15 Justice and correctional services

The Department of Justice and Constitutional • the South African Human Rights Commission Development aims to uphold and protect the (SAHRC), which promotes and monitors the Constitution of the Republic of South Africa, 1996 observance of human rights in South Africa (Act 108 of 1996), and the rule of law. It also aims • the Commission on Gender Equality (CGE), which to render accessible, fair, speedy and cost-effective aims to create a society free from gender administration of justice in the interest of a safer discrimination and any other forms of oppression and more secure South Africa. • the Public Protector, which investigates any The department’s four national core branches are conduct in state affairs, or in public administration Court Services, Master of the High Court, Legal in any sphere of government, that is alleged to be Advisory Services, and Legislation and Constitutional improper, or which results in any impropriety or prejudice. Development. Corporate Services provides support. The department administers the following public The National Prosecuting Authority (NPA) forms a entities: separate programme on the department’s Vote. • the Special Investigating Unit (SIU), which provides To ensure the efficiency of its services and to professional forensic investigating and litigation enhance accessibility, the NPA, Court Services and services to all state institutions at national, the Master of the High Court have established provincial and local level to combat provincial and local structures linked to courts to maladministration, corruption and fraud, and to co-ordinate the implementation of national policy. protect state assets and public money Legal Advisory Services has also established state • the Legal Aid Board, which provides legal aid and attorney offices in Pretoria, Johannesburg, Cape representation to as many indigent people as Town, Bloemfontein, Kimberley, Port Elizabeth, East possible at the State’s expense. London, Thohoyandou and Durban to provide The department’s budget for 2006/07 was services at a decentralised level. R7,3 billion, of which R1,5 billion was for the NPA, The following constitutional institutions form part R2,4 billion for the Court Services Programme, and of the department: R986 million for chapter nine institutions.

387 Judicial system The Minister of Justice and Constitutional The Constitution is the supreme law of the country Development, Ms Brigitte Mabandla, is leading a and binds all legislative, executive and judicial process to rationalise high courts. The Superior organs of the State at all levels of government. Courts Bill, which was introduced in Parliament in In terms of section 165 of the Constitution, the 2005, will abolish the last remnants of the homeland- judicial authority in South Africa is vested in the based supreme courts, and will usher in new courts, which are independent and subject only to provincial divisions of the High Court in each province. the Constitution and the law. Their jurisdiction and capacity will be determined in No person or organ of state may interfere with accordance with people’s needs.This will result in the the functioning of the courts, and an order or opening of high courts in Mpumalanga and Limpopo, decision of a court binds all organs of state and which the Pretoria High Court currently services. persons to whom it applies. Chapter Eight of the Constitution makes Constitutional Court provision for the following courts: The Constitutional Court, situated in Johannesburg, is • Constitutional Court the highest court in all constitutional matters. It is the • Supreme Court of Appeal only court that may adjudicate disputes between • high courts, including any high court of appeal organs of state in the national or provincial sphere that may be established by an Act of Parliament concerning the constitutional status, powers or to hear appeals from high courts functions of any of those organs of state, or that may • magistrates’ courts decide on the constitutionality of any amendment to • any other court established or recognised in the Constitution or any parliamentary or provincial Bill. terms of an Act of Parliament, including any court The Constitutional Court makes the final decision on of a status similar to either high courts or whether an Act of Parliament, a provincial Act or the magistrates’ courts. conduct of the President is constitutional. It consists of In line with this, Parliament has also established the Chief Justice of South Africa, the Deputy Chief special income tax courts, the Labour Court and the Justice and nine Constitutional Court judges. Labour Appeal Court, the Land Claims Court, the Justice Pius Langa is Chief Justice of South Competition Appeal Court, the Electoral Court, Africa and Justice Dikgang Moseneke is Deputy divorce courts, ‘military courts’ and equality courts. Chief Justice.

388 Supreme Court of Appeal A provincial or local division has jurisdiction in its The Supreme Court of Appeal, situated in own area over all persons residing or present in Bloemfontein, in the Free State, is the highest court in that area. These divisions hear matters that are of respect of all other matters. It consists of the such a serious nature that the lower courts would President and Deputy President of the Supreme Court not be competent to make an appropriate judgment of Appeal, and a number of judges of appeal or to impose a penalty. Except where minimum or determined by an Act of Parliament. The Supreme maximum sentences are prescribed by law, their Court of Appeal has jurisdiction to hear and determine penal jurisdiction is unlimited and includes handing an appeal against any decision of a high court. down a sentence of life imprisonment in certain Decisions of the Supreme Court of Appeal are specified cases. binding on all courts of a lower order, and the decisions of high courts are binding on Circuit local divisions magistrates’ courts within the respective areas of These are itinerant courts, each presided over by a jurisdiction of the divisions. judge of the provincial division. These courts periodically visit areas designated by the Judge High courts President of the provincial division concerned. There are 10 high court divisions: Cape of Good Hope (with its seat in Cape Town), Eastern Cape Other high courts (Grahamstown), Northern Cape (Kimberley), Orange The Land Claims Court and the Labour Court have Free State (Bloemfontein), Natal (Pietermaritzburg), the same status as the High Court. The Land Claims Transvaal (Pretoria), Transkei (Mthatha), Ciskei Court hears matters on the restitution of land rights (Bhisho), Venda (Sibasa), and Bophuthatswana that people lost after 1913 as a result of racially (Mmabatho). Each of these divisions, with the discriminatory land laws. The Labour Court exception of Venda, is composed of a judge adjudicates matters relating to labour disputes, and president and, if the President so determines, one or appeals are made to the Labour Appeal Court. more deputy judges president, and as many judges Decisions of the Constitutional Court, the Supreme as the President may determine from time to time. Court of Appeal and the high courts are an important There are also three local divisions: the source of law.These courts are required to uphold and Witwatersrand Local Division (Johannesburg), to enforce the Constitution, which has an extensive Bill Durban and Coast Local Division (Durban) and of Rights binding all state organs and all persons. The South-Eastern Cape Division (Port Elizabeth). These courts are also required to declare any law or conduct courts are presided over by judges in the provincial that is inconsistent with the Constitution to be invalid, courts concerned. and to develop common law that is consistent with the values of the Constitution and the spirit and purpose of the Bill of Rights. Chapter Nine institutions are organisations established by Chapter Nine of the South African Regional courts Constitution. These independent organisations The Minister of Justice and Constitutional Develop- have as their general mandate the strengthening of constitutional democracy in South Africa. ment may divide the country into magisterial districts and create regional divisions consisting of They are subject only to the Constitution and the districts. Regional courts are then established per law. They must be impartial and must exercise province at one or more places in each regional their powers and perform their functions without fear, favour or prejudice. division to hear matters within their jurisdiction. Unlike the High Court, the penal jurisdiction of Chapter Nine institutions are the Public Protector; regional courts is limited by legislation. South African Human Rights Commission; Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Magistrates’ courts Communities; Commission on Gender Equality; Magisterial districts have been grouped into 13 Auditor-General; and the Electoral Commission. clusters headed by chief magistrates. This system has streamlined, simplified and provided uniform

389 court-management systems applicable throughout regional court has jurisdiction over all offences Justice & correctional services South Africa, in terms of judicial provincial except treason. However, the High Court may try all boundaries. offences. Depending on the gravity of the offence It facilitated the separation of functions and the circumstances pertaining to the offender, pertaining to the judiciary, prosecution and the Directorate of Public Prosecutions (DPP) decides administration; enhanced and developed the skills in which court a matter will be heard and may even and training of judicial officers; optimised the use of decide on a summary trial in the High Court. the limited resources in an equitable manner; and Prosecutions are usually summarily disposed of in addressed the imbalances in the former homeland magistrates’ courts, and judgment and sentence regions. passed. The following sentences may, where provided In terms of the Magistrates’ Act, 1993 (Act 90 of for by law, be passed upon a convicted person: 1993), all magistrates in South Africa fall outside • imprisonment the ambit of the Public Service. The aim is to • periodical imprisonment strengthen the independence of the judiciary. • declaration as a habitual criminal (regional Although regional courts have a higher penal courts and high courts) jurisdiction than magistrates’ courts (district • committal to an institution established by law courts), an accused cannot appeal to the Regional • a fine with or without imprisonment as an Court against the decision of a district court, only to alternative, correctional supervision or a the High Court. suspended sentence By March 2005, there were 366 magistrates’ • declaration as a dangerous criminal (regional offices, 50 detached offices, 98 branch courts courts and high courts) and 228 periodical courts in South Africa, with • a warning or caution 1 833 magistrates. • discharge. The department created 40 new magistrates’ The sentencing of ‘petty’ offenders to do posts in 2005/06 and filled 1 000 vacancies at community service as a condition of suspension, courts in support of the judiciary and the correctional supervision or postponement in prosecution. appropriate circumstances, has become part of an alternative sentence to imprisonment. Where a Criminal jurisdiction court convicts a person of any offence other than Apart from specific provisions of the Magistrates’ one for which any law prescribes a minimum Courts Act, 1944 (Act 32 of 1944), or any other Act, punishment, the court may, at its discretion, jurisdiction regarding sentences imposed by district postpone the passing of sentence for a period not courts is limited to a period of not more than three exceeding five years, and release the person years’ imprisonment, or a fine not exceeding convicted on one or more conditions; or pass R60 000. A regional court can impose a sentence of sentence, but suspend it on certain conditions. not more than 15 years’ imprisonment or a fine not If the conditions of suspension or postponement exceeding R300 000. are violated, the offender may be arrested and Any person charged with any offence committed made to serve the sentence. This is done provided within any district or regional division may be tried that the court may grant an order further either by the court of that district or by the court of suspending the operation of the sentence if that regional division. Where it is uncertain in which offenders prove that circumstances beyond their of several jurisdictions an offence has been control, or that any other good and sufficient committed, it may be tried in any of such reason, prevented them from complying with the jurisdictions. Where, by any special provision of conditions of suspension. law, a magistrate’s court has jurisdiction over an offence committed beyond the limits of the district Other criminal courts or regional division, the court will not be deprived of In terms of statutory law, jurisdiction may be such jurisdiction. conferred upon a chief or headman or his deputy to A magistrate’s court has jurisdiction over all punish an African person who has committed an offences except treason, murder and rape. A offence under common law or indigenous law and

390 custom, with the exception of certain serious • improve the quality and effectiveness of service offences specified in the relevant legislation. The delivery to citizens who have family law disputes. procedure at such trials is in accordance with To ensure the proper and efficient functioning of indigenous law and custom. The jurisdiction maintenance courts, government has introduced conferred upon a chief and a magistrate does not initiatives that include appointing and training affect the jurisdiction of other courts competent to 140 maintenance investigators and providing them try criminal cases. with training, creating 427 maintenance clerk and 86 maintenance investigator clerk positions to Community courts improve service delivery, and facilitating the Unlike normal courts, community courts, like the development of Magistrates’ Guidelines for the Hatfield Community Court in Pretoria, have flexible Implementation of Maintenance and Operation hours. Isondlo. The business community and other formations of By September 2006, Operation Isondlo, which civil society contribute significantly to the was launched in Limpopo in December 2005, had establishment and sustainability of these courts. brought relief to thousands of women struggling to By September 2005, 13 community courts had recoup outstanding maintenance payments. This been established. Four were fully operational and initiative aims to guard against the risk of the family had been formally launched. These are Hatfield, unit degenerating and children being driven to a life Fezeka (Gugulethu), Mitchell’s Plain and Cape of crime, by encouraging more mediation and the Town. Another nine pilot sites commenced in involvement of all stakeholders in maintenance Durban (Point), KwaMashu, Mthatha, Bloemfontein, matters, and by inculcating a culture of respect for Thohoyandou, Kimberley, Phuthaditjaba, Hillbrow the law and its attendant processes. and Protea (Lenasia). By September 2005, 9 685 cases had been Equality courts finalised since the start of the first Community The role of equality courts is to enforce the Court in April 2004, with a 96% conviction rate. provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 Courts for income tax offenders of 2000). The Act outlaws unfair discrimination and In October 1999, the South African Revenue Service allows for the creation of equality courts within (Sars) opened a criminal courtroom at the magistrates’ and high courts, each to be presided Johannesburg Magistrate’s Office, dedicated to the over by trained magistrates or judges appointed as prosecution of tax offenders. The court deals only presiding officers. The Act further authorises the with cases concerning failure to submit tax returns Minister of Justice and Constitutional Development or to provide information requested by Sars to appoint the Equality Review Committee to officials. It does not deal with bigger cases such as monitor the implementation of the Act’s provisions. tax fraud. By the end of August 2005, 70 sexual offences Another Sars court operates twice a week at the courts were in session and 30 more were expected Magistrates’ Office in Roodepoort. In 2005, a new to be operational by March 2006. These specialised tax court facility was opened in Megawatt Park, courts allow sexual offences cases to be handled Sunninghill, Gauteng. with sensitivity to avoid secondary victimisation of traumatised victims. Family courts By the end of 2005/06, 260 designated equality A family court structure and extended family courts were expected to be functioning and advocate services are priority areas for the dealing with matters of discrimination. Section department. The establishment of family courts in 16(1)(a) of the Promotion of Equality and South Africa is motivated by three broad aims, Prevention of Discrimination Act, 2000 provides namely to: that every high court is an equality court for its • provide integrated and specialised services to area of jurisdiction. Infrastructure is provided for the family as the fundamental unit in society this purpose as new courts are set up. Over 1 290 • facilitate access to justice for all in family disputes magistrates and 300 clerks of court have been

391 trained in equality matters. The equality court Other civil courts Justice & correctional services services were expected to be extended to another An authorised African headman or his deputy may 100 courts in 2006/07. hear and determine civil claims arising from indigenous law and custom, brought before him by Civil jurisdiction an African against another African within his area of Except when otherwise provided by law, the area of jurisdiction. civil jurisdiction of a magistrate’s court is the Courts constituted in this way are commonly district, subdistrict or area for which the court has known as chiefs’ courts. Litigants have the right to been established. South African law, as applied in the choose whether to institute an action in the chief’s Western Cape, is in force on Prince Edward and court or in a magistrate’s court. Proceedings in Marion islands which, for the purpose of the a chief’s court are informal. An appeal against a administration of justice, are deemed to be part of judgment of a chief’s court is heard in a magistrate’s the Cape Town magisterial district. court. On 1 May 1995, the civil jurisdictional limits of magistrates’ courts were increased for both liquid Towards transforming partnerships and illiquid claims, from R50 000 and R20 000 A key aspect of the transformation of the justice respectively, to R100 000. In addition to the system concerns the department’s key strategic considerable increase, the previous distinction partners and stakeholders. The considerable effort between jurisdictional limits regarding the different put behind transforming prosecution and allied causes of action was abolished. Unless all the services into a prestigious professional force, in parties in a case consent to higher jurisdiction, the accordance with the Constitution, is paying off. jurisdiction of a magistrate’s court is limited to By February 2006, of the 218 judges, 53% (115) cases in which the claim value does not exceed were white, 31% (68) were African, 3% (16) were R100 000 where the action arises out of a liquid coloured and 9% (19) were Indian. Overall, 16% document or credit agreement, or R50 000 in all were female and 84% male. In terms of the lower other cases. court judiciary, at the end of February 2006, of the 1 833 magistrates, 48% (893) were white, 37% (683) Small claims courts The limit of cases involving civil claims is R7 000. By June 2006, there were 154 small claims During 2005, 983 407 cases were registered in district courts, of which 958 254 were cleared courts throughout the country. The Commissioner from the roll. In regional courts, 81 724 cases of Small Claims is usually a practising advocate or were registered and 80 168 cases were cleared attorney, a legal academic or other competent from the roll. person, who offers his/her services free of charge. The outstanding court roll at the end of An average of 120 commissioners are appointed December 2005 was 157 251 and 46 893 for for small claims courts annually. the district and regional courts respectively. An Neither the plaintiff nor the defendant may be average of four hours and 12 minutes per day represented or assisted by counsel at the hearing. were performed in district courts and four hours in regional courts. The district courts managed a The commissioner’s decision is final and there is no conviction rate of 87,4%. The regional courts appeal to a higher court. managed a conviction rate of 70,8%. A national programme aims to strengthen and roll out small claims courts to rural and peri-urban In the high courts, 1 348 new cases were registered during 2005.A further 1 067 cases were areas by pursuing the strategic objectives of: carried over/outstanding from 2004, resulting in • providing access for all, especially the poor and a workload of 2 145. Of these, 1 492 were cleared the vulnerable from the roll, leaving an outstanding roll of 923, which were carried over to 2006. The high • establishing systems and rules of court that are courts managed to perform an average of three accessible and easy to understand hours and 32 minutes per day. The conviction rate • providing trained administrative support staff in the high courts was 85%. • attracting and retaining commissioners.

392 were African, 8% (121) were coloured and The department gives prominence to integrating 7% (131) were Indian. Overall, 30% were female and modernising justice services through and 70% male. technology. It seeks to evolve simplified, cheaper and A comprehensive human resource development faster processes geared for the poor and vulnerable (HRD) strategy to widen the pool of women and in townships and rural areas. It seeks to achieve this black legal practitioners was expected to be in partnership with its customers, with other finalised during 2006/07. government departments and with stakeholders. The transformation of the judiciary is intimately linked with the transformation of the legal Capacitating courts and restructuring the court profession and of legal scholarship. The department system has worked in partnership with law schools in In 2006, the department was in the third year of its transforming the curriculum of the basic law five-year courts turnaround strategy, through the degree to bring it in line with modern best Re Aga Boswa We Are Rebuilding Project, which practices. In addition to encouraging law schools to seeks to enhance court efficiency. It will complete widen access to students from previously the restructuring programme for courts. The project disadvantaged communities, these institutions will also institutionalises a new customer-focused further be encouraged to forge linkages with court-management model that ensures that court leading law firms, with prominent practitioners and managers are entrusted with managing courts, and with relevant international organisations. This will: that judges and magistrates invest more time in • ensure the relevance of the training they offer to their judicial work. This will result in increased the practical demands of the cutting edge of the court hours and better-quality judgments. profession The rationalisation of high courts and the • expose students, especially those from redemarcation of magisterial districts is also part of previously disadvantaged communities, to the the restructuring programme. This entails the profession and vice versa to facilitate rationalisation of service areas of the supreme professional training prospects courts in the former homelands and self-governing • engage the legal profession in the evolution of a states to align them with the new constitutional new legal system that fully expresses the order. In 2004, the Minister of Justice and constitutional and cultural aspirations of the new Constitutional Development proclaimed new dispensation. magisterial districts aligned to the new municipal The department will play its part in assisting law boundaries. graduates through its internship programme. The Saturday courts and other additional courts were internship programme will also provide research established to assist in decreasing the backlog of training to give much-needed assistance to state cases. Various new regional-court posts were legal officers, prosecutors, public defenders, the created and filled, impacting positively on judiciary and the magistracy. decreasing case backlogs. Transformation of the legal profession includes Some 25 district courts were expected to be ensuring that judicial services are accessible to the opened, and 15 regional court magistrates were poor, the uneducated and the vulnerable. This entails appointed in 2006. establishing a physical presence in rural areas and in The department operates 46 integrated justice townships, as well as offering affordable fees and court centres throughout the country to improve providing speedy and empathetic services. It also co-operation between criminal justice role-players entails facilitating access of all aspects and levels of in case management. After leading to a reduced the profession to aspirant lawyers, especially to case cycle, this initiative was expected to be rolled those from previously marginalised backgrounds. out to another 40 courts in 2006/07. The provision of alternative dispute-resolution Re Aga Boswa seeks to affirm the principle of mechanisms is another key aspect of transforming separation of powers as enshrined in the Constitution justice services, thus making justice more to ensure that magistrates and judges who are also accessible and more affordable. heads of courts are further relieved of administrative

393 functions to concentrate on their judicial work, as this the NDPP, which would remain accountable to the Justice & correctional services is expected to lead to increased court productivity Minister of Justice and Constitutional Development. and to improved quality of judgments. Over the next three years, some 890 additional By June 2006, through Re Aga Boswa, 58 area- prosecutors’ posts are expected to be created, court manager and 217 court-manager positions which will allow for the deployment of at least two had been created countrywide and were being filled. prosecutors per court. The roll-out of Re Aga Boswa integrated the In 2006/07, the NPA was expected to employ implementation plan of the justice, crime prevention more personnel in addition to the 2 187 and security service charter for victims of crime to prosecutors and 196 senior public prosecutors who ensure that there was sufficient capacity to deal with criminal cases in the lower courts. implement the charter. A dedicated telephone line was launched in 2005/06 to provide victims of crime Office of the National Director of Public direct access to the courts. Prosecutions The court process pilot project was initiated in The Office of the NDPP is the head office of the 2000 to pilot business process re-engineering and NPA. The prosecuting authority vests in the NDPP electronic filing of documents and dockets. Lessons and the DPP. This authority has been delegated to learned through the project about court scheduling, other members of the NPA. They have the power to: case management and general court administration • institute and conduct criminal proceedings on processes were incorporated into the Re Aga Boswa behalf of the State Project. • carry out any necessary functions incidental to instituting and conducting such criminal National Prosecuting Authority of South Africa proceedings Section 179(1) of the Constitution established a • discontinue criminal proceedings. single NPA, which consists of the National Director of Public Prosecutions (NDPP), who is the head of Directorate: Special Operations the NPA, DPPs and prosecutors as determined by The DSO pursues its objectives and complies with an Act of Parliament. its legislative mandate through the application of The NPA structure includes the National numerous legislative tools. In addition to the NPA Prosecuting Services (NPS), the Directorate: Special Act, 1998, other statutes include the Prevention of Operations (DSO), the Witness-Protection Pro- Organised Crime Act, 1998 (Act 121 of 1998), gramme (WPP), the Asset Forfeiture Unit (AFU) and International Co-operation in Criminal Matters specialised units such as the Sexual Offences and Amendment Act, 1996 (Act 75 of 1996), and the Community Affairs (Soca) Unit, the Specialised Extradition Amendment Act, 1996 (Act 77 of 1996). Commercial Crime Unit, the Priority Crimes The objective of the DSO is to prioritise, Litigation Unit and the Integrity Management Unit. investigate and prosecute particular manifestations In terms of the NPA Act, 1998 (Act 32 of 1998), of serious and organised crime that threaten the the DSO is a distinct and autonomous directorate. South African democracy and economy. In May 2005, President Thabo Mbeki appointed Consequently, focus areas have been defined to the Khampepe Commission of Inquiry into the include complex financial crime, syndicated Mandate and Location of the DSO. organised crime and high-level corruption affecting By September 2006, the commission had business integrity and state administration. The completed its report after receiving written and oral core business of the DSO has been layered by a submissions from various parties. Most of its selection of investigations, where racketeering, hearings were held in public. money laundering and the forfeiture of the The commission recommended that the DSO be proceeds of crime form the main activities. retained within the NPA, but that political oversight The primary client of the DSO is government, and responsibility for the law-enforcement which has a fundamental interest in combating and component of the DSO be conferred on the Minister suppressing insidious (and apparently victimless) of Safety and Security. Prosecutors working for the organised crime. Equally, complainants from the DSO would continue to receive instructions from private sector and regulatory bodies (for example

394 Sars, the Financial Services Board and the South • build capacity to ensure that asset forfeiture is African Reserve Bank) base their expectations on used as widely as possible to make a real how the DSO deals with financial crimes. impact in the fight against crime. Rare individual complainants form part of the The use of asset forfeiture to fight crime has been DSO’s client base, when they are affected by large- one of government’s most important innovations. scale money rackets or organised violence. Between 2000 and 2006, more than R1 billion The DSO renders services that include the in proceeds from crime was frozen and nearly determination, investigation and prosecution of R100 million was paid into the Criminal Assets crime to restore justice, to enhance public Recovery Account. confidence in governance and to reduce crime through deterrence. Special Investigating Unit Products are realised through accurate The broad legislative mandate of the DSO has been assessments of crime threats, impact-driven and reduced to four crime focus areas to enable the DSO opportune investigations, successful prosecutions, to carry out its mandate successfully. These are: confiscation of contraband, and forfeiture of ill- • organised crime gotten gains and compensations, where warranted. • organised corruption • serious and complex financial crime Asset Forfeiture Unit • racketeering and money laundering. The AFU was created in 1999 in terms of the By July 2006, the investigation of the SIU into Prevention of Organised Crime Act, 1998. The AFU irregular social grant payments in the Department can seize and forfeit property that was bought from of Social Development, at the request of the the proceeds of crime, or property that has been Minister of Social Development, Dr Zola Skweyiya, used to commit a crime. and paid for by that department, had removed The AFU has two major strategic objectives, some R1,5 billion in irregular grants from the namely to: system. • develop the law by taking test cases to court and The joint efforts of the department and the SIU creating the legal precedents necessary to allow resulted in 110 000 grants being cancelled, saving for the effective use of the law taxpayers over R400 million a year. The investigation focused on civil servants registered on the Social Pension System who received social grants. By September 2006, the National Prosecuting Between July 2005 and July 2006, some 44 000 Authority had attained its target of finalising 5% government employees receiving grants were more cases in a financial year. The number of investigated. The 21 588 found to be on the system cases that were diverted from the criminal irregularly were to face disciplinary action. justice system more than doubled in 2005/06 from an average of 1 208 cases diverted a The SIU aimed to cancel another 125 000 grants month in 2004, to an average of 2 800 a month worth R500 million in 2006. in 2005. The SIU investigation also tried to recover money Implementing the diversion programme helped from those able to repay the irregular grants they 89 425 children avoid the punitive justice had received, whether being government employees system between 1999 and 2006. The lower or not. courts attained an 85% conviction rate in The next phase of the investigation would focus 2005/06, and case cycle times rose from 17% to 19% of cases older than the target set by the on private individuals receiving social grants Department of Justice and Constitutional irregularly. Development. With almost a quarter of South Africa's population of over 40 million people receiving During 2005/06, 935 commercial-crime trials were finalised with a conviction rate of 94,22% social assistance grants, the SIU expects to with some courts averaging over six hours a day. investigate up to five million cases over the next few years to clean up the system.

395 The corruption probe at the Department of doctors, court preparation and prosecutors. The Justice & correctional services Correctional Services’ facilities led to a saving of main objectives of these centres are to eliminate R3,4 billion for the medical aid scheme of the secondary victimisation, to reduce case-cycle time department, and to 90 officials being criminally and to increase convictions. prosecuted and charged internally. Specially trained police investigators, medical Other important fraud cases being tackled personnel, community volunteers, social workers aggressively by the SIU are at driver’s licence- and prosecutors work together. They ensure that issuing centres. By March 2006, more than 1 000 the victim is not further traumatised in the process licence centres had been found to be non- of reporting the incident, and that the information compliant, with 1 294 criminal investigations needed to secure a prosecution and conviction is pending, and 359 private individuals and 31 civil passed seamlessly from one person to another. servants arrested, mostly on charges of selling These multipurpose centres render the services fraudulent driver’s licences. of these departments to communities where these Among other key corruption cases probed by the services either do not exist, or do exist but are not SIU were fraud cases in the WPP in KwaZulu-Natal. easily accessible (especially in rural areas). The SIU also targeted local government, with 24 municipalities in five provinces being investigated. Sexual offences courts The fight against sexual offences is a national Sexual Offences and Community Affairs Unit priority. The department is providing facilities at The Soca Unit was established in September 1999 courts where child witnesses, especially in child- through a Presidential proclamation and with a abuse cases, can testify in a friendly and secure specific mandate that includes: environment without the risk of being intimidated. • formulating policy regarding capacity-building, New child-witness rooms are fitted with one- sensitising and scientific functional training in way glass partitions adjacent to the courtrooms. respect of the prosecution of sexual offences and Where it is impossible to provide such rooms in gender-based violence • co-ordinating the establishment of special courts for the adjudication of sexual offences and gender-based violence In 2006, the Department of Justice and Constitutional Development announced the • facilitating and/or formulating research techniques members of the Steering Committee for the for the prosecution of sexual offences, gender- Legal Services Charter. The draft charter seeks based violence, maintenance and child justice to address: • developing and implementing community- • access to justice by poor, uneducated communities awareness programmes and plans for the • quality and affordable delivery of legal participation of non-governmental organisations services to citizens (NGOs) in the processes and procedures aimed • accessibility of legal services to communities at preventing or containing sexual offences • entry requirements to the legal profession • equal opportunities of legal services among • developing training, plans and mechanisms legal practitioners regarding the prosecution of sexual offences, • access to legal work, including state and gender-based violence, maintenance and child parastatal contracts by black practitioners justice. • the role of the legal profession in promoting The Department of Justice and Constitutional equality in the judiciary • transforming governance structures of the Development, in conjunction with the South African legal profession Police Service (SAPS) and the departments of social • a unified regulatory framework for the legal development and of health, have established profession several Thuthuzela care centres for victims of • empowering historically disadvantaged black legal practitioners sexual offences. • skills development, employment equity, The Thuthuzela care centres are 24-hour one- ownership and management within the legal stop service centres where victims have access to profession. all services that include police, counselling,

396 existing buildings, other rooms away from the The Specialised Commercial Crimes Unit con- courts are used by providing a closed-circuit tinues to achieve an above-average conviction television (CCTV) link. rate. Intermediaries act as buffers against hostile and In 2005/06, 935 commercial-crime trials were potentially protracted cross-examinations of child finalised with a conviction rate of 94,22%, with witnesses in an open court, particularly necessary in some courts operating for an average of over six cases of sexual victimisation. Most intermediaries hours a day. are social workers by profession, and fulfil their intermediary functions part-time or as volunteers. Witness-Protection Programme Given the specialised nature of the work and the The Office for Witness Protection falls under the scarcity of this resource, the department has decided auspices of the NPA. The office is responsible for to appoint about 34 intermediaries on contract. the protection of witnesses in terms of the Witness The Draft Criminal Law (Sexual Offences) Protection Act, 1998 (Act 112 of 1998), and its Amendment Bill, 2003 aims to provide regulations. intermediaries to all vulnerable witnesses in The office aims to: sexual-offence cases, where appropriate. • combat and reduce crime By 2005, 54 sexual offences courts, with an • create a culture of civil morality average conviction rate of 62%, had been • enhance public confidence in the office and in established. Many of those cases dealt with the criminal justice system (CJS) protecting the rights of children. Of the 54 courts, • enhance prosecutions through the evidence of 26 were blue-print compliant. Infrastructure is to be vulnerable and intimidated witnesses. provided to make the remainder compliant. It also provides for placing a person related to the Permanent positions will also be created with the witness under protection at the request of the Magistrates’ Commission to capacitate sexual witness, prospective witness or a person who has offences courts. given evidence or is required to give evidence in By May 2006, more than 50 000 victims had criminal proceedings or before a commission of been prepared for court by 66 court-preparation inquiry. officials employed by the NPA. The programme does not offer incentives such as those offered by the SAPS to witnesses of National Prosecuting Services serious crimes. The mission of the NPS is to raise the levels of Instead, the programme offers sustenance in the productivity in the NPA and to make it efficient and form of a food allowance; replacement of salary if credible. employment has been lost; free accommodation, It has to ensure proper planning of court rolls, including all municipal services; a clothing allow- prioritisation, and proper preparation and arrange- ance; transport; a housing allowance for school- ment for all cases to be heard, as well as the going children; medical expenses; etc. avoidance of unreasonable delays. Legal practitioners Specialised Commercial Crime Unit The legal profession is divided into two branches – The Pretoria-based Specialised Commercial Crime advocates and attorneys – who are subject to strict Unit was established in 1999 as a pilot project to ethical codes. bring specialisation to the investigation and Advocates are organised into Bar associations or prosecution of commercial crimes emanating from societies, one each at the seat of the various the commercial branches of the SAPS in Pretoria divisions of the High Court. The General Council of and Johannesburg. the Bar of South Africa is the co-ordinating body of Three new courts and offices were established in the various Bar associations. There is a law society the Johannesburg and Pretoria central business for attorneys in each of the provinces. A practising districts for specialised commercial-crime cases. attorney is ipso jure a member of at least one of Similar courts were established during 2004/05 in these societies, which seek to promote the Durban and Port Elizabeth. interests of the profession.

397 The Law Society of South Africa is the co- Human rights Justice & correctional services ordinating body of the various independent law Human rights, in terms of Chapter Two (Bill of Rights) societies. of the Constitution, bind all legislative and executive In terms of the Right of Appearance in Courts Act, bodies of state at all levels of government. 1995 (Act 62 of 1995), advocates can appear in any They apply to all laws, administrative decisions court, while attorneys may be heard in all of the taken and acts performed during the period in country’s lower courts and can also acquire the right which the Constitution is in force. In terms of the of appearance in the superior courts. Attorneys who Constitution, every person has basic human rights wish to represent their clients in the High Court are such as: required to apply to the registrar of a provincial • freedom from unfair discrimination division of the High Court. Such an attorney may also • the right to life. appear in the Constitutional Court. All attorneys who Since 1994, and in keeping with the cultivation of a hold an LLB or equivalent degree, or who have at human-rights culture, the focus is gradually shifting least three years’ experience, may acquire the right from an adversarial and retributive CJS to that of a of audience in the High Court. restorative justice system. The Service Charter for The Attorneys Amendment Act, 1993 (Act 115 of Victims of Crime seeks to consolidate the present 1993), provides for alternative routes for legal framework in South Africa relating to the admission as an attorney. One of these routes is rights of and services provided to victims of crime, that persons who intend to be admitted as and to eliminate secondary victimisation in the attorneys and who have satisfied certain degree criminal justice process. requirements prescribed in the Act, are exempted The ultimate goal is victim empowerment by from service under articles or clerkship. However, meeting victims’ needs, whether material or such persons must satisfy the society concerned emotional. that they have at least five years’ appropriate legal experience. Crime prevention State law advisers give legal advice to The Department of Justice and Constitutional ministers, government departments and provincial Development is one of the five core departments in administrations, as well as to a number of statutory the Justice, Crime Prevention and Security (JCPS) bodies. In addition, they draft Bills and assist the Cluster that has been tasked with the minister concerned with the passage of Bills implementation of the National Crime Prevention through Parliament. They also assist in criminal and Strategy (NCPS). This is government’s official constitutional matters. strategy to combat, control and prevent crime. (See Chapter 17: Safety, security and defence.) Other legal practitioners The main responsibilities of the department in In terms of the NPA Act, 1998, state advocates and the implementation of the NCPS are to: prosecutors are separated from the Public Service • promote legislation to create an effective CJS in certain respects, notably by the determination of • create an effective prosecution system salaries. • create an effective court system for the State attorneys derive their power from the State adjudication of cases Attorney Act, 1957 (Act 56 of 1957), and protect the • co-ordinate and integrate the departmental interests of the State in the most cost-effective activities of all role-players involved in crime manner possible. They do this by acting on behalf of prevention. the State in legal matters covering a wide spectrum of the law. Integrated justice system (IJS) State attorneys are involved in the drafting of Following government’s approval of the NCPS in contracts where the State is a party, and also act on 1996, the IJS Board was formed in 1997 to behalf of elected and appointed officials in the integrate the activities of departments in the cluster performance of their duties, e.g. civil and criminal in a co-ordinated manner. actions instituted against ministers and government The IJS, approved in 2002, aims to increase the officials in their official capacities. efficiency and effectiveness of the entire criminal

398 justice process by increasing the probability of plan to achieve the vision, mission and successful investigation, prosecution, punishment department’s specific objectives, the IJS Board for priority crimes and ultimately rehabilitation of co-ordinates the broader and shared duty to offenders. integrate the information flow throughout the A second version of the IJS was published in May CJS. 2003. Issues that are receiving specific attention Effective and efficient management of cases and include the overcrowding in prisons and awaiting- persons through the justice chain trial prisoner problems (currently being dealt with This goal focuses specifically on women, children by the Department of Correctional Services), as well and vulnerable groups, as well as on improved court as bail, sentencing and plea-bargaining (currently and case administration. being dealt with by the Department of Justice and Constitutional Development). Child justice Government at all levels wants to eliminate The department continues to prioritise access to duplication of services and programmes. The need justice for vulnerable groups, including: for strategic alignment of cluster activities has also • Implementing relevant legislation and enabling been raised at a series of other governmental policy, for example, accelerating the finalisation meetings and fora. of the Child Justice Bill. By mid-2006, Cabinet Benefits of proper alignment include: had approved the Sexual Offences Bill. • less duplication of services • Ensuring assistance from prosecutors and public • effective use of scarce and limited resources and defenders for child maintenance. skills • Enforcing the right of children to receive support • joint strategic planning and a planned approach from earning parents. instead of reacting to problems. • Prioritising child justice and all cases involving During the latter half of 2002, the IJS Board children, especially those in prison awaiting trial. responded to the challenge and initiated a process to co-ordinate and align activities beyond the IJS. In Victim-Empowerment Programme (VEP) response to this, a development committee was The VEP aims to improve services rendered to established in 2003 and mandated to align the crime victims. shared objectives of cluster departments. The NPA has court-preparation officials on The JCPS has structured itself to focus on two contract who provide support to crime victims, main areas of responsibility, namely operational and especially abused children, in preparing them for developmental issues relating to the justice system, court proceedings. and the improved safety and security of citizens. The Service Charter for Victims of Crime, approved by Cabinet, is expected to go a long way Modernisation of the justice system towards assisting crime victims. This includes the establishment of proper governance By February 2006, some important elements of structures, effective monitoring mechanisms based the charter were in place, including: on proper review findings, as well as the integration • toll-free lines in all provinces and automation of the justice system. • training of victim assistance staff who will Key projects already receiving attention are: assume duty at service-delivery points by 2007/08 Criminal Justice Review Commission • a set of complaints mechanisms. By September 2005, the Cabinet had endorsed proposals by the JCPS Cluster to review the CJS. Integrated justice case-flow management centres Case-flow management centres provide an Integration and automation of the criminal justice integrated solution to managing cases through the system court system, facilitated by IT that allows the While each department within the JCPS Cluster monitoring of aspects such as case-cycle time and must have its own information technology (IT) court rolls.

399 Contributing to interdepartmental and cluster co- e-Justice Programme is funded mainly by the Justice & correctional services ordination and co-operation Justice Vote, but is supplemented with donor The Development Committee is mandated to align funding from the European Union Commission, the and co-ordinate cluster activities across the various Royal Netherlands Embassy and the Irish Embassy. departments, with the ultimate aim of improving With the completion of the DNS I project in March service delivery, policy co-ordination and planning. 2005, the department embarked on DNS II to establish It consists of senior representatives from each of a virtual private network, the first time in government, the partner departments participating in the IJS, for the department to improve response times and the and is chaired by the Department of Justice and transfer of e-mail traffic over the network, and to Constitutional Development. National Treasury, the enhance service delivery. In this regard: judiciary and the Department of Home Affairs are • 221 sites were migrated also represented on the committee. • eight sites were deployed • bridging training was conducted in 190 sites and Children awaiting trial 5 796 users were trained National and provincial action plans to fast-track all • full training was offered to six offices and children awaiting trial in prisons and police cells, 52 users were trained. have led to a reduction in children awaiting trial By May 2006, the Department of Justice and from over 1 775 in January 2005 to 1 243 in Constitutional Development was rolling out January 2006. information and communications technology to all Specific interventions to address the backlog of departmental sites with 15 users and less, thus cases pending trial include moving away from connecting the smaller, mostly rural sites to the placing children who are in trouble with the law in department’s infrastructure and networks. correctional detention centres. Children awaiting trial will be placed under home-based supervision, Court Process Project in places of safety or in the care of parents or The CPP, which was initiated in 2000, seeks to re- caregivers. Three child-justice centres have been engineer the way in which court services are established in Port Elizabeth, Bloemfontein and Port delivered. It is aimed at providing courts with the Nolloth. necessary tools to deal with caseloads and general The National Inter-Sectoral Committee on Child management more effectively. Justice monitors and evaluates all child-justice This project also links, for the first time, the police, issues and reports to the JCPS Cluster. This forum prosecutors, courts, prisons and social-welfare has also been established at regional level. facilities at selected pilot sites. It incorporates the flow of processes that affect departments in the IJS, e-Justice Programme namely the departments of safety and security, The e-Justice Programme supports the of correctional services, of social development, of fundamental reforms necessary to establish a more justice and constitutional development and the NPA. fair, accessible and efficient justice system in The system is live at the Durban Centre of South Africa. Excellence (CoE). The purpose of this programme is to reform and modernise the administration and delivery of justice Financial Administration System through re-engineering work processes by using The FAS is tasked with automating and administering technologies, strengthening strategic planning and trust accounts in the magistrates’ courts, the State management capacity, organisational development Attorneys’ offices and the Guardian’s Fund in the and human resource (HR) interventions. master’s offices. The e-Justice Programme has evolved into the The Justice Deposit Account System was enhanced Information and Systems Management and rewritten to accommodate functionality, allowing Programme, which has 25 projects in addition to the system to seamlessly interface with private the three main ones, i.e. Court Process Project banking institutions. The enhanced system was (CPP), Digital Nervous System (DNS) Project and successfully piloted at Bafokeng Magistrate’s Court Financial Administration System (FAS) Project. The in North West.

400 Legislative and constitutional Constitution by providing that no Act number will be development allocated to it in future. The Legislative and Constitutional Development It is also intended to substitute the short titles of Branch of the Department of Justice and all Constitution Amendment Acts that have been Constitutional Development is responsible for enacted since the commencement of the promoting, maintaining and developing the Constitution, so as to provide for the consecutive Constitution and its values by researching, numbering of those Acts. developing and advancing appropriate legislation. It includes research activities of the South Constitutional Matters Amendment Act, 2005 African Law Reform Commission (SALRC), which (Act 15 of 2005) involve extensive reviews of wide areas of law and This Act amended the Public Funding of legal practice. Represented Political Parties Act, 1997 (Act 103 of The legislative development component of the 1997), to further regulate the allocation of monies branch is responsible for researching, developing from the Represented Political Parties Fund to and promoting appropriate legislation affecting the political parties participating in the national and department’s line functions. provincial legislatures, where a member of a The constitutional development component of legislature becomes a member of another party the branch is also responsible for promoting the while retaining membership of that legislature, or independence and effectiveness of Chapter Nine where an existing party merges with another party, institutions, and for administering the Constitution, or subdivides into more than one party, or which includes monitoring the implementation of subdivides and any one subdivision merges with the Constitution and the Bill of Rights. another party. Between 1994 and 2005, the department The Act also amended the Determination of promoted more than 113 Bills. The department’s Delegates (National Council of Provinces) Act, 1998 legislative programme was dominated by three (Act 69 of 1998), to provide for the determination of main themes: certain delegates of a provincial legislature, which • legislation to give effect to the spirit of the has been reconstituted on account of changes of constitutional dispensation party membership and mergers or subdivisions. • legislation to address crime issues in South Africa • legal reform. Judicial Matters Amendment Act, 2005 (Act 22 of 2005) Regulation of Interception of Communication and This Act amended a number of different Acts of Provision of Communication-Related Act, 2002 Parliament, which are administered by the (Act 70 of 2002) Department of Justice and Constitutional This Act aims to regulate the interception and Development. The amendments are technical in monitoring of certain communications and prohibits nature and address identified practical problems. such interception and monitoring, except in cases where such interception or monitoring has been Repeal of the Black Administration Act and authorised by a judge of the High Court in the case Amendment of Certain Laws Act, 2005 (Act 28 of of suspected serious offences. This Act, while 2005) protecting the rights of law-abiding individuals, is This Act repeals the Black Administration Act, 1927, expected to contribute to the fight against serious which contains many provisions regulating the lives organised crime. of black persons in a manner in conflict with the Constitution. Citation of Constitutional Laws Act, 2005 (Act 5 of 2005) Other legislation Since the Constitution of the Republic of South Some important legislation that is being promoted Africa is the supreme law of the country, it should by the department includes the Judicial Service be treated differently from other Acts of Parliament. Commission (JSC) Amendment Bill and the Child This Act is intended to change the reference to the Justice Bill. The proposed Child Justice Bill will

401 create a new system for dealing with children in The directorate is involved in direct liaison and Justice & correctional services trouble with the law. negotiations at administrative and technical level with foreign states to promote international legal co- Superior Courts Bill operation, and for the possible conclusion of The Bill is intended to rationalise the structure and extradition and mutual legal-assistance agreements. functioning of South Africa’s superior courts. The directorate also aims to establish greater uniformity between the legal systems of southern Compulsory HIV-Testing of Alleged Sexual African states, especially the Southern African Offenders Bill Development Community (SADC). The purpose of the Bill is to provide a speedy and The directorate co-ordinates human-rights uncomplicated mechanism whereby a victim of a issues at international level under the auspices of sexual offence can apply to have the alleged the United Nations (UN) and the African Union (AU). offender tested for HIV and have the test results The functions of the directorate are divided into disclosed to the victim. six broad categories: • regular liaison with SADC states Criminal Law (Sexual Offences) Amendment Bill • co-ordinating all Commonwealth matters The Criminal Law (Sexual Offences) Bill emanates pertaining to the administration of justice from an investigation by the SALRC and proposes a • interacting with other international bodies, such comprehensive review of existing legislation as the United Nations (UN), the Hague dealing with sexual offences. It aims to bring this Conference and the International Institute for the area of law into line with the new constitutional Unification of Private Law dispensation and to provide greater protection • interacting with foreign states outside the SADC against the sexual abuse of women and children, region especially girls. • negotiating extradition and mutual legal- assistance agreements with other countries State Legal Services • preparing Cabinet and Parliament documentation State Legal Services provides government with for the ratification of human-rights treaties, legal services and facilitates constitutional including report writing. amendments through three subprogrammes. State Legal Services provides for the work of the International Criminal Court (ICC) State Attorney and state law advisers. The former acts As required by the Rome Statute of the ICC, South as attorney, notary and conveyancer for government. Africa has promulgated the Implementation of the State law advisers provide legal opinions for all Rome Statute of the ICC Act, 2002 (Act 27 of 2002). organs of state, scrutinise and amend international This Act provides for a framework to: agreements, draft legislation and subordinate • ensure the effective implementation of the Rome legislation and attend relevant parliamentary Statute of the ICC in South Africa portfolio committees as legal advisers for all • ensure that South Africa conforms with the national departments. The component hosts the obligations set out in the statute National Forum Against Racism and facilitates • address the crime of genocide, crimes against South Africa’s participation in the International humanity, and war crimes Court for Criminal Justice. • address the prosecution in South African courts of persons accused of having committed said International affairs crimes in South Africa and beyond the borders of The main functions of the Directorate: International the country in certain circumstances Affairs in the Department of Justice and • deal with the arrest of certain persons accused Constitutional Development are to identify and of having committed said crimes and their research legal questions that relate to matters surrender to the ICC in certain circumstances pertaining to the administration of justice between • enhance co-operation by South Africa with the South Africa and other states. ICC.

402 Legal structures Johannesburg, Kimberley, Mafikeng, Polokwane, Masters of the High Court Port Elizabeth, Pietermaritzburg, Pretoria, The Masters of the High Court are involved with the Thohoyandou and Mthatha. administration of justice in estates of deceased • Suboffices are located in places where the High persons and those declared insolvent, the liquidation Court does not have a seat, but where workloads of companies and close corporations, and the require the presence of at least one assistant registration of trusts. master. Each year, the value of estates under the • At service points, officials attached to the supervision of the masters’ offices amounts to Branch: Court Services deliver services on behalf about R18 billion. This includes about R2,5 billion in of, and under the direction of, the master. Each the Guardians’ Fund. magistrate’s court is a service point. Each ser- The key statutory functions of the masters’ vice point has at least one designated official offices are to: who is the office manager or a person of equal • control the administration of deceased and rank. They only appoint masters’ representatives curatorship estates in intestate estates of R50 000 or less, in terms • control the administration of insolvent estates and of section 18(3) of the Administration of Estates the liquidation of companies and close corporations Amendment Act, 2002 (Act 47 of 2002). • control the registration and administration of both testamentary and inter vivos trusts Curatorships • manage the Guardian’s Fund, which is entrusted On 26 December 2004, the Mental Healthcare Act, with the funds of minors, mentally challenged 2002 (Act 17 of 2002), came into operation, recalling persons, unknown and/or absent heirs, and the Mental Health Act, 1973 (Act 18 of 1973). creditors for administration on their behalf The new Act provides that where a person falls • assess estate duty and certain functions with within the ambit of this Act, the master can appoint regard thereto an administrator to handle the affairs of the • accept and take custodianship of wills in person. The administrator, in this instance, deceased estates replaces the appointment of a curator, as done in • act as an office of record. the past. In terms of the Prevention of Organised Crime Deceased estates Act, 1998, the master also appoints curators in On 15 October 2004, the Constitutional Court these estates to administer the assets of persons declared section 23 and regulations of the Black and legal entities attached by the AFU, in terms of a Administration Act, 1927 unconstitutional. In 2005, court order. legislation to repeal the Black Administration Act, 1927 was finalised. Guardian’s Fund This decision implied that the Master of the High The fund holds and administers funds, which are Court takes over the powers of supervision in all paid to the master on behalf of various persons deceased estates, and that all estates have to be known or unknown. These include minors, persons administered in terms of the Administration of Estates incapable of managing their own affairs, unborn Act, 1965 (Act 66 of 1965), as amended. All intestate heirs, missing or absent persons, or persons having estates must be administered in terms of the Intestate an interest in the money of an usufructuary, Succession Act, 1987 (Act 81 of 1987), as amended. fiduciary or fideicommissary nature. This will ensure that all South Africans are The money in the Guardian’s Fund is invested treated equally, and that the dignity of each person with the Public Investment Commission and is is respected. audited annually. Interest is calculated monthly at a The institutional structures are the following: rate per year determined from time to time by the • The Chief Master heads the national office and is Minister of Finance. The interest is compounded responsible for co-ordinating all the activities of annually at 31 March. Interest is paid for a period the masters’ offices. from a month after receipt up to five years after it • There are masters’ offices in Bhisho, has become claimable, unless it is legally claimed Bloemfontein, Cape Town, Durban, Grahamstown, before such expiration.

403 Five years after the money has become claimable, children in divorce actions, or applications for the Justice & correctional services the master pays the unclaimed money to the Receiver variation of existing divorce orders. The functions of of Revenue Payment Register.This does not mean that the Family Advocate have been extended to include the owner of the money cannot claim the money from maintenance and domestic-violence matters. the Guardian’s Fund. However, 30 years after the Inquiries take place at the request of the court, money has become claimable, the money is forfeited one or both parties to the litigation, or at the to the State. Every September, the master advertises initiative of the Family Advocate, in which case unclaimed amounts in the Government Gazette. authorisation of the court must be obtained. Family advocates operate in the provincial and local Rules Board for Courts of Law divisions of the High Court as well as in lower courts. The rules board is a statutory body empowered to The Hague Convention on the Civil Aspects of make or amend rules for high courts, the Supreme International Child Abduction Act, 1996 (Act 72 of Court of Appeal and the lower courts. 1996), came into effect in October 1997 and the It also develops rules and court procedures to Natural Fathers of Children Born out of Wedlock Act, ensure a speedy, inexpensive civil justice system 1997 (Act 86 of 1997), in September 1998. The that is in harmony with the Constitution and promulgation of these Acts extended the service technological developments, and is accessible to all delivery of the Office of the Family Advocate South Africans. countrywide. The Office of the Family Advocate provides Justice College support services for the family court pilot project. The Justice College provides vocational training to Most offices are involved in mediation training for a all officials of the Department of Justice and large contingent of social workers and other Constitutional Development. It also presents training mental-health professionals. to autonomous professions such as magistrates and The Office of the Family Advocate co-ordinates prosecutors. community-outreach programmes to assist Training is integral to the department’s efforts to children involved in family disputes. widen and improve citizens’ access to justice. The The Children’s Act, 2005 (Act 38 of 2005), Justice College is being transformed by reviewing provides for the extension of the role of the Family governance structures, processes and systems, and Advocate to areas such as mediation and the revamping the curriculum to ensure that the college facilitation of family-group conferences. serves the training and development needs of all its stakeholders. Legal Aid Board The transformed college will extend training to all The Legal Aid Board has completed the roll-out of a professionals and officials of the department, national infrastructure of four regional offices, including state attorneys, masters, family advocates, 57 justice centres and 35 satellite offices. It registrars, court managers and interpreters. employs more than 1 500 staff of whom more than Training interpreters is also a departmental 1 000 are legal professionals. priority. The college continues presenting courses The board continues to provide legal assistance that focus on complex concepts and has launched to the indigent, in accordance with the Constitution management-training courses for senior interpreters and other legislative requirements. This is carried to facilitate and develop their leadership skills. out through a system of in-house outsourcing to private lawyers (a system of judicare) and co- Office of the Family Advocate operation partners. The Office of the Family Advocate functions in With its national infrastructure in place, the terms of the Mediation in Certain Divorce Matters board focuses on improving access to clients and Act, 1987 (Act 24 of 1987). communities, and on improving the quality of The Family Advocate, assisted by family delivery of legal services. counsellors, reports to the court and makes The Legal Aid Board has increased the number of recommendations. These serve the best interest of state-funded criminal and civil cases from 115 000 children in cases where there is litigation relating to in 2001 to 340 244 in 2005.

404 In 2005, the board spent about R100 million 1973). The SALRC and its secretariat are of its R561-million budget on 42 000 cases that responsible for research in respect of the law of were referred to private legal practitioners. South Africa with a view to advising government on the development, improvement, modernisation and Public Protector reform of the law of South Africa in all its facets, by The Public Protector investigates complaints from performing, among others, the following functions: the public or on own its initiative against government • executing the law-reform programme of the at any level, its officials, persons performing public SALRC by conducting legal research, including functions, corporations or companies where the legal comparative research, by developing State is involved, and statutory councils. proposals for law reform and, where appropriate, The Public Protector’s services are free and by promoting uniformity in the law available to everyone. • preparing legislative proposals Complainants’ names are kept confidential as far • establishing a permanent, simplified, coherent as possible. and generally accessible statute book, The President appoints the Public Protector on complying with the principles of the Constitution recommendation of the National Assembly and in • consolidating or codifying any branch of the law terms of the Constitution, for a non-renewable • assisting parliamentary committees during the period of seven years. deliberation of draft legislation emanating from The Public Protector is subject only to the the SALRC Constitution and the law, and functions independently • advising ministers and state departments on from government and any political party. proposed legislation and recommendations of No person or organ of state may interfere with the SALRC. the functioning of the Public Protector. The Public Protector has the power to report a Judicial Service Commission matter to Parliament, which will debate on it and In terms of the Constitution, the President, in ensure that the Public Protector’s recommendations consultation with the JSC, appoints the Chief are followed. Justice and the Deputy Chief Justice, and the President and Deputy President of the Supreme Magistrates’ Commission Court of Appeal. Other judges are appointed by the The Magistrates’ Commission ensures that the President on the advice of the JSC. appointment, promotion, transfer or discharge of, or In the case of the Chief Justice and the Deputy disciplinary steps against judicial officers in the Chief Justice, the leaders of parties represented in lower courts take place without favour or prejudice, the National Assembly are also consulted. and that the applicable laws and administrative The JSC was established in terms of section 178 directions in connection with such actions are of the Constitution to perform this function. applied uniformly and correctly. It also advises government on any matters relating The commission also attends to grievances, to the judiciary or to the administration of justice. complaints and misconduct investigations against When appointments have to be made, the com- magistrates. It advises the Minister of Justice and mission gives public notice of the vacancies that Constitutional Development on matters such as the exist and calls for nominations. appointment of magistrates, promotions, salaries The JSC shortlists suitable candidates and and legislation. invites them for interviews. Professional bodies and The commission has established committees to members of the public are afforded the opportunity deal with appointments and promotions; misconduct, to comment before the interviews or to make disciplinary inquiries and incapacity; grievances; representations concerning the candidates to the salary and service conditions; and the training of commission. magistrates. The JSC has determined criteria and guidelines for appointments, which have been made public. South African Law Reform Commission The interviews are conducted as public hearings The SALRC is an independent statutory body, and may be attended by anyone who wishes to do established by the SALRC Act, 1973 (Act 19 of so. Following the interviews, the JSC deliberates

405 and makes its decisions in private. Its human rights is through the convening of public Justice & correctional services recommendations are communicated to the inquiries and hearings. President, who then makes the appointments. Research and Documentation monitors and assesses the observance of human rights, in South African Human Rights Commission particular economic and social rights, the right to In terms of section 184(1) of the Constitution, the equality and the right of access to information. In SAHRC must: addition, the programme monitors and intervenes • promote respect for human rights and a culture in the legislative process and liaises with of human rights Parliament. It maintains a leading human-rights • promote the protection, development and library and documentation centre. attainment of human rights The commission is mandated by the South • monitor and assess the observance of human African Constitution to request annual reports from rights in South Africa. government on progress made in the realisation of The work of the commission is divided into the economic and social rights. This function is carried following programmes: out by the Economic and Social Rights Unit. • Strategic Management and Support Services The Promotion of Equality and Prevention of • Commissioners Unfair Discrimination Act, 2000 gives the • Legal Services commission specific responsibilities in addition to • Research and Documentation its overall mandate to secure the right to equality. • Education and Training The Equality Unit functions as the focal point for the Strategic Management and Support Services ensures commission’s activities in this area. The unit that the operations of the commission comply with monitors equality courts and contributes to constitutional and legislative imperatives, guides the legislative developments and reform. Once the functioning of the commission to align with its promotional aspect of the Act comes into place, the strategic objectives and national priorities, and programme will receive and analyse equality plans, positions the commission favourably within the request regular reports relating to the number of human-rights field regionally, nationally and cases adjudicated by the equality courts, and internationally. submit an annual report to Parliament. Commissioners raise the profile of the SAHRC, The Promotion of Access to Information Act, make strategic interventions, provide leadership in 2000 places specific obligations on the relation to human-rights issues and contribute to commission. It co-ordinates implementation in this the development of human-rights-related and arena, including monitoring and research, making organisational policy. recommendations for the improvement and The commission plays a special role in the development of the Act, and providing an annual development of human rights in Africa through report to Parliament. work with the relevant organs of the SADC, AU and Education and Training conducts educational the African Commission on Human and People’s interventions on human rights and the commission’s Rights. It is a member of the International Co- focus areas, conducts community outreach and ordinating Committee of African National Human awareness programmes, develops human-rights Rights Institutions and has been instrumental in education and training material, and ensures the setting up other national human-rights institutions institutionalisation of human-rights education. in Africa. Public outreach activities within the commission Legal Services investigates individual and focus on poverty-stricken communities in rural and systemic human-rights violations and provides peri-urban areas. The commission has developed the appropriate redress. Mediations, decisions, findings Omnibus Outreach Programme. This is a multifaceted and opinions of the commission and litigation are tool for engaging with communities, encompassing a used to secure redress for individuals and large range of educational interventions ranging from communities. workshops, seminars, presentations, site visits and An important mechanism through which the walkabouts to widespread campaigns, events and commission addresses systemic violations of advocacy initiatives.

406 National Centre for Human-Rights Education and Some 22 000 individuals or their surviving family Training (NACHRET) members appeared before the commission. Of these, The NACHRET was established in April 2000. The 19 000 required urgent reparations, and virtually all of centre provides a platform for debate on human- them, where the necessary information was rights issues aimed at enhancing an understanding available, were attended to as proposed by the TRC of these issues and practices. It also provides with regard to interim reparations. training and builds capacity both in South Africa By July 2006, work was continuing to preserve and on the African continent regarding human- the TRC’s material and research. An allocation of rights themes, challenges and issues. R5 million for victims who testified before the TRC and who requested educational support was transferred to Commission on Gender Equality the National Student Financial Aid Scheme. Chapter Nine of the Constitution provides for the establishment of the CGE. Section 187 of the Correctional services Constitution specifically grants the CGE powers to The Department of Correctional Services promote respect for, and to protect, develop and contributes towards maintaining and protecting a attain gender equality. The composition, functions just, peaceful and safe society by enforcing court- and objectives of the CGE are outlined in the CGE imposed sentences and detaining inmates in safe Act, 1996 (Act 39 of 1996). custody while maintaining their human dignity. The CGE has the following powers and functions: It is also responsible for facilitating the correction • developing, conducting or managing information of offending behaviour and the general development and education programmes to foster public of all offenders as part of their rehabilitation, understanding of matters pertaining to the including those subject to community corrections. promotion of gender equality and the role and In pursuing these objectives, the department has activities of the commission developed the White Paper on Corrections that • monitoring and evaluating the policies and embodies its long-term strategic policy and practices of state organs, statutory and public operational framework. These recognise corrections bodies, as well as the private sector, to promote as a societal responsibility and put rehabilitation at gender equality the centre of all the department’s activities. • investigating any gender-related complaints In transforming the CJS in general, and the received or on its own initiative delivery of correctional services in particular, • liaising with institutions, bodies or authorities several milestones were attained in 2005/06, with similar objectives which included: • conducting research to further the objectives of • Thirty-six CoEs were launched in all six correctional the CGE. services regions. Where possible, such centres will Complaints are received from the public at large be launched at all 241 correctional centres. The and dealt with either through personal centres were prioritised for other interventions, consultations, telephonically or in writing, including including training in the new rehabilitation model electronically. Offender Rehabilitation Path. The CoEs, in which In cases where the complaint does not fall within practical rehabilitation programmes have begun to the CGE’s mandate, it may be referred to a relevant yield fruitful results, are producing rehabilitated institution or forum. graduates and professionals in plumbing, During 2004/05, the CGE attended to 1 132 carpentry, electrical engineering and teaching. complaints. • The national curriculum programme was expected to see the department implementing the Truth and Reconciliation Commission (TRC) National Curriculum Statement for Grade 10 in its The TRC was established in terms of the Promotion CoEs in 2006/07, as part of its commitment to of National Unity and Reconciliation Act, 1995 (Act ensuring that education is a key tenet of 34 of 1995), to help deal with human-rights abuses rehabilitation. The Durban Westville correctional that were perpetrated under South Africa’s centre achieved a 100% matriculation pass rate in apartheid government. 2004 and 2005, producing inmates who are

407 prospective teachers, communication specialists, means that general overcrowding was in the region Justice & correctional services public relations officers and artists. of 137,64%. Of the total population, 113 820 inmates • By mid-2006, the department was registering all were unsentenced. its youth centres as full-time schools to ensure The average cost of incarceration was estimated the transformation of CoEs into rehabilitation at R123,37 a day. centres of education, knowledge and information. By June 2006, South African correctional By mid-2006, the department was developing a centres accommodated an offender population of new policy framework and restructuring the system 158 032 people and were overpopulated by more to centralise the principled participation of various than 50 000 people. role-players, including family, communities, NGOs, Government assigned the Department of faith-based organisations (FBOs), community-based Correctional Services to lead an intercluster task organisations (CBOs) and the CJS. team to develop a comprehensive strategy for This programme seeks to improve confidence in reducing overcrowding, for consideration by Cabinet the system, to optimise stakeholder participation during 2006/07. The strategy is expected to raise and to strengthen family relations, while improving proposals regarding the location of the function, the management of rehabilitation programmes dedication of appropriate resources and programmes outside correctional centres. for effective management of inmates who, in terms of The new programme was expected to improve the Constitution, are considered innocent until proven the implementation of diversion programmes, non- guilty. custodial sanctions for offenders who pose limited Regional and area commissioners countrywide danger to society, and the role of society in were expected to identify alternative facilities for preventing crime and in correcting offending incarcerating awaiting-trial detainees (ATDs) in behaviour. correctional centres in the interim to reduce The budget allocation for social reintegration overcrowding in police holding cells. The ATD increased by 9,15% (from R313,3 million in 2005) population decreased from 52 313 in January 2005 to R342 million in 2006. to 46 393 in March 2006. Managing the special remission of sentences Offender accommodation reduced overcrowding in correctional centres between The department strives to provide adequate prison June and August 2005 by over 31 000 sentenced accommodation that complies with accepted offenders, from 187 000 to just over 156 000, thus standards. By March 2006, offenders were housed saving over R70 million in running costs. in 237 active correctional centres countrywide, Four new-generation prisons in Kimberley, including: Klerksdorp, Leeuwkop and Nigel are expected to be • eight correctional centres for female offenders completed in 2007. Similar facilities are expected only to be built in the Eastern Cape, Western Cape, • 13 youth correctional facilities KwaZulu-Natal and Limpopo. All eight prisons will • 129 correctional centres for male offenders only have 3 000 beds each. • 87 correctional centres for both male and female Construction of another four new-generation offenders. correctional centres in Paarl, East London, Port Three correctional centres were closed down for Shepstone and Polokwane, announced in 2006, renovations. In centres where male, female and juvenile offenders are accommodated, female and juvenile offenders are housed in separate designated To improve its capacity for delivery, the sections. Department of Correctional Services employed over 3 000 entry-level personnel members in 2005/06 to enable it to phase in a seven-day Overcrowding in prisons working week. Over 8 000 officials were By 31 December 2005, South Africa’s correctional promoted and social workers’ working centres collectively housed 160 213 inmates, while conditions improved. accommodation was available for only 114 354. This

408 was expected to start in 2008. By June 2006, the into account include the type of crime committed, environmental-impact assessment, the feasibility the length of the sentence, and previous convictions. study and the identification of public land for the The safe-custody classification of all offenders is Limpopo centre were under way. reviewed regularly, and if their behaviour, or any other aspect affecting their security risk, justifies it, Safety and security reclassification takes place. One of the core objectives of the department is to ensure that every correctional centre has a secure Categories environment with a correcting influence. This refers There are five categories of offenders in South not only to the prevention of escapes from custody, African prisons, namely: but also to the creation and maintenance of an • unsentenced offenders (mainly offenders environment in which there is a significantly low standing trial on a charge and detained in prison prevalence or absence of inmate abuse, violence, pending the conclusion of the judicial process) corruption and negligence. • short-term offenders (offenders serving a The department has put in place various sentence of less than two years) measures aimed at combating escapes. These • long-term offenders (offenders serving include the optimal utilisation of existing security sentences of two years and longer) aids and equipment, continued evaluation of • unsentenced children/juveniles and youths security directives, upgrading personnel training, between the ages of 14 and 25 disciplinary action against negligent personnel, • sentenced children/juveniles and youths between rewarding offenders who report or warn of planned the ages of 14 and 25. escapes, and the installation of electronic fences and X-ray scanners in high-risk prisons. Young offenders Through the implementation of national and In terms of the Constitution, a child is a person regional escape-prevention strategies, the department under the age of 18 years. The Department of succeeded in reducing the number of escapes from Correctional Services regards a person between 171 in 2004/05 to 120 in 2005. the ages of 14 and 25 years as a youth. The The number of escapes decreased by 90,3% department is responsible for the detention, between 1996 and 2005. treatment and development of sentenced juveniles. The department is upgrading and intensifying the Section 7(2)(c) of the Correctional Services Act, use of equipment to increase the level of security in 1998 (Act 111 of 1998), stipulates that children prisons. This will ensure the protection of offenders, must be kept separate from adult offenders and in officials and the public. The department has created accommodation appropriate to their age, as young a culture of security awareness among its staff. All offenders are predisposed to negative influence. managers are involved in monitoring and ensuring The aim of this separation is the provision of adherence to security policies and procedures, distinctive custodial, development and treatment through strict supervision, control mechanisms and programmes, as well as spiritual care, in an disciplinary action against negligent officials. environment conducive to the care, development The department is rolling out a biometric security and motivation of youths to participate and to system and state-of-the-art fencing with CCTV. By develop their potential. August 2006, the system had been launched in The nature of serious offences committed or 62 of the targeted 66 correctional-service sites. The allegedly committed by children under the age of system includes a biometric fingerprinting system 18 who were awaiting trial or sentenced is to manage inmate visitations. alarming. A breakdown of the nature of the crimes of those in custody on 31 March 2006 revealed that Classification there were 745 economic-related offences, Offenders undergo safe-custody classification upon 1 184 aggressive offences and 308 sexual offences. admission to determine the level of security A further 107 juveniles were detained for drug- required to detain them. related and other offences. Offenders are classified into minimum, medium Of the crimes committed by 36 929 sentenced or maximum custodial categories. Variables taken youths between the ages of 18 and 25, 20 492

409 were aggressive, 9 434 economical, 8 606 sexual, The privilege system Justice & correctional services and 3 245 drug-related and other types of offences. The main objectives of the privilege system are There are 13 youth correctional facilities in the to encourage offenders to display good behaviour, country, namely Hawequa, Brandvlei, Drakenstein to engender a sense of responsibility in them, and Medium B and Pollsmoor Medium A (Western to ensure their interest and co-operation in Cape); Leeuwkop, Emthonjeni and Boksburg treatment programmes. (Gauteng); Rustenburg (North West); Durban and The system consists of primary and secondary Ekuseni (KwaZulu-Natal); Groenpunt and Kroonstad privileges. Primary privileges are aimed at the (Free State); and Barberton Prison (Mpumalanga). retention, maintenance or furthering of family ties to, The development and support of youth offenders among other things, facilitate reintegration into the form an essential part of their incarceration. The community.These privileges are divided into A, B and aim of rendering professional services (education, C groups. The entry level for all new admissions is reskilling, learning a trade, moral and spiritual the B group and, depending on behaviour, an enlightenment, and personal development) is to offender may be promoted or demoted to either the rehabilitate youth offenders, contribute towards A or the C privilege group. their behavioural change, and prepare them for Secondary privileges are aimed at leisure-time reintegration into the community. activities such as participation in sport and The focus is on the promotion and development watching television. No sentenced offenders are of leadership qualities. A holistic approach is allowed to receive food from outside prison or to followed in which: use private electrical appliances. • young offenders are motivated to actively parti- cipate in their own development and the Healthcare services realisation of their potential The healthcare of offenders is regarded as an • a culture and atmosphere of development prevails important responsibility of the department. It • sound discipline and co-operation between includes nutrition, personal care, environmental personnel and offenders, and among offenders, hygiene and pharmaceutical services. The depart- is fostered and maintained. ment endorses the fundamental rights and privileges of all offenders. Mother-and-child units In accordance with the Correctional Services Act, Mother-and-child units have been established in 1998, an independent judicial inspectorate regularly eight female correctional centres countrywide. By inspects all prisons and reports on their conditions 31 March 2005, there were 173 infants under the and the treatment of offenders. age of five in correctional centres with their The policy and administrative framework for the mothers. Policy on such infants clearly stipulates maintenance of an adequate, affordable and that mothers and children are kept in a separate comprehensive healthcare service is based on the unit within the correctional centre, where the principles of primary healthcare (PHC). The service surroundings and facilities are complementary to includes mental, dental and reproductive health, the sound physical, social and mental care, and supplementary healthcare, health-promotion, development of children. The policy also stipulates that the admission of an infant with a mother is permitted only if no other suitable accommodation and care are available at On 12 May 2006, the Minister of Correctional Services, Mr Ngconde Balfour, and the Zambian that stage, and that it should be regarded as a high commissioner to South Africa, Mr Lesley temporary measure. Mbula, signed a historic co-operation The right of the mother to have her child with her agreement aimed at improving correctional during admission promotes a positive relationship service delivery within the two countries and the Southern African Development Community. The between mother and child. The policy emphasises agreement is set to promote and institutionalise that the mother should be taught good childcare co-operation in various aspects of prison practices to build her own self-esteem and self- management. confidence, and for the benefit of the child.

410 Offenders in need of further healthcare are, as Inmates per security category as at 31 March 2006 far as possible, treated in state hospitals. The use of Sentence categories Women Men Total private hospitals for offenders is permitted in cases where public hospitals are unable to provide access Maximum security 261 37 341 37 602 to healthcare and only after approval by the Medium security 1 412 57 947 59 359 Provincial Commissioner of Correctional Services. Minimum security 20 1 251 1 271 The department’s objective is to maintain a high Total 1 693 96 539 98 232 standard of personal hygiene by ensuring that the Source: Department of Correctional Services following are provided to offenders: • toilet and bathing amenities with warm water • suitable clothing and comfortable shoes management of communicable diseases (including • adequate bedding HIV, AIDS and sexually transmitted infections [STIs]) • a clean and healthy environment and referrals where necessary, through the • safe water-supply acknowledgement of national and international • the promotion of a smoke-free prison environment. norms and standards, within the limited available The Minister of Correctional Services approved the resources. department’s HIV and AIDS Policy in October 2002. The approach to healthcare in South Africa’s In 2006, the department conducted a health-needs correctional facilities focuses on: assessment based on government priority areas, as • strict pursuance of ethical codes by health well as a survey of HIV and AIDS prevalence among professionals inmates and staff. • regular health-quality inspections The department is implementing the • strict compliance with rules of confidentiality and Comprehensive Plan on Prevention and Care of HIV privacy regarding the medical records of patients and AIDS of the Department of Health, which • the continuous evaluation and upgrading of includes providing antiretroviral (ARV) therapy to medical emergency services. offenders who qualify for this treatment by referring The Department of Correctional Services provides a them to the nearest accredited public healthcare system in which offenders are treated in the same facility to start treatment. way as other patients in the State sector through The department is also collaborating with the PHC principles. Department of Health to assess identified correctional centres for accreditation as ARV- Sentence length breakdown as at 31 March 2006 therapy providers. The first correctional centre to be accredited by Sentence length Number the Department of Health for providing ARV therapy <6 months 5 088 was Grootvlei in the Free State. The Qalakabusha, >6 – 12 months 4 188 Pietermaritzburg and Durban Westville centres >12 – 24 months 3 815 were expected to be accredited next. 2 – 3 years 10 423 The department’s HIV and AIDS Policy caters for: 3 – 5 years 10 642 • prevention, which involves the promotion of safe 5 – 7 years 8 831 sexual practices, management and control of 7 – 10 years 18 060 STIs, provision of condoms and access to voluntary counselling and testing 10 – 15 years 23 901 • treatment, care and support 15 – 20 years 11 287 • respect for human rights >20 years 9 537 • awareness campaigns and the commemoration Life 6 803 of HIV and AIDS calendar events Death 13 • partnerships with other government departments, Other sentenced 1 232 the private sector, NGOs and educational Total sentenced 113 820 institutions Source: Department of Correctional Services • peer-led education programmes to introduce behavioural changes among peers

411 • the appointment of employee-assistance Justice & correctional services practitioners to implement employee-wellness The Department of Correctional Services has programmes introduced compulsory rehabilitation programmes • principles of universal precautions, which for all offenders. Penalties for refusing to provide personnel and offenders with guidelines participate include the removal of certain privileges. and procedures regarding the handling of all body fluids. In 2005/06, the department facilitated 35 400 awareness sessions on HIV and AIDS and other ledge, skills and spiritual well-being, are focused health-related aspects. on the following key strategies, namely to: • positively combat illiteracy within the prison Nutrition environment The department is committed to maintaining the • actively engage the community to assist with health and strength of those entrusted to its care by development programmes for the people satisfying their nutritional needs according to the entrusted to the department’s care Recommended Daily Allowance for food intake. • develop and implement a needs-based The objective is to provide all offenders with development programme three nutritious meals per day and to provide for • establish training centres at large prisons as well therapeutic and special diets when prescribed by a as capacity-building in small prisons medical doctor. The system also allows for religious • market rehabilitation programmes to offenders and cultural diets. and the community In its efforts to ensure compliance in this regard, • promote and implement restorative justice a contract was negotiated with an external service- principles to ensure the involvement of provider to render catering services to the offenders, victims and the community in the offenders and to train staff and offenders who work rehabilitation process. in the kitchens. In March 2005, the Department of Correctional Because of budgetary constraints, the Services, in conjunction with the Department of department decided on phased implementation. Arts and Culture, launched the Arts Against Crime The first phase has seen implementation at seven Project. The project involves artists visiting large management areas, which benefit about one- correctional centres and engaging with offenders to third of the inmate population. An added advantage impart their love of the various art forms. It also is that on their release, trained offenders will be aims to assist offenders in discovering and honing able to participate effectively in the catering arena. their own artistic skills. The Department of Correctional Services believes that exposure to, Rehabilitation and participation in, the various art forms by Rehabilitation aims to provide treatment and offenders is of therapeutic value to them. development programmes to offenders in In 2006/07, Samuel Beckett’s play Waiting for partnership with the community. This will enhance Godot was staged at Pollsmoor by a cast drawn personal and social functioning, and will prepare from inmates, as part of the Arts in Prison Project them for reintegration into the community as run by the department in collaboration with the productive, well-adapted and law-abiding citizens. Department of Arts and Culture. A multidisciplinary team, consisting of social workers, psychologists, chaplains, educators, Institutional committees correctional officers and others (the external Institutional committees at each prison are community), addresses the basic needs of offenders responsible for ensuring a professional and co- by means of comprehensive assessments and ordinated approach towards the incarceration, various needs-based programmes. treatment, training and development of all The development and rehabilitation processes, offenders. which enable offenders to improve their mental This is implemented by means of a multi- health, social functioning, competencies, know- disciplinary approach in which all role-players are

412 involved, i.e. those concerned with custodial, department’s workshops, generating revenue of training, educational, psychological, religious-care about R3 million. and social-work functions, recreational sport and These training facilities are also available to library projects, as well as self-sufficiency and life members of the neighbouring communities to skills programmes. empower themselves. The Vukukhanye Youth Institutional committees have statutory decision- Development Project in the Western Cape is a making competency regarding the safe custody of prime example where trainees from Paarl and offenders, individual participation, subgroup and Franschhoek graduated with technical skills in group programmes, as well as prompt rewarding of garment-making, cabinet-making, upholstery and positive behaviour. other fields early in 2005.

Education and training of offenders Psychological services All offenders have a right to basic education and Psychological services are provided for sentenced training. The aim is to enhance the education level offenders and persons subject to community and to improve the skills of offenders to facilitate corrections, to maintain or enhance their mental their reintegration into society. health and emotional well-being. Services are provided to sentenced and In areas where there are no departmental unsentenced offenders in collaboration with psychologists, the department uses the following external partners (government institutions, training procedures to address the emotional needs of boards, NGOs, etc.) and are in line with the offenders: provisions of the South African Qualifications • external registered psychologists can be Authority and the National Qualifications contracted in if a medical practitioner has Framework. referred the offender for psychological treatment Education and training programmes include: • offenders can see a private psychologist at their • Adult Basic Education and Training own expense • mainstream education (grades 10 – 12) • final-year students who are completing their MA • business and engineering degrees in Clinical or Counselling Psychology • correspondence studies provide services without remuneration under the • technical studies supervision of their respective universities. • vocational training By July 2006, there were 55 psychologists • occupational skills training available in the department, which is the highest • instruction in recreation and sport number ever. This gave 73,14% more people (up • arts and culture programmes from 10 292 to 17 820) access to their services • life-skills training and development between 2004/05 and 2005/06. • entrepreneurial skills training • computer-based training. Social work services The main emphasis is on the provision of literacy Social Work Services aims to provide professional and numeracy programmes, which include training services to help offenders cope more effectively in occupational, life and entrepreneurial skills. This with problems relating to social functioning, and to should enhance the chances of the successful prepare them for reintegration into the society. reintegration of the offender into the community Social Work Services provides structured and labour market. treatment programmes on issues such as life skills, Inmates are encouraged to take part in sport, family care and marriage, alcohol and drug abuse, recreation, and arts and culture activities as far as orientation, sexual offences, trauma, pre-release, possible. and HIV and AIDS. Inmates are trained in 14 of the department’s training centres throughout the country in various Spiritual care of offenders fields such as IT, brick-laying, woodwork, welding, Spiritual-care services are rendered through needs- etc. In 2004, about 11 government departments based programmes within a multi-disciplinary purchased a range of items produced in the context to persons who are in the care of the

413 department.This is done in partnership with churches The PRB’s work would be in vain if offender Justice & correctional services or FBOs and other role-players to rehabilitate profiling and interventions regarding assessment offenders and reintegrate them into the community. and comprehensive rehabilitation programmes for It also aims to contribute to changing the offenders did not create conditions conducive to offenders’ behaviour, based on a lifestyle which is their rehabilitation, parole and social integration. in accordance with the acceptable values and Involving communities in this regard, as outlined in norms of their faith. the White Paper on Corrections, is important in Spiritual-care services are rendered to sentenced helping to break the cycle of crime. and unsentenced offenders, probationers, parolees The PRB will have to consider various issues in and personnel on an ad hoc basis. reviewing parole decisions, including existing The department employs full-time chaplains and programmes for offender rehabilitation based on part-time spiritual workers from various religious risk-profile management output, sentence planning backgrounds. and needs-based interventions and professional Quarterly meetings are held with the chaplains of treatment, where necessary. the South African National Defence Force and the As at 31 March 2006, there were 22 695 parolees. SAPS to discuss issues of common concern. The implementation of the Correctional Services The department is a member of the International Act, 1998 changed the department’s policy Prison Chaplaincy Association (IPCA). A working concerning releasing offenders. The most relationship also exists with FBOs like Prison significant changes included increasing the role of Fellowship International, Alpha, New Life Behaviour the community in decision-making and Ministries and Kairos. opportunities granted to victims of crime to express Provision is made for offenders to observe the their views for consideration before a decision was main religious festivals and holy days such as made. Ramadan, Passover, Good Friday and Christmas. There are 52 correctional supervision boards Religious and spiritual literature, such as the Bible countrywide tasked with deciding on the placement and the Qur’an, is supplied to offenders. of offenders before the expiration of their sentences on either correctional supervision or parole. They Release of offenders are chaired by people appointed from the The Correctional Services Act, 1998 provides for community where the board sits. Representatives the creation of independent regional correctional from the Department of Justice and Constitutional supervision and parole boards throughout the Development, the SAPS and two additional country, with greater powers to consider and community members serve on each board. approve which offenders, serving sentences The PRB comprises members of the National exceeding 12 months, should be granted parole. Council on Correctional Services and is chaired by a The Parole Review Board (PRB) was launched on 4 May 2006 to review decisions regarding the parole of sentenced inmates, signalling the department’s intent to consider or review parole The Department of Correctional Services is more holistically, by taking into account issues of implementing a skills-retention policy to attract fairness and objectivity as expected by citizens, and and retain scarce specialist and professional to ensure that there is recourse and alternative skills, and is ensuring that its correctional structure of appeal where rehabilitated offenders or officers’ and relevant professional employees’ salaries are improved. members of the public representing offender interests can make representation on their parole. A recruitment drive resulted in 50 new recruits The PRB does not replace correctional supervision being appointed in the Eastern Cape, particularly and parole boards. King William’s Town and Middledrift, as from September 2006. Many of them are specialists The PRB has to ensure that it can oversee the and professionals such as teachers, social many parole matters that the 52 parole boards workers and nurses, appointed to alleviate the deal with, and handles parole applications from shortage of such skills in the province. 240 correctional centres.

414 Judge of the Supreme Court. Other members that reintegrating offenders in society, by assisting with serve on the board are a member of the NPA, two job creation, for example. community members and a representative from the The department intends including the Department of Correctional Services. accreditation of skills-development institutions or Also significant to the new concept of parole facilities in line with the call for offenders to enjoy placement is that the victim now has a say in the appropriate and effective training during their placement of the offender. A victim may ask to be rehabilitation. The department intends launching present during the hearing or to make a presentation intensive community-outreach programmes such at the time when the offender is considered for as Operation Masibambisane, to create platforms parole. and avenues of interaction with provincial government structures, local government councils, Reintegration into the community as well as civic and traditional structures to The department aims to equip offenders with the enhance community involvement in the skills required for effective reintegration into society rehabilitation and social integration of offenders. after release. Offenders sentenced to longer than six months’ imprisonment undergo a basic pre-release Community corrections programme before release. Aspects receiving Plans are being implemented to make community attention include how to secure employment, correction offices more accessible to the majority of personal-finance management and street law. offenders and the community, especially in rural Specialists from the community are also involved areas. The final location and decentralisation of the in the presentation of the programme. Care and offices was envisaged by the end of 2006/07. On support for an offender are prerequisites for 31 March 2005, there were 172 fully functional placement in the community. Before offenders are offices and 21 suboffices. placed, they are assisted with obtaining employment and accommodation, or at least care Supervision of parolees and support. Community involvement in supporting Parolees are subject to certain conditions as well as offenders after release is encouraged. supervisory measures aimed at gradually re- Offenders are provided with financial and integrating them into the community. material assistance before they are released from To achieve these goals, parolees are allocated to prison. a supervision official of the department, who Four corrections programmes have been ensures that they are regularly monitored. developed and accredited, marking a real focus on Contravention of parole conditions leads to stricter root causes of crime in society, namely anger conditions and increased supervision or management, a sexual offenders programme, HIV reimprisonment for a part of or the entire remainder and AIDS awareness and pre-release programmes. of the parole period. Participation in rehabilitation programmes will soon Volunteers from the community are encouraged be compulsory. to assist the department in monitoring parolees. The White Paper on Corrections is founded on the Based on their risk profile, parolees are placed in belief that the Department of Correctional Services minimum, medium or maximum supervision should be an institution for rehabilitation, and that categories.The conditions for parole may include rehabilitation and social integration of offenders periods of house-arrest, restriction to a specific should be a responsibility of society. The department magisterial district, compulsory attendance of has entered into partnerships with NGOs, FBOs and treatment programmes and rendering compulsory CBOs in rendering reconciliation and moral renewal community service. programmes for offenders and communities, so that Persons awaiting trial may also be placed under rehabilitated offenders may be released into a correctional supervision. Because little is known about receptive environment, thus ensuring that both their criminal record prior to conviction, they are offenders and their victims, or affected families and classified under the maximum supervision category. communities, achieve closure. Monitoring includes visits to the parolee’s home Engaging with the faith community aims to and workplace, telephonic liaison and reports to the encourage them to play an important role in Community Corrections Office.

415 The department aims to increase the number of Offenders whose parole has already been Justice & correctional services personnel responsible for managing and controlling approved may under certain circumstances be persons sentenced to community corrections. allowed to spend weekends at home for the consolidation of family ties, preparation for release, Correctional supervision or for reasons that involve the reintegration of the Correctional supervision, an alternative sentencing offender into society. Offenders may also be option available to law courts, entails that upon granted compassionate leave under certain conviction, offenders are sentenced to a period of circumstances, such as attending burials of close correctional supervision. Correctional supervision family members. provides the opportunity to deal with some The offender has to observe strict conditions, offenders outside the walls of correctional centres. which include abstaining from drugs and alcohol, Offenders who pose a real threat to the community being in the care of a specific person and at a and who have chosen crime as a career, however, specific address, personally accepting liability for do not qualify for correctional supervision. any event that might result in expenses for the A person sentenced to correctional supervision is State, and not being found guilty of any misconduct. placed under the control of a correctional super- vision official. This official ensures that the Employee organisations probationer complies with whichever of the Employees of the Department of Correctional following conditions he or she may be subject to: Services subscribe to the Labour Relations Act, • house arrest 1995 (Act 66 of 1995). Two labour unions are active • community service, rendered free of charge in the department, namely the Police and Prisons’ • victim’s compensation Civil Rights Union and the Public Servants’ • restriction to a magisterial district Association. • prohibition on alcohol usage or abuse Because the department renders an essential • participation in certain correctional programmes. service, its members are not allowed to embark on If the set conditions are violated, probationers can strike action. be referred to the court of first hearing for consideration of an alternative sentence or, in Anti-corruption certain cases, be admitted directly to correctional Cabinet approved a three-pronged anti-corruption centres to serve the remainder of their sentences. strategy in 2002, which focuses on: According to section 117(e) of the Correctional • corruption prevention Services Act, 1998, it is an offence for a probationer • investigation of corruption, fraud and serious or parolee to abscond from the system of maladministration community corrections. If found guilty, they may • disciplinary sanction of members found to be receive an additional sentence of up to 10 years’ involved in corruption, fraud or serious imprisonment. mismanagement. As at 31 March 2006, there were 14 184 The department’s efforts at building an ethical and probationers. secure correctional system are ongoing. It launched a special three-month training programme in July Day parole 2006 for over 880 managers to equip them with the A small number of offenders are placed on day required skills to improve ethical behaviour and to parole either because they are institutionalised or fight corruption. The R4-million training programme they have a doubtful prognosis and pose a high comprises nine modules that include: security risk to the community. These offenders are • ethos in correctional services gradually resettled into the community as a • evolution of corruption and factors contributing bridging measure, instead of being released upon to corruption termination of sentence. Day parolees have to • understanding corruption and factors contributing comply with certain conditions. Contravention leads to it to withdrawal of privileges, stricter conditions or • understanding anti-corruption strategies suspension of day parole. • risk management

416 • conflict, diversity and change management multilateral fora such as the ICPA, the Conference • ethical reasoning and decision-making of Commissioners for East and Southern Africa, and • professional ethics for the Public Service. the UN. To combat fraud and corruption in correctional In conjunction with other African states, the services, the department is collaborating with the department is developing a programme that will SIU. The results of this partnership include: result in full compliance with the UN minimum • over 27 medical practitioners being investigated standards on the treatment of offenders. and 16 appearing in court, resulting in one Participation in binational commissions and joint conviction, a suicide case and over R300 million commissions of co-operation has resulted in the in recoveries and savings in medical aid claims department hosting several delegations from of more than half a billion rand various countries, as well as the Commission on • the approval of a new code of conduct that Human and Peoples’ Rights under the AU. closed gaps in the disciplinary system that led to Ministers responsible for prison management losses worth millions due to, among other things, and correctional services in SADC countries are the completion of cases being delayed and continuing efforts to implement the July 2003 suspensions being prolonged Johannesburg Declaration on Corrections. The de- • the signing of an MoU with the South African claration seeks to include the field of corrections in Management Development Institute and the the work of regional and continental multilateral Tshwane University of Technology to close gaps structures. in the department’s integrated anti-corruption In August 2006, the inaugural SADC Games of strategy Prisons and Correctional Services Officials were • analysing the final report of the Jali Commission held in Durban, KwaZulu-Natal. to ensure that the entire report is handled Over 600 correctional officials from six SADC without duplication of actions or omitting cases countries competed in soccer, netball, athletics and • establishing a departmental task team to volleyball. develop a plan of action in response to the The games coincided with an extraordinary recommendations of the Jali Commission three-day Conference on Eastern, Southern and • the department’s in-house anti-corruption Central African Heads of Correctional Services campaign to create a secure and ethical (Cesca) and a one-day workshop of Cesca member correctional system. states where an integrated strategy for HRD on corrections in Africa was discussed. The International co-operation conference aimed to strengthen correctional The Department of Correctional Services has services on the continent and to pave the way for established relations with organisations such as the the creation of an all-African correctional services American Correctional Association, the IPCA and the body that will play a more critical role in post- International Corrections and Prisons Association conflict reconstruction and development, in (ICPA). countries such as Somalia, Rwanda and the The department endorsed the Charter of Democratic Republic of Congo. Fundamental Rights for Prisoners at the 11th UN About 100 commissioners and senior officials of Congress on Crime Prevention and Criminal Justice correctional and prisons services from 13 countries, in April 2005. It will continue to participate in attended.

417 Acknowledgements Justice & correctional services Beeld BuaNews Commission on Gender Equality Department of Correctional Services Department of Justice and Constitutional Development Estimates of National Expenditure 2006, published by National Treasury South African Law Reform Commission www.dcs.gov.za www.financialmail.co.za www.gov.za www.idasa.org.za www.southafrica.info

Suggested reading Ajibola, B and Van Zyl, D. The Judiciary in South Africa. Cape Town: Juta, 1998. Albertyn, C. et al. eds. Introduction to the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000). Johannesburg: Witwatersrand University Press, 2001. Altbeker, A. The Dirty Work of Democracy: A Year on the Streets with the SAPS. Johannesburg: Jonathan Ball, 2005. Andrews, P and Ellman, S. eds. The Post-Apartheid Constitution: Perspectives on South Africa’s Basic Law. Johannesburg: Witwatersrand University Press, 2001. Asmal, K, Asmal, L and Roberts, RS. Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance. 2nd ed. Cape Town: David Philip, 1997. Asmal, K, Chidester, D and Lubisi C. eds. Legacy of Freedom: The ANC’s Human Rights Tradition: Africans’ Claims in South Africa, the Freedom Charter, the Women’s Charter and Other Human Rights Landmarks of the African National Congress. Johannesburg: Jonathan Ball, 2005. Bell, T. Unfinished Business: South Africa, Apartheid and Truth. Observatory: Redworks, 2001. Bennett, TW. Customary Law in South Africa. Cape Town: Juta, 2004. Bezuidenhout, C, and Joubert, S. eds. Child and Youth Misbehaviour in South Africa: A Holistic View. Pretoria: Van Schaik, 2003. Burchell, J and Erasmus, A. Criminal Justice in a New Society: Essays in Honour of Solly Leeman. Cape Town: Juta, 2004. Chanock, M. The Making of South African Legal Culture, 1902 – 1936: Fear, Favour and Prejudice. Cambridge: University Press, 2001. Chubb, K and Van Dijk, L. Between Anger and Hope: South Africa’s Youth and the Truth and Reconciliation Commission. Johannesburg: Witwatersrand University Press, 2001. Coleman, M. ed. Crime Against Humanity: Analysing the Repression of the Apartheid State. Johannesburg: South African Human Rights Commission, Cape Town: David Philip, 1998. Cries Without Tears: An Anthology of Writings from Rehabilitating Offenders. Johannesburg: Corrective Action Holdings and Sandton: Sizwe, 1999. Doxater, E and Villa-Vicenco, C. eds. Repairing the Unforgivable: Reparations, Restoration and Renewal.Cape Town: David Philip, 2003. Doxater, E and Villa-Vicenco, C. eds. Provocation of Amnesty: Memory, Justice and Impunity. Cape Town: David Philip, 2003. Edelstein, J. Truth and Lies: Stories from the Truth and Reconciliation Commission in South Africa. Johannesburg: M&G Books, 2001. Gibson, JL. Overcoming Apartheid: Can Truth Reconcile a Divided Nation? Cape Town: Human Sciences Research Council (HSRC) Press, 2004. Glauber, I. The Death Penalty as a Deterrent. Johannesburg: The Author, 2004.

418 Goldstone, R. For Humanity: Reflections of a War Crimes Investigator. Johannesburg: Witwatersrand University Press, 2000. Grogan, J. Dismissal, Discrimination and Unfair Labour Practices. Cape Town: Juta, 2005. Gutto, S. Equality and Non-Discrimination in South Africa: The Political Economy of Law and Law-Making. Cape Town: New Africa Books, 2001. Hund, J. Witchcraft, Violence and the Law in South Africa. Pretoria: Protea, 2003. James, WG and Van de Vijver, L. eds. After the TRC: Reflections on Truth and Reconciliation. Cape Town: David Philip, 2000. Jeffrey, A. The Truth About the Truth Commission. Johannesburg: South African Institute of Race Relations, 1999. Krog, A. Country of My Skull. Johannesburg: Random House, 1998. Landis, H and Grossett L. Employment and the Law: A Practical Guide for the Workplace. Cape Town: Juta, 2005. 2nd ed. Lange, C and Wessels, J. The Right to Know: South Africa’s Promotion of Administrative Justice and Access to Information Acts. Cape Town: Siberink, 2004. Leggett, T. The Market for Drugs and Sex in South Africa. Cape Town: New David Philip Publishers, 2001. Lewis, D. Parliamentary Support Programme: A Review, 1996 – 2001. Cape Town: Parliamentary Support Programme, 2002. Lewis, S. Dealing with Rape. Johannesburg: Sached, 1997. Lobban, M. White Man’s Justice: South African Political Trials in the Black Consciousness Era. Oxford: Clarendon Press, 1996. Mamdani, M. ed. Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture. Cape Town: David Philip, 2000. McQuoid-Mason, D. ed. Street Law South Africa: Practical Law for South Africans. Cape Town: Juta, 2004. Murray, C and Nijzinky, L. Building Representative Democracy: South Africa’s Legislatures and the Constitution. Cape Town: Parliamentary Support Programme, 2002. Murray, J. The Law in South Africa: A Practical Guide. 5th ed. Gardenview: Legal and General Publishers, 2002. Ncube, W., ed. Law, Culture and Tradition: Children’s Rights in Eastern and Southern Africa. London: Ashgate, 1998. Ndima, D. The Law of Commoners and Kings: Narratives of a Rural Transkei Magistrate. Pretoria: Unisa Press, 2004. Ndung’u, S. The Right to Dissent: Freedom of Expression, Assembly and Demonstration in South Africa. Johannesburg: Freedom of Expression Institute, 2003. Oomen, B. Chiefs in South Africa: Law, Power and Culture in the Post-Apartheid Era. Pietermaritzburg: University of KwaZulu-Natal Press, 2005. Orr, W. From Biko to Basson: Wendy Orr’s Search for the Soul of South Africa as a Commissioner of the Truth and Reconciliation Commission. Johannesburg: Contra, 2000. Pistorius, M. Catch Me a Killer: Serial Murders: A Profiler’s True Story. Sandton: Penguin, 2000. Pistorius, M. Strangers on the Street: Serial Homicide in South Africa. Sandton: Penguin, 2002. Rautenbach, F. Liberating South African Labour from the Law. Cape Town: Tafelberg, 1999. Richter, L., et al. eds. Sexual Abuse of Young Children in Southern Africa. Pretoria: HSRC, 2004. Shaw, M. Crime and Policing in Post-Apartheid South Africa: Transforming Under Fire. Cape Town: David Philip, 2002. Sibanyoni, C., comp. Directory of Human Rights Organisations. Pretoria: HSRC, 1999. Steinberg, J. Farm Murders, Crime. Johannesburg: Jonathan Ball, 2002. Truth and Reconciliation Commission. Report. Cape Town: Juta, 1998. 3 vols. Truth and Reconciliation Commission of South Africa Report, vols 6 and 7. Cape Town: Juta, 2003. 2 vols. Tshiwula, L. Crime and Delinquency. Pretoria: Kagiso Publishers, 1998. Turrell, R. White Mercy: A Study of the Death Penalty in South Africa. Westport. Cape Town: Praeger, 2004. Vale, P. Security and Politics in South Africa: The Regional Dimension. Cape Town: University of Cape Town Press, 2003.

419 Van der Walt, J. Law and Sacrifice: Towards a Post-Apartheid Theory of Law. Johannesburg: Witwatersrand Justice & correctional services University Press, 2006. Villa-Vicencio, C and Verwoerd, W. Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. Cape Town: University of Cape Town Press, 2000.

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