June 10, 2013 Leave a comment
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RUTH HOPKINS and NOOSHIN ERFANI-GHADIMI
Minister of Justice and Constitutional Development, Jeff Radebe, made a bold statement last week that had everyone reeling. When pressed by a media crowd on the efficiency of the National Prosecuting Authority (NPA), Radebe defended the public prosecutor by claiming South Africa’s severely overcrowded jails are indicative of a proactive and successful NPA. According to the Department of Correctional Services, our prisons are 133 percent overcrowded.
“There is a complaint that there is overcrowding of our prisons,” Radebe said.
“People don’t volunteer to go to prison. It is because we’ve got energetic prosecutors on all levels in our country who prosecute without fear or favour or prejudice.”
While energetic prosecutors are not necessarily a bad thing, the assumed correlation between their energy and successfully convicted criminals who overcrowd jails is not as clear-cut as Radebe makes it out to be.
Firstly, conviction rates are not an uncontested barometer of success. In April, Africa Check researched and wrote about the NPA’s conviction rates: “Conviction rates do not reflect the number of successful prosecutions in relation to the number of crimes reported to police each year, let alone the large number of crimes that go unreported… 23 086 rapes were reported in Gauteng in 2012. Of that number, 55.6 percent were referred to the NPA to be prosecuted. But 35.6 percent of those were referred back to police for further investigation and 38.4 percent of the cases prosecuted were thrown out of court due to incomplete investigations.”
Furthermore, prisons are overcrowded because there are many inmates in detention who are not supposed to be there; they have a right to, but lack the finances to, pay for bail.
According to Legal Aid there are about 10 000 inmates awaiting trial in prisons, who have the right to bail, but can’t afford the bail sum. In half of the cases this sum is below R1 000.
Then there are inmates who have to await their trial – for months and sometimes years on end because of a flawed and clogged-up court system. The Wits Justice Project has followed a case of 11 co-accused, charged with murder and robbery, allegedly committed in 2007 in Krugersdorp. They have been in remand detention in Joburg’s Sun City prison for six years.
The delays were for various reasons: The judge was allocated to another case, which ground the trial to a standstill for months. Then lawyers and the prosecutor claimed illness or vehicle problems and didn’t show up, often communicating their absence through last-minute text messages. A year ago, there were about 50 ad hoc postponements, in addition to longer-term delays that added up to 13 months in total. Not much has changed in a year’s time, as the trial was remanded again on June 5, because Mrs Ranchod, the prosecutor, was ill. Other recent court sessions were also remanded, when the Legal Aid advocates for the suspects didn’t appear.
Overcrowding in prisons is not an anecdotal phenomenon, though.
Nationally, there are about 2 700 awaiting trial detainees who have been incarcerated for more than two years.
This is despite constitutional requirements which stipulate that awaiting-trial detainees have the right to a trial that begins and ends without unreasonable delay.
The Criminal Matters Amendment Act sets a time limit: remand detention should not last beyond two years.
Interestingly, Radebe’s colleague, the minister of Correctional Services, Sbu Ndebele, does recognise there is a problem with overcrowding.
Speaking to journalists before his budget speech in Parliament last week, Ndebele pointed out that about 30 percent of those incarcerated in the country are there without a conviction.
Of the 152 514 total prison population, only 107 471 have been sentenced and are serving time.
“On average, 15 to 20 percent of awaiting-trial detainees are in custody because they cannot afford bail,” Ndebele said.
He added that Correctional Services only had beds for 119 000 of the 140 000 prisoners.
“It’s a crisis for us,” Ndebele said.
Prison overcrowding is also not just a matter of statistics and numbers. The effects on the lives of inmates are severe. Victor Nkomo, who was arrested for alleged complicity in a casino heist, has been detained in remand for nearly seven years now.
He is allowed out of his cell for an hour a day and has no access to educational or other reading material.
Because remand detainees are considered a flight risk, they are classified as “non-contact” inmates and are not allowed any physical contact with their loved ones.
Slowly but surely Nkomo grew apart from his wife, who married a new partner in his absence.
His son, who was 10 years old when Nkomo was arrested, is now a teenager who does not really know his father behind bars.
Nkomo also told the Wits Justice Project he was afraid of getting ill.
His fear is not only related to contracting TB, which is the main cause of death in South African prisons, according to figures of the Inspecting Judge of Correctional Services, but also of being stabbed or maimed by the gangs who control the jail.
Dudley Lee is a former inmate who experienced the ill effects of overcrowding first hand. Lee was arrested in 1999 (and acquitted in 2004) for fraud and forgery and was sent to the overcrowded remand section of Pollsmoor prison in Cape Town, where he contracted TB.
After his release, he won his case before the Constitutional Court, which ruled that the Department of Correctional Services had been negligent – and had even violated its own standing orders in the process – in its approach to curbing TB in prisons.
The community is also affected by having to cope with the physical and mental health impacts of receiving detainees back who have communicable diseases and who have been traumatised and desocialised. Prison walls are porous and what happens there seeps through and affects the outside community.
So, sadly, the overcrowding in prisons is in no way a reflection of the energy or tenacity of the NPA.
It is more an inevitable outcome of a flawed criminal justice system that is not handling its case flow of suspects in a humane or effective way.
• Ruth Hopkins and Nooshin Erfani-Ghadimi work at the Wits Justice Project, which investigates miscarriages of justice and is based in the Department of Journalism at the University of the Witwatersrand.