
Gauteng Leseding 150 0 150
Limpopo Polokwane 120 20 100
Limpopo Malamulele (Mavambe 70 20 50
North West Klerksdorp (Matlosana) 60 10 50
North West Mafikeng 60 50 10
North West Rustenburg (not yet opened) 60
Northern Cape Springbok (not yet functional) 51
Western Cape Horizon 195 0 195
Western Cape Clanwilliam 60 0 60
Table 4.6. List of 11 privately managed SCFs contracted to Bosasa
From 2005 to 2009, 27,472 children were admitted in privately managed SCFs. Of the 27,472
children, males constituted 99.3% (27,274) and females constituted 0.7% (198). The highest
number of children was admitted in 2007 (6074) and 2006 (5896). The distribution of female
children remained below 1% over the period of 5years with the highest number of 56 recorded in
2008.
8000
6000
4000
2000
0
Year Males Females
1 2 3 4 5
Year 2005 2006 2007 2008 2009
Males 5814 5855 6032 5597 3976
Females 31 41 42 56 28
Figure 4.18. Number of children admitted to SCFs from 2005 to 2009
75

In terms of regional distribution, Gauteng facilities admitted 39,198 children from 1995 to 2004,
Western Cape facilities admitted 1,910 from 2001 to 2004 and Limpopo admitted 498 children from
2003 to 2004.
Region SCF
M
2005
F M
2006
F M
2007
F M
2008
F M
2009
F
Eastern Cape Sikhuselekile 151 13 158 21 107 16
Gauteng
Mogale &
Leseding
4640 0 4286 0 4638 0 4072 0 3059 0
Polokwane 264 31 334 41 344 29 320 35 85 12
Limpopo Malamulele
(Mavambe
43 5
Klerksdorp
(Matlosana)
201 4
North-West Mafikeng
(2008/09)
157 11
Northern
Cape
Western Cape
Rustenburg To be opened before the end of 2009
Springbok To be opened before the end of 2009
Horizon 756 0 793 0 720 0 861 0 606 0
Clanwilliam 154 0 172 0 179 0 186 0 119 0
Total 5814 31 5585 41 6032 42 5597 56 3976 28
Table 4.7. Regional distribution of children RD’s from 2005 to 2009
RD children in privately managed SCFs were for the past 6 years detained for the following crimes:
Theft (7256)
Housebreaking and Theft (3744)
Housebreaking (2571)
Rape (2452)
Armed robbery and robbery (2107)
Assault GBH (1354)
Murder (1126)
Assault (822)
Possession of stolen (792)
Drug-dagga (629) and
Damage of property (453)
The figure below represents regional distribution of RD children in terms of crimes. The pattern for
each province is unique because of how crimes are grouped per facility on one hand and per
province in other cases. Some facilities group together robbery and robbery aggravating while
other split them. It appears as if some provinces do not have housebreaking and theft as one crime
category hence they would count RDs with such a crime under both Theft and Housebreaking.
76

SCFs in Eastern Cape and Northern Province did not have RDs admitted for drugs and damage to
property. Gauteng had the highest number of RD children in almost all crimes with small margin of
difference in drug-related crimes as compared with Western Cape.
6000
4000
2000
0
Gauteng Western Cape North West Eastern Cape Northern Province
Theft Houseb Houseb
reaking reaking
Gauteng 5699 3357 1676 1881 693 553 585 761 792 272 447
Western Cape 1054 0 665 0 596 437 292 49 0 357 0
North West 27 109 0 76 47 15 32 12 0 0 6
Eastern Cape 156 0 213 199 197 130 144 0 0 0 0
Northern Province 320 278 17 296 574 219 73 0 0 0 0
4.4. Summary of the Profile
Armed Assault
Rape
Robber & GBH
Murder Assault Posses
sion of
Drugs-
Dagga
Figure 4.19. Regional distribution of RD children in terms of crimes
4.4.1. General Population of DCS (April to June 2008 and May to January 2010
The number of RDs ranged between 46612 and 51584.
Damag
e of
A downward trend was observed from April to September 2008 and from January to May
2009.
4.4.2. Crimes
RDs constituted approximately 30% of the inmate population in DCS.
The region with the highest number of RDs is Gauteng (34 to 36%), followed by Western
Cape (17 to 19%), KwaZulu Natal (14 to 17%) and Eastern Cape (12 to 13%).
The regions with the lowest distribution of RDs are LMN (6 to 8%) and Northern Cape
and Free State (11 to 12%)
The pattern of increase and decrease differs across all regions as compared to the
national pattern.
77

Most RDs are detained for aggressive crimes followed by economic crimes, sexual,
others and drug-related.
The pattern for children RDs is similar to the national pattern.
Female RDs are mostly detained for economic crimes followed by aggressive crimes,
narcotics, others and sexual crimes.
The top four crimes for the general population of RDs and male RDs are housebreaking
and theft, theft, robbery and assault.
The top four crimes for children RDs are housebreaking and theft, theft, robbery and
rape.
The top four crimes for female RDs are theft, assault, fraud and forgery and robbery.
The top four crimes for the foreign national RDs are theft, robbery, assault and fraud and
forgery.
4.4.3. Period Spent in Detention
4.4.4. Bail
67 to 73% of RDs are detained for a period of six months and below while 3 to 4% spend
a period longer than 2 years.
Of the category detained for more than 2 years, 0.3% spends a period longer than seven
years.
Of the 3% that are detained for periods longer than seven years, one RD waited for more
than 4 years for sentencing after conviction.
RDs that spent more than seven years in detention were in Gauteng and Western Cape.
The longest period spent by an RD was more than 14 years according to the snapshot
analysis of 31 December 2007.
Almost 85% or more of children and female RDs spent a period of six months and below
in detention.
There is no child RD that has spent more than 2 years in detention.
Almost 3% of female RDs spent more than 2 years in detention.
Female RDs detained for more than 2 years are in Gauteng and Western Cape.
Almost 75 to 80% of RDs are detained without an option of bail.
Of the RDs with bail, approximately 9 to 11 have a bail of less than R1000.
Approximately 89 to 90% of RD foreign nationals are detained without an option of bail.
4.4.5. Admission and Releases
78

DCS admits approximately 20 and 26 thousand RDs a month in addition to a stable
population ranging between 46 and 51 thousand.
DCS admitted annually approximately 242 to 282 thousand RDs from April 2008 to
January 2010.
DCS released approximately a similar number of RDs from April 2008 to January 2010.
4.4.6. Children RDs
Children RDs constituted 2% of the RD population in April 2008 and 1.5% in May 2009.
The ratio of children in DCS to children in DSD facilities is 1:3.4 in January 2010.
Most RD children were detained for aggressive crimes followed by economic and sexual
crimes.
The 17 year old males constitute the highest number of RD children.
4.4.7. Female RDs
Female RDs constituted approximately 2 to 2.2% of the RD population
The pattern of distribution of females is similar to the regional pattern in terms of the
number of RDs (descending order: Gauteng, Western Cape, KZN, Eastern Cape; NC
&FS and LMN.
Most female RDs were detained for economic crimes followed by aggressive crimes,
narcotics, others and sexual crimes.
Of the female RD population, the adult females constituted more than 60% while children
only constituted 1 to 3%.
4.4.8. Foreign Nationals
Foreign national ranged from 7881 to 8521.
Foreign national RDs ranged from 3255 to 4016.
At the end of January 2010 foreign national RDs constituted 7.8% of the RD population
in DCS.
Females consisted of 4% while males constituted 96% of the RD population
Of the RD foreign national detained in DCS, RDs from the African Continent constituted
almost 98%.
Of the RD foreign nationals from the African Continent, the highest number came from
Zimbabwe (45 to 51%) followed by Mozambique (25 to 29%), Nigeria (5 to 6%), Lesotho
(3 to 4%) and Malawi (4 to 5%).
Almost 90% of foreign national RDs are detained in Gauteng followed by LMN. Eastern
Cape and KZN have the least number of RD foreign nationals.
The foreign RDs increased by approximately 35% from September 2008 to January 2010
79

4.4.9. RDs managed by DSD
The population of RDs managed by DSD constitute almost 3% of RDs incarcerated in
DCS facilities.
DSD facilities have never been filled to 100% capacity.
Most RDs are detained in Gauteng followed by Western Cape and Northern Cape.
The province that had a highest number of admissions from May 2009 to February 2010
is Western Cape.
The province with the highest number of releases was Gauteng.
The top four crimes that the RDs are detained for in privately managed SCFs are theft,
housebreaking and theft, housebreaking and rape.
4.5. Issues for Policy and Legislative Framework
The following issues are crucial for policy consideration:
Limited information forwarded to DCS for admitting RDs needs reconsideration. The
generation of person identification data for RDs by DCS might lead to CJS institutions
keeping different sets of information for one RD.
Different crimes registered by DCS and NPA might lead to different trend analysis in
terms of crime. Crime is one of the factors utilized to determine risk classification for
housing purposes by detention institution. Failure to record all the crimes that the RD is
prosecuted for might lead to mixing of RDs that have committed petty crimes with RDs
that have committed multiple aggressive crimes.
The number of RDs without bail is increasing and the margins for utilizing section 63A
and 63(1) are limited as one of the strategies for reducing RDs. There are RDs that are
constantly detained in DCS because they cannot afford to pay bail.
RDs that stay in detention for more than 2 years should be treated as special category
therefore a programme for managing such RDs should be considered.
Identification of RDs in terms of nationality should be determined by the arresting
institutions and the verification process needs further deliberation. The Nationality
generated by DCS is never verified with SAPS data and DHA. This practice contributes
to the creation unreliable data.
With regard to children RDs detained in privately managed SCFs, the contract entered
into by provinces and the service providers should incorporate sharing of information
80

etween the Provinces including direct link between the service provider and the
National Office of DSD. The National Office should be allowed to communicate with the
privately managed SCFs as it is supposed to play an oversight function as it is co-
accountable for service delivery in SCFs.
The National Office can utilize privately managed SCFs for benchmarking including
determination of best practice. The best practice can be shared with DCS especially with
regard to management of children RDs.
The current profile of RDs does not make provision for the following:
o Differentiation between convicted RDs and those waiting for finalization of their
cases and
o Determination of RDs who are kept in terms of Extradition Act.
CHAPTER 5: Current Management of RDs
81

5.1. Introduction
This chapter provides information on the current management of RDs, based on the situational
analysis report prepared in 2008 which reflects the situation in SAPS, DCS, DSD and other relevant
government departments as well as cluster strategies utilized to ensure down management of RDs.
The lack of clear guidelines for the management of RDs is highlighted as needing urgent attention.
The chapter concludes with a brief outline of the challenges and proposals emanating from the
issues discussed.
5.2. Current Situation: Management and Governance of RDs
The South African Constitution provides for a maximum period of detention of 48 hours by SAPS
beyond which any further detention should be granted by a court of law. Detention in custody while
awaiting trial is widely utilized in CJS to keep the accused until his or her trial for more serious
offences, or if the accused is believed to pose a high risk of absconding or harming the public or
where specifically required by law. Although the RDs have not been found guilty or sentenced, they
are held in custody because there is a risk that they will fail to appear for further court date, they
pose a danger to themselves and/or others or they present a risk to re-offend.
In these instances, the arresting authority is obliged to present the accused to the courts for trial.
Should there be any further need for investigation; a request can be submitted to the courts for
delay of trial, pending further investigations. In this case, the courts can extend such detention for a
further period of not more than seven (7) days in police custody or issue a warrant of detention (with
a notice for appearance in court on the date stated in the warrant of detention.) Failure to collect
any detainee for court appearance leads to unlawful detention as the detention period is valid until
the court date. In that case the courts must be informed as soon as possible and the accused be
presented in front of the magistrate.
5.3. Responsibilities of different Institutions
Various government institutions or departments have the responsibility to carry through the court
instructions by effecting the warrant of detention. The roles of different institutions in the
management of RDs are discussed in this section.
5.3.1. South African Police Services (SAPS)
The management of RDs by SAPS is limited to their functional need to continue investigations of
cases and their historical responsibility to transport accused persons including RDs detained in
DCS and SCFs, to courts and provide general security functions. The latter is implicitly drawn as a
mandate owing to SAPS’s responsibility to provide general public safety and hence it executes this
82

esponsibility for both RDs within its own facilities and the rest of other detention facilities. Though
SAPS takes responsibility for transportation of RDs from courts to detention facilities and vice versa
still clarity need to be provided on transportation of RDs for forensic assessment. There is an
implied notion at operational level that DCS should transport RDs for forensic assessment.
Given the high turnover of accused persons or RDs in SAPS facilities, there are services that are
rendered through contracts with third parties while others remain the responsibility of the detaining
stations. Services that are generally provided in stations are basic accommodation which include
sleeping on the floor (through the provision of mattresses), nutrition, access to legal aid and
telephone services to inform families, relatives and significant others as well visitations. Services
that are outsourced include health care services and counselling services if necessary.
SAPS further works cooperatively with DHA in the implementation of Immigration Act and
Regulations through identification and detention of illegal foreign nationals so that they could be
deported to countries of origin.
Personnel working with accused and detainees are offered training which is in line with the core
objectives of SAPS i.e., preventing, combating and investigating crime; maintenance of public
order; protecting and securing inhabitants of the republic and their property and upholding law
enforcement. There is no specialized training for personnel working in police cells.
5.3.2. Department of Correctional Services (DCS)
DCS has in reality the overall responsibility for admission and general management of the greater
population of RDs. DCS has been saddled with the responsibility of keeping a range of detainees
within its facilities, as a legacy from the time when the Department of Prisons was administered
under the Ministry of Justice and was perceived to have a single custodial mandate in relation to the
CJS (White Paper on Corrections in South Africa, 2005).
Whilst the Correctional Services Act (Act 111 of 1998) makes provision for this function, the
department has assumed this responsibility without requisite investment in resources (facilities,
personnel and programmes) and statutory guidance on what execution of this function exactly
entails. Resultantly, the function is limited to provision of basic services like nutrition, exercises and
recreation, access to health care, crisis intervention for psycho-social needs and providing space
for visitation for social and legal representation purposes. In actual fact, this grouping of people is
generally in a worse off situation than those who are sentenced. Other services rendered are not
standardized and generally depend on existing resources and discretion of the management of the
facilities. In some facilities the services of Non-Governmental Organizations (NGOs) and Church
Based Organizations (CBO) are widely utilized.
83

DCS has for the past five years detained a stable population of RDs ranging from 46 to 51
thousand. It also admits and releases approximately 25 to 26 thousand RDs on a monthly basis.
These convert to annual averages of 242 to 300 thousand RDs. Large facilities admit and release
approximately 400 to 800 RDs daily. All RDs are released with all their belongings and valuables
as their further detention must be decided by the court.
Among the RDs detained in DCS facilities the following categories are worth mentioning:
Children (RDs with ages between 14 and 17);
RDs who are have been convicted but waiting for sentencing,
RDs kept in terms of the Extradition Act,
Mentally ill RDs,
Terminally ill RDs (few reported cases);
RDs waiting for placement in designated Mental Institution for observation and
RDs placed for forensic assessment and observation which has to be conducted in DCS
facilities.
Despite keeping these categories of RDs, there are no clear provisions for their management at
operational level with the exception of mentally ill RDs. Though several sections of the Correctional
Services Act (Act 111 of 1998 and its amendments) have stipulated provisions for the general
population of RDs including RD children, the revised policy on Development and Care makes
provision for offenders and offenders are defined as sentenced offenders, probationers and
parolees. The subordinate policies of Development and Care Policy which include Psychological
Services Policies, Health Policies, Formal Education policy, Social Work policy and Spiritual Care
policy do not have a unique definition of the term offender. While the Psychological policy defines
the term as encompassing all prisoners, awaiting trial detainees, parolees and persons
subject to community corrections, the Health policy defined the term as meaning a person
legally detained in DCS. This by implication includes RDs as they are legally detained. The
Formal Education policy has preferred to align itself with the term learner which refers to any
person receiving education. The Social Work policy has not defined the term offender. The Child
Offender Policy has defined the child offender as any offender between the ages of 14 and
younger than 18 years. The policy procedures which are used as manuals that guide operational
activities at the centre level have clearly articulated the position of DCS with regard to provision of
services to RDs. In terms of social and psychological interventions, they are only provided in crisis
situations and with regard to formal education, DCS provides administrative support.
There are clear guidelines for management of mentally ill however it has to be noted that RDs are
often detained without any reference to mental health even for those that are mentally ill. Most
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children RDs are detained without a status report because of shortage of probation officers who
have to conduct assessment before detention in DCS facilities.
Identification and verification of nationality of the foreign national RDs is the responsibility of SAPS
however DCS receives them without any information from SAPS in this regard. DCS therefore
generate its own identification data which might be different from the one kept by other JCPS
institutions. With regard to terminally ill RDs each facility manages the situation with its local CJS
partners.
There are no provisions for identification of RDs who have been placed under the Extradition Act as
such officials in detention facilities find it difficult to release these RDs to Interpol officials. There
are also no provisions for determination of RDs placed for observation and this leads to
postponement of consultation session by psychiatrists who visit DCS for offering such services.
DCS, from time to time keep RDs who are in transit for observation in designated mental
institutions.
DCS through its own Executive Management Committee decided to demarcate some facilities for
detention of RDs (see chapter 6 for details).
There are several categories of personnel that work in facilities that detain RDs and they include
executive management, unit personnel, personnel responsible for admission and release of RDs,
personnel working in human resource office, security personnel and professionals. All personnel
working in DCS facilities including professionals are offered basic training in DCS training colleges
which focuses on the core business of the department i.e., correcting offending behaviour in a
secure, safe and humane environment and reduction of recidivism through placing rehabilitation at
the centre of all activities of DCS. There is no training that focuses on the needs of RDs. The
professional group consists of Social Workers, Psychologists and Teachers who are referred to as
educationists. The professional group is mainly appointed to provide services to sentenced
offenders, however among Social Workers and Educationists there are those allocated to work in
facilities that detain RDs.
Few provisions extracted from the Correctional Services Act are presented below:
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17. Access to Legal Advice
(2) The Minister may, by regulation, impose restrictions on the manner in
which such consultations are conducted if such restrictions are necessary
for the safe custody of prisoners, but legal confidentiality must be
respected.
(4) Prisoners facing trial or sentence must be provided with the
opportunities and facilities to prepare their defence.
19. Children
(1) (a) Every prisoner who is a child and is subject to compulsory education
must attend and have access to such educational programmes.
(b) Where practicable, all children who are prisoners not subject to
compulsory education must be allowed access to educational programmes.
(2) The Commissioner must provide every prisoner who is a child with
social work services, religious care, recreational programmes and
psychological services.
20. Mothers of Young Children
(1) A female prisoner may be permitted, subject to such conditions as may
be prescribed by regulation, to have her child with her until such child is two
years of age.
(2) The Department is responsible for food, clothing, health care as
contemplated in section 12 and facilities for the sound development of the
child for the period that such child remains in prison.
(3) Where practicable, the Commissioner must ensure that a mother and
child unit is available for the accommodation of female prisoners and the
children whom they may be permitted to have with them.
22. General (Discpline)
(1) Discipline and order must be maintained with firmness but in no greater
measure than is necessary for security purposes and good order in prison.
(2) In case of any conviction in a court of law for an offence committed by a
person whilst a prisoner, the Department, on the strength of such
conviction, may without any further inquiry take disciplinary action in terms
of this Act.
(3) Disciplinary action may be taken against any prisoner, even though
criminal proceedings may be pending or in progress against such prisoner.
5.3.3. Department of Social Development
Although the general focus of the department is to provide services to needy children, this service
has historically been extended to children in conflict with the law. Services rendered are broadly
defined by the constitution and reside within the scope of two spheres of government (national and
provincial). The most critical medium for service provision to RD children is the provincial
government through the Secure Care Facilities. Generic services that are provided in all SCFs,
86

include health care, education, arts and culture, religious, access to legal representation, services
of the probation officer and visits by families and relatives of children. Services such as
occupational therapy and psychological interventions are only provided based on availability of such
resources within the province. In provinces where such resources are available, these services are
offered as a fulltime package within the SCF while other provinces contract them when there is a
severe need for a particular service.
The privately managed SCFs (9) render a wide range of programmes which are summarized below:
Intellectual and skills
development
Adult Basic Education
Computer skills
Welding
Bricklaying
Catering
Catering
Motor Mechanics
Plumbing
Sewing
Upholstery
Woodwork
Sports and Recreation Personal development
Soccer
Rugby
Cricket
Table tennis
Snooker
Volleyball
Boxing
Swimming
Specialized Life skills
Career guidance
Spiritual development
Peer counselling
Leadership development
Cultural Activity Therapeutic Intervention Reintegration into Society
Drama
Dancing
Choir
Debate
Public speaking
Behaviour management
Bereavement awareness
and counselling
Sexual offenders’
programme
Substance abuse
programme
Transforming violent
behaviour
Me-and-my-emotions
programme
Bereavement awareness
counselling
Table 5.1 Programmes rendered by privately managed SCFs
Further studies
Bursaries
Job hunting
Employment
Family group
conferencing
Restorative justice
approaches
In terms of DSD managed SCFs, each has its own staff establishment which consists of the
management team, social workers, child and youth care workers, professional nurses, teachers and
87

security personnel. Depending on the resources within each province, some SCFs have full time
teachers while others operate on secondments. The privately managed facilities have a
multidisciplinary team consisting of social workers, educators, child and youth care workers,
occupational therapists and nurses.
5.3.4. Department of Health and Mental Health
The Criminal Procedure Act makes provision (in keeping with the Mental Health Act (Act No. 18 of
1973) for the courts to direct that a person who committed a serious crime on account of mental
illness or defect to be detained in a psychiatric hospital or a prison pending the decision of a judge
in chambers in terms of section 29 (1) (a) of the Mental Health Act, 1973 (Act 18 of 1973).
As a general rule the detention institutions provide health services to all RDs including mental
health needs. However it is worth mentioning the latter can be provided for, if the detention
institutions have been informed by the courts or SAPS. Though detaining institutions conduct a
generic health assessment for all RDs on admission, in DCS facilities such assessments cannot be
extensive because some facilities admit between 200 and 400 RDs daily (from Monday to Friday)
and there is a severe shortage of nurses as their services have been declared a scarce skill in the
country.
5.4. Legal Services
Section 28 of the Constitution of the Republic of South Africa (Act 108 of 1996) guarantees legal
assistance to children with regard to criminal and civil proceedings while section 35 applies to
accused and detained, with regard criminal proceedings. Chapter 2 of the Bill of Rights (s35(3)(g))
affords every accused person the right to a fair trial which includes the right to have a legal
practitioner assigned at the state’s expense. The Legal Aid Act (Act 25 of 1969 as amended)
makes provision for legal aid to indigent persons and legal representation as per the Constitution.
LASA delivers services mainly through Justice Centres and satellite offices (85%). Other modes
include Judicare and cooperation partners such as NGOs.
There are 120 Justice Centres nationally which include in-house legal practitioners and public
defenders. Judicare consists of private legal practitioners acting on instruction of LAB. There are
co-operation partners such as NGOs providing legal services with funds provided by LAB. There
are two measures utilized to determine if the applicant qualifies for legal assistance in criminal
matters which are “Means” and “Type of Matter”.
LASA provides legal assistance to the poor and indigent, therefore, applicants need to complete a
means test in order to qualify for legal aid. It has removed almost all restrictions in terms of criminal
work and very few exclusions remain. Legal Aid in criminal matters is granted to any person
88

arrested, regardless of citizenship. It is also provided for all applications for leave to appeal
provided the means test is passed and for one appeal or petition. Legal Aid for further appeals or
petitions is granted on a merit basis. It provided legal assistance in 2007/2008 in criminal matters
through all three delivery mechanisms in 357 313 matters.
Legal representatives are expected to carry their proof of identification when visiting detention
management institutions for security purposes and to prevent abuse of RDs by bogus service
providers.
DCS provide LASA with a list of RD children and RDs who have been in detention for more than 24
months for determination of the status in terms of provision of legal representation and the factors
that contribute to the delay of the cases with regard to the latter.
5.5. Cluster Approaches
There are several JCPS cluster structures that have been established to deal with cluster issues
including the management of RDs at National, Provincial and Local levels. At the National level
there is a National Development Committee with its substructures or task teams (such as MATD
Task Team, Case-Flow Management Task Team, Inter-sectoral Committee for Child Justice and
Case backlog committee) and the Office of the Criminal Justice Review (OCJR) which was
established in 2009. At the Provincial level there are Provincial Development Committees as
well as Child Justice Fora and Case-flow committees. The two latter structures are also found at
the Local level. The Development Committees and their task teams are chaired by
representatives from administration while the case-flow committees are chaired mainly by the
Judiciary at the Provincial and Local levels. All the committees operate as multidisciplinary
teams with representatives from JCPS cluster departments.
One of the core challenges for DCS which is handled by various task teams and at all levels is
overcrowding of facilities. The annual average level of overcrowding for the past two years was
43%. Some facilities are not overcrowded while others are more than 200% overcrowded (see
details on chapter 6).
The strategy implemented by DCS to ensure a reduced number of ATDs is the implementation
of bail protocol (section 63A of the Criminal procedure Act (Act 51 of 1977) and 63(1) of the
same legislation. The only limitation is that the bail protocol is only applicable to RDs with bail
and those who have committed schedule 7 crimes. The majority of RDs (according statistics
obtain from DCS MIS from April 2008 to January 2010) were detained without an option of bail
(approx 74 to 80%) and approximately 9 to 10% had a bail of less than one thousand rand.
89

5.6. Challenges
A situation analysis report commissioned by DCS on how RDs are handled within the South African
CJS revealed a number of challenges. The major challenge for DCS is the lack of appreciation of
the full extent of the law (Correctional Services Act and its amendments) as it applies to
remand detention, consequently of the appreciation of all laws applicable to remand detention
including in respect of the design and construction of infrastructure for remand detention. The
review of policies focused on alignment with the White Paper on Corrections. Other challenges are:
Lack of established mechanisms (such as protocols) to address cross cutting functions and
areas of co-responsibility within the JCPS cluster such as (but not limited to) transportation
of RDs, provision of services and management of plea bargaining.
Lack of guidance through policy with regard to services that should be provided to RDs
while in detention other than health, accommodation, legal representation and visits. Issues
of training and development while awaiting trial are not addressed in any policy.
Lack of role clarification with regard to provision of meals to RDs who appear in court and
provision of emergency services to RDs who get sick while in court.
Inadequate facilities for legal and family visits in SAPS and DCS. RDs in DCS are no
provided with facilities that can assist them to prepare for their own defence.
Limited access for legal consultation due to lack of proof of identification;
Lack of specialized training for personnel working with RDs in DCS and SAPS.
Service delivery challenges for SAPS include the following:
o Inadequate provision for children detained with their mothers in SAPS cells.
Service delivery challenges for DCS include the following:
o Facilities that accommodate RDs do not cater for the delivery of a broad range of
services due to overcrowding and operational policy provisions. The latter states
clearly that psychological and social services are provided in crisis situations and
administrative support is provided with regard to religious and educational services.
o High turnover rate of such professional staff such as nurses, social workers, teachers
and psychologists make it difficult to provide such services to RDs.
o Lack of policy provisions for terminally ill RDs, RDs placed for observation and those
detained under the Extradition Act.
o Lack of operational policies on disciplinary procedures for RDs
o Lack of a unique definition for the term offender in Development and Care Policy and
its subordinate policies
Service delivery challenges for SCFs include the following:
o Lack of facilities for referral of children with substance abuse problems since SCFs
are not allowed to send such children to rehabilitation centres.
90

o The use of mainstream curriculum does not suit the needs of all RD children as there
are those who cannot read and write.
o Lack of opportunities for skills training to accommodate children who are not willing
to participate in mainstream curriculum.
o Lack of defined provincial responsibilities for the Departments of Education and
Social Development with regard to the provision of educational material and
management of teachers that are seconded to work in SCFs,
o Lack of assessment tools for determination of class allocation since some children
have never been to school;
o Inadequate facilities and services to accommodate pregnant girls.
o Lack of medical reports for children on psychiatric medication.
The most serious challenge faced by DCS which has negative implications for service delivery is
overcrowding. DCS also faces a controversial situation of carrying out the court decision of
detaining RDs; within its overcrowded facilities. General overcrowding is approximately 43% but
some facilities are more overcrowded than the others (118 to 235%). Section 165(5) of the
constitution of RSA (Act 08 of 1996) states clearly that the court order or decision binds all persons
and organs of state to which it applies.
The major drivers of overcrowding for detention institutions are admissions and length of
detention. DCS cannot challenge the courts’ decisions. However, detaining an accused in
overcrowded conditions constitute human rights violation which has serious implications for the
country.
5.7. Proposals
In order to address the service related problem, a new legislative framework and policy framework
which will make provision for services for RDs and the role to be played by such JCPS cluster
departments as SAPS, DCS and DSD is critical. The legislation should make provision for the
following:
Articulation of services to be provided including allocation of institutions responsible for such
services in areas of joint management;
Prescribe the mode of handling areas of co-responsibility or cross cutting functions (e.g.
protocol)
Provide clarity on the role of DSD National Office and Provinces in relation to the
management RD children detained in SCFs. If the National Office of DSD is given policy
making and oversight functions, the right of access should be extended to all facilities in the
Provinces including privately managed SCFs.
91

Provide clarity on the roles and responsibilities of various role players at the provincial level
with regard to provision of services to children in SCFs (e.g., Department of Education and
DSD). Differentiation should be made between DSD facilities that have fully fledged schools
and those that have educational programmes.
Prescribe services several categories of RDs including children detained with their mothers
in SAPS and DCS facilities.
Make provisions for human resource requirements for management of RDs.
CHAPTER 6: Infrastructure, Security and Intergovernmental Structures
92

6.1. Introduction
This chapter provides information on infrastructure and security provision for RDs including
challenges faced by detention institutions. Proposals for dealing with these challenges are also
highlighted.
6.2. Spread of physical infrastructure across the CJS
6.2.1 Department of Correctional Services
DCS has 242 facilities for accommodating the inmate population which consists of unsentenced
and sentenced offenders. Of the 242 facilities, three (3) are temporarily closed and of the 239
active facilities, 17 are utilized for accommodating youth, 9 are utilized for females, 201 are utilized
for males and 13 for housing both males and females (see the table below for the regional
distribution of facilities).
Number of CCs Per Region Categories of CCs per Region
Regions Active
CCs
Temp
Closed
Total Females
Only
Youth Males Males &
Females
Closed
Temp Total
Eastern Cape 44 1 45 1 3 39 1 1 45
Gauteng 26 0 26 2 3 21 0 0 26
KZN 42 0 42 1 2 35 3 1 42
LMN 39 0 39 1 2 32 4 0 39
NC & FS 47 0 47 1 2 40 4 0 47
Western Cape 42 1 43 3 5 34 0 1 43
RSA 240 2 242 9 17 201 12 3 242
Table 6.1. Status of facilities in DCS as at 31 January 2010
Since 1995 the population of inmates grew from an annual average of 95,002 in 1995 to 163 892 in
2009.
The highest inmate population of 186,467 was recorded in 2004 and from 2007 to 2009 the
population remained stable at approximately between 141% (161,819) and 143% (164,835). From
1996 to 1999 the RD population was increasing by more than five thousand
As on 31 December 2009, DCS facilities had a bed spaces for accommodating 114,993 inmates,
however the actual average population for 2009 was 163,892 and this translates to 43%
overcrowding. The growth pattern over the period of 14 years is presented in the next page.
Years Capacity RDs % Sentenced % In Custody %
1995 95002 23783 21.41 87307 78.59 111090 116.94
93
Total

1996 94869 30170 25.06 90225 74.94 120394 126.91
1997 96680 37247 27.37 98819 72.63 136066 140.74
1998 99226 46601 32.72 95824 67.28 142425 143.54
1999 99173 55524 35.59 100507 64.41 156031 157.33
2000 100433 57811 34.50 109756 65.50 167567 166.84
2001 103410 53748 31.44 117180 68.56 170928 165.29
2002 109893 54001 29.97 126172 70.03 180173 163.95
2003 112532 54069 29.10 131714 70.90 185783 165.09
2004 114097 51215 27.47 135253 72.53 186467 163.43
2005 114263 47305 27.92 122154 72.08 169459 148.31
2006 114943 45079 28.38 113779 71.62 158859 138.21
2007 114707 48729 30.11 113090 69.89 161819 141.07
2008 114653 49802 30.35 114301 69.65 164103 143.13
2009 114993 48240 29.43 115652 70.57 163892 142.52
Table 6.2. Population of inmates from 1995 to 2009
The regions with the highest number of bed spaces are Gauteng followed by KwaZulu-Natal,
Western Cape and LMN. The region with the smallest number of bed spaces is Eastern Cape (see
the table below for the regional capacity and spread of inmates in 2009.
Regional Capacity at the end of 2009 Calendar Year
Regions Capacity RDs Sentenced In Custody Total % Occupation
Eastern Cape 12659 6358 13431 19789 156%
Gauteng 25496 16636 28736 45372 178%
KwaZulu/Natal 21507 7507 19915 27422 128%
LMN 19045 3421 19511 22931 120%
Northern Cape & Free State 16927 5228 14676 19903 118%
Western Cape Region 19358 9091 19384 28475 147%
Average for 2009 Total 114993 48240 115652 163892 143%
Table 6.3. Regional distribution of bed-space in DCS in 2009
In summary all regions in DCS are overcrowded however there are regions that are more
overcrowded than the others. The regions with the highest level of overcrowding as at the end of
December 2009 are Gauteng at 78%, Eastern Cape at 56% and Western Cape at 47%. The
regions with lower levels of overcrowding are Northern Cape and Free State at 18%, LMN at 20%
and KwaZulu Natal at 28%.
The RD population constituted 29.4% of the inmate population in 2009. In terms of distribution of
RDs within each region, Gauteng detained the highest average number of RDs (36,7%) followed by
Eastern Cape (32,1%) and Western Cape (31.9%). Regions with the least annual average number
of RDs were LMN (14.9%) followed by Northern Cape and Free State (26.2) and KwaZulu Natal
(27.3).
The regional distribution of bed spaces and the growth of DCS population over the
period of 14 years (1995 to 2009) are presented below.
94

25000
20000
15000
10000
5000
0
60000
50000
40000
30000
20000
10000
0
35000
30000
25000
20000
15000
10000
5000
0
Eastern Cape Region: Average per period 1995 to 2009
Capacity ATDs Sentenced Grand Total Linear (Capacity)
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Gauteng Region: Average per period 1995 to 2009
Capacity ATDs Sentenced Grand Total Linear (Capacity)
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
KZN: Average per period 1995 to 2009
Capacity ATDs Sentenced Grand Total Linear (Capacity)
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
95

35000
30000
25000
20000
15000
10000
5000
0
30000
25000
20000
15000
10000
5000
35000
30000
25000
20000
15000
10000
5000
0
0
LMN: Average per period 1995 to 2009
Capacity ATDs Sentenced Grand Total Linear (Capacity)
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
N Cape & Free State: Average per period 1995 to 2009
Capacity ATDs Sentenced Grand Total Linear (Capacity)
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Western Cape: Average per period 1995 to 2009
Capacity ATDs Sentenced Grand Total Linear (Capacity)
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Figure 6.1. Regional distribution of inmates in the 239 facilities
96

The top ten facilities with the highest average number of RDs in 2009 are presented in the table
below:
Top 10 Facilities with highest number of RDs: Average for 2009
Correctional Centres Capacity RDs Sentenced In Custody % Occupation
Johannesburg Med. A 2630 6160 150 6310 239.92%
Pretoria Local 2171 4133 115 4248 195.67%
Durban Med. A 2399 3760 106 3867 161.17%
Pollsmoor Max. 1872 3619 500 4119 220.05%
St. Albans Med. A 1446 2303 52 2356 162.90%
Boksburg 2012 2077 2039 4116 204.59%
Modderbee 2993 2068 3262 5331 178.10%
Goodwood 2115 1437 1172 2609 123.35%
Pietermaritzburg 2499 1323 1391 2713 108.57%
Krugersdorp 1757 1286 1563 2849 162.18%
Table 6.4. Top 10 Facilities with the highest number of RDs in 2009
6.2.1.1 Remand Detention Facilities
Out of 242 facilities, the Executive Management of Committee of DCS demarcated 11 facilities to
operate as Remand Detention Facilities (RDFs) in 2008. The regional distribution of facilities is
presented below:
Region Name of the RDF Type of Facility
Eastern Cape
St Albans Medium A
Umthatha Medium
Complete RDF
Mixed Facility
Free State & Northern Cape Grootvlei Maximum Mixed facility
Pretoria Local Complete RDF
Gauteng
Johannesburg Medium A
Modderbee CC
Complete RDF
Mixed Facility
Boksburg CC) Mixed facility
KwaZulu-Natal
Pietermaritzburg
Westville Medium A
Mixed Facility
Complete RDF
Limpopo, Mpumalanga & North West Potchefstroom Mixed Facility
Western Cape Pollsmoor Maximum Complete RDF
Table 6.5.Types of RDFs across the regions
Of the 11 approved RDFs, four (4) facilities operate as complete RDFs and 7 operate as mixed
RDFs. Of the 7 mixed facilities, 4 facilities (Boksburg, Modderbee, Pietermaritzburg and
Potchefstroom) have sentenced offenders that range between 40 and 61%. All complete RDFs
have approximately 4% of sentenced offenders who are mainly allocated for labour. Approximately
60% of RDs are housed in RDFs and the remaining 40% are housed in mixed facilities
97

8000
7000
6000
5000
4000
3000
2000
1000
0
(approximately 153). The distribution of RDs in RDFs from the first quarter of 2009/10 financial
year to January 2010 is presented in the next page.
The complete RDFs have a total capacity of 8,660; however from April 2009 to January 2010 they
accommodated an inmate population ranging from 16,214 to 17,437. Of the detained population,
RD ranged from 15,787 to 17,014. At the end of January 2010 the complete RDFs were
overpopulated by 101.4%. Overcrowding ranged between 50 and 158 in complete RDFs. The
RDF with the highest level of overcrowding is Johannesburg Medium A at 158%.
6067
6215
5992
4161 4276 3968
3961
St. Albans Med. A (1460) Joburg Med. A (2630) Pretoria Local (2171) Durban Med. A (2399)
4061
3515
2337 2312 2326
2392 2363
6140 6193 6342
2378
2431
6631
2483
98
6781
4084
4173
4052
4203 4321
3627
ATD Total ATD Total ATD Total ATD Total
Apr to Jun 09 Jul to Sept 09 Oct to Dec 09 Jan-10
Figure 6.2. RDs and Population in complete RDFs from the First quarter of 2009/10 financial
year to January 2010
The approved capacity in mixed RDFs combined is 11,713 and inmate population detained from
April 2009 to January 2010 ranged from 11,562 to 13,288.
3487
3593
3749
3852

Umtata Med (580) Boksburg (2012) Modderbee (2993) Pietermaritzburg (2499)
Potchefstroom (867) Grootvlei Max (890) Pollsmoor Max (1872)
6000
5000
4000
3000
2000
1000
0
ATD Total ATD Total ATD Total ATD Total
Apr to Jun 09 Jul to Sept 09 Oct to Dec 09 Jan-10
Figure 6.3: RDs and Population in Mixed RDFs from First quarter of 2009/10 financial year to
January 2010
The level of overcrowding in mixed RDFs at the end of January 2010 was 13.5%. Facilities with the
levels of overcrowding that exceeded 100% at the end of January 2010 are Grootvlei (111%),
Pollsmoor Maximum (111%), (Umthatha (126%) and Boksburg (142%). In some facilities the area
demarcated for RDs is more overcrowded than the one occupied by sentenced offenders.
The situational analysis was conducted in all the 11 RDFs to determine operational challenges
faced in the day-to-day management of RDs and to provide guidance for the development of a
minimum standard for RDFs. The minimum facilities standard for RDFs was developed and
approved by the National Commissioner in 2008. There are plans for upgrading RDFs to align
them with the minimum standards. A project led by National Department of Public Works for
determination of the cost for upgrading of three RDFs was conducted in 2009/10 financial year.
DCS will analyse the report submitted by the NDPW at the beginning of 2010/11 financial year for
further decision making.
6.2.1.2 Maintenance of Facilities
The maintenance of facilities is carried out by the National Department of Public Works; however,
there are internal maintenance teams in some bigger centres that provide the day to day
maintenance services. Facilities require regular maintenance because of regular breakages which
are associated with overcrowding. Other challenges associated with overcrowding other than
space for sleeping are inadequate ablution, dining, recreation, visiting and legal consultation
facilities.
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6.2.2. SAPS
There are 846 police cells and the provincial distribution is as follows:
Region No. Police Cells
Eastern Cape 136
Free State 89
Gauteng 87
KwaZulu-Natal 130
Limpopo: 84
Mpumalanga 72
North-West 61
Northern Cape 49
Western Cape 138
Table 6.6. Provincial distribution of police cells
In the police cells, detainees including RDs sleep on mattresses which are placed on cement floors.
The police stations are not overpopulated; however facilities for legal consultation and detainee
visits are inadequate. The maintenance of these facilities is done by DPW. Detainees are kept in
cells and males are separated from females.
6.2.3 DSD
There are 334 secure care facilities and there are plans to build additional secure care facilities.
The distribution is as follows:
Province Current Number Approved Planned Number of RDs
of SCFs
Bed Space facilities January 2010
Eastern Cape 5 215 4 110
Free State 2 90 1 131
Gauteng 3 730 0 570
Kwa-Zulu Natal 6 154 7 68
Limpopo 2 190 1 124
Mpumalanga 1 60 2 No information
North-West 4 191 1 72
Northern Cape 4 241 1 150
Western Cape 6 602 0 569
Total 33 2473 17 1794
Table 6.7. Provincial Capacity and Distribution of RD children in CSFs as on April 2010
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There are 11 private secure facilities which have been contracted to Bosasa. Their provincial
distribution is as follows:
Province Name of the Facility Bed Capacity Girls Boys
Eastern Cape Sikhuselekile 60 10 40
Gauteng Mogale & 300 0 300
Gauteng Leseding 150 0 150
Limpopo Polokwane 120 20 100
Limpopo Malamulele (Mavambe 70 20 50
North West Klerksdorp (Matlosana) 60 10 50
North West Mafikeng (2008/09) 60 50 10
North West Rustenburg 60 Opened at the end of 2009
Northern Cape Springbok 51 Opened in September 2009
Western Cape Horizon 195 0 195
Western Cape Clanwilliam 60 0 60
Total 1186 110 955
Table 6.8. Private SCFs contracted to Bosasa as on August 2009
Springbok SCF admitted RD children as from 15 September 2009 and Rustenburg SCF opened at
the end 2009. Maintenance of facilities in privately managed SCFs is not done by DPW.
Several SCFs including one privately managed SCF in Gauteng, North-West and Free State were
visited on 2008/09 and all of them were not overpopulated.
6.3. Challenges related to Facilities
The major challenge faced by DCS is overcrowding. The national overcrowding ranges between 41
and 43%, however there are facilities with overcrowding levels of more than 75% (75 to 129%).
Large RD facilities such as Pretoria and Johannesburg process admissions and releases
(combined) of between 800 and 1000 RDs daily. These RDs are brought into DCS facilities with a
warrant of detention (J7) and 2 fingerprints attached at the back of the J7 for verification of
identification. There are no photos attached to the warrant and DCS further generates person
identification information including determination of nationality. RDs who claim that they are foreign
nationals do not undergo verification processes. This process on its own is flawed and can lead to
identification errors which cannot be controlled by the detention facilities. Most RDs do not provide
their ID numbers. DCS verification process of identity involves taking of fingerprints and matching
with those at the back of the warrant. This is a mammoth task which is done twice per day from
Monday to Friday by all facilities detaining RDs. The current verification process is likely to lead to
erroneous release if there are errors in reading. It is worth mentioning that there are a few recorded
cases of escape which were due to erroneous release. DCS has initiated the process of photo
identity in all RDFs (2009).
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Beside identification problems, other challenges associated with overcrowding include inadequate
space for sleeping, high rate of breakages of ablution facilities leading to high maintenance cost
and high rate of skin diseases. The latter has not been researched in DCS.
There are several challenges that were reported by managers of RDFs and have all been
documented. Each facility has its own challenges. However, there are generic ones that were
common in most RDFs. These challenges are:
Inadequate off load points for trucks/vans delivering RDs from courts;
Lack or inadequate space for searching RDs at the off loading point;
Inadequate telephone facilities;
Inadequate space for accommodating family visits and legal consultation, recreation, and
several programmes rendered by external service providers;
Inadequate or lack of laundry facilities and dining halls;
Lack of library facilities and literature to assist RDs who provide their own defence. In mixed
facilities, if library facilities are provided, they are only accessible to sentenced offenders;
Delay in attending to regular breakages due to lack of internal maintenance team and
reliance on DPW.
In SCFs the major challenges were the high rate of breakages of furniture including doors. There
were minimal breakages in private SCFs because of the furniture utilized (steel tables, doors and
chairs). Some SCFs did not have adequate space for visits. All SCFs generate their own person
identification information because of the limited information written on the warrant of detention.
6.4. Security
6.4.1 Legislative Provisions
Sections 26 to 35 of the Correctional Services Act (Act 111 of 1998) as amended makes provision
for security for ensuring security of the community, safety of the correctional officials and safety of
all prisoners, as such the objective of safe custody imposes limitation to the personal integrity and
privacy of the prisoners. The act further stipulated the following measures to ensure safe custody:
Searching of the prisoners by manual search and technical means and other searches such
as visual inspection of a naked body, physical probing of body orifice, taking a body tissue
or body excretion sample for analysis, use of X-Ray machine or technical device by a
qualified technician, detention of the prisoner for the recovery of the an object that may pose
a danger to that prisoner;
Identification in the form of finger and thumb prints, taking of photographs, ascertaining of
external physical characteristics, taking of measurements, referral of prisoners to the
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medical officer to ascertain age and attachment of an electronic device to the body of the
prisoner in manner prescribed by the regulations (electronic tagging);
Security classification to determine security risk and ensure that the prisoners are housed
appropriately;
Segregation in a single cell for a period of time which might range from a day to 30 days;
Mechanical Restraint for ensuring safety of the prisoner or any other person or for
prevention of damage to property or if there is reasonable suspicion that the prisoner will
escape or if requested by the court;
Use of force and firearms in certain conditions such as for self defence, defence of any other
person, prevention of a prisoner from escaping and when the security of the prison or the
safety of prisoners or other persons is threatened and
Use of non-lethal incapacitating devices in conditions such as when a prisoner fails to lay
down a weapon or some other dangerous instrument in spite of being ordered to do so, if
the security of the prison or safety of the prisoners is threatened by one or more prisoners
and for prevention of escape.
The Act has provided guidelines that have to be followed when applying the above-mentioned
measures.
In order to ensure that there is discipline in detention facilities in DCS, sections 22 to 25 of the
Correctional Services Act (and its amendments) has made provisions with the aim of ensuring
security and good order in prison. Areas captured include twenty one (21) possible disciplinary
infringements, procedures for handling disciplinary infringements and penalties that may be
imposed. Solitary confinement as one of the penalties has been repealed in term of section 19 of
the Correctional Services Amendment Act (Act 25 of 2008).
6.4.2 Security Operations
DCS utilizes six Pillars of Minimum Security Standards which are personnel, physical, technology,
information, operations and management supervision.
6.4.2.1 Personnel Security Measures
It is vital that the role of personnel in effective security must be clearly defined. An institution may
have the best of physical and operational measures in place but if staff is grossly negligent or
colluding in crime no amount of security measures will help and the security system will not be
effective.
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6.4.2.2 Physical Security Measures
Physical security measures such as walls, fences, access and exit control points, etc. form the very
first line of defence against the threat of escapes. These physical measures must, however, be
directly proportional to abilities and threats posed by the subject of protection.
6.4.2.3 Technological Security Measures
Technological security measures such as CCTV are a very important and useful in any security
system to assist security personnel and managers in the effective performance of their security
tasks. Technologies are also very effective to support investigations into security breaches. It
must, however, be emphasized that technological measures alone are very expensive and have
limitations. It is important therefore that these must be utilized as part of a range of security
measures (pillars) and not as standalone measures.
6.4.2.4 Information Security Measures
Information management allows for the cost effective deployment of all security measures. When
this measure is under-utilized, implementation of other security measures tends to be either too low
or too high compared with the nature and source of the threat. Accurate information about the
threat is the key to informed decisions and the extent of utilization of all other resources of security.
6.4.2.5 Operational Security Measures
It is important for any security system to be backed by a set of clear and concessive security
procedures to guide staff in the day to day execution of their security duties. Given the restrictive
nature of the correctional environment, the security controls in a correctional centre have to be tight.
Operational security measures such as regular patrols, frequent searches of cells, inmates and
other persons entering or leaving correctional facilities must be clearly regulated and the
procedures must spell out the circumstances in which such methods are to be used and the manner
in which they are to be conducted.
6.4.2.6 Management Supervision
Managers and supervisors must have an in depth understanding and knowledge of the duties they
are expected to perform. They must have a clear understanding of the operational tasks in their
field of responsibility including all relevant legislation, policy and security procedures. It is
imperative that each manager and supervisor be actively and visibly involved in the management,
supervision, inspection, checking and control of his/her unit including operational guidance and
support to his/her staff members.
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The security responsibilities in DCS, DSD and SAPS are similar and encompass provision of all 6
pillars previously mentioned for ensuring safety of public, staff and RDs. Security measures
instituted include searching of inmates and officials, provision of escort duties, conducting regular
patrols and ensuring that surveillance is done on a regular basis. In SAPS and DCS custodial
officials are trained on their roles with regard to provision of security. In SCFs, security is
outsourced and provided by security companies. Though security services are provided in police
stations, correctional centres and secure care facilities, these institutions have reported incidences
of escape.
Trend analysis in DCS for the period 2004 to 2007 revealed that RDs were involved in individual,
pairs and group escapes. Out of 31 group escapes that took place within this period, 30 involved
RDs. Out of 17 pairs that escaped, only 5 included RDs. The number of RDs in groups varied
between 3 and 23. The highest number of group escapes occurred in 2004 and 2005 where groups
consisting of 15 and 23 RDs escaped respectively. Another type of escape which is prevalent only
for RDs is erroneous release due to false identification and collection of RDs by bogus police. RDs
escape by cutting cell bars and fences with hacksaws, digging holes in the cell walls and holding
officials hostage with guns. The points of escape include public hospitals, reception areas and
isolation sections. Tools utilized to escape include teargas, hacksaw and firearms. Reported
incidences of escape are as follows:
SAPS DCS DSD
Number of Year No of escapes Year Mogale & Walter Sisulu Reamogetswe
escapes
Lesideng Gauteng
North West
Not available 1998 498 1998 9 Not available Not applicable
Not available 1999 459 1999 5 Not available 0
Not available 2000 250 2000 1 Not available 0
Not available 2001 205 2001 14 Not available 1
Not available 2002 325 2002 5 Not available 7
2663 2003 178 2003 6 Not available 6
2206 2004 176 2004 16 23 9
1908 2005 120 2005 0 11 4
1408 2006 114 2006 0 17 1
980 2007 81 2007 0 26 3
Not available 2008 72 2008 0 34 6
Not available 2009 40 2009
Table 6.9 Escapes in SAPS, DCS and DSD
In terms of discipline, all SCFs visited as part of conducting situational analysis had disciplinary
policies in their operational policies. In DCS there is a notion that the disciplinary policies only
apply to sentenced offenders though legislation has made explicit provisions in this regard.
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6.5. National Security of the Country
According to section 198 of the Constitution of the Republic of South Africa (Act 108 of 1996), the
principles that govern national security are as follows:
National security must reflect the resolve of South Africans, as individuals and as a nation,
to live as equals, to live in peace and harmony, to be free from fear and want and to seek a
better life.
The resolve to live in peace and harmony precludes any South African citizen from
participating in armed conflict, nationally or internationally, except as provided for in terms of
the Constitution or national legislation.
National security must be pursued in compliance with the law, including international law.
National security is subject to the authority of Parliament and the national executive.
In respect of national security, regard should be given to the fact that transnational organised crime
and terrorism (together with their respective associated crimes such as money laundering, bribery
and corruption) pose considerable threats to national security of any country including South Africa.
In this regard, it should be noted that among a wide array of measures available to government to
deal with these and other types of threats to national security is the option to subject suspects
related thereto to the due processes of the law. This invariably involves an important and sensitive
role for a remand detention facility.
Among the population of RDs, there will be those detained for breaching the above mentioned
principles and once this category is charged by the court of law, they are likely to spend longer
periods in detention than any other category of RD. The heads of RDFs should receive adequate
information that would enable them to properly manage all the categories of RDs including those
who pose a threat to national security.
6.6. Challenges related to Security
The major challenge faced by all institutions detaining RDs is escapes which appear to be planned
by RDs themselves or in collusion with officials. At times escapes are planned around the
management and supervision style provided by managers. Other than escapes, other security
related challenges which were reported by managers of RDFs include the following:
Inadequate system for identification of RDs: The current identification system has many
flaws which have been explained previously. Lack of provision of ID numbers by RDs
makes it difficult to verify whether they are the persons they claim to be. Lack of photos
makes it difficult to determine situations where there is identity swap (which is possible).
Lack of systems for identification of high risk RDs: This is further exacerbated by the fact
that the RDs might be investigated for multiple counts of aggressive crimes and that
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information is not provided to the detention institutions. The nature of crime is one of the
dimensions utilized internationally to determine high risk detainees. Detaining institutions
often get information on high risk RDs from newspapers, television and radio stations.
Inadequate systems of identification and verification of SAPS officials who collect RDs daily
for court appearances: There are few reported cases of erroneous releases due to the fact
that RDs were collected by officials who presented themselves as SAPS officials.
Lack of differentiation of various categories of RDs for housing purposes: RDs who are
detained for the first time are housed with repeated offenders who are regular clients of the
CJS system because such information is not provided to detention institutions.
Ineffective system for confirmation of warrants: telephonic confirmation of warrants was
utilized in Johannesburg Medium A where the Head of the facility had to call a certain
number for a confirmation of warrant of liberation. In most cases it was realized that the
telephone number was not official after the release of an RD and when the SAPS officials
came to collect the RD for the next court appearance.
Lack of facilities for capturing and storing cash of RDs. There are RDs who bring large sums
of money with them. There is a tendency to bribe officials to be laxed on policies and this is
also accompanied by threatening of official family members.
Lack of clear disciplinary policies and procedures in DCS: The current disciplinary policies
and procedures were developed for sentenced offenders and there is no clarity on whether
they apply to RDs or not. However the disciplinary systems in SCFs are well developed and
communicated to all children on admission.
Lack of a system that will assist in determination and management of aliases: The current
identification process is the breeding ground for aliases. It is worth mentioning that the
identification system utilized in privately managed SCFs assists in picking up aliases,
however there are no guidelines within the CJS for management of aliases.
Technology related security challenges include the following:
o Limited surveillance system in DCS facilities: Areas such as dining halls, courtyards
and classrooms do not have such facilities.
o Perimeter fences are not effective in some RDFs as they are not linked to control
rooms;
o Inadequate or dysfunctional two-way communication systems;
o Lack of walkthrough metal detectors, X-Ray scanners and panic buttons for staff:
There are RDs who bring their own cell-phones and guns and do not declare these
on admission for safe keeping.
o Lack of special armour plated vehicles for transportation of high risk RDs from the
facility to hospital and for other medical appointments.
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6.7. Proposals
6.7.1. Facilities
The current strategies for reduction of RDs should be monitored closely for determination of their
effectiveness. All CJS partners should play their roles effectively. Current strategies include
implementation of section 63 and 105 of the Criminal Procedure Act, provincial case-flow and case
review team meetings and national case-flow meetings. This will help in identification of alternative
measures such as building additional RDFs in regions with high numbers of RDs such as Gauteng,
Western Cape, KZN and Eastern Cape. A prototype for RDFs should be developed so that new
facilities cater for services and needs of RDs. The conditions under which RDs are detained
require improvement as this should be seen as a human rights issue.
Fast tracking of the deployment and use of virtual courts as a technology for postponement of
cases should be installed in all RDFs as well as SCFs that are far from courts. This will reduce the
process of admission and release in detaining facilities.
The current RDFs in DCS should be upgraded as far as possible taking into consideration the
creation of space for services for RDs as specified in the minimum facilities standards. For the
SCFs, the blue print which is the document that outlines all the minimum requirements for SCFs
should be made available to all SCFs.
Children RDs should be detained in SCFs if possible since they tend to offer more developmental
opportunities than correctional centres.
Since there are delays with regard to repairs and maintenance of detention facilities by DPW,
internal maintenance teams should be established where possible or the service can be outsourced
to private contractors.
6.7.2. Security
All the six pillars of security should be adopted in all institutions detaining accused and RDs and
they should assist in preventing escapes. Management supervision as one of the pillars should
incorporate stakeholder management. The stakeholders should be segmented as follows:
Stakeholders who are materially relevant to the core function of remand detention;
Stakeholders who provide support services and programmes to RDs;
Stakeholders who provide service and products to the entity responsible for remand
detention;
Stakeholders who provide executive and legislative oversight and control; and
Victims and civil society.
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The current identification process needs to be reviewed. A multiple system of identification and
verification of identity should be instituted and initiated by SAPS as the arresting institution. Since
the verification of nationality takes longer than 48 hours in some instances, this function should be
shared with the detaining institution. A strategy for handling of aliases should be developed in a
form of a protocol and RDs who provide false information should receive an additional charge for
providing false information.
The use of Automated Person Identification System (APIS) with tracking elements should be
utilized in big facilities so that it can be easy to track and verify the identity of RDs. This facility is
utilized in one of the privately managed SCFs in Gauteng with success. DCS piloted a system
called inmate tracking in Johannesburg and Durban Westville. The system was found to be
effective. However, it required more personnel for conducting admissions and releases. It also
required immediate capturing of identification information of RDs so that such information could be
activated in the inmate tracking system. The maintenance cost for the system was very expensive
because the tags were manufactured outside the country.
A strategy for management of High Risk RDs should be developed within the CJS and critical
information required for classification of RDs in terms of risks should be provided to the detention
institutions as they are responsible for provision of safety to the public and the staff. The special
armour plated vehicle for transportation of high risk RDs from the facility to hospital and for other
medical appointments should be considered.
A biometric system of identification and verification should be introduced in all RDs facilities for all
SAPS officials including detectives who collect RDs for court appearances and further
investigations.
Telephonic confirmation of warrants should be discouraged as it allows for corrupt practices which
results in erroneous release of RDs.
The detention institutions should establish facilities for keeping the cash of RDs and policy that
determines the minimum amount that can be kept by an RD.
All officials working with RDs should be vetted every two years for security clearance. The
screening should be extended to service providers including legal representatives and visitors of
RDs. A database should be kept on all visitors of RDs including their relationship with the RD.
Technology as a security measure should be improved in all facilities. This includes X-ray
scanners, installation of CCTV cameras at strategic points and ensuring that fencing is appropriate
and well functioning at all times. Non-functional security equipment should be replaced where
possible as soon as possible such as two-way radio communication.
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CHAPTER 7: Systems and Tools
7.1. Introduction
This chapter will focus on information management systems in South African Police Services
(SAPS), Department of Correctional Services (DCS) and Secure Care Facilities (SCFS) and such
tools as Automated Personal Identification System and Video Remand as well as challenges.
7.2. Information Management Systems
In SAPS there are two systems utilized which are Prison Population Prediction Model (PPPM)
and Crime Administration System (CAS). The PPPM is utilized to capture total number of
persons arrested and detained in police cells. There is no clarity on whether the PPPM figures
incorporate the number of RDs who are detained from time to time in police cells. The CAS is
utilized to capture the dockets of all accused persons who have been arrested and charged by
SAPS officials. There is no electronic system utilized to capture the detention management of
accused kept in police cells. All their records are kept in manual registers. There are plans for
introducing a Custody Management System.
In DCS a system called Admission and Release (A&R) is utilized for capturing of mandatory and
applicable information for the management of RDs and all their movements while in detention.
On admission, information from the warrant (J7) is captured on the A&R system. DCS generates
its own personal identification information from the RDs on admission as this information is not
available on the warrant (J7). The summary of information contained in the warrant J7 is
presented in chapter 4.
Other information captured on the A&R system with regard to RDs other than the identification
information is visits and temporal transfers to the hospital and SAPS cells. If the RD has more
than one warrant, all warrants are captured in the A&R system so that all the next court dates and
names of courts are captured.
DCS has developed an upgraded detention management system called Remand Detention and
Offender Management System (RDOMS). The system will be piloted in selected sites in 2010/11
financial year and certain data will be migrated from the A&R to RDOMS. The migration of data
will incorporate the process of cleaning the current data which will include determination of
inactive cases and excluding them from the original data in RDOMS.
In the Department of Social Development, there is a system called CYCA which is utilized for
capturing of children who are kept in Secure Care Facilities. The detention management system
called Supatsela was developed and introduced in SCFs in 2008; however the system was not
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unning in Gauteng when the situational analysis visits were conducted from June to August
2008. The system has been deployed to all nine provinces since then.
The privately managed SCFs have a well developed detention management system utilized for
capturing all the information about the RD children from admission till they are released. SCFs
also generate their own personal identification information for those RD children who do not have
a detailed report from the probation officer. The admission of RD children includes capturing of
the fingerprints in the detention management system. Readmissions with aliases are identified
and reported to SAPS officials but there are no guidelines for management of such children.
There is sharing of information between DCS and other JCPS cluster structures in the form of
reports such as National Development Committee, Office of the Criminal Justice Review and Inter-
Sectoral Committee for Child Justice and Integrated Case Flow Task Team. Information obtained
from Admission and Release system is also accessible to other JCPS departments through the
Integrated Justice System which is located within SAPS. All the JCPS departments send relevant
information to IJS for publication. Some information provided to IJS is driven by high level indicators
set for the JCPS cluster. DCS further generates information such as the name-list of RD children
and RDs who have been in detention for more than 24 months from its A&R system and distribute it
to Legal Aid South Africa, DoJCD and Office of the Criminal Justice Review. Sharing of information
between SCFs and DCS is only limited to the total numbers of RDs per facility and per province.
7.2.1 Challenges
The major challenge is that there is no electronic sharing of information between SAPS as the
arresting institution that generate all the detailed information with regard to all RDs and the
detention institutions i.e., DCS and SCFs. The detention facilities only get information presented
on the warrant of detention (J7). Detention institutions do get additional information on some RD
children who were assessed by the probation officers as these reports are forwarded to the
detention institutions with warrants J7 if they are available.
Lack of sharing of information leads to generation of additional personal identification information
by the detention institutions and this might lead to creation of different sets of information with
regard to one remand detainee. This is likely to result in identity theft because the RDs are
transported to the detention facilities with no photos other than the two fingerprints which are
placed at the back of the warrant J7.
Within DCS the A&R system operates independently in each detention facility, therefore it makes
it difficult to determine RDs who were previously admitted in other facilities. There is no feedback
provided to detention institutions with regard to RDs who did not return from court. It becomes
difficult for detention institutions to determine whether the RD is a readmission for the previous
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case or a new admission for a new case if the RD comes back to the detention institution at a
later stage i.e., within a period of three or six months.
There is no information provided to detention institutions on the previous criminal history of the
RDs as such it becomes difficulty to profile RDs for determination of high risk category for
housing and management purposes. Lack of previous records makes it difficult to determine the
regular clients of the Criminal Justice System as they have a tendency of giving themselves new
identities each time they are arrested and detained.
Other challenges which are related to sharing of information are:
7.3 Tools
Limited capacity of the networks to cater for sharing of data across the different
departments.
Use of different programme languages to develop departmental systems might
complicate the development of interfaces between the different Systems
7.3.1 Automated Personal Identification System (APIS)
The Inmate Tracking project was initiated and funded by IJS from 2003 and was implemented in
two facilities in DCS which are Johannesburg and Durban Medium A. The Biometric part of the
Inmate Tracking Solution was successful in JHB and therefore was recommended by the
Evaluation Committee of DCS for rollout in the 11 larger sites. Since then the Tracking Solution
and the Biometric Solution were separated into 2 projects. The Tracking and Biometric projects
are within the RDOMS programme. Biometric Identification, Verification and Tracking have been
identified as enablers to deliver on RDOMS Core project.
Since there was a delay in the implementation of RDOMs, APIS was initiated to replace Inmate
Tracking with the scope of integrating the identification and verification, tracking and monitoring
and evaluation with the Admission and Release system in DCS. APIS consists of two phases
i.e., phase 1 and 2. Phase 1 includes the rollout of the photo and fingerprint biometric capturing
functionality within A&R to 17 facilities with the higher number of Remand Detainees. Phase 2
includes the rollout of photo and fingerprints biometric functionality to all other DCS facilities
including the signature and identity cards solutions.
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The facilities that fall under phase 1 are presented below:
Phase 1 Facilities for APIS: Population as on 31 December 2009 and
Implementation of Offender Biometric Fingerprint and Photos
DCS Facilities Capacity Unsentenced Sentenced Total Progress
Boksburg 2012 2873 2219 5092 Complete
Johannesburg Medium A 2630 6514 144 6658
Krugersdorp 1757 1375 1347 2722 Server problems
Modderbee 2993 2106 3055 5161 Complete
Pretoria local 2171 4198 118 4316 Complete
East London Medium B 543 972 22 994 Complete
St. Albans Medium A 1446 2389 53 2442 Complete
Umtata Medium 580 1204 61 1265 Complete
Durban Medium A 2399 3606 102 3708
Pietermaritzburg 2499 1367 1441 2808 Network problems
Nelspruit 816 812 389 1201 Complete
Potchefstroom 867 590 495 1085 Complete
Vereeniging 786 807 357 1164 Complete
Grootvlei Maximum 890 1344 563 1907 Complete
Goodwood 2115 1381 1178 2559
Pollsmoor Maximum 1872 3623 197 3820
Pollsmoor Medium A 1111 976 280 1256
Table 4.1 Implementation of Offender Biometric Fingerprint and Photos as at end February 2010
Section 28(1) of the Correctional Services Act has made provision for a number of steps to be
taken in order to ensure safe custody. The steps include amongst others the taking of
fingerprints and palm prints and the taking of photographs; therefore identification of RDs in DCS
is in line with legislation.
7.3.1.1 Challenges
The inmate tracking solution which was initially piloted in Johannesburg and Medium A was
aborted because the DCS infrastructural design was not suited to the workflow process required.
With the implementation APIS challenges faced by DCS include server-related problems and
unavailable network and computer related problems.
7.3.2 Video Postponement
The audio visual remand concept was originated in the late 1990’s from a debate regarding the
use of closed circuit television referred to as audio visual remand in the court environment to
facilitate the postponement of cases without the RDs leaving the detention facilities. The Audio
Visual Remand project was initiated and included in the original list of “quick fix” projects which
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were recommended in the original Integrated Criminal Justice strategy of 1997 (Mulweli). The
initial pilot which was conducted in Johannesburg was not supported by the magistracy because
of absence of enabling legislation. This led to the amendment of the Criminal Procedure Act (Act
51 of 1977) by Act 68 of 2008 to make provisions for the postponement of certain criminal
proceedings against an accused person in custody awaiting trial through the audio-visual link.
The audio-visual link means a live television link between the court point and the remote
point which are both equipped with facilities which will enable all appropriate persons at
the court point and the remote point to follow the proceedings and see and hear all the
appropriate persons. According to the above-mentioned amendment Act, the Audio Video
remand is applicable to the following categories of RDs:
Who are over the age of 18 years;
Who are in custody in a correctional facility in respect of an offence;
Who have already appeared before a court;
Whose cases have been postponed and who are in custody pending their trial; and
Who are required to appear or to be brought before a court in any subsequent
proceedings (whether before, during or after the trial or conviction and sentence) for the
purpose of-
o further postponement of the case; or
o consideration of release on bail in terms of section 60, 63, 63A, 307, 308A or 321,
where the granting of bail is not opposed by the prosecutor or where the granting
of bail does not require the leading of evidence, is not required to appear or to be
brought physically before the court but may, subject to the provisions of this
section, sections 159B, 159C and 159D, appear before court by audiovisual link
and is deemed to be physically before court, unless the court directs, in the
interests of justice, that he or she appears or be brought physically before it.
The RD must be able to follow the court proceedings and the court should be able to see and
hear the RD by means of audiovisual link.
The benefits of the video remand for DCS are:
Reduction in administrative processes of checking-out Remand Detainees to court and
re-admitting the Remand Detainees upon their return from court;
Reduction in transportation required to transfer detainees from court and back.
Reduction in the number of internal security officials guarding detainees with further
charges.
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For the Department of Justice and Constitutional Development the benefits include the following:
Reduced number of persons at the magistrate courts at any given time.
Reduced security risk in the court environment.
Shortening of the overall time it takes to conduct a postponement hearing.
The benefits for South African Police Service include:
Reduced needs for resources required to transport and guard RDs from
correctional centres and remand detention facilities to court and back.
Reduced number of detainees to be guarded at holding cells.
Reduced administration and logistics at holding cells.
Fewer people to be coordinated by court orderlies.
The video remand project which involves the rollout of the solution to 22 correctional facilities
and 47 courts commenced in 2008. The rollout plan for the project is presented below:
Sub
Projects/Phases
Pilot Phase – St
Albans
Milestone(s) Estimated
Completion date
Approved Blue Print of technology to be deployed and
specification of cubicle for remote court
2008/11/30
Approved Blue Print of Business Processes of Video
Postponement attendance, hearing, administration and
conclusion.
Roll Out Phase 1 Correctional Centres:
East London (1 Cubicle)
Pretoria (3 Cubicles)
Durban (2 Cubicles)
Goodwood (1 Cubicles)
Pollsmoor - Cape Town (6 Cubicles)
Roll Out Phase 2 Correctional Centres:
Mthatha – Umtata (1 Cubicles)
Boksburg(2 Cubicles)
Johannesburg(4 Cubicles)
Krugersdorp(2 Cubicles)
Modderbee (Benoni)(2 Cubicles)
Vereeniging (1 Cubicles)
Ladysmith (1 Cubicles)
Pietermaritzburg (1 Cubicles)
Nelspruit(1 Cubicles)
Bethal(1 Cubicles)
Thohoyandou(1 Cubicles)
Kimberley (1 Cubicles)
Bloemfontein(1Cubicles)
2010/03/31
2012/03/31
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Sub
Projects/Phases
Milestone(s) Estimated
Completion date
Kroonstad (1 Cubicles)
Allandale (Paarl) (1 Cubicles)
As on 31 December 2009 the solution was deployed to 45 magistrate courts and 2 correctional
centres i.e., Pretoria Local and St Albans in East London. The remaining facilities will be
completed in 2010/11 financial year.
7.3.2.1. Challenges
There is a slow progress in the institutionalisation of “video postponement” as a mechanism to
reduce the massive wastage associated with thousands of RDs being released and re-admitted
into correctional facilities daily for postponement of cases. There has been a delay in the
procurement of the network and infrastructure requirements.
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CHAPTER 8: Monitoring/Oversight
8.1. Introduction
This chapter provides information on monitoring or oversight function in relation to management of
RDs as well as proposals for ensuring that monitoring and evaluation form part of ATD
management.
8.2. Prescripts and Operations
The United Nations Standard Minimum Rules for the Treatment of Prisoners which were
approved by the Economic and Social Council (13 May 1977), make provision for regular
inspection of penal institutions and services by qualified and competent authorities. Their task is
to ensure that these institutions are administered in accordance with existing laws and
regulations and with a view to bringing about the objectives of penal and correctional services.
Chapter 9 of the Correctional Services Act (Act 111 of 1998) makes provision for the
establishment of the Judicial Inspectorate which is an independent office under the control of the
Inspecting Judge. Areas covered in the chapter include amongst others, the establishment of
the Judicial Inspectorate; powers, functions and duties of the Inspecting Judge; appointment of
assistants and expense of the Judicial Inspectorate. The object of the Judicial Inspectorate is to
facilitate the inspection of prisons in order that the Inspecting Judge may report on the treatment
of prisoners in prisons and on conditions in prisons. The Inspecting Judge has the same power
and duties as the Commissioner for the purposes of administrative management and control of
employees under his or her authority and may delegate any such power and assign any such
duty to an employee of a post level of Deputy-Director or higher. The powers, functions and
duties of the Inspecting Judge are as follows:
Inspection or arranging for inspection of prisons in order to report on the treatment of
prisoners in prisons and on conditions and any corrupt or dishonest practices in prisons.
Receiving and dealing with the complaints submitted by the National Council, the
Minister, the Commissioner, a Visitors' Committee and, in cases of urgency, an
Independent Prison Visitor and may of his or her own volition deal with any complaint.
Submission of a report on each inspection to the Minister and
Submission of the annual report to the President and the Minister which must be tabled
in Parliament by the Minister.
Section 92 (1) makes provision for the appointment of Independent Correctional Centre Visitors
by the Inspecting Judge. The section requires the Inspecting Judge to publicly call for
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nominations and to consult with community organizations as soon as practicable before making
these appointments. The underlying purpose of appointing persons as Independent
Correctional Centre Visitors is, to facilitate and promote the community’s interest and
involvement in correctional matters. The Independent Correctional Centre Visitors form a vital
link between the inmate, Head of the Correctional Centre and the Judicial Inspectorate. The
conduct of the Independent Correctional Centre Visitor will be governed by the contract of
appointment and rules issued from time to time by the Inspecting Judge.
Section 99 of the Correctional Services makes provision for access to prisons by a Judge of the
Constitutional Court, Supreme Court of Appeal or High Court and a magistrate within his or her area
of jurisdiction as well as members of the Parliamentary Portfolio Committee on Correctional
Services and the relevant committee of the National Council of Provinces and members of the
National Council. The Act further stipulates that they must be allowed access to any part of a
prison and any documentary record. Judges and magistrates may interview any prisoner and bring
any matter to the attention of the Commissioner and Minister of DCS, the National Council and the
Inspecting Judge.
Oversight function in DCS is not only limited to the duties performed by the office of the
Inspecting Judge and other previously mentioned institutions; Chapter 10 of the Correctional
Services Act has made provisions for internal service evaluation and eradication and prevention
of corruption. According to section 95 of Correctional Services Act, the Commissioner must
conduct an internal service evaluation by means of internal auditing, performance auditing,
inspections and investigations to promote the economical and efficient operation of the
department and to ensure that the objectives and principles of this Act are met. The role of
service evaluation is to assess, at regular intervals, the effectiveness of internal control at
national and provincial level, individual prisons including joint venture prisons and community
corrections, by
Determining whether the departmental operations are conducted effectively;
Reviewing the reliability of financial, operational and management information;
Ascertaining whether departmental assets and interests are controlled and safeguarded
from losses;
Assessing the effective utilisation of human and other resources;
Monitoring whether established objectives for programmes are being achieved;
Suggesting measures to combat theft, fraud, corruption and any other dishonest
practices or irregularities; and
Investigating theft, fraud, corruption and any other dishonest practices or irregularities.
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The Commissioner must include in the annual report to Parliament, an account of the process
and results of the internal service evaluation and on request, sends a copy of all internal service
evaluation reports to the Inspecting Judge.
DCS has an audit committee, a directorate of internal auditing which is located in the National
Commissioner’s office, directorate of inspectorate which is located within the operations and
management support branch and the directorate called departmental investigation unit within the
chief directorate of legal and special operations. The audit committee reviews amongst others,
the effectiveness of internal controls and audit functions; the risk areas covered in the internal
and external audit reports, results of work performed by the internal audit with regard to financial
reporting, risk management, governance procedures, internal controls and management
responses to audit queries. The inspectorate directorate has national and regional
competencies. The national office component addresses specific and prioritized problem areas
while the regional inspectors concentrate on compliance tests on all activities performed at
management area level. The inspectorate function is also assigned to line function managers at
management area level and component managers at the regional level. The investigation unit is
responsible for promotion of good governance by ensuring the anticorruption policy is
implemented. The unit also conduct investigations on reported practices of corruption.
There are two major institutions that have been assigned a responsibility of detaining RDs i.e.,
DCS and DSD. SAPS will from time to time have a small number of RDs who are detained for
further investigation or for court attendance. The latter group is collected from the DCS and
DSD facilities a day before the date of court appearance in order to prevent transportation of
RDs for long distances on the court date. The oversight function by law is only prescribed for
DCS as a detention institution. Other facilities such as DSD and SAPS do not have such legal
stipulations. There are no provisions made in the Child Justice Act (Act 25 of 2008) for
inspection of Secure Care Facilities referred to as Child and Youth Facilities by the office of the
Inspecting Judge though such facilities detain RD children.
The management of RDs involves several role players (SAPS, NPA, Courts, DCS and DSD) but it
is worth mentioning that the inspection is only applicable to DCS. The Constitution of RSA (section
165 (2)) makes it clear that the courts are independent and subject to constitution and the law,
which they must apply impartially and without fear and favour or prejudice. Section3 (3) makes it
clear that no person may interfere with the functioning courts.
8.3. Proposals
DCS has been given a responsibility for the establishment of the branch for management of RDs.
One of the critical roles of the branch is to drive the improved management of RD through the
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development of policy and legislative framework and protocols that will govern the detention of RDs
in DCS, SCFs and SAPS cells.
The envisaged Remand Detention branch should be assessed in its own right on the one
hand. On the other, its effectiveness must be measured within the context of it being an
integral part of the CJS. Suggested indicators are:
o Firstly, if the priority of government is to manage and reduce the numbers of RDs, it
becomes important that government arrives at an indicative target of the acceptable
ratio between RDs and sentenced as well as incarcerated inmates. As an example,
government may agree that people in remand detention should always be between
15% and 20% of the overall population of people in correctional facilities;
o Secondly, people in remand detention should always be processed in order that they
appear in a court of law at the appointed place, date and time for the hearing and
conclusion of the cases against them. The remand detention branch should be
measured on the degree with which it (and its relevant stakeholders) is able to
discharge this important function efficiently. For purposes of effectiveness, it may
assist to attach a definite value of the degree of efficiency;
o Thirdly, persons in the custody of the remand detention branch have to be kept in a
safe and secure environment. Yet on the other hand, the safety and security
measures relevant in this respect should be taken into consideration. These
measures include equally attending to the interests of the victims of crime; the
imperative to ensure that persons in remand detention do not interfere with the
investigation of the cases against them; the imperative to ensure that persons in
remand detention do not commit to other crimes; the imperative to ensure that
persons in remand detention duly appear before a court of law on the appointed time
and date; and the imperative to maintain public order;
o Fourthly, the performance of the remand detention facility should be measured
against the period of time that each RD spends in the RDF, from the date of
admission to the date of the conclusion of his/her trial. This indicator is intended to
highlight deficiencies elsewhere in the CJS. In a sense, this indicator would serve
the purpose of being an alert on challenges elsewhere in the CJS.
In this regard, it may assist if government determined segmented periods of time that people can
lawfully remain in remand detention before they should be released. Such a release would not
mean that the case is withdrawn or that the investigation ceases. It would simply mean that it is no
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longer justifiable for any person to remain in remand detention for a period longer than a prescribed
period.
The above could be done giving due regard to a number of variables: the offence for which one is
in remand detention; whether a person had escaped from lawful custody or interfered with the
investigation; public interests; and the interests of justice.
Lastly, the effectiveness of the remand detention facility should be measured on the basis or extent
of compliance with all legal, policy and regulatory guidelines. This should include compliance with
all oversight and control structures.
All institutions detaining RDs should have their own internal monitoring and evaluation systems for
operational policies. With regard to DSD, the National office of DSD should play on oversight role
by monitoring the policy implementation in all SCFs.
Other proposals are:
Oversight function of the Inspecting Judge, other judges mentioned in this chapter,
magistrates and relevant Parliamentary Portfolio Committees should be extended to SCFs
and SAPS cells. The extension of the oversight function of the Inspecting Judge will have
resource implications which will need further unpacking once the recommendation is
approved.
High level indicators should be determined that will guide the monitoring and evaluation of
the functioning of the CJS. Such measurements / indicators should also reflect the intended
state of affairs of a functioning and effective CJS. In other words, the indicators should have
an immediate fit with the other macro-indicators that are relevant for a properly functioning
CJS that the remand detention branch is an important part of. The indicators referred to
above are not intended to be low-level and programmatic indicators. This category is
important for the monitoring of the implementation of the actual detailed programmes that
the remand detention entity will implement.
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CHAPTER 9: Summary and Policy Proposals
9.1. Introduction
This chapter provides a summary of the challenges faced by the JCPS with regard to the detention
management of RDs. It further includes recommendations and proposals which are based on
extensive engagements with several role players within the JCPS cluster from January 2008 to
March 2010. The stakeholders that participated in the development of the document including
drafts have been acknowledged at the beginning of the chapter; however it is worth mentioning that
there were formal consultations held through workshops with such groups as:
:
Regional Heads and Coordinators of Corrections (DCS);
Head of Remand Detention Facilities (DCS);
Regional Commissioner and their deputies (DCS)
JCPS MATD task team (DCS);
National Development Committee of the JCPS cluster (DCS); and
External stakeholders such as representatives from tertiary institutions, NGOs, prisoner
organizations and privately managed SCFs
9.2. Key Challenges
The broad challenges that are being faced with regard to the management of RDs are:
Overcrowding of Correctional Centres and insufficient residential facilities for
accommodating RDs in DCS;
Disjointed functioning of CJS departments leading fragmented planning and implementation
of programmes that are driven by the vision and missions of individual departments;
Lack of appreciation of the law applicable to management of RDs;
Inadequate policy provision for management of certain categories of RDs;
Lack of protocols for addressing cross cutting functions against CJS;
Lack of clarity on services to be provided to RDs by the detention institutions other than
those stipulated in the constitution as rights of accused and inadequate facilities for catering
for the rights of accused;
Inadequate automation of information, identification, verification and tracking facilities for
RDs
Lack of an integrated record keeping that contains accurate information on RDs;
Delay in institutionalization of video postponement as a mechanism for reducing wastage
associated with transportation and regular re-admissions of RDs from court;
Lack of an adequate system for identification and verification of identity of the RDs including
foreign nationals;
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Inadequate systems for monitoring institutions that arrest, prosecute, adjudicate and detain
RDs.
9.3. Key Recommendations based on International Best Practices
The following recommendations are made:
There should be an agreed upon terminology and definitions applicable to the accused
persons in detention based on the court warrant (J7). The terms “Remand Detainee” and
“Remand Detention” are proposed instead of “Awaiting Trial Detainee” or “Awaiting Trial
detention”. The adoption of the terminology will have implications for Correctional Services
Act and its amendments and other related Acts. This will assist in dealing with the
confusion created around the definitions of such terms as inmate, unsentenced offender
and offender in DCS legislation and operational policies.
The national policy and legislative framework that governs the detention management of
RDs should adhere to international standards and conventions and limitations to certain
rights should be acknowledged. The international standards include the following:
o Guarantee of personal liberty and limitations involved;
o Adherence to requirements of international standards, conventions and instruments
such as the United Nations Standard Minimum Rules for Treatment of Prisoners;
o Politically binding commitments such as treaties, international case law and
customary laws;
o Judicial supervision and judicial confirmation of detention;
o Reasonable suspicion;
o Right to legal counsel,
o Oversight and monitoring of detention institutions
o Right not to be tortured; and
o Right to notify others
The establishment of branch in DCS should be adopted as a governance model for the
detention management of RDs which has been assigned by the cabinet. However the
functions of the branch should be clearly articulated as well as the relationship of the branch
to the existing structures of CJS.
The strategies for management of overcrowding should be developed and managed at a
cluster level because the drivers of the RD population are beyond the control of the
detention institutions. The key drivers are the trends in serious crimes and the use of pre-
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trial detention by the courts and for the detention institutions the drivers are the number of
admissions and the length of stay.
The services provided to RDs must be prescribed by legislation and policy framework. The
services that are provided according to the international law for some countries include the
following:
o Continuity in education and training in line with Government policy;
o Safety of person;
o Access to social welfare services;
o Accessibility to state-provided health care;
o Accessibility to visits, communication and correspondence with family and
friends;
o Accessibility to recreational and reading resources; and
o Accessibility to legal representation.
Consideration should be given to alternatives to remand detention such as Correctional
Supervision as determined by the court, obligations to report to the police, travel ban, bail,
house arrest, and electronic monitoring.
Consideration should be given to international best practice which include the following:
o Interdisciplinary approaches to reduce the length of detention and management of
overcrowding;
o Personnel training should include rights of RDs;
o Detention of juveniles should be utilized as a last resort for the shortest possible
period of time;
o The rights and needs of women should be fully met including preservation of links
with family including young children. Particular attention should be paid to women
detained with children. The best interest of the child should be taken into
consideration.
o Communication of the rights of RDs to all of them including foreign nationals and
promotion of access to information and legal counselling.
o Contact with outside world to maintain family relationships in the form of visits,
telephones and letters.
o Addressing of such health needs as medical, dental and psychological needs arising
from being detained.
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9.4 Challenges and Recommendations for Legal Framework
In broad terms, the existing legislation on the management of remand detention continues to be
relevant and rational. That is the situation in respect of the vast body of existing law. As examples,
the law is clear on how remand detention comes into being; what the rationale for it is; the rights
and obligations of remand detainees; and how and when remand detention comes to an end.
However, there are several provisions of the law that require serious consideration with a view to
improving it.
9.4.1 Torture, cruel, inhuman and degrading treatment
The Constitution of the Republic, Act 108 of 1996 in section 12 (1) (d) and (e) provides that
„everyone has the right to freedom and security of the person which includes the right not to be
tortured in any way and not to be treated or punished in a cruel, inhuman and degrading way‟.
While the above is clear and simple, on the surface, it may still require further clarity when read
within the context of managing remand detention. This should be done in order, principally, to
empower remand detention officials.
What is the reasonable time that a person should spend in remand detention? There is no
legislative injunction on what period of time may be considered unreasonable for any person to
spend in remand detention. This appears to be the case elsewhere in the world.
Might it not be prudent to limit the period of time that any person may lawfully spend in remand
detention, without undermining the administration of justice! In such an approach, the release of
any person from remand detention should still be the responsibility of the courts and the
investigating officer and prosecutor would have to still persuade the court to authorise further
detention.
But it should not be possible for any person to spend an inordinate period of time in remand
detention. The current situation, in rare cases where people have spent 7 years in remand
detention, actually, and by default, allows remand detention to be employed as a punishment tool.
9.4.2 Definitions on scope to be covered by remand detention
The various laws – Criminal procedure Act, No 51 of 1977 as amended, the Correctional Services
Act, No 118 of 1998, the Extradition Act, No 67 of 1962 as amended, the Mental Health Act, No 17
of 2002 – generally refer to people in remand detention as inmates, unsentenced offenders,
prisoners, and persons. The obvious bias, save for the Extradition Act provisions, is towards the
administration of justice which involves the trial of an accused person.
For obvious reasons, the Extradition Act refers to persons being enquired into for purposes of
determining whether or not they should be surrendered to a foreign and requesting jurisdiction.
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The recommended approach is that government, through amending the relevant legislations,
should define any person remanded in custody as a remand detainee. And the facility caring for
remand detainees should be called remand detention facility.
9.4.3 The safeguards for children in detention
Section 28 of the Child Justice Act, No 75 of 2008 provides measures and safeguards that attend
children in detention in police custody. The obvious thing about this section of the relevant law is
that, on the surface, the relevant safeguards are beyond the reach of children in detention in a
remand detention facility. Ideally, these safeguards should be availed to all children in detention.
9.4.4 Basic facilities that remand detention facilities and resources should have
The laws require and expect that remand detention facilities should possess infrastructure that
would enable them to discharge all responsibilities provided for in law. These would include, but
not limited to, health care facilities and the attendant resources.
9.4.5 Remand detainees with serious illnesses
The respective scopes of the Mental Health Act, the Criminal Procedure Act and the
Correctional Services Act vary in respect to remand detainees who have particular illnesses. As
examples, whereas section 79 of the Correctional Services Act is available for terminally ill
sentenced inmates, it is not available to remand detainees. Again, the Mental Health Act, to the
extent that it deals with State patients and mentally ill prisoners, is broader that the provisions of
the Criminal Procedure Act.
There is a need to appropriately reconcile the scope of these laws on this aspect of managing
remand detainees so that they detainees, in a proper and legitimate manner, also receive the
relevant protection.
9.4.6 Maintaining discipline
Section 23 of the Correctional Services Act provides a list of infractions the commission of which
by remand detainees attract disciplinary measures. Elsewhere, the same legislation lists
legislated criminal offences that, on commission, by remand detainees and other role players,
attract court sanctioned custodial penalties.
The former category dealing with infractions is not clear in that it is not explicitly provided that
any and disciplinary inquiries against a remand detainee proscribe the moment the affected
remand detainee ceases to be so on account of obtaining bail or being acquitted on the
principal charge for which he or she was remanded in custody. But what should happen to those
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emand detainees who cease to be so on account of receiving a custodial penalty? These
matters require clarity.
9.4.7 Surrender of remand detainees to police for investigations
The police do take into their custody remand detainees for purposes of their investigations. This
act, although legitimate, requires proper regulation that has effective safeguards.
9.4.8 Custody of information/ data on remand detainees
There is no legislative provision governing the extent of time during which or beyond which
remand detention should destroy all information or data on past remand detainees. It might be
useful to regulate this aspect of managing remand detainees and this may be done in a
segmented fashion in accordance with different crime types and categories of remand
detainees. further, keeping such information on remand detainees would have to be attended by
stringent safeguards, the better to prevent any prejudice that former remand detainees may
suffer, particularly those who would have been acquitted or those who were in for very minor
offences.
9.5 Issues and Recommendations for Profiles
9.5.1 Summary of Profiles
DCS profiles are based on the information obtained for the period April 2008 to January 2010.
The number of RDs ranged between 46612 and 51584 and a downward trend was
observed from April to September 2008 and from April to September 2009.
RDs constituted approximately 30% of the inmate population in DCS.
Children RDs constituted 2% of the RD population and the ratio of children in DCS to
children in DSD facilities was 1:3.4 in January 2010.
DCS admits approximately 20 and 26 thousand RDs a month in addition to a stable
population ranging between 46 and 51 thousand.
DCS admits and releases almost a similar number of RD which ranges from 242 to 282
thousand RDs.
In terms of crime, most RDs are detained for aggressive crimes followed by economic
crimes and sexual.
o The top four crimes for the general population of RDs and male RDs are
housebreaking and theft, theft, robbery and assault.
o The top four crimes for children RDs are housebreaking and theft, theft, robbery
and rape.
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o The top four crimes for female RDs are theft, assault, fraud and forgery and
robbery.
o The top four crimes for the foreign national RDs are theft, robbery, assault and
fraud and forgery.
In terms of period spent in detention, 67 to 73% of RDs are detained for a period of six
months and below while 3 to 4% spend a period longer than 2 years.
o The longest period spent by an RD was more than 14 years according to the
snapshot analysis of 31 December 2007.
o Almost 85% or more of children and female RDs spent a period of six months and
below in detention.
In terms of bail, almost 75 to 80% of RDs are detained without an option of bail.
o Of the RDs with bail, approximately 9 to 11 have a bail of less than R1000.
o Approximately 89 to 90% of RD foreign nationals are detained without an option
of bail.
In terms DSD, the population of RDs constitute almost 3% to 3.5% of RDs incarcerated
in DCS facilities and these facilities have never been filled to 100% capacity.
Most RDs are detained in Gauteng followed by Western Cape and Northern Cape.
9.5.2 Issues for Policy Consideration
The following issues are crucial for policy consideration:
Limited information forwarded to detention institutions for admitting RDs leads to
generation of person identification data for RDs by detention institutions and
subsequently, creation of different sets of information with regard to one RD within the
CJS.
Different crimes registered by DCS and NPA might lead to different trend analysis in
terms of crime. Crime is one of the factors utilized to determine risk classification for
housing purposes by detention institution. Failure to record all the crimes that the RD is
prosecuted for might lead to mixing of RDs that have committed petty crimes with RDs
that have committed multiple aggressive crimes.
Identification of RDs in terms of nationality should be determined by the arresting
institutions and the verification process needs further deliberation. The Nationality
generated by DCS is never verified with SAPS data and DHA. This practice contributes
to the creation unreliable data.
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Limited information obtained from DSD led to the development of a less detailed
profile report for RD children than the one generated for DCS. This leads to difficulties in
conducting comparative trend analysis in relation to RD children.
The current profile of RDs does not make provision for the following:
o Differentiation between convicted RDs and those waiting for finalization of their
cases.
o Determination of RDs who are kept in terms of Extradition Act.
o Determination of RDs who are placed for observation and forensic assessment in
9.5.2 Recommendations
DCS facilities and RDs who are placed in transit for forensic assessment which
should be conducted in designated mental institutions.
The following recommendations are proposed based on the challenges presented above:
Provision of personal identification data generated by SAPS or NPA for all RDs with
warrants of detention (J7) including information on nationality.
Inclusion of all aggressive crimes in the warrants of detention (J7) so that the detention
institutions can take them into consideration when profiling and conducting risk
classification of RDs for housing purposes.
With regard to RD children detained in privately managed SCFs, the contract entered
into by provinces and the service providers should incorporate sharing of
information between the Provinces including direct link between head office of
privately managed SCFs and the National Office of DSD. The National Office of DSD
should be allowed to communicate with the management of privately managed SCFs
with regard to obtaining detailed information with regard to RD children.
An annual detailed profile of RD children in SCFs should be compiled by DSD and
circulated to relevant JCPS structures. This will assist in extrapolation of trends with
regard to RD children.
9.6 Issues and Recommendations based on Current Management on RDs
The departments that have a legal mandate to detain RDs are DCS and DSD. SAPS, from time to
time, keeps a number of RDs for further investigations and for court appearances. There are police
cells that have kept RDs for more than 6 months through provincial arrangements. Other
departments that play a role in the management of RDs are Legal AID South Africa (LASA) and the
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Department of Health. LASA provides legal assistance to the poor and indigent irrespective of the
nationality. Department of health provides forensic assessment to RDs referred by courts in term of
the Criminal Procedure Act.
9.6.1 Summary of Challenges
SAPS does not have a legal mandate to detain RDs beyond the period of 48 hours
except in situations where the extension has been granted by a court to allow for further
investigations.
The provisions for management of RDs emanate from several pieces of legislations
which are often not all acknowledged by the detention institutions. In DCS for
instance, there is tendency to make broad reference to some legislation in policies without
any mention of the applicable sections. This practice has led to disregard of some
legislative provisions when operationalizing the legal framework into policy manuals, and
operational procedures.
There is discrepancy between the provisions of the Correctional Services Act and
operational policies in certain areas such as section 22 on discipline applies to inmates
and by implication the section is applicable to RDs and sentenced offenders. However it is
worth noting that the operational policy on discipline is only applicable to sentenced
offenders.
There is no uniformity in the definition of the term “offender” in the Development and
Care policy which is a guiding policy for programme and services in DCS and its
subordinate policies such as Psychological Services, Formal Education and Spiritual Care
Policy.
There is confusion in the definition of terms which emanates from the Correctional
Services Act and its amendments. While the term inmate (previously known as prisoner)
applies to all detainees in DCS facilities, the term unsentenced offender is only applicable to
convicted offenders who have not been sentenced to imprisonment. This would imply that
chapter 5 of the Correctional Services Act only applies to convicted offenders. In practice
DCS does not have a system for identification of this category of detainees.
Other challenges which were identified during the situational analysis visits to selected
police cells, SCFs and RDFs are:
o Lack of established mechanisms (such as protocols) to address cross cutting
functions and areas of co-responsibility within the JCPS cluster such as (but not limited
to) transportation of RDs, provision of services to RDs.
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o Lack of guidance through policy with regard to services that should be provided
to specific categories of RDs while in detention other than health, accommodation,
legal representation and visits.
o Lack of role clarification with regard to provision of emergency services to RDs
who get sick while in court.
o Inadequate facilities for legal and family visits in SAPS and DCS. RDs in DCS are
not provided with facilities that can assist them to prepare for their own defence.
o Limited access for legal consultation in remand detention facilities due to lack of
proof of identification;
o Lack of specialized training for personnel working with RDs in DCS and SAPS.
o Service delivery challenges for SAPS include inadequate provision for children
detained with their mothers in police cells.
Service delivery challenges for DCS include the following:
o Facilities that accommodate RDs do not cater for the delivery of a broad
range of services due to overcrowding and limited policy provisions.
o Lack of policy provisions for terminally ill RDs, RDs placed for observation
and those detained under the Extradition Act.
o Lack of operational policies on disciplinary procedures for RDs
Service delivery challenges for SCFs include the following:
o Lack of facilities for referral of children with substance abuse problems
since SCFs are not allowed to send such children to rehabilitation centres.
o The use of mainstream curriculum does not suit the needs of all RD
children as there are those who cannot read and write.
o Lack of opportunities for skills training to accommodate children who are not
willing to participate in mainstream curriculum.
o Lack of defined provincial responsibilities for the Departments of Education
and Social Development with regard to the provision of educational
material and management of teachers that are seconded to work in SCFs,
o Lack of assessment tools for determination of class allocation since some
children have never been to school;
o Inadequate facilities and services to accommodate pregnant girls.
o Lack of medical reports for children on psychiatric medication.
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9.6.2 Recommendations
Extension of the legal mandate for detention of certain categories of RDs to SAPS i.e. the
categories that are currently detained. This will oblige SAPS to adhere to all legislative
provisions related to management of remand detainees.
Rationalization of current existing pieces of legislations and develop one piece of legislation
with focus on detention management of RDs.
Development of a Policy Framework that will acknowledge the current legislative provisions
and make provisions for areas that have not been provided for which are critical for the
management of RDs by the detention institutions.
Ensure that the following aspects are catered for in the policy and legislative framework:
o Unique terminology that refers to accused persons who are charged by courts and
detained in lawful custody;
o Provisions for detention management of all categories of RDs specified in Chapter 1
and Chapter 5 of this document.
o Identification and provisions for management of cross cutting functions and areas of
co-responsibility within the CJS;
o Role clarification for such areas that are not provided for in any existing legislation or
policy framework such as (not limited to) the following:
� provision of emergency services to RDs who get sick in court cells and
provision of guarding services in hospitals;
� differentiation between detention facilities with fully fledged and resourced
schools and those that provide educational programmes; and
� provision of clarity with regard to the roles of different provincial departments
for collaborative services that are provided in detention facilities managed by
DSD.
o Stipulation of the minimum services that should be accorded to RDs in detention
such as continuity in education and training in line with existing government
policy; safety of person; access to social welfare services, state-provided health
care, visits, communication and correspondence with family and friends;
accessibility to recreational and reading resources; and accessibility to legal
representation.
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o Provisions for illiterate RDs who are not willing to participate in the mainstream
education taking into consideration the indeterminate nature of time spent by RDs
in detention.
9.7 Issues and Recommendations on Facilities and Security
9.7.1 Facilities
The chapter on facilities focused on DCS, DSD and SAPS. DCS has 242 facilities for
accommodation of the total inmate population which ranged from 95,002 in 1995 to 163,892 in
2009. The highest population of inmates was recorded in 2004 (186,467). From 2007 to 2009,
the inmate population remained stable at 161,819 and 164,835. RDs constituted between 21%
and 29% of the inmate population from 1995 to 2009. The highest population of RD was
observed in 1999 and 2000 where RDs constituted 35% of the inmate population.
On 31 December 2009, DCS facilities had approved capacity for accommodation 114,993;
however the average number of inmates was 163,892 and this translates to 43% overcrowding.
Additional factor that contributes to overcrowding in DCS facilities is the detention of foreign
nationals who have not been criminally charged but waiting for deportation through the warrant
of detention signed by immigration officers from DHA.
Regions with the highest capacity (approved bed-space) are Gauteng (25,496) followed by
KwaZulu Natal (21,507), Western Cape (19,358), and LMN (19,045). The regions with the least
approved capacity are Eastern Cape (12,659 and NC & FS (16,927). In 2009 RDs constituted
29.4 of the inmate population.
DCS demarcated 11 facilities to operate as RDFs and of these, 4 facilities operate as complete
RDFs while 7 will remain functioning as mixed RDFs because of limited accommodation.
On April 2010, DSD had 33 SCFs which are distributed in 9 provinces and the approved
capacity was 2473. In January the number of RD children was 1794. All the facilities are not
overcrowded.
SAPS has 846 police cells which are also distributed in all nine provinces.
9.7.1.1 Challenges related to Facilities
The major challenge faced by DCS is overcrowding. The national overcrowding ranges
between 41 and 43%, however there are facilities with overcrowding levels of more than
75% (75 to 129%).
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Other challenges associated with overcrowding include inadequate space for sleeping, high
rate of breakages of ablution facilities leading to high maintenance cost and high rate of skin
diseases. The latter has not been researched in DCS.
Several challenges that were reported by managers of RDFs in DCS are:
o Inadequate off load points for trucks/vans delivering RDs from courts;
o Lack or inadequate space for searching RDs at the off loading point;
o Inadequate telephone facilities;
o Inadequate space for accommodating family visits and legal consultation, recreation,
and several programmes rendered by external service providers;
o Inadequate or lack of laundry facilities and dining halls;
o Lack of library facilities and literature to assist RDs who provide their own defence. In
mixed facilities, if library facilities are provided, they are only accessible to sentenced
offenders;
o Delay in attending to regular breakages due to lack of internal maintenance team and
reliance on DPW.
In SCFs the major challenges were the high rate of breakages of furniture including doors
and inadequate space for accommodating visits.
9.7.1.2 Recommendations
Management of overcrowding should be the CJS responsibility because the drivers of the
population of RDs are beyond the control of the detention institutions
If additional accommodation is considered in DCS, the regions that should be prioritized
based on population growth over the period of 14 years are Gauteng and Western Cape.
A prototype for the RDFs should be developed so that new facilities can cater for the
services and programmes of RDs and the prototype should also be informed by legislative
provisions.
Upgrading of RDFs in DCS to align them with minimum facilities standard.
With regard to SCF, the blue print should be included in legislative and policy frameworks
for RDs.
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Children RDs should be detained in SCFs if possible since they tend to offer more
developmental opportunities than correctional centres. DCS facilities should be utilized as
the last option.
Since there are delays with regard to repairs and maintenance of detention facilities by
DPW, internal maintenance teams should be established where possible or the service can
be outsourced to private contractors.
Determination of underutilized or redundant facilities within CJS cluster and conversion of
such facilities into RDFs in consultation with the NDPW.
Foreign nationals waiting for deportation should be detained in SAPS police cells to reduce
the burden of overcrowding in DCS facilities.
9.7.2 Security
There are four pillar of security utilized across all facilities. These pillars include personnel security
measures, physical security measures, technological security measures, information security
measures, operational security measures and management supervision. Provision for security for
ensuring safe custody is captured in Correctional Services Act; however the critical areas that cut
across CJS institutions are not provided for such as guarding services in hospitals.
9.7.2.1 Challenges related to Security
The major challenge faced by all institutions detaining RDs is escapes which appear to be
planned by RDs themselves or in collusion with officials. At times escapes are planned
around the management and supervision style of managers.
Other challenges are:
o Inadequate system for identification of RDs from court to detention institutions.
o Lack of systems for identification of high risk RDs
o Inadequate systems for identification and verification of SAPS officials who collect RDs
daily for court appearances: There are few reported cases of erroneous releases due to
the fact that RDs were collected by officials who presented themselves as SAPS
officials.
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o Inability to differentiate RDs into various categories for housing purposes due to limited
information provided to detention institutions including lack of previous criminal history.
o Corrupt practices utilized in the confirmation of warrants such as provision of detention
facilities with incorrect numbers for telephonic confirmation of warrants. This leads to
erroneous release of RDs.
o Inadequate facilities for storing cash received from RDs on admission.
Technology related security challenges include the following:
o Limited surveillance system in DCS facilities in such areas as dining halls, courtyards
and classrooms.
o Perimeter fences are not effective in some RDFs as they are not linked to control
rooms;
o Inadequate or dysfunctional two-way communication systems;
o Lack of walkthrough metal detectors, X-Ray scanners and panic buttons for staff: There
are RDs who bring their own cell-phones and guns and do not declare these on
admission for safe keeping.
o Lack of special armour plated vehicles for transportation of high risk RDs from the
detention facilities to hospital and for other medical appointments.
9.7.2.2. Recommendations
All the six pillars of security should be adopted in all institutions detaining RDs.
Management supervision as one of the pillars for security should incorporate stakeholder
management. The stakeholders should be segmented as follows:
o Stakeholders who are materially relevant to the core function of remand detention;
o Stakeholders who provide support services and programmes to RDs;
o Stakeholders who provide service and products to the entity responsible for remand
detention;
o Stakeholders who provide executive and legislative oversight and control; and
o Victims and civil society.
Differentiation should be done between the term escape and absconding so that there can
be consistency in terminology utilized by detention institutions.
Procedures for managing escapes including attempted escapes should be clearly articulated
in the policy framework so that all the detention institutions can adhere to them.
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A strategy for determination of high risk RDs should be developed at a cluster level and a
management strategy through policy should be developed for detention institutions.
A reliable system for identification of RDs with multiple biometrics from arrest to detention in
DCS and DSD facilities should be established at a cluster level. The system should be
geared toward elimination of opportunities for establishments of false identities by accused
persons. All accused including RDs involved in identity theft should be criminally charged.
A reliable system for confirmation of warrants by the detention institutions should be
developed.
A strategy for management of cash of RDs in detention institutions should be developed.
Officials working with RDs should be vetted every two years for security clearance. The
screening should be extended to service providers including legal representatives and
visitors of RDs. A database should be kept on all visitors of RDs including their relationship
with the RD.
Technology as a security measure should be improved in all facilities. This includes X-ray
scanners, installation of CCTV cameras at strategic points and ensuring that fencing is
appropriate and well functioning at all times. Non-functional security equipment should be
replaced where possible as soon as possible such as two-way radio communication.
9.8 Issues and Recommendations on Systems and Tools
Challenges and recommendations on systems and tools will focus on Information Management
Systems and such tools as Automated Personal Identification System and the use of virtual courts.
9.8.1 Information Management Systems
Within the CJS, all departments have their own independent information technology systems.
SAPS has two systems which are utilized for capturing dockets (Case Administration System) and
total number of accused person detained in police cells (Prison Population Prediction Model)
respectively. There is no system for detention management in SAPS; all processes related to
detention managed of accused persons including RDs are manually captured in registers.
DSC has a detention management system called Admission and Release system while SCFs
managed by government have a system called Supatsela. The privately managed SCFs have their
own system which is management by the National Office situated in Krugersdorp. While DCS A&R
system has been in operation for more than 10 years, Supatsela was only introduced in the in
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SCFs in 2008. DCS has developed an upgraded system called Remand Detention and Offender
Management System (RDOMS) which will be piloted in selected facilities in 2010/11 financial year.
9.8.1.1 Challenges
There is no electronic sharing of information between SAPS (as the arresting institution
that generate all the detailed information with regard to all RDs) and the detention
institutions i.e., DCS and SCFs and this results in the practice of generation of personal
identification information by the detention facilities. This practice is likely to result in
identity theft because the RDs are transported to the detention facilities with no photos
other than the two fingerprints which are placed at the back of the warrant J7.
There is limited information forwarded to detention institutions other than the one
presented in J7 and this leads to difficulties in conducting risk classification for
determination of high risk RDs for housing purposes and management thereof.
In DCS the A&R system operates independently in each detention facility, therefore it
makes it difficult to determine RDs who were previously admitted in other facilities.
Lack of feedback with regard to RDs who did not return from court makes it difficult for the
detention facilities to differentiate between new admissions for new cases and
readmissions for previous cases especially in relation to RDs who are sent by court for
detention within a period of two to six months since the last court appearance.
Lack of provision of information on previous criminal history to detention institutions
makes it difficult to differentiate between first time RDs and regular clients of the CJS thus
leading to housing of high risk and low risk RDs in one unit or section.
Other challenges include limited capacity of the networks to cater for sharing of data
across the different departments and use of different programme languages to develop
departmental systems might complicate the development of interfaces between the
different systems.
9.8.1.2 Recommendations
Detention institutions for RDs should be provided with additional information to the one
presented in J7. Information can be provided either by NPA or SAPS.
Additional information for RDs should be provided electronically to the detention institutions
in order to save time and resources required for capturing information on admission of RDs.
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A system of providing feedback to the detention institutions with regard to RDs who were
released for court appearances should be developed and implemented so that the files of all
RD who have not returned from court can be updated accordingly.
Information on previous criminal history of RDs should be provided to detention institutions
so that it can be utilized for in-depth profiling of RDs, risk classification and appropriate
housing.
9.8.2 Tools
Upgrading of IT infrastructure and equipment utilized in the detention facilities to cater for
electronic sharing of information and use of such tools as APIS and virtual courts.
9.8.2.1 Automated Personal Identification System (APIS)
APIS was introduced in DCS facilities in 2009 to replace the system called Inmate Tracking. The
latter is internationally utilized in most developed countries. The system was piloted in two DCS
facilities i.e., Johannesburg Medium A and Durban Westville. The system was aborted because the
infrastructural design was not suited to the workflow processes required. The biometrics utilized in
APIS are photographs and fingerprints which are linked to the unique identity number assigned to all
RDs on admission. These biometrics are captured in A&R system and the Correctional Service Act
has made provisions for identification of RDs.
In privately managed SCFs, all children RDs are identified on admission through capturing
fingerprints and photographs on the IT system and these biometric are linked with the unique
identification number which is assigned to each RD. The biometrics are kept in the system as such
all new admissions who were previously admitted in SCFs are easily identifiable.
9.8.2.1.1 Challenges
APIS will assist in the identification of RDs especially in overcrowded facilities; however the
initiation of the process of extensive identification of RDs by the detention institution might
lead to creation of false identities especially in situations where identity theft took place
during the process of transportation of RDs to detention facilities.
Other challenges include limited capacity for the server, unavailable network and outdated
IT equipment.
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9.8.2.1.2 Recommendations
Identification of RDs by detention institutions on admission should be preceded by
verification of identity through analysis of finger prints which are attached to the back of
warrant of detention (J7).
APIS should be extended to all RD facilities for easy identification of RDs for court
appearances and virtual courts.
9.8.2.2 Video Postponement
The virtual courts are utilized internationally especially in developed countries. In South Africa the
concept was among the quick fix projects which were recommended in the Integrated Criminal
Justice Strategy of 1997 (Mulweli). The use of the tool is supported by legislation i.e., amendment
of Criminal Procedure Act (Act 68 of 2008). The tool is only applicable to a certain category of RDs
i.e., those who are above the age of 18 years, should have already appeared before a court, their
cases should have been postponed and should be in custody pending their trail. The video
postponement will be utilized for further postponement or consideration of release on bail in terms
section 60, 63, 63A, 307, 308A or 321.
9.8.2.2.1 Challenges
Slow progress in the institutionalisation of “video postponement” as a mechanism to
reduce the massive wastage associated with thousands of RDs being released and re-
admitted into correctional facilities daily for postponement of cases.
9.8.2.2.2 Recommendations
Installation of virtual courts in all facilities with large number of RDs.
Installation of virtual courts in all new facilities that are built for detention of RDs.
Monitoring the use of virtual courts
Decisions made through the use of virtual courts should be captured effectively in
warrants and communicated to the detention institutions.
Detention institutions must ensure that all the RDs who will participate in virtual courts
are in a position to follow court proceedings.
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9.9 Issues and Recommendations on Oversight/Monitoring
9.9.1 Summary of issues and Challenges
The major challenge is that the only legislation that has made provisions for oversight of detention
institutions is Correctional Service Act though RDs are detained in other facilities such as SAPS
cells and SCFs. The oversight function has been assigned to the National Commissioner,
Inspecting Judge, Judiciary (Judge of the Constitutional Court, Supreme Court of Appeal or High
Court and a magistrate within his or her area of jurisdiction), Parliamentary Portfolio Committee,
relevant Committee of the National Council of Provinces and the members of the National Council.
9.9.2 Recommendations
The following recommendations are made:
The oversight function of the Inspecting Judge and other bodies mentioned above must be
extended to SCFs, SAPS and Court cells.
Since the Cabinet assigned the governance for detention management of RDs to DCS
through the establishment of a branch, the envisaged branch should be assessed in its own
right on the one hand and on the other, its effectiveness must be measured within the
context of it being an integral part of the CJS.
High level indicators should be determined to guide the monitoring and evaluation of the
functioning of the CJS with regard to RDs and the indicators such as reduction of RDs
should fall under the Office of Criminal Justice Review and the Development Committees of
the JCPS cluster because the drivers of the population of RD is beyond the control of
detention facilities.
Monitoring and evaluation of detention facilities should also focus on services provided by
external stakeholders in these facilities such as legal representatives, non-governmental
organizations, prisoner organizations and tertiary institutions.
The effectiveness of the remand detention facilities should be measured on the basis or
extent of compliance with all legal, policy and regulatory guidelines. This should include
compliance with all oversight and control structures. With regard to DSD, the National office
of DSD should play on oversight role by monitoring the implementation of policies,
regulations and legislations in all SCFs.
9.10 Proposals
It is proposed that:
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The National Development Committee takes into consideration all the challenges and
recommendations presented in the document
The National Development Committee (chairperson) escalates the challenges and
recommendations to the Committee of DGs of the Cluster for endorsement and approval of
the recommendations.
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CONTRABANDS CONFISCATED IN PRETORIA LOCAL
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