History of Transformation of the Corrcetional System in
South
Africa
2.1 Introduction
This chapter aims to provide a brief overview of
the history of the Department and the change in the direction of the
correctional system during the past century.
2.2.1 The early part of the last
century saw the prison system regulated mainly by various Provincial
Ordinances. The British occupation of the Transvaal and
Orange Free State
Republics
in 1900 led to a major reorganisation of the penal systems in these provinces.
This early period will probably be remembered most for an already inflated
inmate population, mainly due to transgressions of the pass laws, and the fact
that mining companies used prison labour at very low rates.
2.2.2 The Prisons and
Reformatories Act, Act 13 of 1911, introduced shortly after Unionisation in
1910, saw the prison system also becoming responsible for the management of
reformatories. Courts started playing an increasing role in the development of
prison law, inter alia, with
findings that it was unlawful to detain awaiting-trial offenders in solitary
confinement and the ruling that offenders who felt they had been unfairly
treated in prison had the legal right to approach courts of law for
recourse.
2.2.3 This period also saw the
introduction of a system that allowed for the remission of part of a prison
sentence subject to good behaviour on the part of the inmates and the system of
probation that allowed for the early release of inmates, either directly into
the community or through an interim period in a work colony or similar
institution. There was much talk of rehabilitation but very little actually
materialised. Punishment for transgressions within correctional centres was
harsh and it included whippings, solitary confinement, dietary punishment and
additional labour. Racial segregation within correctional centres was
prescribed by legislation and it was vigorously enforced throughout the
country.
2.3.1 Developments during 1945 held much promise.
The Landsdowne Commission on Penal and Prison Reform found that the Prisons and
Reformatories Act of 1911 had not introduced a new era in South African prisons
but that it had in fact been a vehicle for maintaining the previous harsh and
inequitable prison system that preceded it. This Commission:
-
held the view that offenders should
not be hired out to outsiders;
-
asked for an increase in the
emphasis on rehabilitation and the need to extend literacy amongst
offenders, in particular black offenders; and
-
was critical of the Government's
decision to reorganize the prison service on full military lines,
which was seen to be an attempt to increase the control it had over
prison officials. It warned that such a militarised system would not be
conducive to "the various rehabilitative influences which modern
views deem essential".
2.3.2 Sadly nothing much came of the Landsdowne
Commission Report presented in 1947, as illustrated by subsequent permission
for "bona fide farmers associations" to build prison farm outstations to
facilitate the extended use of prison labour by farmers.
2.4.1 Brand new prison legislation in the form of
the Prison's Act (Act 8 of 1959) was introduced. This new Act:
-
reflected
little transformation of the prison system;
-
continued and even extended racial segregation within prisons in line with the
national policy of "differential development" signalled in by
Apartheid;
-
abandoned
the "nine pennies a day" prison labour scheme and replaced it with a system of
parole;
-
entrenched
the military character of the prisons management, and made provision for
commissioned and non-commissioned
officers;
-
closed
the prison system off from inspection by outsiders by prohibiting reporting and
publishing of photographs. This served to entrench a relatively closed
institutional culture within the prison service, which resulted in a tendency
for the norms of prison law to be relatively remote from daily practice; and
-
did
not give essence to the internationally accepted meaning of the word parole
since it still required of paroled prisoners to enter into employment
agreements with employers (mainly farmers) at ridiculously low remuneration or
else to remain in prison.
Although the new legislation took cognisance of
the United Nations Standard Minimum Rules for the Treatment of Prisoners as
far as the emphasis on rehabilitation was concerned, it ignored other crucial
aspects, such as the prohibition of corporal punishment for prison offences.
2.4.2 Prior to 1960, prisons were not used to
detain prisoners on a large scale as a means of controlling political unrest.
This subsequently changed and the incarceration of political detainees and
sentenced political prisoners became a significant feature of prison reality.
This led to an increasing attack on the legitimacy of the prison system. Direct
legal and court challenges by prisoners, and in particular political prisoners
and detainees, to decisions by prison authorities and increasing international
condemnation and pressure became the order of the day. The response by the
government at the time was to grant even wider powers to prison authorities.
Pass laws and the infamous system of prison labour remained targets for the
critics of the government.
2.5.1 In 1984 the Judicial Inquiry into the
Structure and Functioning of the Courts reported that the incarceration of
prisoners as a result of influx control measures was a major cause of the
overcrowding in prisons and it condemned these measures. Progressive changes
started taking place with the closing down of prison outstations and a general
decline in the use of prison labour for agricultural purposes. The system of
paroling prisoners under paid contracts was also phased out.
2.5.2 Prisons, however, mainly remained
overcrowded places of security and not much more. Although some rehabilitative
processes were taking place, they were insignificant. These marginal
improvements in the prison system were, however, soon overshadowed by the
declaration of the State of
Emergency
on
21 July 1985,
which lasted until 1990. The mass detention of political prisoners in prisons
during this period further inflated the already problematic prison population.
2.5.3 During 1988 important amendments were made
to prison legislation. By excluding all references to race, a reversal of the
almost total racial segregation of the prison population was brought about,
although it took some years before this was implemented. The infamous prison
regulation that ruled that "white" staff members automatically outranked all
"non-white" staff members was also repealed.
2.6 Prison reforms in the early 1990's
2.6.1 Late in 1990 the
government announced that it planned to introduce extensive reforms in the
prison system. The Prison Service was separated from the Department of Justice
and renamed the Department of Correctional Services. This triggered important
changes to prison legislation. An important milestone in this period was the
introduction of the concept of dealing with certain categories of offenders
within the community rather than inside prison – a system known as
non-custodial "correctional supervision". This was introduced as a more
cost-effective way of dealing with offenders and a response to
overcrowding.
2.6.2 Despite this policy shift,
the Department of Correctional Services
continued to be saddled with the responsibility of keeping awaiting-trial
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". There is a policy gap in relation to the
responsibility for awaiting-trial detainees.
2.6.3 The release policy and the
automatic system of remission were revisited and a system of credits, which
prisoners could earn for appropriate behaviour, was introduced. At the same
time, in the face of rising challenges to the racial barriers on promotion of
black members into the officer ranks in the Department, the Prisons Act was
amended to make it illegal for warders to become union members without the
permission of the Commissioner, and made it an offence to strike.
2.6.4 The introduction by the
government in 1993 of the Public Service Labour Relations Act brought another
transformation in this regard. This Act was introduced as a result of
continuous pressure on the Government to grant public service employees
protection from unfair labour practices. The scope of this Act was made
applicable to the Department of Correctional Services just prior to the first
democratic elections in 1994. This was an important development as it allowed
employees of the Department to belong to trade unions, to engage in collective
bargaining with the Department as employer and to declare and refer disputes to
Conciliation Boards and to the
Industrial
Court
for adjudication and settlement.
2.7.1 The Interim Constitution
of the country, introduced in 1993, embodied the fundamental rights of the
country's citizens, including that of offenders. This resulted in the
introduction of a human rights culture into the correctional system in
South
Africa
, and the strategic direction of the Department was to ensure that
incarceration entailed safe and secure custody under humane conditions. On
21 October 1994,
a White Paper on the Policy of the Department of Correctional Services
recognised the fact that the legislative framework of the Department should
provide the foundation for a correctional system appropriate to a
constitutional state, based on the principles of freedom and equality.
2.7.2
The transformation of the Department in the first five years of the new
democracy entailed:
-
significant changes in the representativity of the DCS personnel and
management;
-
the demilitarisation of the correctional system in order to enhance the
Department's rehabilitation responsibilities on
1 April
1996;
-
progressive efforts to align itself with correctional practices and processes
that had proved to be effective in the international correctional arena; and
-
the introduction of independent mechanisms to scrutinize and investigate DCS
activities, such as the appointment of an Inspecting Judge.
2.7.3 Despite the human rights
culture brought about by the new democratic dispensation and enshrined in the
Constitution, the immediate post-1994 transformation of the Department focused
its attention mainly on safe custody. However, the National Crime Prevention
Strategy (NCPS) approved by Cabinet in 1996, adopted an Integrated Justice
System (IJS) approach that aimed through Pillar 1 of the NCPS at making "the
criminal justice system more efficient and effective. It must provide a sure
and clear deterrent for criminals and reduce the risks of re-offending." The
key aims of programmes in this pillar were to:
-
increase the efficiency and effectiveness of the criminal justice system as a
deterrent to crime and as a source of relief and support to victims;
-
improve the access of vulnerable groups to the criminal justice process,
including women, children and victims in general;
-
focus the resources of the criminal justice system on priority crimes;
-
forge inter-departmental integration of policy and management, in the
interests of co-ordinated planning, coherent action and the effective use of
resources; and
-
improve the service delivered by the criminal justice process to victims,
through increasing accessibility to victims and sensitivity to their
needs.
2.7.4 The national programmes of
the Pillar 1 of the NCPS were:
-
Re-engineering of the Criminal Justice Process
-
Criminal Justice Information Management
-
Crime Information and Intelligence
-
Prosecutorial Policy
-
Appropriate Community Sentencing
-
A Diversion Programme for Minor Offenders
-
Secure Care for Juveniles
-
Rationalisation of Legislation
-
A Victim Empowerment Programme.
2.7.5 The National Programme on
Appropriate Community Sentencing indicated that available correctional
resources must be used in a targeted way to deal more effectively with serious
offenders. The imposition of custodial sentences on minor offenders reduces the
likelihood of their reintegration into society and further burdens the criminal
justice system. Increasing the availability of
community sentencing options on conviction increases the humane treatment of
minor offenders and will improve the effectiveness of corrections by reducing
the burden on the correctional services department. This will also reduce
repeat offending within this sector. The Lead Agency was defined as
Correctional Services, assisted by Welfare, the Department of Safety and
Security, Justice, the Law Commission and NGOs involved with offender
rehabilitation. The key actions were the development of criteria in line
with the priority crimes described above and guidelines for sentencing which
are canvassed with the judiciary, and the review and upgrading of existing
community sentencing options and examination of the potential roles of
community service providers in this regard.
2.7.6
The National Programme on Diversion for Minor Offenders noted that the criminal
justice system was enormously costly and often inappropriate for dealing with
petty offenders, particularly juveniles, where stigmatisation can pose an
intolerable burden on the normal developmental path to responsible adult
citizenship. This programme aimed to divert petty offenders and juveniles out
of the criminal justice system. The
Lead Agency was Welfare, assisted by the Departments of Correctional Services,
Justice, Defence, Safety and Security and non-governmental organisations
concerned with child welfare and the rehabilitation of offenders. The key
actions were to extend the existing capacity for diversion on the basis of
agreed national guidelines and criteria and to develop a standardised referral
system, in consultation with Attorneys-General and the South African Police
Services.
2.7.7 The National Programme in
relation to Secure Care for Juveniles argued that youthful offenders suspected
of serious offences should not be held in standard prison or police cells. It
was conceded that they do, however, need to be held securely, in an environment
that limits unnecessary trauma and strengthens the likelihood of eventual
reintegration into society. This would require the creation of special secure
care facilities for young suspects and offenders. The Lead Agency was Welfare,
through the inter-ministerial committee on Young People at Risk, which included
the Departments of Justice, Safety and Security and Correctional Services. This
team was to be assisted by other key departments such as Public Works, NGOs and
the private sector. The key actions were to speed up the completion or
conversion of necessary buildings for secure care facilities for juveniles and
to implement legislative steps and social programmes to discourage the
exploitation of juveniles by criminal syndicates.
2.7.8 The National Crime
Prevention Strategy persuaded the Department to re-examine its core objectives
and reprioritise its resources. The focus shifted to transforming South African
prisons from being so-called "universities of crime" or "criminal headquarters"
into effective rehabilitation centres that produce skilled and reformed
individuals who are capable of successful reintegration into their communities
as law-abiding citizens.
2.7.9 This period also saw the
demilitarisation process from a paramilitary structure with military ranks,
drill and parades, and a military command structure to a civilian government
department. The 1994 White Paper reluctantly acknowledged that the militarised
character of the Department may need reconsideration, but within the Department
resistance to this direction amongst senior management resulted in a flawed
process of demilitarisation. As a result, there was inadequate
preparation for, little common understanding of the need for and consequences
of demilitarisation, and a poorly managed process of demilitarisation. This
precipitous demilitarisation coincided with the implementation of affirmative
action in the Department which was carried out without due consideration of
training and development of affirmed appointees. Demilitarisation required that
a new form of basic, promotional and management training be put in place, but
the manner of demilitarisation resulted in a hiatus in human resource
development, which compounded the weaknesses in the management of the
Department. The confused notion that demilitarisation meant a retreat from
discipline and security further negatively impacted on the functioning of the
Department.
2.7.10 Parallel to this was the
passing of the Constitution in 1996, which provided the overall framework for
governance in democratic
South Africa
, enshrined the Bill of Rights, and obliged all Government
departments to align their core business with the Constitution and their modus
operandi with the framework of governance. The Department undertook massive
legislative reform in the period leading up to the passing of the Correctional
Services Act (Act No. 111 of 1998) by Parliament.
This legislation represented a total departure from the 1959 Act and embarked
on a modern, internationally acceptable correctional system, designed within
the framework of the 1996 Constitution.
2.7.11 The most important
features of the Correctional Services Act (Act 111 of 1998), are:
-
the entrenchment of the fundamental rights of offenders;
-
special emphasis on the rights of women and children;
-
a new disciplinary system for offenders;
-
various safeguards regarding the use of segregation and of force;
-
a framework for treatment, development and support services;
-
a refined community-involved release policy;
-
extensive external monitoring mechanisms, and
-
provision for public and private sector partnerships in terms of the building
and operating of correctional centres.
2.8.1
The period 2000-2003 has been marked by consistent engagement with the
strategic direction of the Department, as role-players have striven to
interpret the purpose of the correctional system and unpack the policy
direction necessary for successful delivery on rehabilitation and the
prevention of repeat offending.
2.8.2 The Department hosted a
National Symposium on Correctional Services on 1 and
2 August 2000,
attended by approximately 160 participants representing approximately 70
stakeholder organisations, which recognised the need to promote a collective
social responsibility for the rehabilitation and reintegration of offenders
into the community and recommended the establishment of a "Partnership Forum
for Correctional Services".
2.8.3 The objectives that the
National Symposium focused on, were to:
-
develop a clearly articulated national strategy to attain the desired
fundamental transformation of correctional services;
-
create a common understanding of the purpose of the correctional system;
-
create a firm foundation for coherent and cohesive role-playing by all
sectors of society; and
-
achieve national consensus on the human development and rehabilitation of all
offenders and their integration into the community as productive and
law-abiding citizens.
2.8.4 As a result of a
re-examination of the Department's strategic role in the fight against crime
within the broader context of the criminal justice system and in terms of the
priority programmes presented by the Justice, Crime Prevention and Security
Cluster to the Cabinet Lekgotla held on the 22 and 23 January 2001, the
Department committed itself to step up its campaign to put rehabilitation at
the centre of all its activities, by identifying the enhancement of
rehabilitation services as a key departmental objective for the Medium Term
Expenditure Framework (MTEF) period. Government acknowledged the critical role
played by the Department of Correctional Services in the long-term strategy of
crime prevention through the reduction of repeat offending through the
provisioning of effective rehabilitation services to offenders.
2.8.5 To this end the Department
identified the enhancement of rehabilitation services as a key starting point
in contributing towards a crime-free society. The strategies developed towards
the enhancement of rehabilitation, were the:
-
development of individualized need-based rehabilitation programmes;
-
marketing of rehabilitation services to increase offender participation;
-
establishment of formal partnerships with the community to strengthen the
rehabilitation programmes and to create a common understanding;
-
promotion of a restorative approach to justice to create a platform for
dialogue for the victim, the offender and the community, facilitating the
healing process;
-
combating of illiteracy in correctional centres by providing ABET to
offenders;
-
increase of production to enhance self-sufficiency and to contribute to the
Integrated Sustainable Rural Development Strategy; and
-
increase of training facilities for the development of skills.
2.8.6 In the process of drafting
subordinate legislation and implementing certain aspects of the Correctional
Services Act, 1998 (the principal Act), certain amendments were made in order
to fully implement the principal Act (Correctional Services Amendment
Act, 2001), as well as to be more compliant with the
provisions of the Constitution. Central to the Amendment Act were the:
-
treatment of offenders;
-
accommodation of disabled offenders and gender considerations;
-
disciplinary procedures for offenders;
-
new parole system;
-
treatment of child offenders; and the
-
use of firearms and other non-lethal incapacitating devices.
2.8.7 The internal 2001 strategic planning session in October 2002 resulted in
the adoption of the Mvelaphanda Strategic Plan for 2002-2005, the thrust of
which is that the Department needed to put rehabilitation at the centre of all
the DCS's activities. The session identified unit management as the missing
ingredient in the transformation of the South African correctional system and
set a target to implement Unit Management in 80% of the prisons by the end of
the forthcoming MTEF period (
31 March
2005). Unit management is an approach that makes provision for:
-
the division of correctional centres into smaller manageable units;
-
improved interaction between staff and inmates;
-
improved and effective supervision;
-
increased participation in all programmes by offenders;
-
enhanced teamwork and a holistic approach; and
-
creation of mechanisms to address gangsterism.
2.8.8 In 2002, the Department
recognised that the incompleteness in the transformation of the Department had
resulted in a lack of coherence of paradigm, and the lack of a common
understanding of the meaning of rehabilitation across the entire Department. A
concept document called ‘Conceptualising Rehabilitation' was developed for
internal discussion in all components of the Department. Alongside this
process, an approach to the development of a corporate culture that would
support the philosophy of "rehabilitation and correction" was
articulated.
2.8.9 At the beginning of 2003,
all of these processes had consolidated into an understanding of corrections as
not merely the prevention of crime, but as a holistic phenomenon incorporating
and encouraging social responsibility, social justice, active participation in
democratic activities and a contribution towards making South Africa a better
place to live in. As such, the DCS operates in the environment of integrated
governance, requiring that policy processes in the Department should be aligned
with the overall Government strategy, and specifically with the policy of the
departments in the Justice, Peace and Security Cluster, the Social Sector and
the Governance and Administration Clusters. Moreover, the Department has
developed an understanding that correction within the DCS environment is
achieved through the delivery of key services to offenders, and through
interventions to change attitudes, behaviour and social circumstances in order
to achieve the desired outcome of rehabilitation and social
responsibility.
2.9 Challenges encountered
during the strategic realignment of the Department
2.9.1
Throughout all of these periods, the Department has faced a range of
challenges, some of which are inherent in correctional systems the world over,
and some that have particular South African or time-specific dimensions. The
current challenges faced are due to both inherent risks in correctional systems
and dimensions due to the societal transformation that
South
Africa
has gone through over the past decades. These challenges include:
-
overcrowding and the state of the DCS facilities;
-
institutional "Prison Culture" and corruption;
-
training for the new paradigm; and
-
structuring for the new paradigm.
2.9.2 The Department regards
overcrowding as it's most important challenge, as it has significant negative
implications on the ability of the Department to deliver on its new Core
Business. There are various causes of overcrowding, including the:
-
inefficient functioning of the criminal justice system;
-
the particularly high incarceration rate in
South
Africa
when compared to international trends;
-
introduction of minimum sentences for particular categories of serious crime
in 1997 resulting in an increase in the proportion of long-term offenders in
the DCS facilities that will affect availability of bed space in the coming
decade;
-
crime trends in
South
Africa
, particularly in relation to serious violent crimes and serious
economic offences;
-
levels of awaiting-trial detainees held in correctional centres; and
-
inadequate needs-driven facility planning in the Integrated Justice System.
2.9.3 The Department, in
co-operation with partners in the JCPS, is attempting to address this issue
through exploring various options. These include:
-
the awaiting-trial offender project aimed at reducing the detention cycle
time of awaiting-trial detainees;
-
involvement in the Saturday courts project, which was introduced in
ninety-nine courts countrywide;
-
the establishment of a Departmental Task Team to liaise with a task team
working on overcrowding within the Security cluster at implementation level;
-
the utilization of sections 62[f] and 63[a] of the Criminal Procedure Act by
the Heads of Prison in court applications which resulted in the release of
prisoners; and
-
the use of the amendment of Section 81 of the Correctional Services Act to
allow the release, under specific conditions, of awaiting-trial prisoners who
have been allowed bail but could not afford to pay due to the prisoner's
personal social conditions.
2.9.4
The Department adopted a new approach to a cost-effective expansion strategy by
building low-cost "Prototype" correctional facilities for medium and low-risk
inmates, who are the majority of the country's offender population. This
project was also aimed at consistent delivery of facilities that are consistent
with rehabilitation and humane treatment.
2.9.5 In response to the
challenge to transform the institutional culture within the Department, the DCS
committed itself to the creation of a culture of good governance including the
development of a Risk and Fraud Management Strategy and an internal
investigative capacity, to ensure the cost-effective utilisation of resources
and to address the ongoing incidents of corruption and mismanagement in the
Department. Alongside this, the Department has established an 'Inspectorate
Directorate' in terms of section 95 of the Correctional Services Act to advise
the Commissioner on compliance or non-compliance by officials with Government
and departmental policies.
2.9.6 The period 2001-2003 saw
the development of a strategy of both external and internal processes to
cleanse the Department in preparation for the provision of effective service
delivery in response to allegations of corruption and financial mismanagement,
findings of the Auditor-General in this regard, and reports to and appearances
before the Standing Committee on Public Accounts (SCOPA). This strategy saw a
series of external investigations conducted at the behest of the Minister of
Correctional Services and Senior Management, which included:
-
The Department of Public Service and Administration management audit which
culminated in a report presented to the President by the Minister of
Correctional Services and the Minister of Public Service and Administration,
dated
18 February 2000;
-
A second phase of the investigation, conducted jointly by the Department of
Public Service and Administration (DPSA) and the Public Service Commission
(PSC) to concentrate on allegations to do with human resource malpractices
resulting in reports submitted to the President, Cabinet and Parliamentary
Committees in March 2001;
-
The establishment of a Judicial Commission of Inquiry (the Jali Commission)
with powers to summon and cross-examine witnesses, obtaining evidence in
relation to alleged incidents of corruption, crime, mal-administration,
violence or intimidation in the Department of Correctional Services in terms of
Presidential Minute No. 423 of
8 August
2001;
-
The Proclamation of authorisation of the Special Investigation Unit (SIU) to
provide forensic investigations into corruption and mal-administration in the
Department in support of the Jali Commission's work, and to ensure
investigation for effective prosecution and conviction; and
-
Alongside this, the Department intensified the prevention of corruption and
mismanagement through tightening of management systems and increasing
compliance with policy and controls, and through internal sanction and referral
to external law enforcement agencies where appropriate.
2.9.7 The 2001 Strategic
Planning processes had generated recognition that the DCS was inappropriately
structured and engineered for delivery on rehabilitation. External consultants
were brought in to facilitate the alignment of the DCS systems, processes and
structures, with the expectation that the outcome of this process should assist
in positioning the Department to properly deliver on rehabilitation as
departmental core business. Expected outcomes of the "Gearing DCS for
Rehabilitation" project include:
-
designing a clearly defined organizational structure with identified key
functions;
-
alignment of the organizational structure to the core business;
-
analysis of business processes;
-
alignment of budget with core business;
-
determination of the skills and competencies required to perform; and
-
designing information systems appropriate to the new structure.
2.9.8 At the same time, the
Department of Public Service and Administration began the implementation of a
Public Service Central Bargaining Chamber Resolution, No 7 of 2002, which
facilitated the overall transformation and restructuring of all government
departments within specific time frames. The Department integrated the two
processes in order to ensure coherence of the Resolution 7/2002 process with
the strategic direction that was emerging for the Department.
2.9.9 The strategic direction
that has developed in the Department in the democratic dispensation has faced
the Department with major human resource development challenges – to ensure the
paradigm shift of existing personnel, as well as the development of an
appropriate recruitment, promotion and retention strategy for the various
categories of personnel required to deliver on the rehabilitation mandate.