The poor condition of South African prisons felt the glare of international spotlight recently. This happened on the 8th of February when the counsel of British citizen Shrien Dewani, who is accused of murdering his wife while on honeymoon in South Africa, argued in preparation for an application for his extradition before a London court. She stated that one of the challenges to the extradition would “centre on prison conditions in South Africa” intimating that should he be held in detention while awaiting trial in the country, his human rights would be violated. This is not a new complaint about prison conditions in South Africa and has been repeatedly highlighted by the various human rights organisations over the years.

In 2005, the UN Working Group on Arbitrary Detention noted that South Africa’s awaiting trial population is placed “in conditions that are often far worse than those convicted and that the lack of adequate facilities is so blatant that they do not meet minimum standards. For those suffering from illnesses, this results in the aggravation of their health problems or even the death of some persons.”

By 2010, the conditions had not improved. The Judicial Inspectorate of Correctional Services (JICS), noted in its 2009/10 Annual Report that the overcrowding of correctional the facilities leads to unhygienic conditions. Furthermore, access to adequate health care is limited resulting in the possible spread of contagious diseases and a lack of treatment for more serious illnesses such as HIV/AIDS and diabetes.

An additional violation of human rights occurs as a result of the length of time that awaiting trial detainees (ATD) often have to wait in prison before appearing before a court of law to face charges. In a briefing to the Portfolio Committee on Correctional Services, the Justice Crime Prevention and Security (JCPS) cluster, pointed out that as of 12 October 2010 there were a total of 46 432 persons being held in detention while awaiting trial. Of this number 2 080 had been in prison for more than two years with the vast majority of these (1 516) having been detained for more than three years. Worryingly, since 2009 there has been a gradual increase in the number of people awaiting trial for more than two years in South African prisons. Many ATDs have also been granted bail and could be living at home but because they are too poor to afford the bail amount, remain behind bars.

Section 12 of the South African Constitution states that “Everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause…(or) to be detained without trial”. This supports the fundamental right to be presumed, ‘innocent until proven guilty.’ Awaiting trial detainees have not been found guilty of any crime and the impact on their lives and families is immense. Many lose jobs and their families suffer while they languish behind bars for crimes, which they may have not committed. The Legal Aid Board of South Africa has highlighted that 65% of cases are withdrawn due to insufficient evidence.

Fortunately, it appears that the long held concerns around the conditions of those awaiting trial finally started to make it onto government’s radar. Most notable was the approval of the “White Paper on Remand Detention” by the cabinet in October 2010. The White Paper was developed in consultation with all other government departments who ‘accommodate’ persons awaiting trial (e.g. the South African Police Service), and proposes the establishment of a specific ‘Remand Detention Branch’. This structure will be used for ‘coordinating the provision of services in relation to remand detainees in South Africa’. The purpose is to improve the access of services such as health care to ATDs.

Moreover, Chapter 5 of the Correctional Matters Amendment Bill (B41-10), which is being discussed by Parliament’s Portfolio Committee on Correctional Services, focuses on rectifying key challenges being faced by the Department. The Bill proposes separate accommodation for detainees who are pregnant, disabled, elderly and mentally ill. This has prompted the refurbishments of 11 remand facilities that accommodate 50% of the DCS’ ATD population. The bill also makes mention of the proper arrangements that must be made for awaiting trial detainees who are “suffering from a terminal illness/ condition” and who rendered physically incapacitated as a result of injury, disease or illness so that they can receive care in their community.

Interestingly, the Department of Correctional Services (DCS) has adopted a proposed benchmark target of holding no more than 25 000 awaiting trial detainees. Given that the total number of ATDs has been stable for a number of years now, it is certainly questionable whether the number can be reduced to the targeted levels without dedicated interventions.

A key challenge facing the DCS is that they cannot control the length of the court processes that sometimes contribute to the lengthy detention of many ATDs. An additional amendment therefore proposes that an ATD may not be in custody for more than two years without having received a trial. Should this occur, the head of a remand detention facility is required to refer the case to court. The bill then goes on to state that if the case is still delayed by courts the case must be referred back to the courts “on a yearly basis.”

While the proposed legislative changes are positive signs for improving the conditions of people awaiting trial in the custody of the DCS, it is still uncertain how this will lead to a reduction in the numbers of ATDs. Particularly, if the policies and challenges in other arms of the Criminal Justice System persist. Nevertheless it is heartening that action is being taken on this important human rights matter in South Africa, although perhaps not enough for Mr Dewani if he is extradited.

Written by Tizina Ramagaga, Junior Researcher, Crime and Justice Programme, ISS Pretoria Office